EXHIBIT 4.13
CHASE ISSUANCE TRUST
AMENDED AND RESTATED
TRANSFER AND SERVICING AGREEMENT
among
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
Transferor, Servicer and Administrator
and
CHASE ISSUANCE TRUST,
Issuer
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Indenture Trustee and Collateral Agent
Dated as of October 15, 2004
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
Section 1.01 Definitions............................................................................1
Section 1.02 Other Definitional Provisions.........................................................15
ARTICLE II CONVEYANCE OF COLLATERAL
Section 2.01 Conveyance of Collateral..............................................................17
Section 2.02 Acceptance by Trust...................................................................18
Section 2.03 Representations and Warranties of Each Transferor Relating to Such Transferor.........19
Section 2.04 Representations and Warranties of each Transferor Relating to this Agreement
and any Series Supplement and the Collateral..........................................21
Section 2.05 Transfer of Ineligible Receivables and Ineligible Collateral Certificates.............25
Section 2.06 Reassignment of Collateral............................................................27
Section 2.07 Additional Transferors................................................................29
Section 2.08 Covenants of each Transferor..........................................................29
Section 2.09 Covenants of Each Transferor with Respect to Any Applicable Receivables
Purchase Agreement....................................................................30
Section 2.10 [Reserved]............................................................................30
Section 2.11 Increases in the Invested Amount of an Existing Collateral Certificate................31
Section 2.12 Addition of Collateral................................................................31
Section 2.13 Removal of Accounts...................................................................35
Section 2.14 Account Allocations...................................................................37
Section 2.15 Discount Receivables..................................................................38
ARTICLE III COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.01 Collections and Allocations...........................................................40
Section 3.02 Allocations of Finance Charge Collections, the Default Amount and the Trust
Servicing Fee.........................................................................41
Section 3.03 Allocations of Principal Collections..................................................41
Section 3.04 Allocations of Finance Charge Collections, the Default Amount, the Servicing Fee
and Principal Collections Allocable to the Transferor Interest of an Asset Pool.......41
Section 3.05 Transfer of Defaulted Accounts........................................................42
Section 3.06 Adjustments for Miscellaneous Credits and Fraudulent Charges..........................42
Section 3.07 Recoveries and Interchange............................................................43
ARTICLE IV SERVICING OF RECEIVABLES
Section 4.01 Acceptance of Appointment and Other Matters Relating to the Servicer..................45
Section 4.02 Servicing Compensation................................................................46
Section 4.03 Representations, Warranties and Covenants of the Servicer.............................47
Section 4.04 Reports and Records for the Owner Trustee, the Indenture Trustee and the
Applicable Collateral Agent...........................................................48
Section 4.05 Annual Certificate of Servicer........................................................49
Section 4.06 Annual Servicing Report of Independent Certified Public Accountants; Copies of
Reports Available.....................................................................49
Section 4.07 Tax Treatment.........................................................................50
Section 4.08 Notices to Chase USA..................................................................51
Section 4.09 Reports to the Commission.............................................................51
ARTICLE V ADMINISTRATION OF THE TRUST; DUTIES OF THE ADMINISTRATOR
Section 5.01 Appointment of Administrator; Duties of Administrator.................................52
Section 5.02 Records...............................................................................57
Section 5.03 Compensation..........................................................................57
Section 5.04 Additional Information To Be Furnished to Issuer......................................57
Section 5.05 Independence of Administrator.........................................................58
Section 5.06 No Joint Venture......................................................................58
Section 5.07 Other Activities of Administrator.....................................................58
Section 5.08 Termination, Resignation and Removal of Administrator.................................58
Section 5.09 Action upon Termination, Resignation or Removal.......................................59
ARTICLE VI OTHER MATTERS RELATING TO EACH TRANSFEROR
Section 6.01 Liability of each Transferor..........................................................60
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of, a Transferor.........60
Section 6.03 Limitations on Liability of Each Transferor...........................................61
ARTICLE VII OTHER MATTERS RELATING TO THE SERVICER
Section 7.01 Liability of the Servicer.............................................................62
Section 7.02 Merger or Consolidation of, or Assumption of the Obligations of, the Servicer.........62
Section 7.03 Limitation on Liability of the Servicer and Others....................................62
Section 7.04 Servicer Indemnification of the Trust, the Owner Trustee and the Indenture Trustee....63
Section 7.05 Resignation of the Servicer...........................................................64
Section 7.06 Delegation of Duties..................................................................64
Section 7.07 Examination of Records................................................................65
ARTICLE VIII ACQUISITION OF TRUST ASSETS
Section 8.01 Acquisition of Trust Assets...........................................................66
ARTICLE IX INSOLVENCY EVENTS
Section 9.01 Rights upon the Occurrence of an Insolvency Event.....................................67
ARTICLE X SERVICER DEFAULTS
Section 10.01 Servicer Defaults.....................................................................68
Section 10.02 Indenture Trustee To Act; Appointment of Successor....................................70
Section 10.03 Notification to Noteholders...........................................................71
Section 10.04 Waiver of Past Defaults...............................................................72
ARTICLE XI TERMINATION
Section 11.01 Termination of Agreement..............................................................73
ARTICLE XII MISCELLANEOUS PROVISIONS
Section 12.01 Amendment; Waiver of Past Defaults....................................................74
Section 12.02 Protection of Right, Title and Interest in and to Trust Assets........................75
Section 12.03 Fees Payable by the Transferor........................................................76
Section 12.04 GOVERNING LAW.........................................................................77
Section 12.05 Notices; Payments.....................................................................77
Section 12.06 Severability of Provisions............................................................78
Section 12.07 Further Assurances....................................................................79
Section 12.08 No Waiver; Cumulative Remedies........................................................79
Section 12.09 Counterparts..........................................................................79
Section 12.10 Third-Party Beneficiaries.............................................................79
Section 12.11 Actions by Noteholders................................................................79
Section 12.12 Rule 144A Information.................................................................79
Section 12.13 Merger and Integration................................................................80
Section 12.14 Headings 80
Section 12.15 Limitation of Liability...............................................................80
Section 12.16 No Petition...........................................................................80
EXHIBITS
EXHIBIT A-1 Form of Assignment of Collateral Certificates
EXHIBIT A-2 Form of Assignment of Receivables in Additional Accounts
EXHIBIT B Form of Reassignment of Receivables in Removed Accounts
EXHIBIT C Form of Annual Servicer's Certificate
EXHIBIT D-1 Form of Opinion of Counsel with Respect to Amendments
EXHIBIT D-2 Form of Opinion of Counsel with Respect to Collateral Certificates
EXHIBIT D-3 Provisions to be Included in Annual Opinion of Counsel
EXHIBIT E Form of Power of Attorney
This AMENDED AND RESTATED TRANSFER AND SERVICING AGREEMENT among
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, a national banking association,
as Transferor, Servicer and Administrator, the CHASE ISSUANCE TRUST, a
statutory business trust created under the laws of the State of Delaware, as
Issuer, and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association, as Indenture Trustee and Collateral Agent, is made and entered
into as of October 15, 2004.
RECITALS
WHEREAS, the parties hereto have heretofore executed and delivered
a Transfer and Servicing Agreement, dated as of May 1, 2002 (as amended,
supplemented or otherwise modified, the "Original Transfer and Servicing
Agreement ");
WHEREAS, the predecessor to Chase Manhattan Bank USA, National
Association, the Issuer and the Indenture Trustee have heretofore executed and
delivered a Transfer and Servicing Agreement, dated as of May 1, 2002 (as
amended and supplemented or otherwise modified through the date hereof,
including by the Assumption Agreement, dated as of October 1, 2004, by Chase
Manhattan Bank USA, National Association, a national banking association, as
successor Transferor, Servicer and Administrator, in favor of and for the
benefit of the Issuer, the Indenture Trustee and the Collateral Agent, the
"Transfer and Servicing Agreement");
WHEREAS, the parties hereto desire to amend and restate the
Original Transfer and Servicing Agreement to read in its entirety as set forth
below;
WHEREAS, all conditions precedent to the execution of this Transfer
and Servicing Agreement have been complied with;
NOW, THEREFORE, the parties hereto hereby agree that effective on
and as of the date hereof, the Original Transfer and Servicing Agreement is
hereby amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases shall have the following meanings, and the
definitions of such terms are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such terms.
"Account" means each consumer revolving credit card account
established pursuant to a Credit Card Agreement between Chase USA or an
Affiliate and any Person, identified by account number and by the Receivable
balance as of each Addition Cut Off Date in each computer file delivered to the
applicable Collateral Agent, as designee of the Issuer, by the applicable
Transferor pursuant to subsection 2.12(c). The definition of "Account" shall
include each Transferred Account. The term "Account" shall be deemed to refer
to an Additional Account only from and after the Addition Date with respect
thereto, and the term "Account" shall be deemed to refer to any Removed Account
only prior to the Removal Date with respect thereto.
"Account Assignment" has the meaning specified in subsection
2.12(c)(iv).
"Account Owner" means Chase USA or any Affiliate which is the
issuer of the credit card relating to an Account pursuant to a Credit Card
Agreement.
"Addition Cut Off Date" means each date as of which Additional
Accounts will be selected to be included as Accounts pursuant to Section 2.12.
"Addition Date" has the meaning specified in subsection 2.12(a)(i).
"Additional Account" means each additional Eligible Account owned
by an Account Owner and designated for inclusion as an Account pursuant to
Section 2.12.
"Additional Collateral Certificate" means each additional
Collateral Certificate designated for inclusion as a Collateral Certificate by
the applicable Transferor to the Trust pursuant to Section 2.12.
"Additional Transferors" has the meaning specified in Section 2.07.
"Adjustment Payment" has the meaning specified in subsection
3.06(a).
"Administrator" means Chase USA, in its capacity as Administrator
pursuant to this Agreement, and any successors or assigns.
"Aggregate Addition Limit" means, with respect to any Asset Pool,
the aggregate number of Additional Accounts that may be designated as belonging
to such Asset Pool without prior satisfaction of the Note Rating Agency
Condition, equal to the aggregate number of Additional Accounts which would
either (x) with respect to any consecutive three-month period, equal 15% of the
aggregate number of Accounts designated for inclusion in such Asset Pool as of
the first day of such three-month period or (y) with respect to any
twelve-month period, equal 20% of aggregate number of Accounts as of the first
day of such twelve-month period.
"Agreement" means this Amended and Restated Transfer and Servicing
Agreement.
"Amendment Closing Date" means October 15, 2004.
"Annual Membership Fee" has the meaning specified in the Credit
Card Agreement applicable to each Account for annual membership fees or similar
fees.
"Appointment Day" has the meaning specified in Section 9.01.
"Authorized Officer" means, with respect to the Issuer, (a) an
authorized signatory of the Owner Trustee, or (b) the chairman or vice-chairman
of the board of directors, chairman or vice-chairman of the executive committee
of the board of directors, the president, any vice-president, the secretary,
any assistant secretary, the treasurer, or any assistant treasurer, in each
case of the Owner Trustee, or any other officer or employee of the Owner
Trustee who is authorized to act on behalf of the Issuer.
"Cash Advance Fees" has the meaning specified in the Credit Card
Agreement applicable to each Account for cash advance fees or similar fees.
"Certificate Assignment" has the meaning specified in subsection
2.12(c)(v).
"Chase Collateral Certificate" means the Collateral Certificate
issued by the Chase Credit Card Master Trust pursuant to the Series 2004-[ ]
Supplement to the Chase Credit Card Master Trust Pooling and Servicing
Agreement.
"Chase Credit Card Master Trust Pooling and Servicing Agreement"
means 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, the Second Amendment thereto, dated as of March 1, 2002, the
Third Amendment thereto, dated July 15, 2004, and the Fourth Amendment thereto,
dated October 15, 2004, each among Chase USA, as transferor on and after June
1, 1996 and as servicer, JPMorgan Chase Bank, as transferor prior to June 1,
1996, and The Bank of New York, as trustee of the Chase Credit Card Master
Trust, as amended and supplemented, including by the Series 2004-[ ] Supplement
thereto.
"Collateral" has, with respect to any Asset Pool, the meaning
specified in the Granting Clause in the applicable Asset Pool Supplement for
such Asset Pool.
"Collateral Agent" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement.
"Collateral Certificate Principal Shortfall Payments" means amounts
received on each Collateral Certificate in respect of Principal Shortfalls (as
such term is defined in the applicable Series Supplement).
"Collection Account" has, with respect to each Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"Collections" means, with respect to any Asset Pool, for any
Monthly Period, the sum of (i) with respect to Receivables designated for
inclusion in such Asset Pool, all payments by or on behalf of Obligors received
in respect of the Receivables, in the form of cash, checks, wire transfers,
electronic transfers, ATM transfers or any other form of payment in accordance
with a Credit Card Agreement in effect from time to time and all other amounts
specified by this Agreement, the Indenture or any Indenture Supplement as
constituting Collections on the Receivables and (ii) with respect to any
Collateral Certificate designated for inclusion in such Asset Pool, collections
allocable to the holder of such Collateral Certificate pursuant to the
applicable Series Supplement. Collections of Recoveries will be treated as
Collections of Principal Receivables; provided, however, that to the extent the
amount of Recoveries received with respect to any Monthly Period exceeds the
aggregate amount of Principal Receivables (other than Ineligible Receivables)
in Accounts that became Defaulted Accounts during such Monthly Period, the
amount of such excess shall be treated as Collections of Finance Charge
Receivables. Collections, with respect to any Asset Pool, for any Monthly
Period, shall include the Interchange Amount, if any, with respect to such
Asset Pool for such Monthly Period, to be applied as if such amount were
Collections of Finance Charge Receivables for such Monthly Period.
"Credit Adjustment" has the meaning specified in subsection 3.06(a).
"Credit Card Agreement" means, with respect to a consumer revolving
credit card account, the agreement and Federal Truth in Lending Statement for
consumer revolving credit card accounts between the Account Owner and the
Obligor governing the terms and conditions of such account, as such agreements
may be amended, modified or otherwise changed from time to time and as
distributed (including any amendments and revisions thereto) to holders of such
credit card account.
"Credit Card Guidelines" means the respective policies and
procedures of the Account Owner, as the case may be, as such policies and
procedures may be amended from time to time, (a) relating to the operation of
its credit card business, which generally are applicable to its portfolio of
consumer revolving credit card accounts and in each case which are consistent
with prudent practice, including the policies and procedures for determining
the creditworthiness of credit card customers and the extension of credit to
credit card customers, and (b) relating to the maintenance of consumer
revolving credit card accounts and collection of credit card receivables.
"Cut Off Date" means, with respect to an Initial Account, the
"Additional Cut Off Date" specified in the related Initial Account Assignment
and, with respect to an Additional Account, the Additional Cut Off Date for
such Additional Account.
"Date of Processing" means, with respect to any transaction the
date on which such transaction is first recorded on the Servicer's computer
file of accounts (without regard to the effective date of such recordation).
"Default Amount" means, with respect to any Asset Pool, for any
Monthly Period, the sum of (1) with respect to Receivables designated for
inclusion in such Asset Pool, an amount (which shall not be less than zero)
equal to (a) the aggregate amount of Principal Receivables (other than
Ineligible Receivables) in Accounts designated for inclusion in such Asset Pool
which became Defaulted Accounts during such Monthly Period on the day each such
Account became a Defaulted Account, minus (b) the aggregate amount of
Recoveries received in such Monthly Period (not to exceed the amount set forth
in clause (a)) in respect of Defaulted Accounts in such Asset Pool for such
Monthly Period and (2) with respect to any Collateral Certificate designated
for inclusion in such Asset Pool, the investor default amount or similar amount
allocated to the holder of the Collateral Certificate for such Monthly Period
pursuant to the applicable Series Supplement.
"Defaulted Account" means each Account with respect to which, in
accordance with the Credit Card Guidelines or the Servicer's customary and
usual servicing procedures for servicing credit card receivables comparable to
the Receivables, the Servicer has charged off the Receivables in such Account
as uncollectible; an Account shall become a Defaulted Account on the day on
which such Receivables are recorded as charged off as uncollectible on the
Servicer's computer master file of consumer revolving credit card accounts.
Notwithstanding any other provision hereof, any Receivables in a Defaulted
Account that are Ineligible Receivables shall be treated as Ineligible
Receivables rather than Receivables in Defaulted Accounts.
"Delaware Act" means the Asset-Backed Securities Facilitation Act
located in Title 6, Chapter 27A of the Delaware Code.
"Derivative Agreement" has, with respect to any Series, Class or
Tranche of Notes, the meaning specified in the Indenture.
"Determination Date" has the meaning specified in the applicable
Asset Pool Supplement.
"Discount Option Date" has the meaning specified in subsection
2.15(a) hereof.
"Discount Receivables" means, with respect to any Asset Pool, the
Gross Principal Receivables so designated as such pursuant to the designation
formula as described in subsection 2.15(a). The aggregate amount of Discount
Receivables outstanding on any Date of Processing occurring on or after the
Discount Option Date, shall equal the sum of (a) the aggregate Discount
Receivables at the end of the prior Date of Processing (which amount, prior to
the Discount Option Date, shall be zero) plus (b) any new Discount Receivables
created on such Date of Processing minus (c) any Discount Receivables
Collections received on such Date of Processing. Discount Receivables created
on any Date of Processing shall mean the product of the amount of the Gross
Principal Receivables arising in Accounts on such Date of Processing specified
in accordance with subsection 2.15(a) and the applicable Yield Factor.
"Discount Receivables Collections" means, with respect to any Asset
Pool, on any Date of Processing occurring in any Monthly Period succeeding the
Monthly Period in which the Discount Option Date occurs, the product of (a) the
Yield Factor and (b) Collections of Gross Principal Receivables outstanding in
such Asset Pool on such Date of Processing.
"Dollars," "$" or "U.S. $" means United States dollars.
"Eligible Account" means a consumer revolving credit card account
owned by an Account Owner which meets the following requirements as of the
Addition Cut Off Date:
(a) is a consumer revolving credit card account in existence and
maintained with an Account Owner;
(b) is payable in Dollars;
(c) has an Obligor who has provided, as his or her most recent
billing address, an address located in the United States or its territories or
possessions or a military address;
(d) has an Obligor who has not been identified by the Servicer in
its computer files as being involved in a voluntary or involuntary bankruptcy
proceeding;
(e) has not been classified by the Servicer as cancelled,
counterfeit, deleted, fraudulent, stolen or lost;
(f) does not have Receivables which are at the time of transfer
sold or pledged to any other party;
(g) which has not been charged-off by the Servicer in its customary
and usual manner for charging-off accounts as of their date of designation for
inclusion in the Trust; and
(h) has an Obligor who has not been identified by the Servicer as
being deceased.
"Eligible Collateral Certificate" means a Collateral Certificate
that has been duly authorized by the applicable Transferor and validly issued
by the applicable Master Trust and is entitled to the benefits of the
applicable Pooling and Servicing Agreement and with respect to which the
representations and warranties made in subsections 2.04(a)(ii), (iii), (iv),
(v), (vii) and (viii) are true and correct in all material respects.
"Eligible Receivable" means each Receivable:
(a) which has arisen in an Eligible Account (as of the relevant
Addition Cut Off Date);
(b) which was created in compliance in all material respects with
all Requirements of Law applicable to the institution which owned such
Receivable at the time of its creation and pursuant to a Credit Card Agreement
which complies in all material respects with all Requirements of Law applicable
to the applicable Account Owner, as the case may be;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given in connection with the
creation of such Receivable or the execution, delivery and performance by the
applicable Account Owner, as the case may be, of the Credit Card Agreement
pursuant to which such Receivable was created, have been duly obtained,
effected or given and are in full force and effect;
(d) as to which at the time of the transfer of such Receivable to
the Trust, the applicable Transferor or the Trust has good and marketable title
thereto, free and clear of all Liens occurring under or through such applicable
Transferor or any of its Affiliates (other than Liens permitted pursuant to
subsection 2.04(a)(v));
(e) which is the legal, valid and binding payment obligation of the
Obligor thereon enforceable against such Obligor 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 except
as such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity);
(f) which constitutes an "account" under and as defined in Article
9 of the UCC; and
(g) which is not subject to any setoff, right of rescission,
counterclaim, or other defense, including the defense of usury, other than
defenses arising out of applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting the enforcement of creditors'
rights in general.
"Eligible Servicer" means Chase USA or the Indenture Trustee or, if
neither Chase USA nor the Indenture Trustee is acting as Servicer, an entity
which, at the time of its appointment as Servicer, (a) is servicing a portfolio
of consumer revolving credit card accounts, (b) is legally qualified and has
the capacity to service the Accounts, (c) in the sole determination of the
Indenture Trustee, which determination shall be conclusive and binding, has
demonstrated the ability to service professionally and competently a portfolio
of similar accounts in accordance with high standards of skill and care, (d) is
qualified to use the software that is then being used to service the Accounts
or obtains the right to use or has its own software which is adequate to
perform its duties under this Agreement and (e) has a net worth of at least
$50,000,000 as of the end of its most recent fiscal quarter.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Excess Funding Account" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"Finance Charge Collections" means, with respect to any Asset Pool,
for any Monthly Period, the sum of (a) with respect to Receivables designated
for inclusion in such Asset Pool, all Collections received by the Servicer on
behalf of the Issuer of Finance Charge Receivables (including Discount
Receivables Collections and Recoveries received for such Monthly Period to the
extent such Recoveries are deemed Finance Charge Collections under the
definition of "Collections" above), (b) with respect to any Collateral
Certificate designated for inclusion in such Asset Pool, collections of finance
charge receivables allocable to the holder of the Collateral Certificate for
such Monthly Period pursuant to the applicable Series Supplement and (c) any
amounts received by the Issuer which are designated as Finance Charge
Collections pursuant to any Asset Pool Supplement or Indenture Supplement for
such Monthly Period. Finance Charge Collections with respect to any Monthly
Period shall include the Interchange Amount (if any) paid to the Trust with
respect to such Asset Pool with respect to such Monthly Period (to the extent
received by the Trust and deposited into the applicable Collection Account on
the First Note Transfer Date following such Monthly Period).
"Finance Charge Receivables" means Receivables created in respect
of the Periodic Finance Charges, Annual Membership Fees, Cash Advance Fees,
Late Fees, Overlimit Fees, return check fees and similar fees and charges and
Discount Receivables.
"First Note Transfer Date" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"First USA Collateral Certificate" means the Collateral Certificate
issued by the First USA Credit Card Master Trust pursuant to the Series 2002-CC
Supplement to the First USA Credit Card Master Trust Pooling and Servicing
Agreement.
"First USA Credit Card Master Trust Pooling and Servicing
Agreement" means the Amended and Restated Pooling and Servicing Agreement for
the First USA Credit Card Master Trust, dated as of March 28, 2002, as amended
and supplemented, including by the Series 2002-CC Supplement thereto.
"Fitch" means Fitch, Inc. or any successor thereto.
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Gross Principal Receivables" means Receivables other than (i)
Periodic Finance Charges, Annual Membership Fees, Cash Advance Fees, Late Fees,
Overlimit Fees, return check fees and similar fees and other charges and (ii)
Receivables in Defaulted Accounts.
"Increase Date" has the meaning specified in subsection 2.12(a)(i).
"Indenture" means the Amended and Restated Indenture, dated as of
October 15, 2004, between the Issuer and the Indenture Trustee.
"Ineligible Collateral Certificate" has the meaning specified in
subsection 2.05(c).
"Ineligible Receivables" has the meaning specified in subsection
2.05(c).
"Initial Account Assignments" means Assignment No. 1 of Receivables
in Additional Accounts, dated as of November 29, 2002, Assignment No. 2 of
Receivables in Additional Accounts, dated as of March 24, 2003, Assignment No.
3 of Receivables in Additional Accounts, dated as of August 18, 2003, and
Assignment No. 4 of Receivables in Additional Accounts, dated as of March 26,
2004, each between the Bank and the Issuer.
"Initial Accounts" means the Accounts designated pursuant to the
Initial Account Assignments.
"Initial Collateral Certificates" means the First USA Collateral
Certificate issued pursuant to the First USA Credit Card Master Trust Pooling
and Servicing Agreement and the related Series 2002-CC Supplement thereto and
the Chase Collateral Certificate issued pursuant to the Chase Credit Card
Master Trust Pooling and Servicing Agreement and the related Series 2004-[ ]
Supplement thereto.
"Initial Issuance Date" means May 1, 2002.
"Insolvency Event" has the meaning specified in Section 9.01.
"Insurance Proceeds" means any amounts recovered by the Servicer
pursuant to any credit insurance policies covering any Obligor with respect to
Receivables under such Obligor's Account.
"Interchange" means interchange fees payable to the Servicer with
respect to the Accounts by the Account Owner, in its capacity as credit card
issuer, through bankcard associations or other similar organizations.
"Interchange Amount" means, with respect to any Asset Pool for any
Monthly Period, an amount determined by the Account Owner, in its sole
discretion, to be reasonably representative of the amount of Interchange
generated by the Receivables arising in the Accounts of such Account Owner.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Invested Amount" has, with respect to any Collateral Certificate,
the meaning specified in the applicable Series Supplement for such Collateral
Certificate.
"Investor Certificate" has the meaning specified in the applicable
Pooling and Servicing Agreement.
"Issuance Date" means each date on which a Series, Class or Tranche
of Notes is issued pursuant to the Indenture.
"Issuer" means the Trust.
"Late Fees" has the meaning specified in the Credit Card Agreement
applicable to each Account for late fees or similar fees.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, participation or equity interest, deposit arrangement, encumbrance,
lien (statutory or other), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing
of any financing statement under the UCC (other than any such financing
statement filed for informational purposes only) or comparable law of any
jurisdiction to evidence any of the foregoing.
"Master Trust Servicer" means the entity responsible for the
servicing obligations under the applicable Pooling and Servicing Agreement.
"Master Trust Transferor" means the entity acting as transferor
under the applicable Pooling and Servicing Agreement.
"Master Trust Trustee" means the entity acting as trustee under the
applicable Pooling and Servicing Agreement.
"Minimum Pool Balance" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"Monthly Servicer's Certificate" means the certificate delivered by
the Servicer as described in subsection 4.04(b).
"Moody's" means Xxxxx'x Investors Service, Inc., or its successor.
"Nominal Liquidation Amount" has, with respect to any Series, Class
or Tranche of Notes, the meaning specified in the applicable Indenture
Supplement for such Series, Class or Tranche of Notes.
"Nominal Liquidation Amount Deficit" has, with respect to any
Series, Class or Tranche of Notes, the meaning specified in the applicable
Indenture Supplement for such Series, Class or Tranche of Notes.
"Note Rating Agency Condition" means, at any time with respect to
any Series, Class or Tranche of Notes, the written confirmation of the Note
Rating Agency that a specified event or modification of the terms of such
Series, Class or Tranche will not result in the withdrawal or downgrade by such
Note Rating Agency of the rating of the Notes of any Series, Class or Tranche
then in effect.
"Note Transfer Date" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"Noteholder Percentage" means, for any Series of Notes, with
respect to Principal Collections, Finance Charge Collections, the Default
Amount and the Servicing Fee of any Asset Pool, the percentage stated in the
applicable Indenture Supplement for such Series of Notes.
"Notice Date" has the meaning specified in subsection 2.12(c)(i).
"Notices" has the meaning specified in subsection 12.05(a).
"Obligor" means, with respect to any Account, the Person or Persons
obligated to make payments with respect to such Account, including any
guarantor thereof, but excluding any merchant.
"Officer's Certificate" means a certificate signed by the Owner
Trustee, the Administrator or the Servicer and delivered to the Indenture
Trustee or the applicable Collateral Agent or a certificate signed by the
applicable Transferor and delivered to the Owner Trustee, the Indenture Trustee
or the applicable Collateral Agent. Wherever this Agreement requires that an
Officer's Certificate be signed also by an accountant or other expert, such
accountant or other expert (except as otherwise expressly provided in this
Agreement) may be an employee of the Owner Trustee, the Administrator or the
Servicer.
