Exhibit 10.1
ASSIGNMENT No. 23 OF RECEIVABLES IN ADDITIONAL ACCOUNTS,
(this "Assignment") dated as of November 1, 2002, by and between CHASE MANHATTAN
BANK USA, NATIONAL ASSOCIATION, a national banking corporation organized and
existing under the laws of the United States of America ("Chase USA"), and THE
BANK OF NEW YORK, a banking corporation organized and existing under the laws of
the State of New York (the "Trustee") pursuant to the Pooling and Servicing
Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Chase USA, as Transferor on and after June 1, 1996, JPMorgan
Chase Bank, as Transferor prior to June 1, 1996 and as Servicer, and the Trustee
are parties to the Third Amended and Restated Pooling and Servicing Agreement,
dated as of November 15, 1999, as amended by the First Amendment thereto dated
as of March 31, 2001 and the Second Amendment thereto dated as of March 1, 2002
(hereinafter as such agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, Chase USA
wishes to designate Additional Accounts of Chase USA to be included as Accounts
and to convey the Receivables of such Additional Accounts, whether now existing
or hereafter created, to the Trust as part of the corpus of the Trust (as each
such term is defined in the Pooling and Servicing Agreement); and
WHEREAS, the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, Chase USA and the Trustee hereby agree as follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings
when used herein, unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional
Accounts designated hereby, November 1, 2002.
"Notice Date" shall mean, with respect to the Additional
Accounts designated hereby, October 11, 2002.
2. Designation of Additional Accounts. Chase USA shall deliver
to the Trustee not later than five Business Days after the Addition
Date, a computer file or microfiche list containing a true and complete
list of each MasterCard and VISA account which as of the Addition Date
shall be deemed to be an Additional Account, such accounts being
identified by account number and by the amount of Receivables in such
accounts as of the close of business on the Addition Date. Such list
shall be delivered five Business Days after the date of this Assignment
and shall be marked as Schedule 1 to this Assignment and, as of the
Addition Date, shall be incorporated into and made a part of this
Assignment.
3. Conveyance of Receivables.
X. Xxxxx USA does hereby transfer, assign, set-over and
otherwise convey to the Trustee on behalf of the Trust for the benefit
of the Certificateholders, without recourse on and after the Addition
Date, all right, title and interest of Chase USA in and to the
Receivables now existing and hereafter created in the Additional
Accounts designated hereby, all monies due or to become due with
respect thereto (including all Finance Charge Receivables) and all
proceeds of such Receivables, Recoveries, Interchange, Insurance
Proceeds relating to such Receivables and the proceeds of any of the
foregoing.
B. In connection with such transfer, Chase USA agrees to
record and file, at its own expense, a financing statement with respect
to the Receivables now existing and hereafter created in the Additional
Accounts designated hereby (which may be a single financing statement
with respect to all such Receivables) for the transfer of accounts as
defined in Section 9-102 of the UCC as in effect in the State of New
York meeting the requirements of applicable state law in such manner
and such jurisdictions as are necessary to perfect the assignment of
such Receivables to the Trustee on behalf of the Trust for the benefit
of the Certificateholders (the "Secured Party"), and to deliver a
file-stamped copy of such financing statement or other evidence of such
filing (which may, for purposes of this Section 3, consist of telephone
confirmation of such filing) to the Trustee on or prior to the date of
this Assignment.
C. It is the intention of the parties hereto that all
transfers of Receivables to the Trust pursuant to this Assignment be
subject to, and be treated in accordance with, the Delaware Act and
each of the parties hereto agrees that this Assignment has been entered
into by the parties hereto in express reliance upon the Delaware Act.
For purposes of complying with the requirements of the Delaware Act,
each of the parties hereto hereby agrees that any property, assets or
rights purported to be transferred, in whole or in part, by Chase USA
pursuant to this Assignment shall be deemed to no longer be the
property, assets or rights of Chase USA. The parties hereto acknowledge
and agree that each such transfer is occurring in connection with a
"securitization transaction" within the meaning of the Delaware Act.
D. In connection with such transfer, Chase USA further agrees,
at its own expense, on or prior to the date of this Assignment to
indicate in its computer files that Receivables created in connection
with the Additional Accounts designated hereby have been transferred to
the Trust pursuant to this Assignment for the benefit of the
Certificateholders.