"Opinion of Counsel" means a written opinion of counsel acceptable
to the Owner Trustee and the Indenture Trustee, who may, without limitation,
and except as otherwise expressly provided in this Agreement, be an employee of
or of counsel to the Issuer, the Servicer or any of their Affiliates.
"Overlimit Fees" has the meaning specified in the Credit Card
Agreement applicable to each Account for overlimit fees or similar fees if such
fees are provided for with respect to such Account.
"Periodic Finance Charges" has the meaning specified in the Credit
Card Agreement applicable to each Account for finance charges (due to periodic
rate) or any similar term.
"Pool Balance" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement for such Asset Pool.
"Principal Collections" means, with respect to any Asset Pool, for
any Monthly Period, the sum of (1) with respect to Receivables designated for
inclusion in such Asset Pool, all Collections other than those designated as
Finance Charge Collections on Accounts designated for such Monthly Period and
(2) with respect to any Collateral Certificate designated for inclusion in such
Asset Pool, all collections of principal receivables, including Collateral
Certificate Principal Shortfall Payments, allocable to the holder of such
Collateral Certificate for such Monthly Period pursuant to the applicable
Series Supplement.
"Principal Receivables" means Gross Principal Receivables minus
Discount Receivables. In calculating the aggregate amount of Principal
Receivables for any Monthly Period, the amount of Principal Receivables shall
be reduced by the aggregate amount of credit balances in the Accounts on the
last day of such Monthly Period. Any Principal Receivables which a Transferor
is unable to transfer as provided in Section 2.14 or 9.01 shall not be included
in calculating the amount of Principal Receivables.
"Reassignment" has the meaning specified in subsection 2.13(b)(iii).
"Reassignment Amount" means, with respect to the Receivables or a
particular Collateral Certificate designated for inclusion in any Asset Pool,
subject to reassignment pursuant to Section 2.06, for any First Note Transfer
Date, unless otherwise provided in the related Asset Pool Supplement, the sum
of (a)(i) an amount equal to the outstanding principal balance of such
Receivables designated for inclusion in such Asset Pool or (ii) the Invested
Amount of such Collateral Certificate designated for inclusion in such Asset
Pool plus (b) accrued and unpaid interest, determined based upon a weighted
average interest rate, through such Payment Date, on Notes secured by the
related Asset Pool with an outstanding principal amount equal to the applicable
amount specified in clause (a).
"Receivables" means any amount owing by the Obligors including
amounts owing for the payment of goods and services, cash advances, access
checks, Annual Membership Fees, Cash Advance Fees, Periodic Finance Charges,
Late Fees, Overlimit Fees, return check fees and similar fees and charges, if
any.
"Receivables Purchase Agreement" means any receivables purchase
agreement entered into between a special purpose entity and the applicable
Account Owner for the sale of receivables to the special purpose entity if such
special purpose entity either transfers Receivables or a Collateral Certificate
secured by such receivables to the Issuer.
"Recoveries" means, with respect to any Asset Pool, all net amounts
received, including Insurance Proceeds, by the Servicer with respect to
Receivables in Defaulted Accounts, including amounts received by the Servicer
from the purchaser or transferee with respect to the sale or other disposition
of Receivables in Defaulted Accounts.
"Related Agreements" means, with respect to any Series, Class or
Tranche of Notes, collectively, the Indenture, any applicable Indenture
Supplement, any applicable Asset Pool Supplement, any applicable Terms Document
and the Trust Agreement.
"Removal Date" has the meaning specified in subsection 2.13(a).
"Removal Notice Date" has the meaning specified in subsection
2.13(a).
"Removed Accounts" has the meaning specified in subsection 2.13(a).
"Required Transferor Amount" has, with respect to any Asset Pool,
the meaning specified in the applicable Asset Pool Supplement for such Asset
Pool.
"Requirements of Law" means, for any Person, the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, whether federal,
state or local (including usury laws, the Federal Truth in Lending Act and
Regulation B and Regulation Z of the Board of Governors of the Federal Reserve
System).
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Series 2002-CC Supplement" means the supplement to the First USA
Credit Card Master Trust Pooling and Servicing Agreement, whereby First USA, as
transferor, has authorized the issuance and authentication by the Master Trust
Trustee of the First USA Credit Card Master Trust to Chase USA of one or more
Investor Certificates.
"Series 2004-[ ] Supplement" means the supplement to the Chase
Credit Card Master Trust Pooling and Servicing Agreement, whereby Chase USA, as
transferor, has authorized the issuance and authentication by the Master Trust
Trustee of the Chase Credit Card Master Trust to Chase USA of one or more
Investor Certificates.
"Service Transfer" has the meaning specified in Section 10.01.
"Servicer" means Chase USA, in its capacity as Servicer pursuant to
this Agreement, and, after any Service Transfer, the Successor Servicer.
"Servicer Default" has the meaning specified in Section 10.01.
"Servicer Rating Event" means the Servicer's failure to maintain a
short-term credit rating of at least "A-1" by Standard & Poor's and "P-1" by
Moody's and, if rated by Fitch, at least "F1" by Fitch (or such other rating
below "A-1" or "P-1," or to the extent rated by Fitch, "F1," as the case may
be, which is acceptable to the applicable Note Rating Agency).
"Servicing Fee" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement for such Asset Pool.
"SFAS 140" means Statement of Financial Accounting Standards No.
140, Accounting for Transfers and Servicing of Financial Assets and
Extinguishments of Liabilities (or any replacement Financial Accounting
Standards Board statement, or amendment or interpretation thereof).
"Standard & Poor's" means Standard & Poor's Ratings Services, or
its successor.
"Successor Servicer" has the meaning specified in subsection
10.02(a).
"Supplemental Bank Account" has, with respect to any Asset Pool,
the meaning specified in the applicable Asset Pool Supplement for such Asset
Pool.
"Supplemental Credit Enhancement" means any Supplemental Credit
Enhancement Agreement or Supplemental Liquidity Agreement entered into between
the Issuer and the applicable Supplemental Credit Enhancement Provider or
Supplemental Liquidity Provider.
"Targeted Interest Deposit Amount" has, with respect to any Series,
Class or Tranche of Notes, the meaning specified in the applicable Indenture
Supplement for such Series, Class or Tranche of Notes.
"Targeted Principal Deposit Amount" has, with respect to any
Series, Class or Tranche of Notes, the meaning specified in the applicable
Indenture Supplement for such Series, Class or Tranche of Notes.
"Termination Notice" has the meaning specified in Section 10.01.
"Transaction Document" means the Trust Agreement, the applicable
Series Supplement, the applicable Asset Pool Supplement, the Indenture or the
related Indenture Supplement, as applicable.
"Transfer Restriction Event" has the meaning specified in Section
2.14.
"Transferor" means (a) Chase USA or its successor under this
Agreement and (b) any Additional Transferor or Transferors. References to "each
Transferor" shall refer to each entity mentioned in the preceding sentence and
references to "the Transferor" shall refer to all of such entities.
"Transferor Amount" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"Transferor Certificate" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"Transferor Interest" means, with respect to any Asset Pool, the
interest in such Asset Pool not represented by issued and Outstanding Notes
secured by that Asset Pool.
"Transferor Percentage" means, with respect to any Asset Pool for
any Monthly Period, the percentage in such Asset Pool not represented by the
aggregate of the Noteholder Percentage for all Series secured by such Asset
Pool.
"Transferred Account" means (a) an Account with respect to which a
new credit account number has been issued by the Account Owner under
circumstances resulting from a lost or stolen credit card or from the transfer
from one affinity group to another affinity group or otherwise and not
requiring standard application and credit evaluation procedures under the
Credit Card Guidelines or (b) an Eligible Account resulting from a status
change, including the conversion of an Account that was a standard account to a
premium account or from a premium account to a standard account, and which in
the case of (a) or (b), can be traced or identified by reference to or by way
of the computer files delivered to the applicable Collateral Agent, as designee
of the Issuer, as an account into which an Account has been transferred.
"Trust" means the Chase Issuance Trust, a Delaware statutory
business trust.
"Trust Agreement" means the Second Amended and Restated Trust
Agreement relating to the Trust, dated as of October [ ], 2004, between the
Transferor and the Owner Trustee.
"Trust Assets" has the meaning specified in Section 2.01.
"Trust Servicing Fee" has the meaning specified in Section 4.02.
"Trust Termination Date" means the date on which the Trust is
dissolved in accordance with Section 8.01 of the Trust Agreement.
"Yield Factor" has the meaning specified in subsection 2.15(a).
Section 1.02 Other Definitional Provisions.
(a) The terms defined in this Article have the meanings assigned
to them in this Article, and, along with any other term defined in any Section
of this Agreement, include the plural as well as the singular.
(b) With respect to any Series, all terms used herein and not
otherwise defined herein shall have meanings ascribed to them in the applicable
Transaction Document.
(c) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(d) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under GAAP. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under GAAP, the definitions
contained in this Agreement or in any such certificate or other document shall
control.
(e) The agreements, representations and warranties of Chase USA
in this Agreement in each of its capacities as Transferor, Servicer and
Administrator shall be deemed to be the agreements, representations and
warranties of Chase USA solely in each such capacity for so long as Chase USA
acts in each such capacity under this Agreement.
(f) Any reference to each Rating Agency shall only apply to any
specific rating agency if such rating agency is then rating any Outstanding
Series, Class or Tranche of Notes.
(g) Unless otherwise specified, references to any amount as on
deposit or outstanding on any particular date shall mean such amount at the
close of business on such day.
(h) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; references to any
subsection, Section, clause, Schedule or Exhibit are references to subsections,
Sections, clauses, Schedules and Exhibits in or to this Agreement unless
otherwise specified; the term "including" means "including without limitation";
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; references to
any Person include that Person's successors and assigns; and references to any
agreement refer to such agreement, as amended, supplemented or otherwise
modified from time to time.
[END OF ARTICLE I]
ARTICLE II
CONVEYANCE OF COLLATERAL
Section 2.01 Conveyance of Collateral. By execution of the Original
Transfer and Servicing Agreement, the Transferor transferred, assigned,
set-over and otherwise conveyed to the Trust, without recourse except as
provided therein, all its right, title and interest in, to and under the FUSA
Collateral Certificate. By execution of each Initial Account Assignment, the
Transferor transferred, assigned, set over and otherwise conveyed to the Trust,
without recourse except as provided therein, all its right, title and interest
in, to and under the Receivables in the Initial Accounts designated thereby
existing at the open of business on the applicable Cut Off Date and thereafter
created from time to time until the termination of the Trust, all Interchange
and Recoveries allocable to the Trust as provided therein, all monies due or to
become due and all amounts received or receivable with respect thereto and all
proceeds (including "proceeds" as defined in the UCC) thereof and all Insurance
Proceeds relating thereto. By execution of this Agreement, the Transferor does
hereby transfer, assign, set over and otherwise convey to the Trust, without
recourse except as provided herein, all its right, title and interest in, to
and under the Chase Collateral Certificate and, on and after each applicable
Addition Date, each Additional Collateral Certificate and all Receivables
arising in each Additional Account designated on such Addition Date, together
with all monies and other property credited to the Bank Accounts established
pursuant to each Asset Pool Supplement and Indenture Supplement, the rights of
the Trust under this Agreement and the Trust Agreement and the property
conveyed to the Trust under any Asset Pool Supplement and any Series Supplement
(the "Trust Assets").
Each Transferor shall be under no obligation whatsoever to file any
financing or continuation statements or to make any other filing under the UCC
in connection with the transfer and assignment of a Collateral Certificate.
Each Transferor further agrees, at its own expense, on or prior to
(x) the Amendment Closing Date, in the case of the Initial Collateral
Certificates and Initial Accounts and (y) the applicable Addition Date, in the
case of Additional Collateral Certificates and Additional Accounts with respect
to such Transferor: (a) to indicate in the appropriate official records or
computer files that such Collateral Certificates or Receivables created in
connection with such Accounts have been designated for inclusion in a
particular Asset Pool in the Trust pursuant to this Agreement and (b) to
deliver to the applicable Collateral Agent, as designee of the Issuer, one or
more computer files containing a true and complete list of all such Accounts
specifying for each such Account, the applicable Addition Date for such
Accounts. In addition, such computer file or list shall, in connection with
each Additional Account, include its account number, the aggregate Receivables
outstanding in such Additional Account and state to which Asset Pool such
Additional Account belongs. Each such official record, as supplemented, from
time to time, to reflect Additional Collateral Certificates and removed
Collateral Certificates shall be marked as Schedule 1 to this Agreement, and
each such computer file or list, as supplemented, from time to time, to reflect
Initial Accounts, Additional Accounts and Removed Accounts, shall be marked as
Schedule 2 to this Agreement and is hereby incorporated into and made a part of
this Agreement.
It is the intention of the parties hereto that all such transfers
be subject to, and be treated in accordance with, the Delaware Act and each of
the parties hereto agrees that this Agreement 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 the Transferor pursuant to this Agreement shall be
deemed to no longer be the property, assets or rights of the Transferor. The
parties hereto acknowledge and agree that the transactions contemplated hereby
shall constitute, and each such transfer is occurring in connection with, a
"securitization transaction" within the meaning of the Delaware Act.
The parties hereto intend that each transfer of Receivables, the
Initial Collateral Certificates and any Additional Collateral Certificates
pursuant to this Agreement constitute a sale, and not a secured borrowing for
accounting purposes. If and to the extent that, notwithstanding such intent,
any Transferor retains any interest in the Initial Collateral Certificates,
Additional Collateral Certificates or the Receivables, it is the intention of
the parties hereto that this Agreement shall constitute a security agreement
under applicable law, and therefor such Transferor hereby grants to the Trust a
first priority perfected security interest in all of such Transferor's right,
title and interest, in, to and under the Initial Collateral Certificates, any
Additional Collateral Certificates, the Receivables and the other Trust Assets
conveyed by such Transferor, and all money, accounts, general intangibles,
chattel paper, instruments, documents, goods, investment property, deposit
accounts, certificates of deposit, letters of credit, letter-of-credit-rights
and advices of credit consisting of, arising from or related to the Trust
Assets, and all proceeds thereof, to secure a loan in an amount equal to the
unpaid principal amount of the Notes issued pursuant to the Indenture and the
applicable Indenture Supplement and interest accrued with respect thereto.
Section 2.02 Acceptance by Trust.
(a) The Trust hereby acknowledges its acceptance of all right,
title and interest to the property, now existing and hereafter created,
conveyed to the Trust pursuant to Section 2.01. The Trust further acknowledges
that, prior to or simultaneously with the execution and delivery of this
Agreement, the Transferor delivered to the applicable Collateral Agent, as
designee of the Issuer, Schedule 1 identifying the Initial Collateral
Certificates and the Initial Accounts. The applicable Collateral Agent shall
forward a copy of Schedule 1 to the Owner Trustee who shall maintain a copy of
Schedule 1, as delivered from time to time, at its Corporate Trust Office.
(b) The Trust hereby designates to the Servicer the right to
receive all payments to be made to the Trust hereunder.
(c) The Owner Trustee and the Trust each hereby agrees (and the
Indenture Trustee and each applicable Collateral Agent shall, pursuant to the
Indenture or applicable Asset Pool Supplement, agree) not to disclose to any
Person the identity of any of the account numbers or other information
contained in the computer files marked as Schedule 2 and delivered to the
applicable Collateral Agent, as designee of the Issuer, from time to time,
except (i) to a Successor Servicer or as required by a Requirement of Law
applicable to the Owner Trustee, (ii) in connection with the performance of the
Owner Trustee's or the Trust's duties hereunder, (iii) to the Indenture Trustee
in connection with its duties in enforcing the rights of Noteholders, (iv) to
the applicable Collateral Agent in connection with its duties under the
applicable Asset Pool Supplement or (v) to bona fide creditors or potential
creditors of any Account Owner, the Administrator or any Transferor for the
limited purpose of enabling any such creditor to identify applicable
Receivables or Accounts subject to this Agreement. The Owner Trustee and the
Trust each agrees to take such measures as shall be reasonably requested by any
Transferor to protect and maintain the security and confidentiality of such
information and, in connection therewith, shall allow each Transferor or its
duly authorized representatives to inspect the Owner Trustee's security and
confidentiality arrangements as they specifically relate to the administration
of the Trust from time to time during normal business hours upon prior written
notice. The Owner Trustee and the Trust shall provide the applicable Transferor
with notice five Business Days prior to disclosure of any information of the
type described in this subsection 2.02(c).
Section 2.03 Representations and Warranties of Each Transferor
Relating to Such Transferor. Each Transferor hereby severally represents and
warrants to the Trust (and agrees that the Owner Trustee, the Indenture Trustee
and the applicable Collateral Agent may conclusively rely on each such
representation and warranty in accepting the Receivables and Collateral
Certificates in trust, in authenticating the Notes and each as a secured party)
as of each Issuance Date, each Increase Date and each Addition Date (but only
if it was a Transferor on such date and only if it was a party to the
applicable Related Agreement on such date) that:
(a) Organization and Good Standing. Such Transferor is an
entity, duly organized and validly existing in good standing under the laws of
the jurisdiction of its organization or incorporation and has, in all material
respects, full power, authority and legal right to own its properties and
conduct its business as such properties are at present owned and such business
is at present conducted, and to execute, deliver and perform its obligations
under this Agreement, the applicable Receivables Purchase Agreement, if any,
and each applicable Series Supplement.
(b) Due Qualification. Such Transferor is duly qualified to do
business and is in good standing (or is exempt from such requirement) in any
state required in order to conduct business, and has obtained all necessary
licenses and approvals with respect to such Transferor required under federal
law; provided, however, that no representation or warranty is made with respect
to any qualifications, licenses or approvals which the Indenture Trustee, the
Owner Trustee or the applicable Collateral Agent would have to obtain to do
business in any state in which the Indenture Trustee or the Owner Trustee seeks
to enforce any Collateral Certificate or any Receivable.
(c) Due Authorization. The execution and delivery of this
Agreement, the applicable Receivables Purchase Agreement, if any, and each
applicable Series Supplement by such Transferor and the order to the Indenture
Trustee to have the Notes authenticated and delivered and the consummation by
such Transferor of the transactions provided for in this Agreement, the
applicable Receivables Purchase Agreement, if any, and each applicable Series
Supplement have been duly authorized by such Transferor by all necessary
corporate action on the part of such Transferor and this Agreement will remain,
from the time of its execution, an official record of such Transferor.
(d) No Conflict. The execution and delivery by such Transferor
of this Agreement, the applicable Receivables Purchase Agreement, if any, and
each applicable Series Supplement, and the performance of the transactions
contemplated by this Agreement, the applicable Receivables Purchase Agreement,
if any, and each applicable Series Supplement and the fulfillment of the terms
hereof and thereof applicable to such Transferor, will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material default
under, any indenture, contract, agreement, mortgage, deed of trust or other
instrument to which such Transferor is a party or by which it or its properties
are bound.
(e) No Proceedings. There are no proceedings or investigations,
pending or, to the best knowledge of such Transferor, threatened against such
Transferor before any Governmental Authority (i) asserting the invalidity of
this Agreement, the applicable Receivables Purchase Agreement, if any, or any
applicable Series Supplement, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement, the applicable Receivables
Purchase Agreement, if any, or any applicable Series Supplement, (iii) seeking
any determination or ruling that, in the reasonable judgment of such
Transferor, would materially and adversely affect the performance by such
Transferor of its obligations under this Agreement, the applicable Receivables
Purchase Agreement, if any, or any applicable Series Supplement, (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement, the applicable Receivables
Purchase Agreement, if any, or any applicable Series Supplement or (v) seeking
to affect adversely the income tax attributes of the Trust under the United
States federal or any state income tax systems.
(f) All Consents. All appraisals, authorizations, consents,
orders or other actions of any Person or of any Governmental Authority required
in connection with the execution and delivery by such Transferor of this
Agreement, the applicable Receivables Purchase Agreement, if any, and each
applicable Series Supplement and the performance of the transactions
contemplated by this Agreement, the applicable Receivables Purchase Agreement,
if any, and each applicable Series Supplement by such Transferor have been duly
obtained, effected or given and are in full force and effect.
(g) No Violation. The execution and delivery of this Agreement,
the applicable Receivables Purchase Agreement, if any, and each applicable
Series Supplement, the performance of the transactions contemplated by this
Agreement, the applicable Receivables Purchase Agreement, if any, and each
applicable Series Supplement and the fulfillment of the terms hereof and
thereof will not conflict with or violate any Requirements of Law applicable to
such Transferor.
Section 2.04 Representations and Warranties of each Transferor
Relating to this Agreement and any Series Supplement and the Collateral.
(a) Representations and Warranties. Each Transferor hereby
severally represents and warrants to the Trust that:
(i) as of each day on which any new Receivable is created,
this Agreement and the applicable Receivables Purchase Agreement, if any,
as of each Addition Date with respect to Additional Accounts designated on
such Addition Date, this Agreement, the applicable Receivables Purchase
Agreement, if any, and the related Account Assignment, each constitutes a
legal, valid and binding obligation of such Transferor enforceable against
such Transferor in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally from time to time in effect or general principles of
equity;
(ii) as of each Issuance Date, this Agreement, the
applicable Receivables Purchase Agreement, if any, the applicable Pooling
and Servicing Agreement and the applicable Series Supplement, each
constitutes a legal, valid and binding obligation of such Transferor
enforceable against such Transferor in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect or general
principles of equity;
(iii) as of each Increase Date, this Agreement, the
applicable Pooling and Servicing Agreement and the applicable Series
Supplement, and as of each Addition Date on which an Additional Collateral
Certificate is designated, this Agreement, the applicable Pooling and
Servicing Agreement, the applicable Series Supplement and the related
Certificate Assignment, each constitutes a legal, valid and binding
obligation of such Transferor enforceable against such Transferor in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally from time to time in
effect or general principles of equity;
(iv) as of (A) the Initial Issuance Date, with respect to
the FUSA Collateral Certificate, and the Amendment Closing Date, with
respect to the Chase Collateral Certificate, (B) the applicable Cut Off
Date with respect to the Initial Accounts (and the Receivables arising
therein) and each Additional Cut Off Date with respect to Additional
Accounts (and the Receivables arising therein) and (C) the Addition Date
with respect to an Additional Collateral Certificate, the portion of
Schedule 1 or Schedule 2, as applicable, to this Agreement under such
Transferor's name, as supplemented to such date, is an accurate and
complete listing or identification, as applicable, in all material
respects of:
(1) with respect to Schedule 2, the Initial Accounts and
Additional Accounts the Receivables in which were transferred by such
Transferor, and the information contained therein with respect to the
identity of such Accounts and the Receivables existing thereunder as of
the applicable Cut Off Date is, in each case, true and correct in all
material respects; or
(2) with respect to Schedule 1, the Initial Collateral
Certificates which were transferred by such Transferor as of the Amendment
Closing Date and each Additional Collateral Certificate transferred
thereafter that remains outstanding, including any Additional Collateral
Certificate transferred as of an Addition Date, and the information
contained therein with respect to the identity of such Collateral
Certificate as of the Amendment Closing Date or such Addition Date, is, in
each case, true and correct in all material respects;
(v) as of (A) each day on which any new Receivable is
created, (B) the Initial Issuance Date with respect to the FUSA Collateral
Certificate and the Amendment Closing Date with respect to the Chase
Collateral Certificate, (C) the applicable Cut Off Date with respect to
the Initial Accounts (and the Receivables arising therein) and each
Additional Cut Off Date with respect to Additional Accounts (and the
Receivables arising therein), (D) each Addition Date with respect to
Additional Collateral Certificates and (E) each Increase Date with respect
to increases in the Invested Amount of a Collateral Certificate previously
conveyed to the Trust, such Transferor owns and has good marketable title
to such Receivable, Initial Collateral Certificate or Additional
Collateral Certificate, as applicable, free and clear of any Lien (other
than any Lien for municipal or other local taxes if such taxes are not
then due and payable or if such Transferor is then contesting the validity
thereof in good faith by appropriate proceedings and has set aside on its
books and records adequate reserves with respect thereto), claim or
incumbrance of any Person and such conveyance of such Receivable, Initial
Collateral Certificate or Additional Collateral Certificate to the Trust,
or such increase in the Invested Amount of a Collateral Certificate
previously conveyed to the Trust, as applicable, is made by such
Transferor in compliance, in all material respects, with all Requirements
of Law applicable to such Transferor;
(vi) as of (A) each day on which any new Receivable is
created, (B) the Initial Issuance Date with respect to the FUSA Collateral
Certificate and the Amendment Closing Date with respect to the Chase
Collateral Certificate, (C) the applicable Cut Off Date with respect the
Initial Accounts (and the Receivables arising therein) and each Addition
Cut Off Date with respect to Additional Accounts (and the Receivables
arising therein), (D) each Addition Date with respect to an Additional
Collateral Certificate and (E) each Increase Date with respect to an
increase in the Invested Amount of a Collateral Certificate previously
conveyed to the Trust, all authorizations, consents, orders or approvals
of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by such Transferor in
connection with the conveyance to the Trust by such Transferor of such
Receivables or Additional Collateral Certificate or the increase of the
Invested Amount of any Collateral Certificate previously conveyed to the
Trust by such Transferor have been duly obtained, effected or given and
are in full force and effect;
(vii) as of (A) each Issuance Date, (B) the applicable Cut
Off Date with respect the Initial Accounts (and the Receivables arising
therein) and each Addition Cut Off Date with respect to Additional
Accounts (and the Receivables arising therein), (C) each Addition Date
with respect to an Additional Collateral Certificate and (D) each Increase
Date with respect to an increase in the Invested Amount of a Collateral
Certificate previously conveyed to the Trust, this Agreement constitutes a
valid sale, transfer and assignment to the Trust of all right, title and
interest of such Transferor in the Initial Collateral Certificate, any
Receivables existing on and after such date, any Additional Collateral
Certificate or any increased amount of such Collateral Certificate, as
applicable, transferred to the Trust by such Transferor and the proceeds
thereof and Interchange and Recoveries identified as relating to the
Receivables transferred to the Trust by such Transferor or, if this
Agreement or, in the case of an Additional Collateral Certificate or
Additional Accounts, the related Certificate Assignment or Account
Assignment, as applicable, does not constitute a sale of such property, it
creates a valid and continuing security interest (as defined in the
applicable UCC) in such property in favor of the Trust, which security
interest is prior to all other Liens, and is enforceable as such against
creditors of and purchasers from such Transferor;
(viii) as of (A) each Issuance Date, (B) the applicable Cut
Off Date with respect the Initial Accounts (and the Receivables arising
therein) and each Addition Cut Off Date with respect to Additional
Accounts (and the Receivables arising therein), (C) each Addition Date
with respect to an Additional Collateral Certificate and (D) each Increase
Date with respect to an increase in the Invested Amount of a Collateral
Certificate previously conveyed to the Trust, such Transferor 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 such property granted to the Trust hereunder and upon the
filing of all such appropriate financing statements, the Trust shall have
a first priority perfected security or ownership interest in such property
and proceeds;
(ix) as of (A) each Issuance Date, (B) the applicable Cut
Off Date with respect the Initial Accounts (and the Receivables arising
therein) and each Addition Cut Off Date with respect to Additional
Accounts (and the Receivables arising therein), (C) each Addition Date
with respect to an Additional Collateral Certificate and (D) each Increase
Date with respect to an increase in the Invested Amount of a Collateral
Certificate previously conveyed to the Trust, other than the security
interest granted to the Trust pursuant to this Agreement or any other
security interest that has been terminated, such Transferor has not
pledged, assigned, sold, granted a security interest in, or otherwise
conveyed such property; such Transferor has not authorized the filing of
and is not aware of any financing statements against such Transferor that
include a description of collateral covering such property other than any
financing statement relating to the security interest granted to the Trust
hereunder or that has been terminated; and such Transferor is not aware of
any judgment or tax lien filings against such Transferor. Upon the filing
of any applicable financing statements and, in the case of Receivables
hereafter created and the proceeds thereof, upon the creation thereof, the
Trust shall have a first priority perfected security interest or ownership
interest in such property and proceeds;
(x) as of (A) each Issuance Date, (B) each Increase Date
with respect to an increase in the Invested Amount of a Collateral
Certificate previously conveyed to the Trust and (C) each Addition Date
with respect to an Additional Collateral Certificate, such Collateral
Certificate constitutes a "certificated security" within the meaning of
the applicable UCC; such Transferor has in its possession all original
copies of each certificate that constitutes or evidences such Collateral
Certificate; the certificates that constitute or evidence such Collateral
Certificate do not have any marks or notations indicating that they have
been pledged, assigned or otherwise conveyed to any Person other than the
Trust; and all financing statements filed or to be filed against such
Transferor in favor of the Trust in connection herewith describing such
Collateral Certificate contain a statement to the following effect: "A
purchase of or security interest in any collateral described in this
financing statement will violate the rights of the Trust";
(xi) as of each Addition Date with respect to an Additional
Collateral Certificate, such Additional Collateral Certificate is an
Eligible Collateral Certificate;
(xii) as of each Cut Off Date, the related Initial Accounts,
and as of each Addition Cut Off Date, the related Additional Accounts are
Eligible Accounts;
(xiii) as of (A) the applicable Cut Off Date with respect to
the Receivables then existing in each Initial Account owned by such
Transferor and the applicable Addition Cut Off Date with respect to the
Receivables then existing in each Additional Account owned by such
Transferor, (B) the date of the creation of each new Receivable
transferred to the Trust by such Transferor and (C) each Issuance Date
with respect to all Receivables which have been conveyed to the Trust by
such Transferor, each such Receivable constitutes an "account" within the
meaning of the applicable UCC;
(xiv) as of (A) the applicable Cut Off Date with respect to
the Receivables then existing in each Initial Account owned by such
Transferor and the applicable Addition Cut Off Date with respect to the
Receivables then existing in each Additional Account owned by such
Transferor and (B) the date of the creation of any new Receivable
transferred to the Trust by such Transferor, such Receivable is an
Eligible Receivable;
(xv) on the applicable Cut Off Date, with respect to Initial
Accounts owned by such Transferor, or Addition Cut Off Date, with respect
to Additional Accounts owned by such Transferor, no selection procedures
believed by such Transferor to be materially adverse to the interests of
the Noteholders have been used in selecting such Accounts; and
(xvi) on the Initial Issuance Date, with respect to the FUSA
Collateral Certificate, the Amendment Closing Date, with respect to the
Chase Collateral Certificate, and on each applicable Increase Date, with
respect to the Collateral Certificate which is to have its Invested Amount
increased, such Collateral Certificate is an Eligible Collateral
Certificate.
(b) Notice of Breach. The representations and warranties set
forth in Section 2.03 and this Section 2.04 shall survive the transfers and
assignments of the Collateral Certificates and the Receivables to the Trust,
the pledge of the Collateral Certificates and the Receivables to the Collateral
Agent pursuant to the Asset Pool Supplement, and the issuance of the Notes.
Upon discovery by any Transferor, the Servicer, the Indenture Trustee, the
applicable Collateral Agent or the Owner Trustee of a breach of any of the
representations and warranties set forth in Section 2.03 or this Section 2.04,
the party discovering such breach shall give prompt written notice to the other
parties following such discovery.
Section 2.05 Transfer of Ineligible Receivables and Ineligible
Collateral Certificates.
(a) Automatic Removal. With respect to Receivables or Collateral
Certificates, in the event that:
(i) (1) any representation or warranty contained in
subsection 2.04(a)(v) is not true and correct in any material respect as
of the date specified therein, or in the event that a Receivable is not an
Eligible Receivable or a Collateral Certificate is not an Eligible
Collateral Certificate, and (2) any of the following two conditions is
met: (A) as a result of such breach or event such Receivable is charged
off as uncollectible or the Trust's rights in, to or under such Collateral
Certificate or Receivable or its proceeds are impaired or the proceeds of
such Collateral Certificate or Receivable are not available for any reason
to the Trust free and clear of any Lien; or (B) the Lien upon the subject
Receivable or Collateral Certificate arises in favor of the United States
of America or any state or any agency or instrumentality thereof and
involves taxes or liens arising under Title IV of ERISA or has been
consented to by the applicable Transferor; or
(ii) with respect to Receivables, the applicable Transferor
has taken an action which causes a Receivable to be deemed to be an
Ineligible Receivable in accordance with subsection 2.08(a);
then, upon the earlier to occur of the discovery of such breach or
event by the applicable Transferor or the Servicer or receipt by the
Transferor who conveyed such Receivable or Collateral Certificate of
written notice of such breach or event given by the Indenture Trustee,
the applicable Collateral Agent or the Owner Trustee, then the
applicable Transferor shall accept reassignment of all applicable
Receivables or of the applicable Collateral Certificate on the terms
and conditions set forth in paragraph (c) below.
(b) Removal After Cure Period. In the event any representation
or warranty contained in subsection 2.04(a)(iv), (vi), (vii), (ix), (x), (xi),
(xii), (xiii), (xiv), (xv) or (xvi) is not true and correct in any material
respect as of the date specified therein with respect to (x) any Collateral
Certificate and such breach has a material adverse effect on such Collateral
Certificate or (y) any Receivable or the related Account and such breach has a
material and adverse effect on such Receivable, then, unless cured within 60
days (or such longer period, not in excess of 120 days, as may be agreed to by
the Indenture Trustee, the applicable Collateral Agent and the Servicer) after
the earlier to occur of the discovery thereof by the Transferor who conveyed
such Collateral Certificate or Receivable to the Trust or receipt by such
Transferor of written notice thereof given by the Owner Trustee, the Indenture
Trustee, the applicable Collateral Agent or the Servicer, then such Transferor
shall accept reassignment of the Ineligible Collateral Certificate or of the
Ineligible Receivable, as the case may be, on the terms and conditions set
forth in paragraph (c) below.
(c) Procedures for Removal. When the provisions of subsection
2.05(a) or (b) above require (i) removal of a Collateral Certificate, the
applicable Collateral Agent shall deliver such Collateral Certificate (such
Collateral Certificate, an "Ineligible Collateral Certificate") to the
applicable Transferor with a valid assignment in the name of such Transferor
for cancellation by such Transferor and directing the Servicer to deduct the
Invested Amount of each such Ineligible Collateral Certificate from the Pool
Balance for the applicable Asset Pool and to decrease the Transferor Amount of
such Asset Pool by the Invested Amount of such Ineligible Collateral
Certificate or (ii) removal of a Receivable, the applicable Transferor shall
accept reassignment of such Receivable (each such Receivable, an "Ineligible
Receivable") by directing the Servicer to deduct the principal balance of each
such Ineligible Receivable from the Pool Balance for the applicable Asset Pool
and to decrease the Transferor Amount of such Asset Pool by the principal
balance of such Ineligible Receivable. On and after the date of such removal,
the Invested Amount of each Ineligible Collateral Certificate and the principal
balance of each Ineligible Receivable shall be deducted from the Pool Balance
and Transferor Amount for the applicable Asset Pool. In the event that the
exclusion of an Ineligible Collateral Certificate or an Ineligible Receivable
from the calculation of the Transferor Amount for an Asset Pool would cause the
Transferor Amount for such Asset Pool to be reduced below the Required
Transferor Amount for such Asset Pool or the Pool Balance for such Asset Pool
to be reduced below the Minimum Pool Balance for such Asset Pool or would
otherwise not be permitted by law, the Transferor who conveyed such Ineligible
Collateral Certificate or Ineligible Receivable shall immediately, but in no
event later than 10 Business Days after such event, make a deposit in the
Excess Funding Account for that Asset Pool in immediately available funds in an
amount equal to the amount by which (x) the Transferor Amount for that Asset
Pool would be reduced below the Required Transferor Amount for that Asset Pool
or (y) the Pool Balance for that Asset Pool would be reduced below the Minimum
Pool Balance for that Asset Pool.
Upon reassignment of any Ineligible Collateral Certificate or
Ineligible Receivable, the Trust shall automatically and without further action
be deemed to transfer, assign, set-over and otherwise convey to the applicable
Transferor or its designee, without recourse, representation or warranty, all
the right, title and interest of the Trust in and to such Ineligible Collateral
Certificate or Ineligible Receivable, all Interchange and Recoveries related to
any such Receivable, all monies and amounts due or to become due and all
proceeds thereof and such reassigned Ineligible Collateral Certificate or
Ineligible Receivable shall be treated by the Trust as collected in full as of
the date on which it was transferred. The obligation of each Transferor to
accept reassignment of any Ineligible Collateral Certificate or Ineligible
Receivable conveyed to the Trust by such Transferor, and to make the deposits,
if any, required to be made to the applicable Excess Funding Account as
provided in this Section, shall constitute the sole remedy respecting the event
giving rise to such obligation available to the Trust or the Noteholders (or
the Indenture Trustee or the applicable Collateral Agent on behalf of the
Noteholders). The Trust shall execute such documents and instruments of
transfer or assignment and take such other actions as shall reasonably be
requested and provided by the applicable Transferor to effect the conveyance of
such Ineligible Collateral Certificate or Ineligible Receivable pursuant to
this subsection 2.05(c), but only upon receipt of an Officer's Certificate from
such Transferor that states that all conditions set forth in this Section 2.05
have been satisfied.
Section 2.06 Reassignment of Collateral. In the event any
representation or warranty of a Transferor set forth in subsection 2.03(a) or
(c) or subsection 2.04(a)(i), (ii), (iii) or (vii) is not true and correct in
any material respect and such breach has a material adverse effect on the
Receivables designated for inclusion in an Asset Pool or a particular
Collateral Certificate transferred to the Trust by such Transferor or the
availability of the proceeds thereof to the Trust then, either the Owner
Trustee, the Indenture Trustee, the applicable Collateral Agent or the Holders
of Notes secured by the applicable Asset Pool evidencing more than 66 2/3% of
the aggregate unpaid principal amount of all Outstanding Notes secured by the
applicable Asset Pool, by notice then given to the applicable Transferor, the
Administrator and the Servicer (and to the Owner Trustee, the Indenture
Trustee and the applicable Collateral Agent, if given by the Noteholders), may
direct such Transferor to accept a reassignment of the Receivables designated
for inclusion in such Asset Pool and/or any such Collateral Certificate
conveyed to the Trust by such Transferor and designated for inclusion in such
Asset Pool, pursuant to this Agreement, the applicable Receivables Purchase
Agreement, if any, the applicable Series Supplement, the applicable Account
Assignment or the applicable Certificate Assignment, if such breach and any
material adverse effect caused by such breach is not cured within 60 days of
such notice (or within such longer period as may be specified in such notice),
and upon those conditions such Transferor shall be obligated to accept such
reassignment on the terms set forth below; provided, however, that a
Transferor shall only be required to accept reassignment of Receivables or
Collateral Certificates transferred under an agreement with respect to which
the relevant representation and warranty was deemed to be breached; and
provided, further, the affected Receivables and the affected Collateral
Certificates will not be reassigned to such Transferor if, on any day during
such applicable period the relevant representation and warranty shall be true
and correct in all material respects as if made on such day. The applicable
Transferor shall deposit the portion of the Reassignment Amount attributable
to the applicable Notes in the Collection Account to be treated (i) in
connection with amounts determined under clause (a) of the definition of
"Reassignment Amount," as Principal Collections for each Series of Notes and
(ii) in connection with the amounts determined under clause (b) of the
definition of "Reassignment Amount," as Finance Charge Collections for each
Series of Notes, in either case, in immediately available funds not later than
1:00 p.m., New York City time, on the First Note Transfer Date following the
Monthly Period in which such reassignment obligation arises, in payment for
such reassignment.
If the Owner Trustee, the Indenture Trustee, the applicable
Collateral Agent or the Noteholders give notice directing the applicable
Transferor to accept a reassignment of any Receivables or any Collateral
Certificate as provided above, the obligation of such Transferor to accept such
reassignment pursuant to this Section 2.06 and to make the deposit required to
be made to the Collection Account for each Series of Notes as provided in this
Section 2.06 shall constitute the sole remedy respecting an event of the type
specified above in this Section 2.06 available to the Noteholders (or the
Indenture Trustee or any Collateral Agent on behalf of the Noteholders). Upon
reassignment of the affected Receivables and any affected Collateral
Certificate on the First Note Transfer Date following the Monthly Period in
which such obligation arises, the Trust shall automatically and without further
action be deemed to transfer, assign, set-over and otherwise convey to the
applicable Transferor, without recourse, representation or warranty, all the
right, title and interest of the Trust in and to the affected Receivables and
affected Collateral Certificates, all Interchange and Recoveries allocable to
the Trust with respect thereto, and all monies and amounts due or to become due
with respect thereto and all proceeds of the Receivables and Insurance Proceeds
relating thereto allocated to the Receivables (and any costs or expenses
incurred by the Indenture Trustee in connection with such reassignment shall be
reimbursed by the Servicer). The Trust shall execute such documents and
instruments of transfer or assignment and take such other actions as shall
reasonably be requested by the applicable Transferor to effect the conveyance
of such property pursuant to this Section.
Section 2.07 Additional Transferors. The Transferor may designate
Affiliates of the Transferor to be included as Transferors ("Additional
Transferors") under this Agreement in an amendment hereto pursuant to
subsection 12.01(a) and, in connection with such designation, the Transferor
shall surrender the Transferor Certificate for the applicable Asset Pool to the
Owner Trustee in exchange for a newly issued Transferor Certificate for such
Asset Pool modified to reflect such Additional Transferor's interest in the
Transferor Interest of such Asset Pool; provided, however, that each Additional
Transferor shall agree in such amendment hereto to assume all of the duties and
obligations of the Transferor hereunder; and provided, further, that prior to
any such designation and exchange (i) the Owner Trustee shall have received an
Issuer Tax Opinion, (ii) the Note Rating Agency Condition shall have been
satisfied, (iii) the Master Trust Trustee shall have received the Master Trust
Tax Opinion and (iv) any additional conditions to the transfer of a Beneficial
Interest provided in Section 3.02 of the Trust Agreement shall have been
satisfied.
Section 2.08 Covenants of each Transferor. Each Transferor hereby
severally covenants that:
(a) Receivables Not To Be Evidenced by Promissory Notes. Except
in connection with its enforcement or collection of an Account, such Transferor
will take no action to cause any Receivable conveyed by it to the Trust to be
evidenced by any instrument (as defined in the UCC) and if any such Receivable
is so evidenced it shall be deemed to be an Ineligible Receivable in accordance
with subsection 2.05(a) and shall be reassigned to such Transferor in
accordance with subsection 2.05(c). Each Receivable shall be payable pursuant
to a contract which does not create a Lien on any goods purchased thereunder.
Each Transferor will take no action to cause any Receivable to be anything
other than an "account" (as defined in the UCC).
(b) Security Interests. Except for the conveyances hereunder,
such Transferor will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur, assume or suffer to exist any Lien on, any Receivable
or Collateral Certificate conveyed by it to the Trust, whether now existing or
hereafter created, or any interest therein; such Transferor will immediately
notify the Indenture Trustee, the applicable Collateral Agent and the Owner
Trustee of the existence of any Lien on any Receivable or Collateral
Certificate; and such Transferor shall defend the right, title and interest of
the Trust, the Indenture Trustee and the applicable Collateral Agent in, to and
under the Receivables and any Collateral Certificate, whether now existing or
hereafter created, against all claims of third parties claiming through or
under such Transferor; provided, however, that nothing in this subsection
2.08(b) shall prevent or be deemed to prohibit such Transferor from suffering
to exist upon any of the Receivables any Liens for municipal or other local
taxes if such taxes shall not at the time be due and payable or if such
Transferor shall currently be contesting the validity thereof in good faith by
appropriate proceedings and shall have set aside on its books adequate reserves
with respect thereto.
(c) Transferor Interest. Except for the conveyances hereunder,
in connection with any transaction permitted by subsection 6.02(a)(i) and as
provided in Section 2.07 of this Agreement, such Transferor agrees not to
transfer, sell, assign, exchange or otherwise convey or pledge, hypothecate or
otherwise grant a security interest in the Transferor Interest of any Asset
Pool or any Transferor Certificate for any Asset Pool and any such attempted
transfer, assignment, exchange, conveyance, pledge, hypothecation, grant or
sale shall be void, unless the Owner Trustee shall have received an Issuer Tax
Opinion.
(d) Delivery of Collections. In the event that such Transferor
receives Collections, such Transferor agrees to pay the Servicer all such
Collections as soon as practicable after receipt thereof.
(e) Notice of Liens. Such Transferor shall notify the Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent promptly
after becoming aware of any Lien on any Receivable or Collateral Certificate
conveyed by it to the Trust other than the conveyances hereunder and under the
applicable Receivables Purchase Agreement, if any, the applicable Pooling and
Servicing Agreement, the applicable Series Supplement, the Indenture and the
applicable Asset Pool Supplement.
(f) Credit Card Agreements and Guidelines. Each Transferor that
is an Account Owner covenants that it shall comply with and perform its
obligations under the Credit Card Agreements relating to the Accounts and the
Credit Card Guidelines and all applicable rules and regulations of the
applicable credit card company except insofar as any failure to comply or
perform would not materially and adversely affect the rights of the Trust or
the Noteholders; provided, however, the applicable Transferor may change the
terms and provisions of the applicable Credit Card Agreements or the applicable
Credit Card Guidelines in any respect (including the reduction of the required
minimum monthly payment, the calculation of the amount, or the timing, of
charge-offs and the Periodic Finance Charges and other fees to be assessed
thereon) only if such change (i) would not, in the reasonable belief of such
applicable Transferor, cause an Early Amortization Event or Event of Default to
occur, and (ii) is made applicable to any comparable segment of the consumer
revolving credit card accounts owned by such applicable Transferor which have
characteristics the same as, or substantially similar to, the Accounts that are
the subject of such change, except as otherwise restricted by an endorsement,
sponsorship, or other agreement between such applicable Transferor and an
unrelated third party or by the terms of the Credit Card Agreements.
Section 2.09 Covenants of Each Transferor with Respect to Any
Applicable Receivables Purchase Agreement. Each Transferor, if such Transferor
is a party to a Receivables Purchase Agreement, in its capacity as purchaser of
Receivables from any Account Owner pursuant to any such Receivables Purchase
Agreement, hereby covenants that such Transferor will at all times enforce the
covenants and agreements of any Account Owner in such Receivables Purchase
Agreement, including covenants that the Account Owner shall at all times
enforce the covenants and agreements of it, as the case may be, in any
Receivables Purchase Agreement.
Section 2.10 [Reserved]
Section 2.11 Increases in the Invested Amount of an Existing
Collateral Certificate.
(a) The Invested Amount of any Collateral Certificate previously
conveyed to the Trust and designated for inclusion in an Asset Pool may be
increased by the applicable Transferor on any Business Day in connection with:
(i) the issuance of an additional Series, Class or Tranche
of Notes secured by such Asset Pool; or
(ii) the increase of the Transferor Amount for such Asset
Pool.
(b) In connection with any increase in the Invested Amount of a
Collateral Certificate previously conveyed to the Trust, such increase shall
either be funded from the proceeds of the issuance of an additional Series,
Class or Tranche of Notes or funded by the applicable Transferor (which funding
may be in cash or through an increase in the Transferor Interest for such Asset
Pool).
(c) Notwithstanding any other provision of this Agreement, with
respect to any Monthly Period, the Invested Amount of a Collateral Certificate
previously conveyed to the Trust shall not be increased, including increases
pursuant to this Section 2.11, if (i) an Early Amortization Event shall have
occurred with respect to any Notes as a result of a failure to add Collateral
to the Trust for inclusion in a specified Asset Pool or a failure to increase
the Invested Amount of a Collateral Certificate previously conveyed to the
Trust at a time when the Pool Balance for such Asset Pool for the prior Monthly
Period is less than the Minimum Pool Balance for such Asset Pool for such prior
Monthly Period and (ii) increasing the Invested Amount of or reinvesting in a
Collateral Certificate previously conveyed to the Trust would result in a
reduction in the allocation percentage applicable for principal collections for
such Collateral Certificate.
Section 2.12 Addition of Collateral.
(a) Required Additions.
(i) Required Additions. If, (A) as determined on any
Determination Date, the Transferor Amount for an Asset Pool for the prior
Monthly Period is less than the Required Transferor Amount for such Asset
Pool for such prior Monthly Period, the applicable Transferor shall (1)
designate Receivables in additional Accounts to be transferred to the
Trust (each, an "Additional Account") for designation pursuant to the
applicable Asset Pool Supplement, (2) designate one or more additional
Collateral Certificates to be transferred to the Trust (each, an
"Additional Collateral Certificate") for designation pursuant to the
applicable Asset Pool Supplement or (3) increase the Invested Amount of
one or more Collateral Certificates previously conveyed to the Trust
pursuant to Section 2.11 in a sufficient amount such that, after giving
effect to such addition or increase, the Transferor Amount for such Asset
Pool for the prior Monthly Period would have been at least equal to the
Required Transferor Amount for such Asset Pool for such prior Monthly
Period, or (B) as determined on any Determination Date, the Pool Balance
for such Asset Pool for the prior Monthly Period is less than the Minimum
Pool Balance for such Asset Pool for such prior Monthly Period, the
applicable Transferor shall (1) designate Receivables in Additional
Accounts to be transferred to the Trust for designation pursuant to the
applicable Asset Pool Supplement, (2) designate one or more Additional
Collateral Certificates to be transferred to the Trust for designation
pursuant to the applicable Asset Pool Supplement or (3) increase the
Invested Amount of one or more Collateral Certificates previously conveyed
to the Trust pursuant to Section 2.11 in a sufficient amount such that,
after giving effect to such addition or increase, the Pool Balance for the
applicable Asset Pool would have been at least equal to the Minimum Pool
Balance for such Asset Pool for the prior Monthly Period; provided,
however, that in the event of a Servicer Rating Event, the Transferor
Amount and the Pool Balance for an Asset Pool will be determined on a
daily basis in accordance with a method to be determined by the Servicer,
subject to satisfaction of the Note Rating Agency Condition.
Any increase in the Invested Amount of one or more Collateral Certificates
previously conveyed to the Trust shall occur and/or designation of
Receivables in any Additional Accounts and/or any Additional Collateral
Certificates to be transferred to the Trust for designation to a
particular Asset Pool shall be transferred to the Trust and designated for
inclusion in such Asset Pool on or before the thirtieth Business Day
following such Determination Date (such date, in connection with the
addition of Additional Accounts or Additional Collateral Certificates, the
"Addition Date" and in connection with the increase of a Collateral
Certificate previously conveyed to the Trust, the "Increase Date");
provided, however, that in the event of a Servicer Rating Event, any such
Addition Date or Increase Date shall be on or before the tenth Business
Date following such Determination Date. The failure of the applicable
Transferor to increase the Pool Balance or the Transferor Amount for the
applicable Asset Pool as provided in this clause (i) solely as a result of
the unavailability to the applicable Transferor of a sufficient amount of
Additional Accounts and/or Additional Collateral Certificates and/or the
inability to increase the Invested Amount of one or more Collateral
Certificates previously conveyed to the Trust shall not constitute a
breach of this Agreement; provided that any such failure which has not
been timely cured may nevertheless result in the occurrence of an Early
Amortization Event.
(ii) Any Additional Accounts or Additional Collateral
Certificates designated to be included as Trust Assets pursuant to clause
(i) above may only be so included if the applicable conditions specified
in subsection (c) below have been satisfied.
(b) Permitted Additions.
(i) In addition to its obligation under subsection 2.12(a),
each Transferor may, but shall not be obligated to, subject to the
conditions in paragraph (c) below, (x) designate from time to time
Receivables in Additional Accounts to be included as Trust Assets, and/or
Additional Collateral Certificates to be included as Trust Assets and (y)
increase the Invested Amount of a Collateral Certificate previously
conveyed to the Trust. Such additional Collateral shall be transferred to
the Issuer on the Addition Date or Increase Date, as applicable.
(ii) On any Business Day, consideration in the form of cash
will be applied or an increase in the Transferor Interest will be effected
in connection with any increase in the Trust Assets pursuant to Section
2.11 or this Section 2.12, as applicable.
(c) Conditions to Additions. On each Addition Date with respect
to any Additional Accounts and/or Additional Collateral Certificates, the
applicable Receivables in Additional Accounts (and such Additional Accounts
shall be deemed to be Accounts for purposes of this Agreement) or the
applicable Additional Collateral Certificates existing as of the close of
business on the applicable Addition Date shall be designated as additional
Trust Assets, subject to the satisfaction of the following conditions (which
shall not apply with respect to any increase in the Invested Amount of any
Collateral Certificate previously conveyed to the Trust except as specified in
clause (i) below):
(i) on or before the third Business Day prior to the
Addition Date or Increase Date with respect to additions or increases
pursuant to subsection 2.12(a) and on or before the fifth Business Day
prior to the Addition Date with respect to additions pursuant to
subsection 2.12(b) (the "Notice Date"), the applicable Transferor shall
have delivered to the Owner Trustee, the Indenture Trustee, the Servicer,
the applicable Collateral Agent and each Note Rating Agency written notice
(unless such notice requirement is otherwise waived) that the Additional
Accounts and/or Additional Collateral Certificates will be included in the
Trust Assets or an increased Invested Amount of a Collateral Certificate
previously conveyed to the Trust will be included in the Trust Assets (the
latter notice requirement shall only apply to increases made pursuant to
subsection 2.12(a); provided, however, that notice shall be delivered to
the applicable Collateral Agent in connection with any increase in the
Invested Amount of a Collateral Certificate previously conveyed to the
Trust on or prior to the relevant Increase Date), which notice shall
specify, as applicable, (x) the approximate aggregate amount of the
Principal Receivables to be pledged, (y) the Invested Amount of the
Collateral Certificates to be pledged or (z) the amount by which the
Invested Amount of a Collateral Certificate previously conveyed to the
Trust is to be increased, as well as the applicable Addition Date or
Increase Date and, in connection with the Additional Accounts, the
Addition Cut Off Date;
(ii) the applicable Transferor shall represent and warrant
as of the applicable Addition Cut Off Date, each Additional Account is an
Eligible Account;
(iii) the applicable Transferor shall represent and warrant
as of the applicable Addition Date, each Additional Collateral Certificate
is an Eligible Collateral Certificate;
(iv) on or before the Addition Date with respect to
Additional Accounts and the Receivables arising thereunder, the applicable
Transferor shall have delivered to the Owner Trustee, on behalf of the
Issuer, and the Servicer a written assignment in substantially the form of
Exhibit A-2 (the "Account Assignment") and the applicable Transferor shall
have delivered to the Owner Trustee, on behalf of the Issuer, a computer
file containing a true and complete list of all Additional Accounts
designated by such Account Assignment, identified by account number and
the aggregate amount of the Receivables in each Additional Account as of
the Addition Cut Off Date, and stating to which Asset Pool such Additional
Accounts belong, which computer file shall be as of the date of such
Account Assignment, incorporated into and made a part of such Account
Assignment and this Agreement;
(v) on or before the Addition Date with respect to
Additional Collateral Certificates, the applicable Transferor shall have
delivered to the Owner Trustee, on behalf of the Issuer, a written
assignment in substantially the form of Exhibit A-1 (the "Certificate
Assignment") and each Collateral Certificate shall be registered in the
name of the Owner Trustee, on behalf of the Issuer;
(vi) as of each of the Addition Cut Off Date and the
Addition Date, no Insolvency Event with respect to the Account Owner, as
applicable, or such Transferor shall have occurred nor shall the transfer
to the Trust of the Receivables arising in the Additional Accounts or of
the Additional Collateral Certificate have been made in contemplation of
the occurrence thereof;
(vii) the acquisition by the Trust of the Receivables
arising in the Additional Accounts or of the Additional Collateral
Certificate shall not, in the reasonable belief of the applicable
Transferor, result in an Adverse Effect;
(viii) as of (i) the Addition Cut Off Date, the Assignment
constitutes a valid sale, transfer and assignment to the Trust of all
right, title and interest, whether owned on the Addition Cut Off Date or
thereafter acquired, of the Transferor in the Receivables existing on the
Addition Cut Off Date or thereafter created in the Additional Accounts,
all Interchange and Recoveries related thereto, all monies due or to
become due and all amounts received or receivable with respect thereto and
the "proceeds" (including "proceeds" as defined in the applicable UCC)
thereof, or, if this Assignment does not constitute a sale of such
property, it constitutes a grant of a "security interest" (as defined in
the applicable UCC) in such property to the Trust, which, in the case of
existing Receivables and the proceeds thereof, is enforceable upon
execution and delivery of this Assignment, and which will be enforceable
with respect to such Receivables hereafter created and the proceeds
thereof upon such creation or (ii) the Addition Date in connection with an
Additional Collateral Certificate, the Assignment constitutes either (x) a
valid sale, transfer and assignment to the Trust of all right, title and
interest of the Transferor in the Additional Collateral Certificate
designated on the Addition Date and such Additional Collateral Certificate
will be held by the Owner Trustee, on behalf of the Trust, free and clear
of any Lien of any Person claiming through or under the Transferor or any
of its Affiliates, or (y) a valid transfer for security of all of the
Transferor's right, title and interest in such Additional Collateral
Certificate to the Owner Trustee, on behalf of the Trust, which is
enforceable upon execution and delivery of this Assignment. Upon the
filing of all such appropriate financing statements, the Trust shall have
a first priority perfected security or ownership interest in such property
and proceeds;
(ix) if, with respect to any three-month period or with
respect to any twelve-month period, the aggregate number of Additional
Accounts designated to have their Receivables added to the Trust and
designated for inclusion in any Asset Pool, shall exceed the applicable
Aggregate Addition Limit for such Asset Pool, the applicable Transferor
shall have received notice from each Note Rating Agency that the inclusion
pursuant to subsection 2.12(b) of such Additional Accounts in excess of
the applicable Aggregate Addition Limit will not result in the reduction
or withdrawal of its then existing rating of any Series, Class or Tranche
of Notes then issued and Outstanding and shall have delivered such notice
to the Owner Trustee, on behalf of the Issuer;
(x) if so notified by any Note Rating Agency on or before
the second Business Day prior to the Addition Date with respect to
additions of Additional Collateral Certificates pursuant to subsection
2.12(a) or on or before the fourth Business Day prior to the Addition Date
with respect to additions of Additional Collateral Certificates pursuant
to subsection 2.12(b) that such Note Rating Agency has elected to impose a
Note Rating Agency Condition with respect to the addition of an Additional
Collateral Certificate, the applicable Transferor shall have received
notice from such Note Rating Agency on or prior to the applicable Addition
Date that the Note Rating Agency Condition shall have been satisfied with
respect to such Note Rating Agency and the Transferor shall have delivered
such notice to the Owner Trustee, on behalf of the Issuer; and
(xi) such Transferor shall have delivered to the Owner
Trustee, on behalf of the Issuer, an Officer's Certificate, dated the
Addition Date, confirming, to the extent applicable, the items set forth
in clauses (ii) through (x) above.