X. Xxxxx USA hereby grants to the Secured Party a security
interest in all of Chase USA's right, title and interest in, to and
under the Receivables now existing and hereafter created in the
Additional Accounts designated hereby, all monies due or to become due
with respect to such Receivables, Insurance Proceeds relating to such
Receivables, Recoveries, Interchange and the proceeds to any of the
foregoing to secure a loan in an amount equal to the unpaid principal
amount of the Investor Certificates issued or to be issued pursuant to
the Pooling and Servicing Agreement and the interests accrued at the
related Certificate Rates, and this Assignment shall constitute a
security agreement under applicable law. Chase USA shall execute
continuation statements and provide other further assurances to
maintain the perfection and priority of such security interest of the
Secured Party.
4. Acceptance by Trustee. The Trustee hereby acknowledges its
acceptance on behalf of the Trust for the benefit of the
Certificateholders of all right, title and interest previously held by
Chase USA in and to the Receivables now existing and hereafter created,
and declares that it shall maintain such right, title and interest,
upon the Trust herein set forth, for the benefit of all
Certificateholders.
5. Representations and Warranties of Chase USA. Chase USA
hereby represents and warrants to the Secured Party as of the Addition
Date:
A. Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of Chase USA
enforceable against Chase USA in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
general and the rights of creditors of banking associations and except
as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
B. Eligibility of Accounts and Receivables. Each Additional
Account designated hereby is an Eligible Account and each Receivable in
such Additional Account is an Eligible Receivable.
C. Selection Procedures. No selection procedures believed by
Chase USA to be materially adverse to the interests of the Investor
Certificateholders were utilized in selecting the Additional Accounts
designated hereby from the available Eligible Accounts in the Bank
Portfolio.
D. Insolvency. Chase USA is not insolvent and, after giving
effect to the conveyance set forth in Section 3 of this Assignment,
will not be insolvent.
E. Transfer. This Assignment constitutes either: (i) a valid
transfer and assignment to the Trust of all right, title and interest
of Chase USA in and to Receivables now existing and hereafter created
in the Additional Accounts designated hereby, and all proceeds (as
defined in the UCC) of such Receivables and Insurance Proceeds relating
thereto, and such Receivables and any proceeds thereof and Insurance
Proceeds relating thereto will be held by the Secured Party free and
clear of any Lien of any Person claiming through or under Chase USA or
any of its Affiliates except for (x) Liens permitted under subsection
2.5(b) of the Pooling and Servicing Agreement, (y) the interest of the
holder of the Transferor Certificate and (z) Chase USA's right to
receive interest accruing on, and investment earnings in respect of,
the Finance Charge Account and the Principal Account as provided in the
Pooling and Servicing Agreement; or (ii) a valid and continuing
security interest (as defined in the UCC) in the Receivables now
existing or hereafter created in the Additional Accounts in favor of
the Secured Party, the proceeds (as defined in the UCC) thereof and
Insurance Proceeds relating thereto, upon the conveyance of such
Receivables to the Trust, which security interest is prior to all other
Liens, and is enforceable against creditors of and purchasers from
Chase USA, and which will be enforceable with respect to the
Receivables thereafter created in respect of Additional Accounts
designated hereby, the proceeds (as defined in the UCC) thereof and
Insurance Proceeds relating thereto, upon such creation; and (iii) if
this Assignment constitutes the grant of a security interest to the
Secured Party in such property, upon the filing of a financing
statement described in Section 3 of this Assignment with respect to the
Additional Accounts designated hereby and in the case of the
Receivables of such Additional Accounts thereafter created and the
proceeds (as defined in the UCC) thereof, and Insurance Proceeds
relating to such Receivables, upon such creation, the Secured Party
shall have a first priority perfected security interest in such
property (subject to Section 9-315 the UCC as in effect in the State of
Delaware), except for Liens permitted under subsection 2.5(b) of the
Pooling and Servicing Agreement. Chase USA has caused or will have
caused, within ten days, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions
under applicable law in order to perfect the security interest in the
Receivables granted to the Secured Party hereunder. The Receivables
constitute "accounts" within the meaning of the applicable UCC.
F. Other Liens. Other than the security interest granted to
the Secured Party pursuant to this Assignment, Chase USA has not
pledged, assigned, sold, granted a security interest in, or otherwise
conveyed any of the Receivables. Chase USA has not authorized the
filing of and is not aware of any financing statements against Chase
USA that include a description of collateral covering the Receivables
other than any financing statement (i) relating to the security
interest granted to the Secured Party hereunder, (ii) that has been
terminated,.6 or (iii) that names The Bank of New York as secured
party. Chase USA is not aware of any judgment or tax lien filings
against Chase USA. Chase USA owns and has good and marketable title to
the Receivables free and clear of any Lien, claim or encumbrance of any
Person.