Section 2.13 Removal of Accounts.
(a) Subject to the conditions set forth below, each Transferor
may, but shall not be obligated to, designate Receivables for removal from the
Trust (the "Removed Accounts"). On or before the fifth Business Day (the
"Removal Notice Date") prior to the date on which the Receivables from the
designated Removed Accounts will be reassigned to the applicable Transferor
(the "Removal Date"), the Issuer shall give the Owner Trustee, the Indenture
Trustee, the Servicer, the applicable Collateral Agent and each Note Rating
Agency written notice that the Receivables from such Removed Accounts are to be
reassigned to the applicable Transferor.
(b) The applicable Transferor shall be permitted to designate
and require reassignment to it of Receivables from Removed Accounts only upon
satisfaction of the following conditions:
(i) all of the requirements for the removal of Accounts
under the applicable Asset Pool Supplement have been satisfied;
(ii) the Servicer shall represent and warrant that (x) a
random selection procedure was used by the Servicer in selecting the
Removed Accounts and only one such removal of randomly selected Accounts
shall occur in the then current Monthly Period, (y) the Removed Accounts
arose pursuant to an affinity, private-label, agent-bank, co-branding or
other arrangement with a third party that has been cancelled by such third
party or has expired without renewal and which by its terms permits the
third party to repurchase the Removed Accounts subject to such
arrangement, upon such cancellation or non-renewal and the third party has
exercised such repurchase right or (z) the Removed Accounts were selected
using another method that will not preclude transfers from being accounted
for as sales under generally accepted accounting principles or prevent the
applicable Transferor from continuing to qualify as a qualifying special
purpose entity in accordance with SFAS No. 140 (or any relevant
replacement statement);
(iii) the removal of any Receivable of any Removed Accounts
on any Removal Date shall not, in the reasonable belief of the applicable
Transferor, cause, with respect to the Asset Pool in which such
Receivables had been designated for inclusion, an Adverse Effect or the
Transferor Amount for such Asset Pool to be less than the Required
Transferor Amount for that Asset Pool or the Pool Balance for that Asset
Pool to be less than the Minimum Pool Balance for such Monthly Period in
which such removal occurs;
(iv) on or prior to the Removal Date, the applicable
Transferor shall have delivered to the Owner Trustee, on behalf of the
Issuer, for execution, a written assignment in substantially the form of
Exhibit B (the "Reassignment") and, within five Business Days thereafter,
or as otherwise agreed upon between the applicable Transferor and the
Owner Trustee, on behalf of the Issuer, the applicable Transferor shall
have delivered to the Owner Trustee, on behalf of the Issuer, a computer
file containing a true and complete list of all Removed Accounts
identified by account number and the aggregate amount of Receivables
outstanding in each Removed Account as of the Removal Date, and stating
from which Asset Pool such Accounts are to be removed, which computer file
shall as of the Removal Date modify and amend and be made a part of this
Agreement;
(v) on or before the tenth Business Day prior to the Removal
Date, each Note Rating Agency shall have received notice from the Servicer
of such proposed removal of the Receivables of such Accounts and, if such
removal is pursuant to subclause (ii)(y) or (z) above, the Note Rating
Agency Condition shall have been satisfied; and
(vi) (A) the Issuer shall have delivered to the Owner
Trustee an Officer's Certificate confirming the items set forth in clause
(i), (B) the Servicer shall have delivered to the Owner Trustee, on behalf
of the Issuer, an Officer's Certificate confirming the items set forth in
clause (ii) above and (C) the applicable Transferor shall have delivered
to the Owner Trustee, on behalf of the Issuer, an Officer's Certificate
confirming the items set forth in clauses (iii) through (v) above. The
Owner Trustee, the Indenture Trustee and the applicable Collateral Agent
may each conclusively rely on each 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.
Upon satisfaction of the above conditions, the Owner
Trustee, on behalf of the Issuer, shall execute and deliver the
Reassignment to such Transferor, and the Receivables from the Removed
Accounts shall no longer constitute a part of the Collateral.
Section 2.14 Account Allocations. In the event that any
Transferor is unable for any reason to transfer Receivables to the Trust in
accordance with the provisions of this Agreement (including by reason of the
application of the provisions of Section 9.01 or any order of any Governmental
Authority (a "Transfer Restriction Event")), then, in any such event, (a) such
Transferor and the Servicer agree (except as prohibited by any such order) to
allocate and pay to the Trust, after the date of such inability, all
Collections, including Collections of Principal Receivables and Finance Charge
Receivables transferred to the Trust prior to the occurrence of such event, and
all amounts which would have constituted Collections with respect to Principal
Receivables and Finance Charge Receivables but for such Transferor's inability
to transfer such Receivables (up to the lesser of the amount of such
insufficiency or an aggregate amount equal to the amount of Principal
Receivables and Finance Charge Receivables in the Trust on such date
transferred to the Trust by such Transferor), (b) such Transferor and the
Servicer agree that such amounts will be applied as Collections in accordance
with the terms of the applicable Asset Pool Supplement and the terms of each
Indenture Supplement and (c) for only so long as the allocation and application
of all Collections and all amounts that would have constituted Collections are
made in accordance with clauses (a) and (b) above, Principal Receivables and
Finance Charge Receivables (and all amounts which would have constituted
Principal Receivables and Finance Charge Receivables but for such Transferor's
inability to transfer Receivables to the Trust) which are charged off as
uncollectible in accordance with this Agreement shall continue to be allocated
in accordance with the terms of the applicable Asset Pool Supplement and each
Indenture Supplement and all amounts that would have constituted Principal
Receivables but for such Transferor's inability to transfer Receivables to the
Trust shall be deemed to be Principal Receivables for the purpose of
calculating the applicable Noteholder Percentage with respect to Principal
Receivables with respect to any Series, Class or Tranche secured by the
Receivables designated for inclusion in any Asset Pool. For the purpose of the
immediately preceding sentence, such Transferor and the Servicer shall treat
the first received Collections with respect to the Accounts as allocable to the
Trust until the Trust shall have been allocated and paid Collections in an
amount equal to the aggregate amount of Principal Receivables in the Trust as
of the date of the occurrence of such event. If such Transferor and the
Servicer are unable pursuant to any Requirements of Law to allocate Collections
as described above, such Transferor and the Servicer agree that, after the
occurrence of such event, payments on each Account with respect to the
principal balance of such Account shall be allocated first to the oldest
principal balance of such Account and shall have such payments applied as
Collections in accordance with the terms of the applicable Asset Pool
Supplement and each Indenture Supplement. The parties hereto agree that Finance
Charge Receivables, whenever created, accrued in respect of Principal
Receivables which have been conveyed to the Trust, or that would have been
conveyed to the Trust but for the above described inability to transfer such
Receivables, shall continue to be a part of the Trust notwithstanding any
cessation of the transfer of additional Principal Receivables to the Trust and
Collections with respect thereto shall continue to be allocated and paid in
accordance with the terms of the applicable Asset Pool Supplement and each
Indenture Supplement.
Section 2.15 Discount Receivables.
(a) The Transferor shall have the option to designate at any
time and from time to time a fixed percentage or percentages, which may be a
fixed percentage or a variable percentage based on a formula (the "Yield
Factor"), currently zero, of all or any specified portion of Gross Principal
Receivables outstanding that have been designated for inclusion in a specified
Asset Pool on any date of determination and subsequently created to be treated
as Discount Receivables and included as Finance Charge Receivables. Subject to
the conditions specified below, the Transferor may, without notice to or the
consent of any Noteholder whose notes are secured by a specified Asset Pool,
from time to time, increase, reduce or eliminate the Yield Factor on or after
such initial date of determination and any other specified date (each, a
"Discount Option Date"). The Transferor shall provide 30 days prior written
notice of any such change in a Yield Factor with respect to a specified Asset
Pool and the related Discount Option Date to the Servicer, the Owner Trustee,
the Indenture Trustee, the applicable Collateral Agent and any Note Rating
Agency and such change in the Yield Factor shall become effective on such
Discount Option Date unless such designation in the reasonable belief of the
Transferor would cause an Early Amortization Event or Event of Default with
respect to any Series, Class or Tranche to occur, or an event which, with
notice or lapse of time or both, would constitute an Early Amortization Event
or Event of Default with respect to any Series, Class or Tranche. In addition,
on each Discount Option Date after a change in Yield Factor, the Transferor
shall apply the new Yield Factor to all or the portion of the Gross Principal
Receivables outstanding that have been designated for inclusion in a specified
Asset Pool which are to be treated as Discount Receivables.
(b) After the Discount Option Date, Discount Receivables
Collections with respect to Receivables designated for inclusion in an Asset
Pool shall be treated as Finance Charge Collections to be allocated to such
Asset Pool.
[END OF ARTICLE II]
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.01 Collections and Allocations. The Servicer (or, if the
authority of the Servicer has been revoked pursuant to Section 10.01 hereof,
or, if a Successor Servicer has been appointed, the Successor Servicer) shall
receive from time to time funds from each Transferor in respect of Receivables
and from each applicable Master Trust with respect to the Collateral
Certificates pledged to the Trust. Upon receipt of any funds in respect of a
Collateral Certificate or Receivables, unless otherwise specified herein, the
Servicer shall deposit such amounts in the Collection Account for the Asset
Pool in which such Collateral Certificate or Receivables have been designated
for inclusion, which amounts shall be applied by the applicable Collateral
Agent, on behalf of the Indenture Trustee, for such Asset Pool pursuant to the
Asset Pool Supplement for such Asset Pool. Except as otherwise provided below,
the Servicer shall deposit Collections with respect to Receivables into the
Collection Account for the applicable Asset Pool as promptly as possible after
the Date of Processing of such Collections, but in no event later than the
second Business Day following the Date of Processing and shall deposit
Collections received with respect to Collateral Certificates with respect to
any Monthly Period into the Collection Account for the applicable Asset Pool no
later than the First Note Transfer Date for the applicable Asset Pool in the
next succeeding Monthly Period. In the event of the insolvency of the Servicer,
then, immediately upon the occurrence of such event and thereafter, the
Servicer shall deposit all Collections into the Collection Account for each
applicable Asset Pool and in no such event shall the Servicer deposit any
Collections thereafter into any account established, held or maintained with
the Servicer.
For as long as Chase USA remains the Servicer hereunder and (i) no
Servicer Rating Event shall have occurred and be continuing or (ii) Chase USA
obtains a guarantee or letter of credit covering risk of collection with
respect to its deposit and payment obligations under this Agreement (in form
and substance satisfactory to each Note Rating Agency) from a guarantor having
a short-term credit rating of at least "A-1" from Standard & Poor's or "P-1"
from Xxxxx'x or "F1" from Fitch (or such other rating below "A-1" or "P-1," or
to the extent rated by Fitch, "F1," as the case may be, which is acceptable to
such Note Rating Agency), or (iii) the Note Rating Agency Condition will have
been satisfied despite the Servicer's inability to satisfy the rating
requirement specified in clause (i) or (ii) above, or (iv) for five Business
Days following any reduction of any such rating or failure to satisfy the
conditions specified in clause (i) or (ii) above, the Servicer need not make
daily deposits of Collections into the Collection Account as provided in the
preceding paragraph, but may make deposits in an amount equal to the net amount
of such deposits and payments which would have been made with respect to Notes
to receive payments on the related Payment Dates had the conditions of this
sentence not applied, in the Collection Account in immediately available funds
not later than 1:00 p.m., New York City time, on each applicable Note Transfer
Date following the Monthly Period with respect to which such deposit relates.
To the extent that, in accordance with this Section 3.01, the Servicer has
retained amounts which would otherwise be required to be deposited into a
Collection Account or any Supplemental Bank Account with respect to any Monthly
Period, the Servicer shall be required to deposit such amounts in the
applicable Collection Account or such applicable Supplemental Bank Account on
the related Note Transfer Date to the extent necessary to make required
distributions on the related Payment Date for such Asset Pool.
Section 3.02 Allocations of Finance Charge Collections, the Default
Amount and the Trust Servicing Fee.
(a) With respect to each Monthly Period, the Servicer shall
allocate to each Asset Pool an amount equal to the Finance Charge Collections
from the Trust Assets identified in the applicable Asset Pool Supplement to be
included in the Collateral for such Asset Pool for such Monthly Period.
(b) With respect to each Monthly Period, the Servicer shall
allocate to each Asset Pool an amount equal to the Default Amount with respect
to the Trust Assets identified in the applicable Asset Pool Supplement to be
included in the Collateral for such Asset Pool for such Monthly Period.
(c) With respect to each Monthly Period, the Servicer shall
allocate to each Asset Pool an amount equal to the Servicing Fee for that Asset
Pool with respect to such Monthly Period.
Section 3.03 Allocations of Principal Collections. With respect
to each Monthly Period, the Servicer shall allocate to each Asset Pool an
amount equal to the Principal Collections from the Trust Assets identified in
the applicable Asset Pool Supplement to be included in the Collateral for such
Asset Pool for such Monthly Period.
Section 3.04 Allocations of Finance Charge Collections, the
Default Amount, the Servicing Fee and Principal Collections Allocable to the
Transferor Interest of an Asset Pool.
(a) With respect to each Monthly Period, unless otherwise stated
in any Indenture Supplement, the Servicer shall allocate to the holder of the
Transferor Interest for an Asset Pool an amount equal to the product of (i) the
Transferor Percentage for that Asset Pool with respect to such Monthly Period
and (ii) the Finance Charge Collections allocable to that Asset Pool with
respect to such Monthly Period. If so specified in any Indenture Supplement,
such amounts may be applied to cover certain shortfalls in the amount of
investment earnings on investments of funds in certain Supplemental Bank
Accounts.
(b) With respect to each Monthly Period, the Servicer shall
allocate to the holder of the Transferor Interest for an Asset Pool an amount
equal to the product of (i) the Transferor Percentage for that Asset Pool with
respect to such Monthly Period and (ii) the Default Amount allocable to that
Asset Pool with respect to such Monthly Period.
(c) With respect to each Monthly Period, the Servicer shall
allocate to the holder of the Transferor Interest for an Asset Pool an amount
equal to the product of (i) the Transferor Percentage for that Asset Pool with
respect to such Monthly Period and (ii) the Servicing Fee for that Asset Pool
with respect to such Monthly Period.
(d) With respect to each Monthly Period, unless otherwise stated
in any Asset Pool Supplement or any Indenture Supplement, the Servicer shall
allocate to the holder of the Transferor Interest for an Asset Pool an amount
equal to the product of (i) the Transferor Percentage for that Asset Pool with
respect to such Monthly Period and (ii) the Principal Collections allocable to
that Asset Pool with respect to such Monthly Period; provided, however, that
amounts payable to the holder of the Transferor Interest for an Asset Pool
pursuant to this subsection 3.04(d) shall instead be deposited in the Excess
Funding Account for such Asset Pool to the extent that (i) the Transferor
Amount for such Asset Pool is, or as a result of such payment would become,
less than the Required Transferor Amount for such Asset Pool or (ii) the Pool
Balance for such Asset Pool is, or as a result of such payment would become,
less than the Minimum Pool Balance for such Asset Pool.
(e) To the extent there is more than one Transferor for an Asset
Pool, the Asset Pool Supplement for that Asset Pool shall describe the
distribution among the various Transferors of Collections, the Default Amount
and the Trust Servicing Fee allocated to the Transferor Interest for that Asset
Pool.
(f) Notwithstanding anything in this Agreement to the contrary,
unless otherwise specified in the Indenture, any applicable Asset Pool
Supplement or any applicable Indenture Supplement, the Servicer need not
deposit any amount allocated to be paid to any Transferor pursuant to this
Agreement, the Indenture, any applicable Asset Pool Supplement or any
applicable Indenture Supplement into the Collection Account or any Supplemental
Bank Account, but shall pay such amounts as collected to the applicable
Transferor.
Section 3.05 Transfer of Defaulted Accounts. Unless otherwise
provided in any Series Supplement, in consideration of receiving Recoveries as
provided in subsection 3.07(a), on the date on which an Account becomes a
Defaulted Account, the Trust shall automatically and without further action or
consideration be deemed to transfer, set over, and otherwise convey to the
applicable Transferor, without recourse, representation, or warranty, all the
right, title and interest of the Trust in and to the Receivables in such
Defaulted Account, all monies due or to become due with respect thereto, all
proceeds thereof allocable to the Trust with respect to such Receivables,
excluding Recoveries relating thereto, which shall remain a Trust Asset.
Section 3.06 Adjustments for Miscellaneous Credits and
Fraudulent Charges.
(a) The Servicer shall be obligated to reduce on a net basis for
each Monthly Period the aggregate amount of Principal Receivables (a "Credit
Adjustment") with respect to any Principal Receivable (i) which was created in
respect of merchandise refused or returned by the Obligor thereunder or as to
which the Obligor thereunder has asserted a counterclaim or defense, (ii) which
is reduced by the Servicer by any rebate, refund, charge-back or adjustment
(including Servicer errors) or (iii) which was created as a result of a
fraudulent or counterfeit charge.
In the event that the inclusion of the amount of a Credit
Adjustment in (x) the calculation of the Transferor Amount for the applicable
Asset Pool would cause the Transferor Amount for such Asset Pool to be an
amount less than the Required Transferor Amount for such Asset Pool or (y) the
calculation of the Pool Balance for such Asset Pool would cause the Pool
Balance for such Asset Pool to be an amount less than the Minimum Pool Balance
for such Asset Pool, the applicable Transferor shall make a deposit, no later
than (a) the First Note Transfer Date following the Monthly Period with respect
to which such Credit Adjustment occurs or (b) in the event of a Servicer Rating
Event, 10 Business Days after the inclusion of the Credit Adjustment that
caused the Transferor Amount for such Asset Pool to be less than the Required
Transferor Amount for such Asset Pool or the Pool Balance for such Asset Pool
to be less than the Minimum Pool Balance for such Asset Pool, into the Excess
Funding Account in immediately available funds in an amount equal to the
greater of the amount by which (i) the Transferor Amount for the applicable
Asset Pool would be less than the Required Transferor Amount or (ii) the Pool
Balance for the applicable Asset Pool would be an amount less than the Minimum
Pool Balance for such Asset Pool, due to Credit Adjustments with respect to
Receivables conveyed by such Transferor (each such deposit, an "Adjustment
Payment").
(b) If (i) the Servicer makes a deposit into the Collection
Account in respect of a Collection of a Receivable and such Collection was
received by the Servicer in the form of a check which is not honored for any
reason or (ii) the Servicer makes a mistake with respect to the amount of any
Collection and deposits an amount that is less than or more than the actual
amount of such Collection, the Servicer shall appropriately adjust the amount
subsequently deposited into the Collection Account to reflect such dishonored
check or mistake. Any Receivable in respect of which a dishonored check is
received shall be deemed not to have been paid. Notwithstanding the first two
sentences of this paragraph, adjustments made pursuant to this Section 3.06
shall not require any change in any report previously delivered pursuant to
subsection 4.04(a).
Section 3.07 Recoveries and Interchange.
(a) Recoveries. On or prior to the second Business Day following
the end of each Monthly Period, the Transferor shall notify the Servicer of the
amount of Recoveries to be included as Collections for each Asset Pool with
respect to the preceding Monthly Period. On the First Note Transfer Date
following the applicable Monthly Period, the Transferor shall pay to the
Servicer and the Servicer shall deposit into the Collection Account for each
Asset Pool, in immediately available funds, the amount of Recoveries to be so
included as Collections for that Asset Pool with respect to the preceding
Monthly Period; provided, however, that such deposit need be made only to the
extent that such funds are required to be retained in the applicable Bank
Accounts for the benefit of any Series, Class or Tranche of Notes for that
Asset Pool pursuant to the provisions of this Article III of this Agreement,
any applicable Asset Pool Supplement or any applicable Indenture Supplement
provided that any such amount that is not so deposited shall be paid to the
applicable Transferor.
(b) Interchange. On or prior to the second Business Day
following the end of each Monthly Period, each Account Owner shall notify the
Servicer of the Interchange Amount, if any, which is required to be included as
Finance Charge Collections with respect to the preceding Monthly Period. On the
First Note Transfer Date following the applicable Monthly Period, each Account
Owner shall pay to the Servicer and the Servicer shall deposit into the
Collection Account, in immediately available funds, the Interchange Amount to
be so included as Finance Charge Collections with respect to the preceding
Monthly Period; provided, however, that such deposit need be made only to the
extent that such funds are required to be retained in the applicable Bank
Accounts for the benefit of any Series, Class or Tranche of Notes pursuant to
the provisions of this Article III of this Agreement, any applicable Asset Pool
Supplement or any applicable Indenture Supplement and any such amount that is
not so deposited shall be paid to the applicable Transferor.
[END OF ARTICLE III]
ARTICLE IV
SERVICING OF RECEIVABLES
Section 4.01 Acceptance of Appointment and Other Matters
Relating to the Servicer.
(a) Chase USA agrees to act as the Servicer under this
Agreement.
(b) The Servicer shall service and administer the Receivables
and shall collect payments due under the Receivables in accordance with its
customary and usual servicing procedures for servicing credit card receivables
comparable to the Receivables and in accordance with the Credit Card
Guidelines. The Servicer shall service and administer the Collateral
Certificates and shall collect payments due under the Collateral Certificates
in accordance with the terms and provisions of each such Collateral
Certificate. The Servicer shall have full power and authority, acting alone or
through any party properly designated by it hereunder, to do any and all things
in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing and
subject to Section 10.01, the Servicer is hereby authorized and empowered
unless such power is revoked by the Indenture Trustee on account of the
occurrence of a Servicer Default pursuant to Section 10.01, (i) to instruct the
applicable Collateral Agent, the Indenture Trustee or the Owner Trustee to make
allocations, withdrawals and payments to or from the Collection Account, the
Excess Funding Account and any Supplemental Bank Account or Sub-Account as set
forth in this Agreement, the Indenture, the applicable Asset Pool Supplement or
any Indenture Supplement, (ii) to take any action required or permitted under
any Supplemental Credit Enhancement or Derivative Agreement, as set forth in
this Agreement, the applicable Asset Pool Supplement, the Indenture or any
Indenture Supplement, (iii) to instruct the applicable Collateral Agent, the
Indenture Trustee or the Owner Trustee in writing, as set forth in this
Agreement, (iv) to execute and deliver, on behalf of the Trust any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the
Receivables or the Collateral Certificates and, after the delinquency of any
Receivable and to the extent permitted under and in compliance with applicable
Requirements of Law, to commence enforcement proceedings with respect to such
Receivables, (v) to execute and deliver, on behalf of the Trust, any and all
instruments deemed necessary or appropriate by it to take any action or fulfill
any obligation with respect to the Collateral Certificates and (vi) to make any
filings, reports, notices, applications, registrations with, and to seek any
consents or authorizations from the Commission and any state securities
authority on behalf of the Trust as may be necessary or advisable to comply
with any federal or state securities or reporting requirements. Each of the
Collateral Agents, the Indenture Trustee and the Owner Trustee agree that it
shall promptly follow the instructions of the Servicer to withdraw funds from
the applicable Bank Account and to take any action required under any
Supplemental Credit Enhancement or Derivative Agreement at such time as
required under this Agreement, the applicable Asset Pool Supplement, the
Indenture or any Indenture Supplement. Each of the Collateral Agents, the
Indenture Trustee and the Owner Trustee shall execute at the Servicer's written
request such documents prepared by any Transferor and acceptable to the
applicable Collateral Agent or the Indenture Trustee, as may be necessary or
appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
(c) The Servicer shall not, and no Successor Servicer shall, be
obligated to use separate servicing procedures, offices, employees or accounts
for servicing the Receivables from the procedures, offices, employees and
accounts used by the Servicer or such Successor Servicer, as the case may be,
in connection with servicing other credit card receivables.
(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Accounts and Receivables in accordance with the
Credit Card Agreements relating to the Accounts and the Credit Card Guidelines
and all applicable rules and regulations of the applicable credit card company,
except insofar as any failure to so comply or perform would not materially and
adversely affect the Trust or the Noteholders.
(e) The Servicer shall, on and after such time as Receivables
are included as Trust Assets, pay out of its own funds, without reimbursement,
all expenses incurred in connection with the Trust and the servicing activities
hereunder including expenses related to enforcement of the Collateral
Certificates and the Receivables. Prior to the inclusion of Receivables as
Trust Assets, such expenses shall be paid by each Transferor in accordance with
Section 12.03.
(f) The Servicer shall maintain fidelity bond coverage insuring
against losses through wrongdoing of its officers and employees who are
involved in the servicing of credit card accounts covering such actions and in
such amounts as the Servicer believes to be reasonable from time to time.
Section 4.02 Servicing Compensation. As compensation for its
servicing activities hereunder and under each Asset Pool Supplement and as
reimbursement for any expense incurred by it in connection therewith, the
Servicer shall be entitled to receive a servicing fee (the "Trust Servicing
Fee") with respect to each Monthly Period prior to the termination of the Trust
pursuant to Article VIII of the Trust Agreement, payable monthly on the related
Payment Date. For each Monthly Period, the Trust Servicing Fee shall be equal
to the sum of the Servicing Fees for each Asset Pool for such Monthly Period.
The Issuer, as holder of each Collateral Certificate, agrees to pay the portion
of the Trust Servicing Fee owed to each Master Trust Servicer as servicer of
the Receivables underlying such Collateral Certificate; provided, however, in
no event shall the Owner Trustee (as such or in its individual capacity), the
Indenture Trustee, the Administrator, any Collateral Agent or the Noteholders
of any Series be liable for the share of the Trust Servicing Fee with respect
to any Monthly Period to be paid by the holder of any Collateral Certificates.
Section 4.03 Representations, Warranties and Covenants of the
Servicer. Chase USA, as Servicer, hereby makes, and any Successor Servicer by
its appointment hereunder shall make, with respect to itself, on each Issuance
Date, each Addition Date and each Increase Date (and on the date of any such
appointment), the following representations, warranties and covenants on which
the Trust, the Owner Trustee, the applicable Collateral Agent and the Indenture
Trustee shall be deemed to have relied in accepting each Collateral
Certificate, any increase in a Collateral Certificate previously conveyed to
the Trust and each Receivable in trust and in entering into the Indenture and
the applicable Asset Pool Supplement:
(a) Organization and Good Standing. The Servicer is a national
banking association duly organized and validly existing in good standing under
the laws of the United States and has full corporate power, authority and legal
right to own its properties and conduct its credit card business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement.
(b) Due Qualification. The Servicer is not required to qualify
nor register as a foreign corporation in any state in order to service the
Receivables as required by this Agreement and has obtained all licenses and
approvals necessary in order to so service the Receivables as required under
federal law. If the Servicer shall be required by any Requirement of Law to so
qualify or register or obtain such license or approval, then it shall do so.
(c) Due Authorization. The execution, delivery, and performance
of this Agreement and the other agreements and instruments executed or to be
executed by the Servicer as contemplated hereby, have been duly authorized by
the Servicer by all necessary action on the part of the Servicer and this
Agreement will remain, from the time of its execution, an official record of
the Servicer.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Servicer, enforceable in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights in general and the rights of creditors of national
banking associations.
(e) No Violation. The execution and delivery of this Agreement
by the Servicer, and the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof applicable to the Servicer,
will not conflict with, violate, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a default under, any Requirement of Law applicable to the Servicer or
any indenture, contract, agreement, mortgage, deed of trust or other instrument
to which the Servicer is a party or by which it is bound.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Servicer, threatened against the
Servicer before any Governmental Authority seeking to prevent the consummation
of any of the transactions contemplated by this Agreement, seeking any
determination or ruling that, in the reasonable judgment of the Servicer, would
materially and adversely affect the performance by the Servicer of its
obligations under this Agreement or seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of this
Agreement.
(g) Compliance with Requirements of Law. The Servicer shall duly
satisfy all obligations on its part to be fulfilled under or in connection with
each Receivable and the related Account, will maintain in effect all
qualifications required under Requirements of Law in order to service properly
each Receivable and the related Account and will comply in all material
respects with all other Requirements of Law in connection with servicing each
Receivable and the related Account the failure to comply with which would have
an Adverse Effect.
(h) No Rescission or Cancellation. The Servicer shall not permit
any rescission or cancellation of any Collateral Certificate or any Receivable
except as ordered by a court of competent jurisdiction or other Governmental
Authority or in accordance with the normal operating procedures of the
Servicer.
(i) Protection of Rights. The Servicer shall take no action
which, nor omit to take any action the omission of which, would impair the
rights of the Trust, the applicable Collateral Agent, the Indenture Trustee or
the Noteholders in any Collateral Certificate or any Receivable or the related
Account, if any, nor shall it reschedule, revise or defer payments due on any
Receivable except in accordance with the Credit Card Guidelines.
(j) Receivables Not To Be Evidenced by Promissory Notes. Except
in connection with its enforcement or collection of an Account, the Servicer
will take no action to cause any Receivable to be evidenced by any instrument
(as defined in the UCC as in effect in the State of Delaware) and if any
Receivable is so evidenced it shall be reassigned or assigned to the Servicer
as provided in this Section.
(k) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by the Servicer in connection with
the execution and delivery of this Agreement by the Servicer and the
performance of the transactions contemplated by this Agreement by the Servicer,
have been duly obtained, effected or given and are in full force and effect.
Section 4.04 Reports and Records for the Owner Trustee, the
Indenture Trustee and the Applicable Collateral Agent.
(a) Daily Records. On each Business Day, the Servicer shall
prepare or cause to be made available at the office of the Servicer for
inspection by the Owner Trustee, the Indenture Trustee and the applicable
Collateral Agent upon request a record setting forth (i) the aggregate amount
of Collections processed by the Servicer on the second preceding Business Day,
(ii) the aggregate amount of Receivables as of the close of business on the
second preceding Business Day in the Accounts and (iii) the Invested Amount of
each Collateral Certificate as of the close of business on the second preceding
Business Day.
(b) Monthly Servicer's Certificate. Unless otherwise stated in
the related Asset Pool Supplement, on each Determination Date, the Servicer
shall, with respect to each outstanding Series, deliver to the Owner Trustee,
the Indenture Trustee, the applicable Collateral Agent and each Note Rating
Agency a certificate of an Authorized Officer in substantially the form set
forth in the related Asset Pool Supplement.
Section 4.05 Annual Certificate of Servicer. Within four months
after the end of each fiscal year of the Servicer beginning with the end of
fiscal year 2004, the Servicer will deliver to the Owner Trustee, the Indenture
Trustee, the applicable Collateral Agent and each Note Rating Agency, an
Officer's Certificate substantially in the form of Exhibit C stating that (a) a
review of the activities of the Servicer during the prior twelve-month period
and of its performance under this Agreement was made under the supervision of
the officer signing such certificate, (b) to the best of such officer's
knowledge, based on such review, the Servicer has fully performed all its
obligations under this Agreement, the Indenture, the Asset Pool Supplements and
the Indenture Supplements throughout such period, or, if there has been a
default in the performance of any such obligation, specifying each such default
known to such officer and the nature and status thereof and (c) the report
required to be delivered to the Servicer by the independent certified public
accountants pursuant to subsection 4.06(b) of this Agreement has been delivered
to the Servicer, and such report contains no exceptions, except for such
exceptions as the independent certified public accountants believe to be
immaterial and such other exceptions as may be set forth in such report and
listed in such Officer's Certificate. A copy of such certificate may be
obtained by any Noteholder or Note Owner by a request in writing to the Owner
Trustee addressed to the Corporate Trust Office.
Section 4.06 Annual Servicing Report of Independent Certified
Public Accountants; Copies of Reports Available.
(a) Within four months after the end of each fiscal year of the
Servicer beginning with the end of fiscal year 2004, the Servicer shall cause a
firm of nationally recognized independent public accountants (who may also
render other services to the Servicer or any Transferor) to furnish a report to
the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and
each Note Rating Agency, to the effect that such firm has examined the
assertion of the Servicer that it has maintained effective internal control
over the servicing of Accounts under this Agreement and has completed such
examination in accordance with standards established by the American Institute
of Certified Public Accountants and that, on the basis of such examination,
such firm is of the opinion (assuming the accuracy of any reports generated by
the Servicer's third party agents) that such assertion is fairly stated in all
material respects.
(b) Within four months after the end of each fiscal year of the
Servicer beginning with the end of fiscal year 2004, the Servicer shall cause a
firm of nationally recognized independent public accountants (who may also
render other services to the Servicer or the applicable Transferor) to furnish
a report to the Indenture Trustee, the Owner Trustee, the applicable Collateral
Agent and the Servicer to the effect that they have applied certain procedures
agreed upon with the Servicer to compare the mathematical calculations of each
amount set forth in the Servicer's certificates delivered pursuant to
subsection 4.04(b) during the period covered by such report with the Servicer's
computer reports that were the source of such amounts and that on the basis of
such agreed-upon procedures and comparison, such accountants are of the opinion
that such amounts are in agreement, except for such exceptions as they believe
to be immaterial and such other exceptions as shall be set forth in such
statement. Such report shall set forth the agreed-upon procedures performed.
(c) A copy of each certificate and report provided pursuant to
subsection 4.04(b), Section 4.05 or subsection 4.06(a) may be obtained by any
Noteholder or Note Owner by a request in writing to the Owner Trustee addressed
to the Corporate Trust Office.
(d) In the event such independent public accountants require the
Indenture Trustee to agree to the procedures to be performed by such firm in
any of the reports required to be prepared pursuant to this Section 4.06, the
Servicer shall direct the Indenture Trustee in writing to so agree; it being
understood and agreed that the Indenture Trustee will deliver such letter of
agreement in conclusive reliance upon the direction of the Servicer, and the
Indenture Trustee has not made any independent inquiry or investigation as to,
and shall have no obligation or liability in respect of, the sufficiency,
validity or correctness of such procedures.
Section 4.07 Tax Treatment. Unless otherwise specified in the
Indenture or an Indenture Supplement with respect to a particular Series, Class
or Tranche, each Transferor has entered into this Agreement, and the Notes will
be issued, with the intention that, for federal, state and local income and
franchise tax purposes, (i) the Notes of each Series, Class or Tranche which
are characterized as indebtedness at the time of their issuance will qualify as
indebtedness secured by the Trust Assets and (ii) the Trust shall not be
treated as an association or publicly traded partnership taxable as a
corporation. Each Transferor, by entering into this Agreement, and each
Noteholder, by the acceptance of any such Note (and each Note Owner, by its
acceptance of an interest in the applicable Note), agree to treat such Note for
federal, state and local income and franchise tax purposes as indebtedness of
the Transferor. Each Holder of such Note agrees that it will cause any Note
Owner acquiring an interest in a Note through it to comply with this Agreement
as to treatment as indebtedness under applicable tax law, as described in this
Section 4.07. The parties hereto agree that they shall not cause or permit the
making, as applicable, of any election under Treasury Regulation Section
301.7701-3 whereby the Trust or any portion thereof would be treated as a
corporation for federal income tax purposes and, except as required by Section
7.15 of the Indenture, shall not file tax returns or obtain any federal
employer identification number for the Trust but shall treat the Trust as a
security device for federal income tax purposes. The provisions of this
Agreement shall be construed in furtherance of the foregoing intended tax
treatment.
Section 4.08 Notices to Chase USA. In the event that Chase USA
is no longer acting as Servicer, any Successor Servicer shall deliver or make
available to Chase USA each certificate and report required to be provided
thereafter pursuant to subsection 4.04(b) and Sections 4.05 and subsections
4.06(a) and (b).
Section 4.09 Reports to the Commission. The Servicer shall, on
behalf of the Trust, cause to be filed with the Commission any periodic reports
required to be filed under the provisions of the Securities Exchange Act of
1934 and the rules and regulations of the Commission thereunder. The applicable
Transferor shall, at its own expense, cooperate in any reasonable request of
the Servicer in connection with such filings.
[END OF ARTICLE IV]
ARTICLE V
ADMINISTRATION OF THE TRUST; DUTIES OF THE ADMINISTRATOR
Section 5.01 Appointment of Administrator; Duties of Administrator.
(a) The Issuer hereby appoints Chase USA to act as administrator
(the "Administrator"), subject to Section 5.08.
(b) Duties of Administrator with Respect to the Related
Agreements. The Administrator shall consult with the Owner Trustee regarding
the duties of the Issuer and the Owner Trustee under the Related Agreements.
The Administrator shall monitor the performance of the Issuer and shall advise
the Owner Trustee when action is necessary to comply with the Issuer's or the
Owner Trustee's duties under the Related Agreements. The Administrator shall
prepare for execution by the Issuer or the Owner Trustee or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer or the Owner Trustee to prepare, file or deliver pursuant to any Related
Agreement. In furtherance of the foregoing, the Administrator shall take all
appropriate action that it is the duty of the Issuer or the Owner Trustee to
take pursuant to the Indenture, any Indenture Supplement and any Asset Pool
Supplement including, such of the foregoing as are required with respect to the
following matters under the Indenture, any Indenture Supplement and any Asset
Pool Supplement (parenthetical references are to Articles or Sections of the
Indenture):
(A) the duty to cause the Note Register to be
kept, and notifying the Indenture Trustee of any appointment of a new
Note Registrar and the location, or change in location, of the Note
Registrar (subsection 3.05(a));
(B) preparing or obtaining the documents, legal
opinions and instruments required for execution, authentication and
delivery of the Notes, and delivery of the same to the Indenture
Trustee for authentication (Sections 3.03, 3.04 and 3.10), providing
for the replacement of mutilated, destroyed, lost or stolen Notes
(Section 3.06), providing for the exchange or transfer of Notes
(Section 3.05) and, to the extent set forth in the related Indenture
Supplement, notifying each Note Rating Agency in writing of the
issuance of any Tranche, Class or Series of Notes;
(C) directing the Collateral Agent with respect
to the investment of funds in the Bank Accounts (Section 4.03);
(D) preparing or obtaining the documents, legal
opinions and instruments required to be delivered to the Indenture
Trustee with respect to the satisfaction and discharge of the
Indenture (subsection 5.01(c)) and preparing the documents necessary
for the Indenture Trustee to acknowledge the same (subsection
5.01(a));
(E) on the resignation or removal of any
Indenture Trustee, appointing a successor Indenture Trustee
(subsection 7.10(e)) and giving written notice of such resignation or
removal and appointment to each Noteholder (subsection 7.10(f));
(F) preparing or causing to be prepared tax
returns for the Issuer (if required) and the reporting information
for the Noteholders (Section 7.15);
(G) preparing on behalf of the Issuer written
instructions regarding any action proposed to be taken or omitted by
the Indenture Trustee upon the Indenture Trustee's application
therefor (Section 7.18);
(H) furnishing to the Indenture Trustee a list of
the names and addresses of the Registered Noteholders not more than
15 days after each Record Date or at such other times as the
Indenture Trustee may request in writing (Section 8.01);
(I) establishing reasonable rules for matters
relating to Action by or a meeting of Noteholders not otherwise set
forth in Section 8.04 of the Indenture (subsection 8.04(g));
(J) preparing for the Issuer such filings for
filing with the Commission, and providing the Indenture Trustee with
copies thereof once filed, as required by the Securities Exchange Act
of 1934 or otherwise as in accordance with rules and regulations
prescribed from time to time by the Commission (Section 8.05);
(K) preparing, completing and delivering to the
Indenture Trustee and the trustee for the applicable Master Trust
(with a copy to each Note Rating Agency), a Monthly Noteholders'
Statement (Section 8.06);
(L) preparing for the Issuer the Payment
Instruction after the Issuer receives each Monthly Servicer's
Certificate under the applicable Series Supplement, delivering a copy
thereof to the Indenture Trustee and the trustee for the applicable
Master Trust and compiling such other information for the Issuer
(subsection 8.07(a));
(M) preparing or obtaining any necessary Opinion
of Counsel, Issuer Tax Opinion, Officer's Certificate, or other
document or instrument as may be required in connection with any
supplemental indenture or amendment to the Indenture, any Indenture
Supplement or any Asset Pool Supplement (Article IX);
(N) giving notice to each Note Rating Agency and
collecting the vote of Noteholders, as necessary, in connection with
any supplemental indenture or amendment to the Indenture, any
Indenture Supplement or any Asset Pool Supplement (Article IX);
(O) appointing Paying Agents (Section 10.02) and
causing any such Paying Agents to execute and deliver to the
Indenture Trustee an instrument pursuant to which it agrees to act as
Paying Agent as set forth in Section 10.03 of the Indenture;
(P) preparing Officer's Certificates of the
Issuer directing the Paying Agent to pay to the Indenture Trustee
sums held in trust by the Issuer or such Paying Agent for the purpose
of discharging the Indenture (Section 10.03);
(Q) preparing written statements for execution by
an Authorized Officer as required by Section 10.04 of the Indenture;
(R) performing or causing to be performed all
things necessary to preserve and keep in full force and effect the
legal existence of the Issuer (Section 10.05) and comply with
applicable law (Section 10.07);
(S) giving prompt written notice to the Indenture
Trustee and each Note Rating Agency of each Event of Default under
the Indenture, each breach on the part of the applicable Master Trust
Servicer or the applicable Master Trust Transferor of its respective
obligations under the applicable Pooling and Servicing Agreement or
any default of a Derivative Counterparty (Section 10.08);
(T) providing to Noteholders and prospective
Noteholders information required to be provided by the Issuer
pursuant to Rule 144A under the Securities Act (Section 10.12);
(U) performing and observing all of the Issuer's
obligations under the Indenture, any Indenture Supplement, any Asset
Pool Supplement, the Trust Agreement and any other instrument or
agreement relating to the Collateral including preparing and causing
the Issuer to file UCC financing statements and continuation
statements (Section 10.13);
(V) preparing or obtaining the instruments,
documents, agreements and legal opinions required to be delivered by
the Issuer and preparing any notice required to be given to the Note
Rating Agencies, in connection with the merger or consolidation of
the Issuer with any other Person (subsection 10.14(a)) or the
conveyance or transfer of any of the Issuer's property or assets
(subsection 10.14(b));
(W) giving written notice to the affected
Noteholders of any optional repurchase by the Servicer (Section
11.02) and to the Indenture Trustee and each Note Rating Agency with
respect to any such optional repurchase or Early Amortization Event
(Section 11.03);
(X) to the extent set forth herein or in the
related Asset Pool Supplement, preparing or obtaining the
instruments, documents, agreements and legal opinions required to be
delivered by the Issuer and/or the Collateral Agent and preparing any
notice required to be given by the Issuer to the Note Rating
Agencies, the Indenture Trustee, the applicable Collateral Agent and
the Servicer in connection with addition or removal of Collateral,
and designating such Collateral to be added or removed, as the case
may be;
(Y) to the extent set forth herein or in the
related Asset Pool Supplement, taking, or assisting the Issuer and/or
the Collateral Agent in taking, all actions necessary and advisable
to obtain, maintain and enforce a perfected lien on and security
interest in the Collateral in favor of the Collateral Agent and
preparing for execution and delivery or filing by the Issuer all such
supplements and amendments to this Agreement and any Asset Pool
Supplement and all such financing statements, continuation
statements, instruments of further assurance and other instruments;
(Z) to the extent set forth herein or in the
related Asset Pool Supplement, obtaining legal opinions with respect
to the security interest in the Collateral;
(AA) to the extent set forth in the related Asset
Pool Supplement, assisting the Issuer in appointing a suitable
successor Collateral Agent as necessary, and giving written notice to
each Note Rating Agency with respect to the removal of the Collateral
Agent and the appointment of a successor;
(BB) to the extent set forth in the related Asset
Pool Supplement, establishing and maintaining or causing to be
established and maintained certain Bank Accounts; and
(CC) to the extent set forth in the related Asset
Pool Supplement, directing the Collateral Agent with respect to the
investment of funds in the Bank Accounts.
(c) Additional Duties.
(i) In addition to the duties of the Administrator set forth
above, the Administrator shall perform all duties and obligations of the
Issuer under the Related Agreements and shall perform such calculations
and shall prepare for execution by the Issuer and shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of
the Issuer or the Owner Trustee to prepare, file or deliver pursuant to
the Related Agreements, and at the request of the Issuer shall take all
appropriate action that it is the duty of the Issuer or the Owner Trustee
to take pursuant to the Related Agreements. Subject to Section 5.05 of
this Agreement, and in accordance with the directions of the Issuer, the
Administrator shall administer, perform or supervise the performance of
such other activities in connection with the Collateral (including the
Related Agreements) as are not covered by any of the foregoing provisions
and as are expressly requested by the Owner Trustee and are reasonably
within the capability of the Administrator.
(ii) The Administrator shall perform the duties of the
Administrator specified in Section 5.02 of the Trust Agreement required to
be performed in connection with the resignation or removal of the Owner
Trustee, and any other duties expressly required to be performed by the
Administrator under the Trust Agreement.
(iii) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would be
available from unaffiliated parties.
(iv) It is the intention of the parties hereto that the
Administrator shall, and the Administrator hereby agrees to, execute on
behalf of the Issuer all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer to
prepare, file or deliver pursuant to the Related Agreements. In
furtherance thereof, the Owner Trustee shall, on behalf of the Issuer,
execute and deliver to the Administrator and its agents, and to each
successor Administrator appointed pursuant to the terms hereof, one or
more powers of attorney substantially in the form of Exhibit E, appointing
the Administrator the attorney-in-fact of the Issuer for the purpose of
executing on behalf of the Issuer all such documents, reports, filings,
instruments, certificates and opinions.
(d) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment
of the Administrator are non-ministerial, the Administrator shall not take
any action unless within a reasonable time before the taking of such
action, the Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding
sentence, "non-ministerial matters" shall include:
(1) the amendment of or any supplement to the Indenture;
(2) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by or against
the Issuer;
(3) the amendment, change or modification of the Related
Agreements;
(4) the appointment of successor Note Registrars,
successor Paying Agents and successor trustees pursuant to the Indenture
or the appointment of successor Administrators, or the consent to the
assignment by the Note Registrar, Paying Agent or trustee of its
obligations under the Indenture; and
(5) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not, (x)
make any payments to the Noteholders or any Transferor under the Related
Agreements or (y) take any other action that the Issuer directs the
Administrator not to take on its behalf.
Section 5.02 Records. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer,
the Owner Trustee, the Indenture Trustee, the applicable Collateral Agent and
any Transferor at any time during normal business hours.
Section 5.03 Compensation. As compensation for the performance of
the Administrator's obligations under this Agreement, the Administrator shall
be entitled to an amount not to exceed $5,000 per month, in addition to
reimbursement for its liabilities and extra out-of-pocket expenses related to
its performance hereunder or under any Related Agreement. Such amounts shall be
paid by the Transferor in accordance with Section 12.03.
Section 5.04 Additional Information To Be Furnished to Issuer. The
Administrator shall furnish to the Issuer, the Indenture Trustee or the
applicable Collateral Agent from time to time such additional information
regarding the Related Agreements and the Trust as each of them shall reasonably
request.
Section 5.05 Independence of Administrator. For all purposes of
this Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
Section 5.06 No Joint Venture. Nothing contained in this Agreement
shall (i) constitute the Administrator and either of the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of
them any express, implied or apparent authority to incur any obligation or
liability on behalf of the others.
Section 5.07 Other Activities of Administrator. Nothing herein
shall prevent the Administrator or its Affiliates from engaging in other
businesses or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Owner
Trustee, the Collateral Agent or the Indenture Trustee.
Section 5.08 Termination, Resignation and Removal of Administrator.
(a) Subject to subsection 5.08(d), the Administrator may resign
its duties hereunder by providing the Issuer with at least 60 days prior
written notice.
(b) Subject to subsection 5.08(d), the Issuer may, with written
notice to each Note Rating Agency, remove the Administrator without cause by
providing the Administrator with at least 60 days prior written notice.
(c) Subject to subsection 5.08(d), at the sole option of the
Issuer and with written notice to each Note Rating Agency, the Administrator
may be removed immediately upon written notice of termination from the Issuer
to the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of
any of its duties under this Agreement and, after notice of such default,
shall not cure such default within 10 days (or, if such default cannot be
cured in such time, shall not give within 10 days such assurance of cure
as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter
a decree or order for relief, and such decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the Administrator
or any substantial part of its property or order the winding-up or
liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief in
an involuntary case under any such law, or shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any substantial
part of its property, shall consent to the taking of possession by any
such official of any substantial part of its property, shall make any
general assignment for the benefit of its creditors or shall fail
generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified
in clause (ii) or (iii) of this subsection 5.08(c) shall occur, it shall give
written notice thereof to the Issuer, the Owner Trustee, the Indenture Trustee
and the applicable Collateral Agent within seven days after the happening of
such event.
(d) No termination, resignation or removal of the
Administrator pursuant to this Section shall be effective until (i) a successor
Administrator shall have been appointed by the Issuer and (ii) such successor
Administrator shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Administrator is bound hereunder.
Section 5.09 Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of the Administrator pursuant
to subsection 5.08(c) or the resignation or removal of the Administrator
pursuant to subsection 5.08(a) or (b), respectively, the Administrator shall be
entitled to be paid all fees and reimbursable expenses accruing to it to the
date of such resignation or removal. The Administrator shall forthwith upon
such termination pursuant to subsection 5.08(c) deliver to the Issuer all
property and documents of or relating to the Collateral then in the custody of
the Administrator. In the event of the resignation or removal of the
Administrator pursuant to subsection 5.08(a), (b) or (d), respectively, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator.
[END OF ARTICLE V]
ARTICLE VI
OTHER MATTERS RELATING TO EACH TRANSFEROR
Section 6.01 Liability of each Transferor. Each Transferor shall be
severally, and not jointly, liable for all obligations, covenants,
representations and warranties of such Transferor arising under or related to
this Agreement. Except as provided in the preceding sentence, each Transferor
shall be liable only to the extent of the obligations specifically undertaken
by it in its capacity as a Transferor.
Section 6.02 Merger or Consolidation of, or Assumption of the
Obligations of, a Transferor.
(a) No Transferor shall dissolve, liquidate, consolidate with
or merge into any other Person or convey, transfer or sell its properties and
assets substantially as an entirety to any Person unless:
(i) (x) the Person formed by such consolidation or into
which such Transferor is merged or the Person which acquires by
conveyance, transfer or sale the properties and assets of such Transferor
substantially as an entirety shall be, if such Transferor is not the
surviving entity, organized and existing under the laws of the United
States of America or any state or the District of Columbia, and shall be a
savings association, a national banking association, a bank or other
entity which is not eligible to be a debtor in a case under Title 11 of
the United States Code or is a special purpose entity whose powers and
activities are limited and, if such Transferor is not the surviving
entity, shall expressly assume, by an agreement supplemental hereto,
executed and delivered to the Owner Trustee, the Indenture Trustee and the
applicable Collateral Agent, in form reasonably satisfactory to the Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent, the
performance of every covenant and obligation of such Transferor hereunder
and shall benefit from all the rights granted to such Transferor, as
applicable hereunder; and (y) such Transferor or the surviving entity, as
the case may be, has delivered to the Owner Trustee, the Indenture Trustee
and the applicable Collateral Agent (with a copy to each Note Rating
Agency) an Officer's Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance, transfer or sale and such
supplemental agreement comply with this Section, that such supplemental
agreement is a valid and binding obligation of such surviving entity
enforceable against such surviving entity in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect or general
principles of equity, and that all conditions precedent herein provided
for relating to such transaction have been complied with;
(ii) to the extent that any right, covenant or obligation of
such Transferor, as applicable hereunder, is inapplicable to the successor
entity, such successor entity shall be subject to such covenant or
obligation, or benefit from such right, as would apply, to the extent
practicable, to such successor entity; and
(iii) such Transferor shall have given the Note Rating
Agencies notice of such consolidation, merger or transfer of assets.
(b) Except as permitted by subsection 2.08(c), the
obligations, rights or any part thereof of each Transferor hereunder shall not
be assignable nor shall any Person succeed to such obligations or rights of any
Transferor hereunder except (i) for conveyances, mergers, consolidations,
assumptions, sales or transfers in accordance with the provisions of the
foregoing paragraph and (ii) for conveyances, mergers, consolidations,
assumptions, sales or transfers to other entities (1) which such Transferor and
the Servicer determine will not result in an Adverse Effect, (2) which meet the
requirements of clause (ii) of the preceding paragraph and (3) for which such
purchaser, transferee, pledgee or entity shall expressly assume, in an
agreement supplemental hereto, executed and delivered to the Owner Trustee, the
Indenture Trustee and the applicable Collateral Agent in writing in form
satisfactory to the Owner Trustee, the Indenture Trustee and the applicable
Collateral Agent, the performance of every covenant and obligation of such
Transferor thereby conveyed.