G. Breach of Representations and Warranties. The provision set
forth in Section 2.4(d) of the Pooling and Servicing Agreement shall be
applicable to any breach of the representations and warranties of this
Section 5 with respect to any Receivable.
6. Conditions Precedent. The acceptance by the Trustee set
forth in Section 4 and the amendment of the Pooling and Servicing
Agreement set forth in Section 7 are subject to the satisfaction, on or
prior to the Addition Date, of the following conditions precedent:
A. Officer's Certificate. Chase USA shall have
delivered to the Trustee a certificate of a Vice President or
more senior officer substantially in the form of Schedule 2
hereto, certifying that (i) all requirements set forth in
Section 2.6 of the Pooling and Servicing Agreement for
designating Additional Accounts and conveying the Principal
Receivables of such Account, whether now existing or hereafter
created, have been satisfied and (ii) each of the
representations and warranties made by Chase USA in Section 5
is true and correct as of the Addition Date. The Trustee may
conclusively rely on such Officer's Certificate, shall have no
duty to make inquiries with regard to the matters set forth
therein, and shall incur no liability in so relying.
B. Opinion of Counsel. Chase USA shall have delivered
to the Trustee an Opinion of Counsel with respect to the
Additional Accounts designated hereby substantially in the
form of Exhibit E to the Pooling and Servicing Agreement.
7. Amendment of the Pooling and Servicing Agreement. The
Pooling and Servicing Agreement is hereby amended to provide that all
references therein to the "Pooling and Servicing Agreement," to "this
Agreement" and "herein" shall be deemed from and after the Addition
Date to be a dual reference to the Pooling and Servicing Agreement as
supplemented by this Assignment and by Assignment No. 1 of Receivables
in Additional Accounts, dated as of July 1, 1996, Assignment No. 2 of
Receivables in Additional Accounts, dated as of September 1, 1996,
Assignment No.3 of Receivables in Additional Accounts, dated as of
December 1, 1997, Assignment No. 4 of Receivables in Additional
Accounts, dated as of February 1, 1998, Assignment No. 5 of Receivables
in Additional Accounts, dated as of April 1, 1998, Assignment No. 6 of
Receivables in Additional Accounts, dated as of August 1, 1998,
Assignment No. 7 of Receivables in Additional Accounts, dated as of
November 1, 1998, Assignment No. 8 of Receivables in Additional
Accounts, dated as of February 1, 1999, Assignment No. 9 of Receivables
in Additional Accounts, dated as of April 1, 1999, Assignment No. 10 of
Receivables in Additional Accounts, dated as of July 1, 1999,
Assignment No. 11 of Receivables in Additional Accounts, dated as of
October 1, 1999, Assignment No. 12 of Receivables in Additional
Accounts, dated as of February 1, 2000, Assignment No. 13 of
Receivables in Additional Accounts, dated as of April 1, 2000,
Assignment No. 14 of Receivables in Additional Accounts, dated as of
May 1, 2000, Assignment No. 15 of Receivables in Additional Accounts,
dated as of August 1, 2000, Assignment No. 16 of Receivables in
Additional Accounts, dated as of July 1, 2001, Assignment No. 17 dated
as of September 1, 2001, Assignment No. 18 of Receivables in Additional
Accounts, dated as of November 1, 2001, Assignment No. 19 of
Receivables in Additional Accounts, dated as of March 6, 2002,
Assignment No. 20 of Receivables in Additional Accounts, dated as of
April 1, 2002, Assignment No. 21 of Receivables in Additional Accounts,
dated as of May 1, 2002, Assignment No. 22 of Receivables in Additional
Accounts, dated as of September 1, 2002, Reassignment No. 1 of
Receivables in Removed Accounts, dated as of September 30, 1997 and
Reassignment No. 2 of Receivables in Removed Accounts, dated as of
December 1, 1997. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions to the
Pooling and Servicing Agreement shall remain un-amended and shall
continue to be, and shall remain, in full force and effect in
accordance with its terms and except as expressly provided herein shall
not constitute or be deemed to constitute a waiver of compliance with
or a consent to noncompliance with any term or provisions of the
Pooling and Servicing Agreement.
8. Survival. The representations, warranties and covenants of
the parties hereto shall survive the assignment of the Receivables
pursuant to this Assignment and the termination of this Assignment, and
shall inure to the benefit of the Trust. Notwithstanding to the
contrary in this Assignment, the representations and warranties of the
Chase USA herein shall not survive after the tenth (10th) anniversary
of the Addition Date.