Section 6.03 Limitations on Liability of Each Transferor. Subject
to Section 6.01, no Transferor nor any of the directors, officers, members,
managers, employees, incorporators or agents of any Transferor acting in such
capacities shall be under any liability to the Trust, the Owner Trustee, the
Indenture Trustee, the applicable Collateral Agent, the Noteholders or any
other Person for any action taken, or for refraining from the taking of any
action, in good faith in such capacities pursuant to this Agreement, it being
expressly understood that all such liability is expressly waived and released
as a condition of, and consideration for, the execution of this Agreement, the
Indenture and any Indenture Supplement and the issuance of the Notes; provided,
however, that this provision shall not protect any Transferor, any director,
officer, employee, incorporator or agent of any Transferor or, if applicable,
any manager or member of any Transferor against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. Each Transferor and, any director, officer,
employee, incorporator or agent of such Transferor and, if applicable, any
member or manager of such Transferor may rely in good faith on any document of
any kind prima facie properly executed and submitted by any Person (other than
such Transferor) respecting any matters arising hereunder.
[END OF ARTICLE VI]
ARTICLE VII
OTHER MATTERS RELATING TO THE SERVICER
Section 7.01 Liability of the Servicer. The Servicer shall be
liable under this Article VII only to the extent of the obligations
specifically undertaken by the Servicer in its capacity as Servicer.
Section 7.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer. The Servicer shall not consolidate with or merge
into any other Person or convey, transfer or sell its properties and assets
substantially as an entirety to any Person, unless:
(a) (i) the Person formed by such consolidation or into which
the Servicer is merged or the Person which acquires by conveyance, transfer or
sale the properties and assets of the Servicer substantially as an entirety
shall be, if the Servicer is not the surviving entity, a corporation or a
national banking association organized and existing under the laws of the
United States of America or any state or the District of Columbia or is a
special purpose entity whose powers and activities are limited, and, if the
Servicer is not the surviving entity, such entity shall expressly assume, by an
agreement supplemental hereto, executed and delivered to the Owner Trustee, the
Indenture Trustee and the applicable Collateral Agent, in form satisfactory to
the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent,
the performance of every covenant and obligation of the Servicer hereunder (to
the extent that any right, covenant or obligation of the Servicer, as
applicable hereunder, is inapplicable to the successor entity, such successor
entity shall be subject to such covenant or obligation, or benefit from such
right, as would apply, to the extent practicable, to such successor entity);
(ii) the Servicer has delivered to the Owner Trustee, the
Indenture Trustee and the applicable Collateral Agent an Officer's
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or sale comply with this
Section 7.02 and that all conditions precedent herein provided for
relating to such transaction have been complied with;
(iii) the Servicer shall have given the Note Rating Agencies
notice of such consolidation, merger or transfer or assets; and
(b) the corporation formed by such consolidation or into which
the Servicer is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Servicer substantially as an entirety shall be
an Eligible Servicer.
Section 7.03 Limitation on Liability of the Servicer and Others.
Except as provided in Section 7.04, neither the Servicer nor any of the
directors, officers, employees or agents of the Servicer in its capacity as
Servicer shall be under any liability to the Trust, the Owner Trustee, the
Indenture Trustee, any Collateral Agent, the Noteholders or any other Person
for any action taken, or for refraining from the taking of any action, in good
faith in its capacity as Servicer pursuant to this Agreement; provided,
however, that this provision shall not protect the Servicer or any directors,
officers, employees or agents of the Servicer against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Servicer and any director, officer,
employee or agent of the Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person (other than the
Servicer) respecting any matters arising hereunder. The Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action which
is not incidental to its duties as Servicer in accordance with this Agreement
and which in its reasonable judgment may involve it in any expense or
liability. The Servicer may, in its sole discretion, undertake any such legal
action which it may deem necessary or desirable for the benefit of the
Noteholders with respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Noteholders hereunder.
Section 7.04 Servicer Indemnification of the Trust, the Owner
Trustee and the Indenture Trustee. To the fullest extent permitted by
applicable law, the Servicer shall indemnify and hold harmless each of the
Trust, the Owner Trustee (as such and in its individual capacity), the
Indenture Trustee and any trustees predecessor thereto (including the Indenture
Trustee in its capacity as Transfer Agent and Note Registrar or as Paying
Agent), any Collateral Agent and their respective directors, officers,
employees and agents from and against any and all reasonable loss, liability,
claim, expense, damage or injury suffered or sustained by reason of (a) any
acts or omissions of the Servicer with respect to the Trust pursuant to this
Agreement or (b) the administration of the Trust by the Owner Trustee, the
issuance by the Trust of the Notes, any Servicer Default, or any termination of
the rights and obligations of the Servicer, including, but not limited to, any
judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim; provided, however, that the Servicer shall not
indemnify the Owner Trustee, the Indenture Trustee, each Collateral Agent or
the Noteholders if such acts, omissions or alleged acts or omissions constitute
or are caused by fraud, negligence, or willful misconduct by the Owner Trustee,
the Indenture Trustee or the applicable Collateral Agent; provided further,
that the Servicer shall not indemnify the Trust, the Noteholders or the Note
Owners for any liabilities, costs or expenses of the Trust with respect to any
action taken by the Owner Trustee, the Indenture Trustee or the applicable
Collateral Agent at the request of the Noteholders; provided further, that the
Servicer shall not indemnify the Trust, the Noteholders or the Note Owners as
to any losses, claims or damages incurred by any of them in their capacities as
investors, including losses incurred as a result of Defaulted Accounts or
Receivables which are written off as uncollectible or losses suffered by the
Collateral Certificates; and provided further, that the Servicer shall not
indemnify the Trust, the Noteholders or the Note Owners for any liabilities,
costs or expenses of the Trust, the Noteholders or the Note Owners arising
under any tax law, including any federal, state, local or foreign income or
franchise taxes or any other tax imposed on or measured by income (or any
interest or penalties with respect thereto or arising from a failure to comply
therewith) required to be paid by the Trust, the Noteholders or the Note Owners
in connection herewith to any taxing authority. Any such indemnification shall
not be payable from the Trust Assets. The provisions of this indemnity shall
run directly to and be enforceable by an injured party subject to the
limitations hereof and shall survive the resignation or removal of the
Servicer, the resignation or removal of the Owner Trustee, the Indenture
Trustee and the applicable Collateral Agent and the termination of the Trust.
Section 7.05 Resignation of the Servicer. The Servicer shall not
resign from the obligations and duties hereby imposed on it except (a) upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action which
the Servicer could take to make the performance of its duties hereunder
permissible under applicable law or (b) upon the assumption, by an agreement
supplemental hereto, executed and delivered to the Owner Trustee, the Indenture
Trustee and the applicable Collateral Agent, in form satisfactory to the Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent, of the
obligations and duties of the Servicer hereunder by any of its Affiliates or by
any entity the appointment of which shall have satisfied the Note Rating Agency
Condition and, in either case, qualifies as an Eligible Servicer. Any
determination permitting the resignation of the Servicer shall be evidenced as
to clause (a) above by an Opinion of Counsel to such effect delivered to the
Owner Trustee, the Indenture Trustee and the applicable Collateral Agent. No
resignation shall become effective until the Indenture Trustee or a Successor
Servicer shall have assumed the responsibilities and obligations of the
Servicer in accordance with Section 7.02 hereof. If within 120 days of the date
of the determination that the Servicer may no longer act as Servicer under
clause (a) above the Indenture Trustee is unable to appoint a Successor
Servicer, the Indenture Trustee shall serve as Successor Servicer (but shall
have continued authority to appoint another Person as Successor Servicer).
Notwithstanding the foregoing, the Indenture Trustee shall, if it is legally
unable so to act, petition a court of competent jurisdiction to appoint any
established institution qualifying as an Eligible Servicer as the Successor
Servicer hereunder. The Trust shall give prompt notice to each Note Rating
Agency upon the appointment of a Successor Servicer. Notwithstanding anything
in this Agreement to the contrary, Chase USA may assign part or all of its
obligations and duties as Servicer under this Agreement to an Affiliate of
Chase USA so long as Chase USA shall have fully guaranteed the performance of
such obligations and duties under this Agreement.
Section 7.06 Delegation of Duties. In the ordinary course of
business, the Servicer may at any time delegate certain of its duties hereunder
to First Data Resources, Inc. and/or Total Systems Services, Inc. In the
ordinary course of business, the Servicer may at any time delegate any duties
hereunder to any Person that agrees to conduct such duties in accordance with
the Credit Card Guidelines and this Agreement. Any such delegation shall not
relieve the Servicer of its liability and responsibility with respect to such
duties, and shall not constitute a resignation within the meaning of Section
7.05. If any such delegation is to a party other than First Data Resources,
Inc. or Total Systems Services, Inc., notification thereof shall be given to
each Note Rating Agency.
Section 7.07 Examination of Records. Each Transferor and the
Servicer shall indicate generally in their computer files or other records that
the Receivables arising in the Accounts have been conveyed to the Trust,
pursuant to this Agreement. Each Transferor and the Servicer shall, prior to
the sale or transfer to a third party of any receivable held in its custody,
examine its computer records and other records to determine that such
receivable is not, and does not include, a Receivable. Each Transferor and the
Servicer shall also indicate generally in their computer files or other records
that each applicable Collateral Certificate has been conveyed to the Trust,
pursuant to this Agreement.
[END OF ARTICLE VII]
ARTICLE VIII
ACQUISITION OF TRUST ASSETS
Section 8.01 Acquisition of Trust Assets. If the Master Trust
Transferor exercises its option to accept retransfer of any Collateral
Certificate pursuant to the terms of the related Series Supplement, the Master
Trust Transferor shall (a) acquire the Collateral Certificate, which
acquisition shall be effective as of the date on which such retransfer occurs,
(b) deliver notice of such acquisition to the Owner Trustee, the Indenture
Trustee, the applicable Collateral Agent and the Servicer on or prior to the
Determination Date following the applicable Monthly Period for which the option
is deemed exercised, (c) deposit in the Collection Account for the relevant
Asset Pool on or prior to the First Note Transfer Date following the applicable
Monthly Period an amount equal to the lesser of (1) (x) the amount required so
that the Transferor Amount for such Asset Pool is equal to or greater than the
Required Transferor Amount for such Asset Pool and (y) the amount required so
that the Pool Balance for such Asset Pool is equal to or greater than the
Minimum Pool Balance for such Asset Pool and (2) the Invested Amount of the
Collateral Certificate on such date and all other amounts payable to the
Noteholders of each Outstanding Series of Notes including accrued interest on
the Notes. Upon the completion of the foregoing condition, the applicable
Master Trust shall succeed to all interests in and to the Trust with respect to
such Collateral Certificate.
[END OF ARTICLE VIII]
ARTICLE IX
INSOLVENCY EVENTS
Section 9.01 Rights upon the Occurrence of an Insolvency Event. If
any Transferor shall consent to the appointment of a bankruptcy trustee or
conservator or receiver or liquidator for the winding-up or liquidation of its
affairs, or a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a bankruptcy trustee
or conservator or receiver or liquidator for the winding-up or liquidation of
its affairs shall have been entered against such Transferor (an "Insolvency
Event"), each Transferor shall on the day of such Insolvency Event (the
"Appointment Day") immediately cease to (i) transfer Principal Receivables or
additional Collateral Certificates to the Trust and (ii) increase any Invested
Amount of a Collateral Certificate transferred to the Trust by such Transferor
and shall promptly give notice to the Owner Trustee, the Indenture Trustee and
the applicable Collateral Agent of such Insolvency Event. Notwithstanding any
cessation of the transfer to the Trust of additional Principal Receivables,
Finance Charge Receivables, whenever created, accrued in respect of Principal
Receivables which have been transferred to the Trust shall continue to be a
part of the Trust, and Collections with respect thereto shall continue to be
allocated to Noteholders in accordance with the terms of the Indenture and each
Indenture Supplement.
[END OF ARTICLE IX]
ARTICLE X
SERVICER DEFAULTS
Section 10.01 Servicer Defaults. If any one of the following events
(a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or
deposit or to give notice or instructions to the Indenture Trustee to make any
required withdrawal or payment, transfer or deposit on the date the Servicer is
required to do so under the terms of this Agreement, the Indenture or any
Indenture Supplement, or within the applicable grace period, which will not
exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or
perform in any material respect any other covenants or agreements of the
Servicer set forth in this Agreement which has an Adverse Effect on the
Noteholders of any Series, Class or Tranche and which continues unremedied for
a period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by the
Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to
the Servicer, the Owner Trustee, the Indenture Trustee and the applicable
Collateral Agent by Holders of Notes evidencing not less than 50% of the
aggregate unpaid principal amount of all Notes sustaining such Adverse Effect
(or, with respect to any such failure that does not relate to all Series,
Classes or Tranches, not less than 50% of the aggregate unpaid principal amount
of all Series, Classes or Tranches to which such failure related); or the
Servicer shall assign or delegate its duties under this Agreement, except as
permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has an Adverse
Effect on the rights of the Noteholders of any Series, Class or Tranche and
which Adverse Effect continues for a period of 60 days after the date on which
written notice thereof, requiring the same to be remedied, shall have been
given to the Servicer by the Owner Trustee, the Indenture Trustee or the
applicable Collateral Agent, or to the Servicer, the Owner Trustee, the
Indenture Trustee and the applicable Collateral Agent by the Holders of Notes
evidencing not less than 50% of the aggregate unpaid principal amount of all
Notes (or, with respect to any such representation, warranty or certification
that does not relate to all Series, Classes or Tranches, not less than 50% of
the aggregate unpaid principal amount of all Series, Classes or Tranches to
which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a
bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy
proceeding or other insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Servicer or of or
relating to all or substantially all its property, or a decree or order of a
court or agency or supervisory authority having jurisdiction in the premises
for the appointment of a bankruptcy trustee or a conservator or receiver or
liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or the winding-up or liquidation
of its affairs, shall have been entered against the Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make any
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations; or
(e) any other Servicer Default described in any Indenture
Supplement;
then, so long as the Servicer Default shall not have been remedied, either the
Indenture Trustee or the Holders of Notes evidencing more than 50% of the
aggregate unpaid principal amount of all affected Notes, by notice then given
in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee
if given by the Noteholders) (a "Termination Notice"), may terminate all but
not less than all the rights and obligations of the Servicer as Servicer under
this Agreement; provided, however, if within 60 days of receipt of a
Termination Notice the Indenture Trustee does not receive any bids from
Eligible Servicers in accordance with subsection 10.02(a) to act as a Successor
Servicer and receives an Officer's Certificate of the Servicer to the effect
that the Servicer cannot in good faith cure the Servicer Default which gave
rise to the Termination Notice, the Indenture Trustee shall assume the role of
Successor Servicer.
After receipt by the Servicer of a Termination Notice, and on the
date that a Successor Servicer is appointed by the Indenture Trustee pursuant
to Section 10.02, all authority and power of the Servicer under this Agreement
shall pass to and be vested in the Successor Servicer (a "Service Transfer")
and, without limitation, the Indenture Trustee is hereby authorized and
empowered (upon the failure of the Servicer to cooperate) to execute and
deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all
documents and other instruments upon the failure of the Servicer to execute or
deliver such documents or instruments, and to do and accomplish all other acts
or things necessary or appropriate to effect the purposes of such Service
Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such
Successor Servicer in effecting the termination of the responsibilities and
rights of the Servicer to conduct servicing hereunder, including the transfer
to such Successor Servicer of all authority of the Servicer to service the
Collateral provided for under this Agreement, including all authority over all
Collections which shall on the date of transfer be held by the Servicer for
deposit, or which have been deposited by the Servicer, in the Collection
Account for the applicable Asset Pool, or which shall thereafter be received
with respect to the Collateral, and in assisting the Successor Servicer and in
enforcing all rights to Insurance Proceeds and Interchange (if any) applicable
to the Trust. The Servicer shall within 20 Business Days transfer its
electronic records or electronic copies thereof relating to the Receivables to
the Successor Servicer in such electronic form as the Successor Servicer may
reasonably request and shall promptly transfer to the Successor Servicer all
other records, correspondence and documents necessary for the continued
servicing of the Collateral in the manner and at such times as the Successor
Servicer shall reasonably request. To the extent that compliance with this
Section shall require the Servicer to disclose to the Successor Servicer
information of any kind which the Servicer deems to be confidential, the
Successor Servicer shall be required to enter into such customary licensing and
confidentiality agreements as the Servicer shall deem reasonably necessary to
protect its interests.
Notwithstanding the foregoing, a delay in or failure of performance
referred to in paragraph (a) above for a period of 10 Business Days after the
applicable grace period or under paragraph (b) or (c) above for a period of 60
Business Days after the applicable grace period, shall not constitute a
Servicer Default if such delay or failure could not be prevented by the
exercise of reasonable diligence by the Servicer and such delay or failure was
caused by an act of God or the public enemy, acts of declared or undeclared
war, public disorder, rebellion or sabotage, epidemics, landslides, lightning,
fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence
shall not relieve the Servicer from using all commercially reasonable efforts
to perform its obligations in a timely manner in accordance with the terms of
this Agreement and the Servicer shall provide the Indenture Trustee, the Owner
Trustee, the applicable Collateral Agent and each Transferor with an Officer's
Certificate giving prompt notice of such failure or delay by it, together with
a description of its efforts so to perform its obligations.
Section 10.02 Indenture Trustee To Act; Appointment of Successor.
(a) On and after the receipt by the Servicer of a Termination
Notice pursuant to Section 10.01, the Servicer shall continue to perform all
servicing functions under this Agreement until the date specified in the
Termination Notice or otherwise specified by the Indenture Trustee or until a
date mutually agreed upon by the Servicer and the Indenture Trustee. The
Indenture Trustee shall as promptly as possible after the giving of a
Termination Notice appoint an Eligible Servicer as a successor servicer (the
"Successor Servicer"), and such Successor Servicer shall accept its appointment
by a written assumption in a form acceptable to the Indenture Trustee. The
Indenture Trustee may obtain bids from any potential successor Servicer. In the
event that a Successor Servicer has not been appointed or has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the
Indenture Trustee without further action shall automatically be appointed the
Successor Servicer. The Indenture Trustee may delegate any of its servicing
obligations to an Affiliate or agent in accordance with subsection 4.01(b) and
Section 7.06.
Notwithstanding the foregoing, the Indenture Trustee shall, if
it is legally unable so to act, petition at the expense of the Servicer a court
of competent jurisdiction to appoint any established institution qualifying as
an Eligible Servicer as the Successor Servicer hereunder. The Indenture Trustee
shall notify each Note Rating Agency and the Administrator upon the removal of
the Servicer and upon the appointment of a Successor Servicer.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof, and all references in this Agreement to the Servicer shall
be deemed to refer to the Successor Servicer; provided, however, that the
Successor Servicer shall have (i) no liability with respect to any obligation
which was required to be performed by the terminated Servicer prior to the date
that the Successor Servicer becomes the Servicer or any claim of a third party
based on any alleged action or inaction of the terminated Servicer and (ii) no
liability or obligation with respect to any Servicer indemnification
obligations of any prior servicer including the original Servicer.
(c) In connection with such appointment and assumption, the
Indenture Trustee shall be entitled to such compensation, or may make such
arrangements for the compensation of the Successor Servicer out of Collections,
as it and such Successor Servicer shall agree; provided, however, that no such
compensation shall be in excess of the Trust Servicing Fee permitted to the
Servicer pursuant to Section 4.02. Each Transferor agrees that if the Servicer
is terminated hereunder, it will agree to deposit a portion of the Collections
in respect of Finance Charge Receivables that it is entitled to receive
pursuant to this Agreement to pay its share of the compensation of the
Successor Servicer.
(d) All authority and power granted to the Servicer under this
Agreement shall automatically cease and terminate upon termination of the Trust
pursuant to Article VIII of the Trust Agreement, and shall pass to and be
vested in the applicable Transferor and, without limitation, the applicable
Transferor is hereby authorized and empowered to execute and deliver, on behalf
of the Servicer as attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such transfer of servicing rights. The
Servicer agrees to cooperate with the applicable Transferor in effecting the
termination of the responsibilities and rights of the Servicer to conduct
servicing on the Receivables. The Servicer shall transfer its electronic
records relating to the Receivables to the applicable Transferor or its
designee in such electronic form as it may reasonably request and shall
transfer all other records, correspondence and documents to it in the manner
and at such times as it shall reasonably request. To the extent that compliance
with this Section shall require the Servicer to disclose to the applicable
Transferor information of any kind which the Servicer deems to be confidential,
the applicable Transferor shall be required to enter into such customary
licensing and confidentiality agreements as the Servicer shall deem necessary
to protect its interests.
Section 10.03 Notification to Noteholders. Within five Business
Days after the Servicer becomes aware of any Servicer Default, the Servicer
shall give written notice thereof to the Owner Trustee, the Indenture Trustee,
the applicable Collateral Agent, each Note Rating Agency and the Indenture
Trustee shall give notice to the Noteholders. Upon any termination or
appointment of a Successor Servicer pursuant to this Article, the Indenture
Trustee shall give prompt written notice thereof to the Noteholders.
Section 10.04 Waiver of Past Defaults. The Holders of Notes
evidencing more than 66 2/3% of the aggregate unpaid principal amount of all
Notes sustaining an Adverse Effect by any default by the Servicer may, on
behalf of all Noteholders of such Series, Class or Tranche, waive any default
by the Servicer in the performance of its obligations hereunder and its
consequences, except a default in the failure to make any required deposits or
payments of interest or principal relating to such Series, Class or Tranche
pursuant to Article III. Upon any such waiver of a past default, such default
shall cease to exist, and any default arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon except to the extent expressly so waived.
[END OF ARTICLE X]
ARTICLE XI
TERMINATION
Section 11.01 Termination of Agreement. This Agreement and the respective
obligations and responsibilities of the Trust, each Transferor, the
Administrator and the Servicer under this Agreement shall terminate, except
with respect to the indemnification obligations described in Section 7.04, on
the Trust Termination Date.
[END OF ARTICLE XI]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment; Waiver of Past Defaults.
(a) This Agreement may be amended from time to time by the
Servicer, the Transferor, the Administrator and the Issuer, by a written
instrument signed by each of them, without the consent of the Indenture
Trustee, any Collateral Agent or any of the Noteholders; provided that (i) each
Transferor shall have delivered to the Indenture Trustee and the Owner Trustee
an Officer's Certificate, dated the date of any such amendment, stating that
such Transferor reasonably believes that such amendment will not have an
Adverse Effect and (ii) the Note Rating Agency Condition shall have been
satisfied. Additionally, notwithstanding the preceding sentence, this Agreement
will be amended by the Servicer, the Administrator and the Issuer at the
direction of the Transferor without the consent of the Indenture Trustee or any
of the Noteholders to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable all or a portion of the Trust (i) to
qualify as, and to permit an election to be made to cause the Trust to be
treated as, a "financial asset securitization investment trust" as described in
the provisions of Section 860L of the Internal Revenue Code, and (ii) to avoid
the imposition of state or local income or franchise taxes imposed on the
Trust's property or its income; provided, however, that (i) each Transferor
delivers to the Indenture Trustee, the Owner Trustee and the applicable
Collateral Agent an Officer's Certificate to the effect that the proposed
amendments meet the requirements set forth in this subsection and (ii) such
amendment does not affect the rights, duties, benefits, protections, privileges
or immunities of the Indenture Trustee, the Owner Trustee (as such or in its
individual capacity) or the applicable Collateral Agent hereunder.
This Agreement may also be amended from time to time by the
Servicer, the Transferor, the Administrator and the Issuer by a written
instrument signed by each of them, without the consent of the Indenture Trustee
or any of the Noteholders and without satisfaction of the Note Rating Agency
Condition to add, modify or eliminate such provisions as may be necessary to
satisfy accounting requirements under SFAS 140 and any related or successor
accounting interpretations or requirements hereto for off-balance sheet
treatment for the Collateral of the Issuer.
Any amendments regarding the addition to or removal of
Collateral Certificates or Receivables from the Trust as provided in Sections
2.12 and 2.13, executed in accordance with the provisions hereof, shall not be
considered amendments to this Agreement for the purpose of subsections 12.01(a)
and (b).
(b) This Agreement may also be amended in writing from time to
time by the Servicer, the Transferor, the Administrator, the Indenture
Trustee, the Collateral Agent and the Trust, with the consent of the Holders
of Notes evidencing more than 66 2/3% of the aggregate unpaid principal amount
of the Notes of all affected Series, Classes or Tranches for which the
Transferor has not delivered an Officer's Certificate stating that there is no
Adverse Effect, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying
in any manner the rights of the Noteholders; provided, however, that no such
amendment shall (i) reduce in any manner the amount of or delay the timing of
any distributions (changes in Early Amortization Events or Events of Default
that decrease the likelihood of the occurrence thereof shall not be considered
delays in the timing of distributions for purposes of this clause) to be made
to Noteholders or deposits of amounts to be so distributed or the amount
available under any Supplemental Credit Enhancement and any Derivative
Agreement without the consent of each affected Noteholder, (ii) change the
definition of or the manner of calculating the interest of any Noteholder
without the consent of each affected Noteholder or (iii) reduce the aforesaid
percentage required to consent to any such amendment without the consent of
each Noteholder without the consent of the Holders of Notes of such Series,
Class or Tranche evidencing more than 66 2/3% of the aggregate unpaid
principal amount of the Notes of such Series, Class or Tranche.
(c) Promptly after the execution of any such amendment or
consent (other than an amendment pursuant to paragraph (a)), the Trust shall
furnish notification of the substance of such amendment to the Indenture
Trustee and each Noteholder, and the Servicer shall furnish notification of the
substance of such amendment to each Note Rating Agency.
(d) It shall not be necessary for the consent of Noteholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Noteholders shall be subject to such
reasonable requirements as the Indenture Trustee may prescribe.
(e) Any Indenture Supplement executed in accordance with the
provisions of Article IX of the Indenture shall not be considered an amendment
of this Agreement for the purposes of this Section 12.01.
(f) The Owner Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Owner Trustee's rights, duties,
benefits, protections, privileges or immunities under this Agreement or
otherwise. In connection with the execution of any amendment hereunder, the
Owner Trustee shall be entitled to receive the Opinion of Counsel described in
subsection 12.02(d).
Section 12.02 Protection of Right, Title and Interest in and to
Trust Assets.
(a) Each Transferor shall cause this Agreement, all amendments
and supplements hereto and all financing statements and continuation statements
and any other necessary documents covering the Indenture Trustee's and the
Trust's right, title and interest to the Trust Assets to be promptly recorded,
registered and filed, and at all times to be kept recorded, registered and
filed, all in such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of the Indenture Trustee,
Noteholders and the Trust hereunder to all property comprising the Trust
Assets. Each Transferor shall deliver to the Owner Trustee and Indenture
Trustee file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recording, registration or filing. Each Transferor shall cooperate fully with
the Servicer in connection with the obligations set forth above and will
execute any and all documents reasonably required to fulfill the intent of this
paragraph.
(b) Within 30 days after any Transferor makes any change in its
name, identity or corporate structure which would make any financing statement
or continuation statement filed in accordance with paragraph (a) seriously
misleading within the meaning of Section 9-506 (or any comparable provision) of
the UCC, such Transferor shall give the Owner Trustee and the Indenture Trustee
notice of any such change and shall file such financing statements or
amendments as may be necessary to continue the perfection of the Trust's
security interest or ownership interest in the Receivables and Collateral
Certificates and the proceeds thereof.
(c) Each Transferor and the Servicer shall give the Owner
Trustee and the Indenture Trustee prompt written notice of any relocation of
its chief executive office or any change in the jurisdiction under whose laws
it is organized and whether, as a result of such relocation or change, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new
financing statement and shall file such financing statements or amendments as
may be necessary to perfect or to continue the perfection of the Trust's
security interest in each Collateral Certificate and the Receivables and the
proceeds thereof. Each Transferor shall at all times maintain its chief
executive offices within the United States and shall at all times be organized
under the laws of a jurisdiction located within the United States.
(d) Each Transferor shall deliver to the Owner Trustee and the
Indenture Trustee (i) upon the execution and delivery of each amendment of this
Agreement, an Opinion of Counsel to the effect specified in Exhibit D-1; (ii)
on each date specified in subsection 2.12(c) with respect to the addition of
Additional Accounts to be designated as Accounts, an Opinion of Counsel
substantially in the form of Exhibit D-2, (iii) on each Addition Date on which
any Collateral Certificates are to be included in the Trust pursuant to
subsection 2.12(a) or (b), an Opinion of Counsel covering the same substantive
legal issues addressed by Exhibits D-1 and D-2, but conformed to the extent
appropriate to relate to Collateral Certificates; and (iv) on or before April
30 of each year, beginning with April 30, 2003, an Opinion of Counsel
substantially in the form of Exhibit D-3.
Section 12.03 Fees Payable by the Transferor. Notwithstanding
anything contained in any other Transaction Document (unless such document
specifically refers to this Section), the Transferor shall pay out of its own
funds, without reimbursement, all expenses incurred, fees and disbursements of
the Owner Trustee (as such and in its individual capacity), the Administrator,
the Indenture Trustee and the applicable Collateral Agent (including, in each
case, the reasonable fees and expenses of its outside counsel) and independent
accountants and all other fees and expenses, including the costs of filing UCC
continuation statements, the costs and expenses relating to obtaining and
maintaining the listing of any Notes on any stock exchange, the costs and
expenses relating to maintaining Bank Accounts, and any stamp, documentary,
excise, property (whether on real, personal or intangible property) or any
similar tax levied on the Trust or the Trust's assets that are not expressly
stated in this Agreement to be payable by any Transferor or the Trust (other
than federal, state, local and foreign income and franchise taxes, if any, or
any interest or penalties with respect thereto, assessed on the Trust). In
addition, the Transferor shall, until such time as Receivables are included as
Trust Assets, pay the expenses incurred by the Servicer in connection with the
Trust and the servicing activities hereunder including expenses related to
enforcement of the Collateral Certificates and the Receivables, as set forth in
subsection 4.01(e). In the event an Additional Transferor is added, the
existing Transferor or Transferors and the new Additional Transferor will, at
such time, determine how the expenses described in this Section 12.03 shall be
allocated.
Section 12.04 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
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.
Section 12.05 Notices; Payments.
(a) All demands, notices, instructions, directions and
communications (collectively, "Notices") under this Agreement shall be in
writing and shall be deemed to have been duly given if personally delivered at,
mailed by registered mail, return receipt requested, or sent by facsimile
transmission:
(i) in the case of Chase USA, as Transferor, Servicer or
Administrator, to:
Chase Manhattan Bank USA, National Association
000 Xxxxx Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: [ ]
Fax: [ ]
with a copy to:
JPMorgan Chase & Co.
1 Bank One Plaza, Suite IL1 0460
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxx
Fax: (000) 000-0000
(ii) in the case of the Trust or the Owner Trustee, to:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Fax: (000) 000-0000
(iii) in the case of the Indenture Trustee or the Collateral
Agent, to:
Xxxxx Fargo Bank, National Association
6th & Marquette
MAC X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services Asset Backed Administration
Fax: (000) 000-0000
(iv) in the case of the Note Rating Agency for a particular
Series, the address, if any, specified in the Indenture Supplement relating to
such Series, and
(v) to any other Person as specified in the Indenture or any
Indenture Supplement; or, as to each party, at such other address or facsimile
number as shall be designated by such party in a written notice to each other
party.
(b) Any Notice required or permitted to be given to a Holder of
Registered Notes shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Note Register. No Notice shall be
required to be mailed to a Holder of Bearer Notes but shall be given as
provided below. Any Notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or
not the Noteholder receives such Notice. In addition, (a) if and so long as any
Series, Class or Tranche is listed on the Luxembourg Stock Exchange and such
stock exchange shall so require, any Notice to Noteholders shall be published
in an Authorized Newspaper of general circulation in Luxembourg within the time
period prescribed in this Agreement and (b) in the case of any Series, Class or
Tranche with respect to which any Bearer Notes are Outstanding, any Notice
required or permitted to be given to Noteholders of such Series, Class or
Tranche shall be published in an Authorized Newspaper within the time period
prescribed in this Agreement.
Section 12.06 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such provisions shall be deemed
severable from the remaining provisions of this Agreement and shall in no way
affect the validity or enforceability of the remaining provisions or of the
Notes or the rights of the Noteholders.
Section 12.07 Further Assurances. Each Transferor and the
Servicer agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments required or reasonably requested by the
Owner Trustee and the Indenture Trustee more fully to effect the purposes of
this Agreement, including the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
Section 12.08 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trust, the Owner
Trustee, the Indenture Trustee or the Noteholders, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided under this Agreement are cumulative and not exhaustive of
any rights, remedies, powers and privileges provided by law.
Section 12.09 Counterparts. This Agreement 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.
Section 12.10 Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the Owner
Trustee, the Indenture Trustee, the Noteholders and their respective successors
and permitted assigns. Except as otherwise expressly provided in this
Agreement, no other Person will have any right or obligation hereunder.
Section 12.11 Actions by Noteholders.
(a) Wherever in this Agreement a provision is made that an
action may be taken or a Notice, demand or instruction given by Noteholders,
such action, Notice or instruction may be taken or given by any Noteholder,
unless such provision requires a specific percentage of Noteholders.
(b) Any Notice, request, demand, authorization, direction,
consent, waiver or other act by the Holder of a Note shall bind such Holder and
every subsequent Holder of such Note and of any Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or omitted to be done by the Owner Trustee, any
Transferor or the Servicer in reliance thereon, whether or not notation of such
action is made upon such Note.
Section 12.12 Rule 144A Information. For so long as any of the
Notes of any Series or Class are "restricted securities" within the meaning of
Rule 144(a)(3) under the Securities Act, each Transferor and each of the Owner
Trustee, the Indenture Trustee and the Servicer agree to cooperate with each
other to provide to any Noteholders of such Series or Class and to any
prospective purchaser of Notes designated by such Noteholder, upon the request
of such Noteholder or prospective purchaser, any information required to be
provided to such Holder or prospective purchaser to satisfy the condition set
forth in Rule 144A(d)(4) under the Securities Act.
Section 12.13 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior
understandings, written or oral, are superseded by this Agreement. This
Agreement may not be modified, amended, waived or supplemented except as
provided herein.
Section 12.14 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 12.15 Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Agreement has been executed and delivered
by Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of the Trust. In no event shall Wilmington Trust
Company in its individual capacity have any liability in respect of the
representations, warranties, or obligations of the Trust hereunder or under any
other document, as to all of which recourse shall be had solely to the Trust
Assets, and for all purposes of this Agreement and each other document, the
Owner Trustee (as such or in its individual capacity) shall be subject to, and
entitled to the benefits of, the terms and provisions of the Trust Agreement.
Section 12.16 No Petition. To the fullest extent permitted by
applicable law, the Indenture Trustee, Collateral Agent, Servicer, Transferor
and Administrator, by entering into this Agreement, and each Noteholder, by
accepting a Note, agrees that it will not at any time institute against any
Master Trust or the Issuer, or join in any institution against any Master Trust
or the Issuer of any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes and this Agreement.
[END OF ARTICLE XII]
IN WITNESS WHEREOF, the Transferor, the Servicer, the
Administrator, the Indenture Trustee, the Collateral Agent and the Trust have
caused this Transfer and Servicing Agreement to be duly executed by their
respective officers as of the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Transferor, Servicer and Administrator
By: _______________________________________
Name:
Title:
CHASE ISSUANCE TRUST,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee on
behalf of the Trust
By: _______________________________________
Name:
Title:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
as Indenture Trustee and Collateral Agent
By: _______________________________________
Name:
Title:
Acknowledged and Accepted:
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: ____________________________
Name:
Title:
Exhibit A-1
-----------
FORM OF ASSIGNMENT OF AN ADDITIONAL COLLATERAL CERTIFICATE
(as required by section 2.12(c)(v) of the Transfer and Servicing Agreement)
ASSIGNMENT No. __ OF AN ADDITIONAL COLLATERAL CERTIFICATE
dated as of _____________, by and among CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, a national banking association (the "Bank"), as Transferor (the
"Transferor"), and the CHASE ISSUANCE TRUST (the "Trust"), pursuant to the
Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Bank, as Transferor, Servicer and Administrator,
Xxxxx Fargo Bank, National Association, as Indenture Trustee and Collateral
Agent, and the Trust are parties to the Amended and Restated Transfer and
Servicing Agreement, dated as of October 15, 2004 (hereinafter as such
agreement may have been, or may from time to time be, amended, supplemented or
otherwise modified, the "Agreement");
WHEREAS, pursuant to subsection 2.12(a) or 2.12(b) of the
Agreement, the Transferor wishes to designate an Additional Collateral
Certificate and to convey hereby such Additional Collateral Certificate (as
such term is defined in the Agreement) to the Trust for designation pursuant to
the applicable Asset Pool Supplement; and
WHEREAS, the Owner Trustee, on behalf of the Trust is willing
to accept such designation and conveyance subject to the terms and conditions
hereof;
NOW, THEREFORE, the Transferor and the Owner Trustee, on
behalf of the Trust hereby agree as follows:
1. Defined Terms. All capitalized terms used herein
shall have the meanings ascribed to them in the Agreement unless otherwise
defined herein.
"Addition Cut Off Date" shall mean, with respect to the
Additional Collateral Certificate designated hereby,
____________.
"Addition Date" shall mean, with respect to the Additional
Collateral Certificate designated on Schedule 1 hereto,
____________.
"Notice Date" shall mean, with respect to the Additional
Collateral Certificate designated on Schedule 1 hereto, _____________ [which
shall be a date on or prior to the third Business Day prior to the Addition
Date with respect to additions pursuant to subsection 2.12(a) of the Agreement
and the fifth Business Day prior to the Addition Date with respect to additions
pursuant to subsection 2.12(b) of the Agreement].
2. Conveyance of Additional Collateral Certificates.
(a) The Transferor does hereby transfer, assign, set over and otherwise convey,
without recourse except as set forth in the Agreement, to the Trust, all its
right, title and interest in, to and under the Additional Collateral
Certificate existing as of the close of business on the Addition Cut Off Date.
The foregoing does not constitute and is not intended to result in the creation
or assumption by the Trust, the Owner Trustee (as such or in its individual
capacity), the Indenture Trustee, the applicable Collateral Agent, any
Noteholders, any Supplemental Credit Enhancer or any Derivative Counterparty of
any obligation of the Transferor or any other Person in connection with the
Additional Collateral Certificate or under any agreement or instrument relating
thereto, including any obligation to Obligors, merchant banks, merchants
clearance systems, VISA, MasterCard or insurers.
(b) If necessary, the Transferor agrees to record and
file, at its own expense, financing statements (and continuation statements
when applicable) with respect to the Additional Collateral Certificate existing
on the Addition Cut Off Date meeting the requirements of applicable state law
in such manner and in such jurisdictions as are necessary to perfect, and
maintain perfection of, the sale and assignment of its interest in such
Additional Collateral Certificate to the Trust, and to deliver a file-stamped
copy of each such financing statement or other evidence of such filing to the
Owner Trustee on or prior to the Addition Date. None of the Owner Trustee, the
Indenture Trustee or the applicable Collateral Agent shall be under any
obligation whatsoever to file such financing or continuation statements or to
make any filing under the UCC in connection with such sale and assignment.
(c) The Transferor does hereby grant to the Trust a
security interest in all of its right, title and interest, whether now owned or
hereafter acquired, in and to the Additional Collateral Certificate designated
for sale on the Addition Cut Off Date. This Assignment constitutes a security
agreement under the UCC.
(d) It is the intention of the parties hereto that all
transfers of Additional Collateral Certificates 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 the Transferor pursuant to this
Assignment shall be deemed to no longer be the property, assets or rights of
the Transferor. The parties hereto acknowledge and agree that each such
transfer is occurring in connections with a "securitization transaction" within
the meaning of the Delaware Act.
3. Acceptance by Owner Trustee. The Owner Trustee
hereby acknowledges its acceptance on behalf of the Trust of all right, title
and interest to the property existing on the Addition Cut Off Date which has
been conveyed to the Trust pursuant to Section 2(a) of this Assignment.
4. Representations and Warranties of the Transferor.
The Transferor hereby represents and warrants to the Trust, as of the Addition
Date, that:
(a) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Transferor enforceable
against the Transferor 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 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 Additional Collateral Certificate. As of
the Addition Cut Off Date, the Additional Collateral Certificate designated
hereby is an Eligible Collateral Certificate;
(c) Insolvency. As of each of the Addition Cut Off Date
and the Addition Date, no Insolvency Event with respect to the Transferor has
occurred and the transfer by the Transferor of Additional Collateral
Certificates to the Trust has not been made in contemplation of the occurrence
thereof;
(d) No Adverse Effect. The acquisition by the Trust of
the Additional Collateral Certificate shall not, in the reasonable belief of
the applicable Transferor, result in an Adverse Effect;
(e) Security Interest. This Assignment constitutes
either (i) a valid sale, transfer and assignment to the Trust of all right,
title and interest of the Transferor in the Additional Collateral Certificate
designated on the Addition Cut Off Date and such Additional Collateral
Certificate will be held by the Owner Trustee, on behalf of the Trust, free and
clear of any Lien of any Person claiming through or under the Transferor or any
of its Affiliates, or (ii) a valid transfer for security of all of the
Transferor's right, title and interest in such Additional Collateral
Certificate to the Owner Trustee, on behalf of the Trust, which is enforceable
upon execution and delivery of this Assignment. Upon the filing of all such
appropriate financing statements, the Trust shall have a first priority
perfected security or ownership interest in such property and proceeds;
(f) No Conflict. The execution and delivery by the
Transferor of this Assignment, the performance of the transactions contemplated
by this Assignment and the fulfillment of the terms hereof applicable to the
Transferor, will not conflict with or violate any Requirements of Law
applicable to the Transferor or conflict with, result in any breach of any of
the material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust or other instrument to which the Transferor
is a party or by which it or its properties are bound;
(g) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Transferor, threatened
against the Transferor before any court, regulatory body, administrative agency
or other tribunal or governmental instrumentality (i) asserting the invalidity
of this Assignment, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Assignment, (iii) seeking any determination
or ruling that, in the reasonable judgment of the Transferor, would materially
and adversely affect the performance by the Transferor of its obligations under
this Assignment or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Assignment; and
(h) All Consents. All authorizations, consents, orders
or approvals of any court or other governmental authority required to be
obtained by the Transferor in connection with the execution and delivery of
this Assignment by the Transferor and the performance of the transactions
contemplated by this Assignment by the Transferor, have been obtained.
6. Conditions Precedent. The designation of an Additional
Collateral Certificate pursuant to Section 2 of this Assignment, the acceptance
by the Trust pursuant to Section 3 of this Assignment and the Amendment of the
Agreement pursuant to Section 7 of this Assignment are each subject to the
satisfaction of the conditions precedent set forth in Section 2.12(c) of the
Agreement on or prior to the dates specified in such Section 2.12(c). For
purposes of Section 2.12(c)(i) of the Agreement, "Notice Date" shall having the
meaning specified in Section 1 hereof. With respect to the condition specified
in Section 2.12(c)(xi) of the Agreement, the Bank shall have delivered to the
Administrator, on behalf of the Trust, on or prior to the date hereof, 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
subsection 2.12(c) of the Transfer and Servicing Agreement for designating and
conveying Receivables in Additional Accounts have been satisfied and (ii) each
of the representations and warranties made by the Transferor in Section 5 of
this Assignment is true and correct as of the Addition Date. The Owner Trustee
and the Administrator 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.
7. Amendment of the Transfer and Servicing Agreement. The
Agreement is hereby amended to provide that all references therein to the
"Transfer and Servicing Agreement," to "this Agreement" and "herein" shall be
deemed from and after the Addition Date to be a dual reference to the Agreement
as supplemented by this Assignment and all references therein to Additional
Collateral Certificates shall be deemed to include the Additional Collateral
Certificate designated hereby. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Agreement
shall remain unamended 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 provision of the Agreement.
8. 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 shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED 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.
10. Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Assignment has been executed and delivered
by Wilmington Trust Company on behalf of the Trust, not in its individual
capacity, but solely in its capacity as Owner Trustee, in no event shall
Wilmington Trust Company in its individual capacity have any liability in
respect of the representations, warranties, or obligations of the Trust
hereunder or under any other document, as to all of which recourse shall be had
solely to the assets of the Trust, and for all purposes of this Assignment and
each other document, the Owner Trustee (as such or in its individual capacity)
shall be subject to, and entitled to the benefits of, the terms and provisions
of the Trust Agreement.
11. Removal Upon Breach. In the event of a breach of any of
the warranties set forth in subsection 5(B) other than a breach or event set
forth in subsection 2.05(a) of the Agreement, if as a result of such breach the
related Collateral Certificate is no longer an Eligible Collateral Certificate
or the Trust's rights in, to or under such Collateral Certificate or its
proceeds are impaired, then upon the expiration of 60 days (or such longer
period as may be agreed to by the Indenture Trustee, the applicable Collateral
Agent and the Servicer, but in no event later than 120 days) after the earlier
to occur of the discovery thereof by the Transferor who conveyed such
Collateral Certificate to the Trust or receipt by such Transferor of written
notice thereof given by the Owner Trustee, the Indenture Trustee, the
applicable Collateral Agent or the Servicer, such Collateral Certificate shall
be removed from the Trust on the terms and conditions set forth in subsection
2.05(b) of the Agreement and the Transferor shall accept reassignment of such
Collateral Certificate; provided, however, that no such removal shall be
required to be made if, on any day within such applicable period, such
representations and warranties with respect to such Collateral Certificate
shall then be true and correct in all material respects as if such Collateral
Certificate had been designated for inclusion in the Trust on such day.
IN WITNESS WHEREOF, the Transferor and the Owner Trustee, on
behalf of the Trust, have caused this Assignment to be duly executed by their
respective officers as of the day and year first above written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, as Transferor
By: ____________________________
Name:
Title:
CHASE ISSUANCE TRUST
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as
Administrator on behalf of the Trust
By: ____________________________
Name:
Title:
Schedule 1 (to Exhibit A-1)
---------------------------
List of Additional Collateral Certificates
------------------------------------------
Schedule 2 (to Exhibit A-1)
---------------------------
Chase Manhattan Bank USA, National Association
Officer's Certificate
____________________, a duly authorized officer of Chase Manhattan
Bank USA, National Association ("Chase USA"), a national banking association,
as transferor (the "Transferor"), hereby certifies and acknowledges on behalf
of the Transferor that to the best of [her/his] knowledge the following
statements are true on ___________ (the "Addition Date"), and acknowledges on
behalf of the Transferor that this Officer's Certificate will be relied upon by
Wilmington Trust Company, as Owner Trustee on behalf of the Trust, in
connection with the Trust entering into Assignment No. ___ of Additional
Collateral Certificates, dated as of the related Addition Date (the
"Assignment"), by and between the Transferor and the Trust, in connection with
the Amended and Restated Transfer and Servicing Agreement, dated as of October
15, 2004 (as heretofore supplemented and amended, the "Transfer and Servicing
Agreement"), by and between Chase USA, as Transferor, Servicer and
Administrator, the Chase Issuance Trust, as Issuer, and Xxxxx Fargo Bank,
National Association, as Indenture Trustee and Collateral Agent. The
undersigned hereby certifies and acknowledges on behalf of the Transferor that:
(a) Delivery of Assignment. On or prior to the Addition
Date, (i) the Transferor has delivered to the Trust the Assignment and (ii) the
Transferor shall deliver to the Trust the Additional Collateral Certificate.
(b) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Transferor enforceable
against the Transferor 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 except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(c) Eligibility of Additional Collateral Certificate. As of
the Addition Cut Off Date, the Additional Collateral Certificate designated
hereby is an Eligible Collateral Certificate;
(d) Insolvency. As of each of the Addition Cut Off Date
and the Addition Date, no Insolvency Event with respect to the Transferor has
occurred and the transfer by the Transferor of Additional Collateral
Certificates to the Trust has not been made in contemplation of the occurrence
thereof;
(e) No Adverse Effect. The acquisition by the Trust of
the Additional Collateral Certificate shall not, in the reasonable belief of
the Transferor, result in an Adverse Effect; and
(f) Conditions Precedent. All requirements set forth in
subsection 2.12(c) of the Transfer and Servicing Agreement for designating
Additional Collateral Certificates have been satisfied.
(g) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Transferor, threatened
against the Transferor before any court, regulatory body, administrative agency
or other tribunal or governmental instrumentality (i) asserting the invalidity
of this Assignment, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Assignment, (iii) seeking any determination
or ruling that, in the reasonable judgment of the Transferor, would materially
and adversely affect the performance by the Transferor of its obligations under
this Assignment or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Assignment; and
(h) All Consents. All authorizations, consents, orders
or approvals of any court or other governmental authority required to be
obtained by the Transferor in connection with the execution and delivery of
this Assignment by the Transferor and the performance of the transactions
contemplated by this Assignment by the Transferor, have been obtained.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Asset Pool One Supplement.
IN WITNESS WHEREOF, I have hereunto set my hand this _____
day of ________ ____.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By: ____________________________
Name:
Title:
Exhibit A-2
-----------
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(as required by section 2.12(c)(iv) of the Transfer and Servicing Agreement)
ASSIGNMENT NO. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS,
dated as of __________, by and among CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, a national banking association (the "Bank"), as Transferor (in
such capacity, the "Transferor"), and the CHASE ISSUANCE TRUST (the "Trust"),
pursuant to the Agreement referred to below, and acknowledged by the Bank in
its capacity as servicer under the Agreement referred to below (in such
capacity, the "Servicer").
W I T N E S S E T H:
WHEREAS, the Bank, as Transferor, Servicer and Administrator,
Xxxxx Fargo Bank, National Association, as Indenture Trustee and Collateral
Agent, and the Trust are parties to the Amended and Restated Transfer and
Servicing Agreement, dated as of October 15, 2004 (hereinafter as such
agreement may have been, or may from time to time be, amended, supplemented or
otherwise modified, the "Agreement");
WHEREAS, pursuant to the Agreement, the Transferor wishes to
designate Additional Accounts to be included as Accounts and to convey hereby
the Receivables of such Additional Accounts (as each such term is defined in
the Agreement), whether now existing or hereafter created, to the Trust; and
WHEREAS, the Administrator, on behalf of the Trust is willing
to accept such designation and conveyance subject to the terms and conditions
hereof;
NOW, THEREFORE, the Transferor and the Administrator, on
behalf of the Trust hereby agree as follows:
1. Defined Terms. All capitalized terms used herein
shall have the meanings ascribed to them in the Agreement unless otherwise
defined herein.
"Addition Cut Off Date" shall mean, with respect to the
Additional Accounts designated hereby, _________________.
"Addition Date" shall mean, with respect to the Additional
Accounts designated on Schedule 1 hereto, _________________.
"Notice Date" shall mean, with respect to the Additional
Accounts designated on Schedule 1 hereto, ________________ [which shall be a
date on or prior to the third Business Day prior to the Addition Date with
respect to additions pursuant to subsection 2.12(a) of the Agreement and the
fifth Business Day prior to the Addition Date with respect to additions
pursuant to subsection 2.12(b) of the Agreement].
2. Designation of Additional Accounts. On or before the
Addition Date, the Transferor shall deliver to the Owner Trustee, on behalf of
the Issuer, a computer file containing a true and complete list of each VISA
and MasterCard account, which as of the Addition Date shall be deemed to be an
Additional Account, identified by account number and the aggregate amount of
the Receivables in each such Additional Account as of the Addition Cut Off
Date, and stating to which Asset Pool each such Additional Account belongs,
which computer file shall be marked as Schedule 1 to this Assignment and, as of
the date of this Assignment, shall supplement Schedule 1 to the Agreement.
3. Conveyance of Receivables. (a) The Transferor does
hereby sell, transfer and assign to the Trust all right, title and interest,
whether owned on the Addition Cut Off Date or thereafter acquired, of the
Transferor in the Receivables existing on the Addition Cut Off Date or
thereafter created in the Additional Accounts, all Interchange and Recoveries
related thereto, all monies due or to become due and all amounts received or
receivable with respect thereto and all proceeds (including "proceeds" as
defined in the applicable UCC) thereof and all Insurance Proceeds related
thereto. This Section 3(a) does not constitute and is not intended to result in
the creation or assumption by the Trust, the Owner Trustee (as such or in its
individual capacity), the Indenture Trustee, the applicable Collateral Agent,
any Noteholders, any Supplemental Credit Enhancer or any Derivative
Counterparty of any obligation of the Transferor or any other Person in
connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation to Obligors, merchant
banks, merchants clearance systems, VISA, MasterCard or insurers.
(b) The Transferor hereby grants to the Trust a security
interest in all of its right, title and interest, whether owned on the Addition
Cut Off Date or thereafter acquired, of the Transferor in the Receivables
existing on the Addition Cut Off Date or thereafter created in the Additional
Accounts, all Interchange and Recoveries related thereto, all monies due or to
become due and all amounts received or receivable with respect thereto and the
"proceeds" (including "proceeds" as defined in the applicable UCC) thereof and
all Insurance Proceeds related thereto to secure a loan in an amount equal to
the unpaid principal amount of the Notes issued pursuant to the Indenture and
the applicable Indenture Supplement and interest accrued with respect thereto.
This Assignment constitutes a security agreement under the UCC.
(c) If necessary, the Transferor agrees to record and
file, at its own expense, financing statements (and continuation statements
when applicable) with respect to the Receivables in Additional Accounts
existing on the Addition Cut Off Date and thereafter created meeting the
requirements of applicable state law in such manner and in such jurisdictions
as are necessary to perfect, and maintain perfection of, the sale and
assignment of its interest in such Receivables to the Trust, and to deliver a
file-stamped copy of each such financing statement or other evidence of such
filing to the Owner Trustee on or prior to the Addition Date. The Owner Trustee
shall be under no obligation whatsoever to file such financing or continuation
statements or to make any filing under the UCC in connection with such sale and
assignment.
(d) In connection with such transfers, the Transferor
further agrees, at its own expense, on or prior to the date of this Assignment,
to indicate in the appropriate computer files that Receivables created in
connection with the Additional Accounts and designated hereby have been
conveyed to the Trust pursuant to this Assignment for the benefit of the
Noteholders.
(e) 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 the Transferor pursuant to this Assignment shall be deemed to no
longer be the property, assets or rights of the Transferor. The parties hereto
acknowledge and agree that each such transfer is occurring in connections with
a "securitization transaction" within the meaning of the Delaware Act.
4. Acceptance by Administrator on Behalf of the Trust.
The Administrator, on behalf of the Trust hereby acknowledges its acceptance of
all right, title and interest in and to the Receivables in the Additional
Accounts now existing and hereafter created, conveyed to the Trust pursuant to
Section 3(a) hereof and declares that the Trust shall maintain such right,
title and interest, upon the trust herein set forth, for the benefit of the
Noteholders.