9. Waivers and Amendments. This Assignment may be amended,
superseded, canceled, renewed or extended and the terms hereof may be
waived, only by a written instrument signed by authorized
representatives of the parties or, in the case of a waiver, by an
authorized representative of the party waiving compliance and, in all
cases, subject to confirmation by each Rating Agency then rating any
Investor Certificates. No such written instrument shall be effective
unless it expressly recites that it is intended to amend, supersede,
cancel, renew or extend this Assignment or to waive compliance with one
or more of the terms hereof, as the case may be. No delay on the part
of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any such right, power or privilege, or any single or
partial exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power
or privilege.
10. Counterparts. This Assignment may be executed in two or
more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall
constitute one and the same instrument.
11. GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY,
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
12. Tax Treatment. Nothing in this Assignment shall be deemed
to require any securitization transaction involving the Receivables to
be treated as a sale for federal or state income tax purposes or to
preclude treatment of any such securitization transaction as debt for
federal or state income tax purposes.
IN WITNESS WHEREOF, the undersigned have caused this
Assignment of Receivables in Additional Accounts to be duly executed
and delivered by their respective duly authorized officers on the day
and year first above written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxx Xxxxxxx
--------------------------------
Name: Xxx Xxxxxxx
Title: Assistant Treasurer
Schedule 1
to Assignment of
Receivables in
Additional Accounts
ADDITIONAL ACCOUNTS
Exhibit A
OFFICER'S CERTIFICATE OF
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
I, Xxxxx X. Xxxxxx, certify, as of this 1st day of November, 2002:
Capitalized terms used in this Certificate have the same meaning as
defined in the Opinion dated the same date as this Certificate from Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP ("Skadden") to which this Certificate is
attached.
I am a duly elected and acting Chief Financial Officer and Controller
of Chase Manhattan Bank USA, National Association (the "Bank").
This Certificate is being delivered to and may be relied upon by
Skadden in connection with the opinion of counsel with respect to a true sale of
the Receivables (the "Opinion") to be rendered by Skadden in connection with the
Assignment. I understand that Skadden will rely upon the facts, opinions, and
beliefs set forth in this Certificate and that the Opinion is premised upon the
truth and accuracy of the facts, opinions, and beliefs set forth in this
Certificate.
I am familiar with the business and books and records of the Bank, the
Bank's relations with its creditors, and the transactions and other factual
matters described in the Opinion and in this Certificate. I have made such
investigations and inquiries (including, without limitation, of personnel and
employees having familiarity with such transactions and factual matters) as may
be necessary to enable me to attest to the matters set forth in this Certificate
and to execute and deliver this Certificate.
I have carefully reviewed the Opinion in its entirety and the
statements contained in this Certificate. I have had the opportunity to ask
questions about the Opinion and matters set forth in this Certificate. I certify
that (1) each factual statement contained in the first four paragraphs of the
Facts and Assumptions section of the Opinion and in this Certificate relating to
the Bank is, to the best of my knowledge (based on the investigations and
inquiries described above), true and correct and does not fail to state a
material fact the omission of which makes the statement as it appears incomplete
or misleading, and (2) each assumption contained in paragraphs A through D in
the Facts and Assumptions section of the Opinion is, to
A-1
the best of my knowledge (based on the investigations and inquiries described
above), true and correct and does not fail to state a material fact the omission
of which makes the assumption as it appears incomplete or misleading
/s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer and Controller
B-2
OFFICER'S CERTIFICATE OF
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
The undersigned, being Chief Financial Officer and Controller of Chase
Manhattan Bank USA, National Association, a national banking association
organized under the laws of the United States ("Chase USA"), as Transferor under
the Third Amended and Restated Pooling and Servicing Agreement dated as of
November 15, 1999, as amended by the First Amendment thereto dated as of March
31, 2001 and as amended by the Second Amendment thereto dated as of March 1,
2002 (as so amended the "Agreement"), each among Chase USA, as Transferor on and
after June 1, 1996, JPMorgan Chase Bank, as Transferor prior to June 1, 1996 and
as Servicer, and The Bank of New York, as Trustee (the "Trustee"), and in
connection with the execution of Assignment No. 23 of Receivables in Additional
Accounts, dated as of November 1, 2002 (the "Assignment"), between Chase USA, as
Transferor, and the Trustee hereby represents and warrants to the Trustee that
as of November 1, 2002 (capitalized terms used but not defined herein shall have
the meanings provided in the Agreement and the Assignment):
(1) all requirements set forth in Section 2.6 of the Agreement for
designating Additional Accounts and conveying the Principal Receivables of such
Account, whether now existing or hereafter created, have been satisfied and
(2) each of the representations and warranties made by Chase USA in
Section 5 of the Assignment is true and correct as of the Addition Date.
/s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
and Controller