5. Representations and Warranties of the Transferor.
(a) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Transferor enforceable
against the Transferor 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 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. As of the Addition Cut Off Date,
each Additional Account designated hereby is an Eligible Account;
(c) Insolvency. As of each of the Addition Cut Off Date
and the Addition Date, no Insolvency Event with respect to the Transferor has
occurred and the transfer by the Transferor of Receivables arising in the
Additional Accounts to the Trust has not been made in contemplation of the
occurrence thereof;
(d) No Adverse Effect. The acquisition by the Trust of
the Receivables arising in the Additional Accounts shall not, in the reasonable
belief of the applicable Transferor, result in an Adverse Effect;
(e) Security Interest. This Assignment constitutes a
valid sale, transfer and assignment to the Trust of all right, title and
interest, whether owned on the Addition Cut Off Date or thereafter acquired, of
the Transferor in the Receivables existing on the Addition Cut Off Date or
thereafter created in the Additional Accounts, all Interchange and Recoveries
related thereto, all monies due or to become due and all amounts received or
receivable with respect thereto and the "proceeds" (including "proceeds" as
defined in the applicable UCC) thereof and Insurance Proceeds related thereto,
or, if this Assignment does not constitute a sale of such property, the
Agreement as amended by this Assignment constitutes a grant of a "security
interest" (as defined in the applicable UCC) in such property to the Trust,
which, in the case of existing Receivables and the proceeds thereof, is
enforceable upon execution and delivery of this Assignment, and which will be
enforceable with respect to such Receivables hereafter created and the proceeds
thereof upon such creation. Upon the filing of the financing statements
described in Section 3 of this Assignment and, in the case of the Receivables
hereafter created and the proceeds thereof, upon the creation thereof, the
Trust shall have a first priority perfected security or ownership interest in
such property;
(f) No Conflict. The execution and delivery by the
Transferor of this Assignment, the performance of the transactions contemplated
by this Assignment and the fulfillment of the terms hereof applicable to the
Transferor, will not conflict with or violate any Requirements of Law
applicable to the Transferor or conflict with, result in any breach of any of
the material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust or other instrument to which the Transferor
is a party or by which it or its properties are bound;
(g) No Proceedings. There are no proceedings or
investigations, pending or, to the best knowledge of the Transferor, threatened
against the Transferor before any court, regulatory body, administrative agency
or other tribunal or governmental instrumentality (i) asserting the invalidity
of this Assignment, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Assignment, (iii) seeking any determination
or ruling that, in the reasonable judgment of the Transferor, would materially
and adversely affect the performance by the Transferor of its obligations under
this Assignment or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Assignment; and
(h) All Consents. All authorizations, consents, orders
or approvals of any court or other governmental authority required to be
obtained by the Transferor in connection with the execution and delivery of
this Assignment by the Transferor and the performance of the transactions
contemplated by this Assignment by the Transferor, have been obtained.
6. Conditions Precedent. The designation of Additional
Accounts pursuant to Section 2 of this Assignment, the conveyance of
Receivables pursuant to Section 3 of this Assignment and the Amendment of the
Agreement pursuant to Section 7 hereof are each subject to the satisfaction of
the conditions precedent set forth in Section 2.12(c) of the Agreement on or
prior to the dates specified in such Section 2.12(c). For purposes of Section
2.12(c)(i) of the Agreement, "Notice Date" shall having the meaning specified
in Section 1 hereof. With respect to the condition specified in Section
2.12(c)(xi) of the Agreement, the Bank shall have delivered to the
Administrator, on behalf of the Trust, on or prior to the date hereof, 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
subsection 2.12(c) of the Transfer and Servicing Agreement for designating and
conveying Receivables in Additional Accounts have been satisfied and (ii) each
of the representations and warranties made by the Transferor in Section 5 of
this Assignment is true and correct as of the Addition Date. The Owner Trustee
and the Administrator 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.
7. Amendment of the Transfer and Servicing Agreement.
The Agreement is hereby amended to provide that all references therein to the
"Transfer and Servicing Agreement," to "this Agreement" and "herein" shall be
deemed from and after the Addition Date to be a dual reference to the Agreement
as supplemented by this Assignment. All references therein to Additional
Accounts shall be deemed to include the Additional Accounts designated hereby
and all references therein to Receivables shall be deemed to include the
Receivables conveyed hereby. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Agreement
shall remain unamended 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 provision of the Agreement.
8. 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 shall constitute one and the
same instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED 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.
10. Removal Upon Breach. In the event of a breach of any
of the warranties set forth in Section 5(b) hereof other than a breach or event
set forth in Section 2.05(a) of the Agreement, if as a result of such breach
the related Receivable is no longer an Eligible Receivable or the Trust's
rights in, to or under such Receivable or its proceeds are impaired, then upon
the expiration of 60 days (or such longer period as may be agreed to by the
Indenture Trustee, the applicable Collateral Agent and the Servicer, but in no
event later than 120 days) after the earlier to occur of the discovery thereof
by the Transferor who conveyed such Receivable to the Trust or receipt by such
Transferor of written notice thereof given by the Owner Trustee, the Indenture
Trustee, the applicable Collateral Agent or the Servicer, such Receivable shall
be removed from the Trust on the terms and conditions set forth in Section
2.05(b) of the Agreement and the Transferor shall accept reassignment of such
Receivable; provided, however, that no such removal shall be required to be
made if, on any day within such applicable period, such representations and
warranties with respect to such Receivable shall then be true and correct in
all material respects as if such Receivable had been designated for inclusion
in the Trust on such day.
IN WITNESS WHEREOF, the Transferor and Chase Manhattan Bank
USA, National Association, as Administrator on behalf of the Trust, have caused
this Assignment to be duly executed by their respective officers as of the day
and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Transferor
By: __________________________________
. Name:
Title:
CHASE ISSUANCE TRUST
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Administrator on behalf
of the Trust
By: __________________________________
. Name:
Title:
Acknowledged by:
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Servicer
By: _________________________
Name:
Title:
Schedule 1 (to Exhibit A-2)
---------------------------
List of Additional Accounts
---------------------------
Schedule 2 (to Exhibit A-2)
---------------------------
Chase Manhattan Bank USA, National Association
----------------------------------------------
Officer's Certificate
---------------------
____________________, a duly authorized officer of Chase Manhattan
Bank USA, National Association ("Chase USA"), a national banking association,
as transferor (the "Transferor"), hereby certifies and acknowledges on behalf
of the Transferor that to the best of [her/his] knowledge the following
statements are true on ___________ (the "Addition Date"), and acknowledges on
behalf of the Transferor that this Officer's Certificate will be relied upon by
Wilmington Trust Company, as Owner Trustee on behalf of the Trust, in
connection with the Trust entering into Assignment No. ___ of Additional
Collateral Certificates, dated as of the related Addition Date (the
"Assignment"), by and between the Transferor and the Trust, in connection with
the Amended and Restated Transfer and Servicing Agreement, dated as of October
15, 2004 (as heretofore supplemented and amended, the "Transfer and Servicing
Agreement"), by and between Chase USA, as Transferor, Servicer and
Administrator, the Chase Issuance Trust, as Issuer, and Xxxxx Fargo Bank,
National Association, as Indenture Trustee and Collateral Agent. The
undersigned hereby certifies and acknowledges on behalf of the Transferor that:
(a) Delivery of Assignment. On or prior to the Addition
Date, (i) the Transferor has delivered to the Trust the Assignment and (ii) the
Transferor has indicated in its computer files that the Receivables created in
connection with the Additional Accounts have been transferred to the Trust and
(iii) shall deliver to the Trust a computer file containing a true and complete
list of all Additional Accounts identified by account number and the aggregate
amount of the Receivables in such Additional Accounts as of the related
Addition Cut-Off Date, which computer file or microfiche list shall be as of
the date of such Assignment, incorporated into and made a part of such
Assignment and the Transfer and Servicing Agreement.
(b) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Transferor enforceable
against the Transferor 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 except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(c) Eligibility of Additional Collateral Certificate. As of
the Addition Cut Off Date, each Additional Account designated thereby is an
Eligible Account;
(d) Insolvency. As of each of the Addition Cut Off Date
and the Addition Date, no Insolvency Event with respect to the Transferor has
occurred and the transfer by the Transferor of Receivables arising in the
Additional Accounts to the Trust has not been made in contemplation of the
occurrence thereof;
(e) No Adverse Effect. The acquisition by the Trust of
the Receivables arising in the Additional Accounts shall not, in the reasonable
belief of the Transferor, result in an Adverse Effect; and
(f) Conditions Precedent. All requirements set forth in
subsection 2.12(c) of the Transfer and Servicing Agreement for designating
Receivables arising in the Additional Accounts have been satisfied.
(g) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Transferor, threatened
against the Transferor before any court, regulatory body, administrative agency
or other tribunal or governmental instrumentality (i) asserting the invalidity
of this Assignment, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Assignment, (iii) seeking any determination
or ruling that, in the reasonable judgment of the Transferor, would materially
and adversely affect the performance by the Transferor of its obligations under
this Assignment or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Assignment; and
(h) All Consents. All authorizations, consents, orders
or approvals of any court or other governmental authority required to be
obtained by the Transferor in connection with the execution and delivery of
this Assignment by the Transferor and the performance of the transactions
contemplated by this Assignment by the Transferor, have been obtained.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Asset Pool One Supplement.
IN WITNESS WHEREOF, I have hereunto set my hand this _____
day of _________________.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By: ____________________________
Name:
Title:
Exhibit B
---------
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(as required by section 2.13 of the Transfer and Servicing Agreement)
REASSIGNMENT No. _______ OF RECEIVABLES dated as of _________, by and
among CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, a national banking
association (the "Bank"), as Transferor (the "Transferor") and the CHASE
ISSUANCE TRUST (the "Trust"), pursuant to the Agreement referred to below.
W I T N E S S E T H:
WHEREAS the Bank, as Transferor, Servicer and Administrator, Xxxxx
Fargo Bank, National Association, as Indenture Trustee and as Collateral Agent,
and the Trust are parties to the Amended and Restated Transfer and Servicing
Agreement, dated as of October 15, 2004 (as amended and supplemented, the
"Agreement");
WHEREAS pursuant to the Agreement, the Transferor wishes to remove
from the Trust all Receivables owned by the Trust in certain designated
Accounts (the "Removed Accounts") and to cause the Trust to reconvey the
Receivables of such Removed Accounts, whether now existing or hereafter
created, from the Trust to the Transferor; and
WHEREAS the Owner Trustee, on behalf of the Trust, is willing to
accept such designation and to reconvey the Receivables in the Removed Accounts
subject to the terms and conditions hereof;
NOW, THEREFORE, the Transferor and the Owner Trustee, on behalf of the
Trust, hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement
and used herein shall have such defined meanings when used herein, unless
otherwise defined herein.
"Removal Date" shall mean, with respect to the Removed
Accounts designated hereby, ______________.
"Removal Notice Date" shall mean, with respect to the Removed
Accounts, ______________.
2. Designation of Removed Accounts. On or before the Removal
Date, the Transferor will deliver to the Owner Trustee a computer file
containing a true and complete schedule identifying all Accounts the
Receivables of which are being removed from the Trust, specifying for each such
Account, as of the Removal Notice Date, its account number, the aggregate
amount outstanding in such Account and the aggregate amount of Principal
Receivables in such Account, which computer file shall be marked as Schedule 1
to this Reassignment and, as of the date of this Reassignment, shall supplement
Schedule 1 to the Agreement.
3. Conveyance of Receivables. (a) The Trust does hereby
transfer, assign, set over and otherwise reconvey to the Transferor, without
recourse, on and after the Removal Date, all right, title and interest of the
Trust in, to and under the Receivables existing at the close of business on the
Removal Notice Date and thereafter created from time to time in the Removed
Accounts identified on Schedule 1 hereto, all Interchange and Recoveries
related thereto, all monies due or to become due (including all Finance Charge
Receivables), all amounts received or receivable with respect thereto and all
proceeds (as defined in the UCC as in effect in the applicable jurisdiction)
thereof and Insurance Proceeds related thereto.
(b) In connection with such transfer, the Trust agrees
to execute and deliver to the Transferor on or prior to the date this
Reassignment is delivered, applicable termination statements prepared by the
Transferor with respect to the Receivables existing at the close of business on
the Removal Date and thereafter created from time to time in the Removed
Accounts reassigned hereby and the proceeds thereof evidencing the release by
the Trust of its in the Receivables in the Removed Accounts, and meeting the
requirements of applicable state law, in such manner and such jurisdictions as
necessary to terminate such interest.
4. Representations and Warranties of the Transferor.
The Transferor hereby represents and warrants to the Trust as of the Removal
Date:
(a) Legal Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Transferor enforceable
against the Transferor, 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 except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity);
(b) Satisfaction of Additional Requirements. All of the
requirements for the removal of Accounts under the applicable Asset Pool
Supplement have been satisfied; and
(c) Required Transferor Amount. The removal of any
Receivable of any Removed Accounts on any Removal Date shall not, in the
reasonable belief of the applicable Transferor, cause, with respect to the
Asset Pool in which such Receivables had been designated for inclusion, an
Adverse Effect or the Transferor Amount for such Asset Pool to be less than the
Required Transferor Amount for that Asset Pool or the Pool Balance for that
Asset Pool to be less than the Minimum Pool Balance for such Monthly Period in
which such removal occurs.
5. Conditions Precedent. The reassignment hereunder of the
Receivables in the Removed Accounts and the amendment of the Agreement pursuant
to Section 7 of this Reassignment are each subject to:
(a) the satisfaction, on or prior to the Removal Date, of the
conditions set forth in Section 2.13(b) of the Agreement; and
(b) the delivery, on or prior to the Removal Date, to the
Owner Trustee by the Transferor and the Servicer of an Officer's Certificate
substantially in the form of Schedule 2-A or 2-B hereto to this Reassignment,
as applicable. The Owner 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.
6. Representations and Warranties of the Trust. Since the
date of the transfer by the Transferor under the Agreement, the Owner Trustee,
on behalf of the Trust, has not sold, transferred or encumbered any Receivable
in any Removed Account or any interest therein.
7. Amendment of the Transfer and Servicing Agreement. The
Agreement is hereby amended to provide that all references therein to the
"Transfer and Servicing Agreement," to "this Agreement" and "herein" shall be
deemed from and after the Removal Date to be a dual reference to the Agreement
as supplemented by this Reassignment. All references therein to the Accounts
shall be deemed not to include the Removed Accounts designated hereunder and
all references to Receivables shall be deemed not to include the Receivables
reconveyed hereunder. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Agreement
shall remain unamended 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 provision of the Agreement.
8. Counterparts. This Reassignment 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 shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED 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.
10. Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Reassignment has been executed and
delivered by Wilmington Trust Company, not in its individual capacity, but
solely in its capacity as Owner Trustee of the Trust, in no event shall
Wilmington Trust Company in its individual capacity have any liability in
respect of the representations, warranties, or obligations of the Trust
hereunder or under any other document, as to all of which recourse shall be had
solely to the assets of the Trust, and for all purposes of this Reassignment
and each other document, the Owner Trustee (as such or in its individual
capacity) shall be subject to, and entitled to the benefits of, the terms and
provisions of the Trust Agreement.
IN WITNESS WHEREOF, the Transferor and the Owner Trustee, on
behalf of the Trust, have caused this Assignment to be duly executed by their
respective officers as of the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Transferor and Servicer
By: __________________________________
. Name:
Title:
CHASE ISSUANCE TRUST
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Administrator
on behalf of the Trust
By: __________________________________
. Name:
Title:
Schedule 1
----------
to Reassignment
---------------
of Receivables
--------------
List of Removed Accounts
------------------------
Schedule 2-A
------------
to Reassignment
---------------
of Receivables
--------------
Chase Manhattan Bank USA, National Association
----------------------------------------------
Officers Certificate
--------------------
____________________, a duly authorized officer of Chase
Manhattan Bank USA, National Association, a national banking association (the
"Transferor"), hereby certifies and acknowledges on behalf of the Transferor
that to the best of [her/his] knowledge the following statements are true on
_____________ (the "Removal Date"), and acknowledges on behalf of the
Transferor that this Officer's Certificate will be relied upon by Wilmington
Trust Company, as Owner Trustee (the "Owner Trustee") of the Chase Issuance
Trust in connection with the Owner Trustee entering into Reassignment No. ___
of Receivables in Additional Accounts, dated as of the related Removal Date
(the "Reassignment"), among the Transferor and the Owner Trustee, on behalf of
the Trust, in connection with the Amended and Restated Transfer and Servicing
Agreement, dated as of October 15, 2004 (as heretofore supplemented and
amended, the "Transfer and Servicing Agreement"), by and among Chase Manhattan
Bank USA, National Association, as Transferor, Servicer and Administrator and
Xxxxx Fargo Bank, National Association, as Indenture Trustee and Collateral
Agent. The undersigned hereby certifies and acknowledges on behalf of the
Transferor that:
(a) On or prior to the Removal Date, the Transferor has
delivered to the Owner Trustee on behalf of the Trust, for execution, the
Reassignment and within five Business Days after the Removal Date, the
Transferor shall deliver to the Owner Trustee, on behalf of the Trust, a
computer list as of _______________ with respect to the Removed Accounts
identified on Schedule 1 to the Reassignment, containing a true and complete
list of such Removed Accounts identified by account number and the aggregate
amount of the Receivables in such Removed Accounts incorporated into and made a
part of such Reassignment and the Transfer and Servicing Agreement.
(c) The Reassignment constitutes a legal, valid and
binding obligation of the Transferor enforceable against the Transferor 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 national 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).
(d) On or before the fifth Business Day prior to the
Removal Date, the Transferor gave the Owner Trustee, on behalf of the Trust,
and the Servicer written notice that the Receivables from the Removed Accounts
are to be reassigned to the Transferor or its designee, specifying the date for
removal of the Removed Accounts.
(e) After giving effect to the removal of such Removed
Accounts, the Transferor Interest shall not be less than the Minimum Transferor
Interest and the amount of Principal Receivables in the Trust shall not be less
than the Minimum Aggregate Principal Receivables.
(f) All requirements set forth in Section 2.13 of the
Transfer and Servicing Agreement for designating Removed Accounts and conveying
the Principal Receivables of such Accounts, whether now existing or hereafter
created, have been satisfied.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Transfer and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of the
_____ day of ___________.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By: ____________________________
Name:
Title:
Schedule 2-B
------------
to Reassignment
---------------
of Receivables
Chase Manhattan Bank USA, National Association
----------------------------------------------
Officer's Certificate of the
----------------------------
Servicer
--------
____________________, a duly authorized officer of Chase
Manhattan Bank USA, National Association, a national banking association (the
"Servicer"), hereby certifies and acknowledges on behalf of the Servicer that
to the best of [her/his] knowledge the following statements are true on
_____________ (the "Removal Date"), and acknowledges on behalf of the Servicer
that this Officer's Certificate will be relied upon by Wilmington Trust
Company, as Owner Trustee (the "Owner Trustee") of the Chase Issuance Trust in
connection with the Owner Trustee entering into Reassignment No. ___ of
Receivables in Additional Accounts, dated as of the related Removal Date (the
"Reassignment"), among the Transferor and the Owner Trustee, on behalf of the
Trust, in connection with the Amended and Restated Transfer and Servicing
Agreement, dated as of October 15, 2004 (as heretofore supplemented and
amended, the "Transfer and Servicing Agreement"), by and among Chase Manhattan
Bank USA, National Association, as Transferor, Servicer and Administrator, and
Xxxxx Fargo Bank, National Association, as Indenture Trustee and Collateral
Agent.
The undersigned hereby certifies and acknowledges on behalf of
the Transferor that either (x) a random selection procedure was used by the
Servicer in selecting the Removed Accounts and only one such removal of
randomly selected Accounts shall occur in the then current Monthly Period, (y)
the Removed Accounts arose pursuant to an affinity, private-label, agent-bank,
co-branding or other arrangement with a third party that has been cancelled by
such third party or has expired without renewal and which by its terms permits
the third party to repurchase the Removed Accounts subject to such arrangement,
upon such cancellation or non-renewal and the third party has exercised such
repurchase right or (z) the Removed Accounts were selected using another method
that will not preclude transfers from being accounted for as sales under
generally accepted accounting principles or prevent the Transferor from
continuing to qualify as a qualifying special purpose entity in accordance with
SFAS No. 140 (or any relevant replacement statement).
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Transfer and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of the ____
day of _________________.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, as Servicer
By: ____________________________
Name:
Title:
Exhibit C
---------
FORM OF ANNUAL SERVICER'S CERTIFICATE
(To be delivered on or before April 30 of
each calendar year beginning with April 30, 2003,
pursuant to Section 4.05 of the Transfer and
Servicing Agreement referred to below)
CHASE ISSUANCE TRUST
The undersigned, a duly authorized representative of Chase
Manhattan Bank USA, National Association ("Chase USA"), pursuant to the Amended
and Restated Transfer and Servicing Agreement, dated as of October 15, 2004 (as
amended and supplemented, the "Agreement"), among Chase USA, as Transferor,
Servicer and Administrator, the Chase Issuance Trust (the "Trust") and Xxxxx
Fargo Bank, National Association, as Indenture Trustee and Collateral Agent,
does hereby certify that:
1. Chase USA is, as of the date hereof, the Servicer under the
Agreement.
2. The undersigned is an Authorized Officer who is duly
authorized pursuant to the Agreement to execute and deliver this Certificate to
the Trust.
3. A review of the activities of the Servicer during the year
ended December 31, ____, and of its performance under the Agreement was
conducted under my supervision.
4. Based on such review, the Servicer has, to the best of my
knowledge, performed in all material respects its obligations under the
Agreement throughout such year and no default in the performance of such
obligations has occurred or is continuing except as set forth in paragraph 5
below.
5. The following is a description of each default in the
performance of the Servicer's obligations under the provisions of the Agreement
known to me to have been made by the Servicer during the year ended December
31, ____ which sets forth in detail (i) the nature of each such default, (ii)
the action taken by the Servicer, if any, to remedy each such default and (iii)
the current status of each such default: [If applicable, insert "NONE."]
Capitalized terms used in this Certificate have their respective
meanings as set forth in the Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate this ____ day of __________________.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, as Servicer
By: ____________________________
Name:
Title:
Exhibit D-1
-----------
FORM OF OPINION OF COUNSEL
WITH RESPECT TO AMENDMENTS
Provisions to be included in
Opinion of Counsel to be delivered pursuant
to subsection 12.02(d)(i)
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
Opinions Of Counsel delivered on any applicable Closing Date.
1. The amendment to the Transfer and Servicing Agreement, attached hereto as
Schedule 1 (the "Amendment"), has been duly authorized, executed and delivered
by the Transferor and constitutes the legal, valid and binding agreement of the
Transferor, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws from time to time in effect affecting
creditors' rights generally. The enforceability of the Transferor's obligations
is also subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
2. The Amendment has been entered into in accordance with the terms and
provisions of Section 12.01 of the Transfer and Servicing Agreement.
Exhibit D-2
-----------
FORM OF OPINION OF COUNSEL
WITH RESPECT TO COLLATERAL CERTIFICATES
Provisions to be included in
Opinion of Counsel to be
delivered pursuant to
subsections 12.02(d)(ii) or (iii)
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
Opinions of Counsel delivered on any applicable Closing Date.
1. To the extent that the transfer of the Collateral Certificate to the Owner
Trustee on behalf of the Owner Trust is characterized as a transfer for
security, the provisions of the Transfer and Servicing Agreement are effective
under the UCC of the State of Delaware to create a valid security interest in
the Owner Trustee's rights, on behalf of the Owner Trust, in the Collateral
Certificate and the proceeds thereof to secure a loan in an amount equal to the
unpaid principal amount of the Notes and accrued and unpaid interest with
respect thereto.
2. The Bank has authorized the filing of the financing statement (the "Bank
Financing Statement") identifying "Chase Manhattan Bank USA, National
Association," as debtor, and "Wilmington Trust Company, as Owner Trustee on
behalf of the Chase Issuance Trust," as secured party, for purposes of Section
9-509 of the Delaware UCC.
3. The Bank Financing Statement includes not only all types of information
required by Section 9-502(a) of the UCC of the State of Delaware but also all
of the types of information without which the office of the Secretary of State
of the State of Delaware (the "Filing Office") may refuse to accept the Bank
Financing Statement pursuant to Section 9-516 of the UCC of the State of
Delaware.
4. Under the UCC of the State of Delaware, the security interest of the Owner
Trustee, for the benefit of the Owner Trust, will be perfected in the
Collateral Certificate and proceeds thereof upon the later of the attachment of
the security interest and the filing of the Bank Financing Statement in the
Filing Office.
5. To the extent that the transfer of the Collateral Certificate to the
Collateral Agent is characterized as a transfer for security, the provisions of
the Asset Pool One Supplement are effective under the Delaware UCC to create,
in favor of the Collateral Agent for the benefit of the Asset Pool One
Noteholders under the Asset Pool One Supplement, a valid security interest in
the Collateral Agent's rights in the Collateral Certificate and the proceeds
thereof to secure a loan in an amount equal to the unpaid principal amount of
the Notes and accrued and unpaid interest with respect thereto.
6. The Owner Trustee, on behalf of the Owner Trust, has authorized the filing
of the financing statement (the "Owner Trust Financing Statement") identifying
"Chase Issuance Trust," as debtor, and "Xxxxx Fargo Bank, National Association,
as Collateral Agent," as secured party, for purposes of Section 9-509 of the
UCC of the State of Delaware.
7. The Owner Trust Financing Statement includes not only all types of
information required by Section 9-502(a) of the UCC of the State of Delaware
but also all of the types of information without which the Filing Office may
refuse to accept the Owner Trust Financing Statement pursuant to Section 9-516
of the UCC of the State of Delaware.
8. Under the UCC of the State of Delaware, the security interest of the
Collateral Agent, as secured party, will be perfected in the Collateral
Certificate and proceeds thereof upon the later of the attachment of the
security interest and the filing of the Owner Trust Financing Statement in the
Filing Office.
Exhibit D-3
-----------
PROVISIONS TO BE INCLUDED IN
ANNUAL OPINION OF COUNSEL
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
Opinions of Counsel delivered on any applicable Closing Date with respect to
similar matters. Unless otherwise indicated, all capitalized terms used herein
shall have the meanings ascribed to them in the Transfer and Servicing
Agreement.
1. No filing or other action, other than such filing or other action
described in such opinion, is necessary from the date of such opinion
through April 30 of the following year to continue the perfected status of
the security interest of the Trust in the Receivables described in the
financing statements referenced in such opinion.
2. No filing or other action, other than such filing or other action
described in such opinion, is necessary from the date of such opinion
through April 30 of the following year to continue the perfected status of
the security interest of the Collateral Agent in the Receivables described
in the financing statements referenced in such opinion.
Exhibit E
---------
FORM OF POWER OF ATTORNEY
POWER OF ATTORNEY
STATE OF NEW YORK )
. . ) ss.:
COUNTY OF NEW YORK. .)
KNOW ALL MEN BY THESE PRESENTS, that Chase Issuance Trust, a Delaware statutory
business trust (the "Trust") does hereby make, constitute and appoint Chase
Manhattan Bank USA, National Association, as Administrator under the Transfer
and Servicing Agreement (as defined below), and its agents and attorneys, as
Attorneys in Fact to execute on behalf of the Trust all such documents,
reports, filings, instruments, certificates and opinions as it shall be the
duty of the Trust to prepare, file or deliver pursuant to the Related
Agreements (as defined in the Transfer and Servicing Agreement) including,
without limitation, to appear for and represent the Trust in connection with
the preparation, filing and audit of federal, state and local tax returns
pertaining to the Trust, and with full power to perform any and all acts
associated with such returns and audits that the Trust could perform including,
without limitation, the right to distribute and receive confidential
information, defend and assert positions in response to deficiencies, consents
to the extension of any statutory or regulatory time limit, and settlements.
For the purpose of this Power of Attorney, the term "Transfer and Servicing
Agreement" means the Amended and Restated Transfer and Servicing Agreement,
dated as of October 15, 2004, among the Trust, Chase Manhattan Bank USA,
National Association, as Transferor, Servicer and Administrator, and Xxxxx
Fargo Bank, National Association, as Indenture Trustee and Collateral Agent, as
such may be amended from time to time.
All powers of attorney for this purpose heretofore filed or executed by the
Trust are hereby revoked.
EXECUTED this ____ day of __________, 2004.
CHASE ISSUANCE TRUST
By: WILMINGTON TRUST COMPANY,
as Owner Trustee
By: _________________________
Name:
Title:
