CHASE BANK USA, NATIONAL ASSOCIATION Transferor and Servicer and THE BANK OF NEW YORK Trustee and Paying Agent on behalf of the Certificateholders of CHASE CREDIT CARD MASTER TRUST FIFTH AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT Dated as of...
Exhibit
10.4
EXECUTION
COPY
CHASE
BANK USA, NATIONAL ASSOCIATION
Transferor
and Servicer
and
THE
BANK OF NEW YORK
Trustee
and Paying Agent
on
behalf of the
Certificateholders
of
CHASE
CREDIT CARD MASTER TRUST
_________________________________
FIFTH
AMENDED AND RESTATED
Dated
as of December 19, 2007
TABLE
OF CONTENTS
Page
|
ARTICLE
I
|
DEFINITIONS
|
2
|
|
Section
1.1
|
Definitions
|
2
|
|
Section
1.2
|
Other
Definitional Provisions.
|
22
|
|
ARTICLE
II
|
CONVEYANCE
OF RECEIVABLES; ISSUANCE OF CERTIFICATES
|
24
|
|
Section
2.1
|
Conveyance
of Receivables
|
24
|
|
Section
2.2
|
Acceptance
by Trustee
|
26
|
|
Section
2.3
|
Representations
and Warranties of the Transferor
|
26
|
|
Section
2.4
|
Representations
and Warranties of the Transferor Relating to this Agreement and the
Receivables
|
28
|
|
Section
2.5
|
Covenants
of the Transferor
|
33
|
|
Section
2.6
|
Addition
of Accounts
|
35
|
|
Section
2.7
|
Removal
of Accounts
|
38
|
|
ARTICLE
III
|
ADMINISTRATION
AND SERVICING OF RECEIVABLES
|
41
|
|
Section
3.1
|
Acceptance
of Appointment and Other Matters Relating to the Servicer
|
41
|
|
Section
3.2
|
Servicing
Compensation
|
43
|
|
Section
3.3
|
Representations
and Warranties of the Servicer
|
43
|
|
Section
3.4
|
Reports
and Records for the Trustee
|
44
|
|
Section
3.5
|
Annual
Servicer’s Certificates
|
45
|
|
Section
3.6
|
Annual
Independent Accountants’ Servicing Report
|
46
|
|
Section
3.7
|
Tax
Treatment
|
46
|
|
Section
3.8
|
Notices
to the Transferor
|
46
|
|
ARTICLE
IV
|
RIGHTS
OF CERTIFICATEHOLDERS AND ALLOCATION AND APPLICATION OF
COLLECTIONS
|
48
|
|
Section
4.1
|
Rights
of Certificateholders
|
48
|
|
Section
4.2
|
Establishment
of Accounts
|
48
|
|
Section
4.3
|
Collections
and Allocations
|
50
|
|
Section
4.4
|
Allocations
During Funding Period
|
52
|
|
Section
4.5
|
[RESERVED]
|
53
|
i
|
ARTICLE
V
|
[ARTICLE
V IS RESERVED AND SHALL BE SPECIFIED IN ANY SUPPLEMENT WITH
RESPECT
TO ANY SERIES]
|
54
|
|
ARTICLE
VI
|
THE
CERTIFICATES
|
55
|
|
Section
6.1
|
The
Certificates
|
55
|
|
Section
6.2
|
Authentication
of Certificates
|
55
|
|
Section
6.3
|
Registration
of Transfer and Exchange of Certificates
|
56
|
|
Section
6.4
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
58
|
|
Section
6.5
|
Persons
Deemed Owners
|
59
|
|
Section
6.6
|
Appointment
of Paying Agent
|
59
|
|
Section
6.7
|
Access
to List of Certificateholders’ Names and Addresses
|
60
|
|
Section
6.8
|
Authenticating
Agent
|
61
|
|
Section
6.9
|
New
Issuances
|
62
|
|
Section
6.10
|
Book
Entry Certificates
|
64
|
|
Section
6.11
|
Notices
to Clearing Agency
|
64
|
|
Section
6.12
|
Definitive
Certificates
|
64
|
|
Section
6.13
|
Global
Certificate
|
65
|
|
Section
6.14
|
Meetings
of Certificateholders
|
65
|
|
ARTICLE
VII
|
OTHER
MATTERS RELATING TO THE TRANSFEROR
|
66
|
|
Section
7.1
|
Liability
of the Transferor
|
66
|
|
Section
7.2
|
Merger
or Consolidation of, or Assumption of the Obligations of, the
Transferor
|
66
|
|
Section
7.3
|
Limitation
of Liability
|
67
|
|
Section
7.4
|
Liabilities
|
67
|
|
ARTICLE
VIII
|
OTHER
MATTERS RELATING TO THE SERVICER
|
69
|
|
Section
8.1
|
Liability
of the Servicer
|
69
|
|
Section
8.2
|
Merger
or Consolidation of, or Assumption of the Obligations of, the
Servicer
|
69
|
|
Section
8.3
|
Limitation
of Liability of the Servicer and Others
|
69
|
|
Section
8.4
|
Servicer
Indemnification of the Trust and the Trustee
|
70
|
|
Section
8.5
|
The
Servicer Not to Resign
|
70
|
|
Section
8.6
|
Access
to Certain Documentation and Information Regarding the
Receivables
|
71
|
|
Section
8.7
|
Delegation
of Duties
|
71
|
|
Section
8.8
|
Examination
of Records
|
71
|
|
ARTICLE
IX
|
PAY
OUT EVENTS
|
72
|
|
Section
9.1
|
Pay
Out Events
|
72
|
|
Section
9.2
|
Additional
Rights Upon the Occurrence of Certain Events
|
72
|
ii
|
ARTICLE
X
|
SERVICER
DEFAULTS
|
74
|
|
Section
10.1
|
Servicer
Defaults
|
74
|
|
Section
10.2
|
Trustee
to Act; Appointment of Successor
|
76
|
|
Section
10.3
|
Notification
to Certificateholders
|
77
|
|
Section
10.4
|
Waiver
of Past Defaults
|
77
|
|
ARTICLE
XI
|
THE
TRUSTEE
|
79
|
|
Section
11.1
|
Duties
of Trustee
|
79
|
|
Section
11.2
|
Certain
Matters Affecting the Trustee
|
80
|
|
Section
11.3
|
Trustee
Not Liable for Recitals in Certificates
|
82
|
|
Section
11.4
|
Trustee
May Own Certificates
|
82
|
|
Section
11.5
|
The
Servicer to Pay Trustee’s Fees and Expenses
|
82
|
|
Section
11.6
|
Eligibility
Requirements for Trustee
|
82
|
|
Section
11.7
|
Resignation
or Removal of Trustee
|
83
|
|
Section
11.8
|
Successor
Trustee
|
83
|
|
Section
11.9
|
Merger
or Consolidation of Trustee
|
84
|
|
Section
11.10
|
Appointment
of Co Trustee or Separate Trustee
|
84
|
|
Section
11.11
|
Tax
Returns
|
85
|
|
Section
11.12
|
Trustee
may Enforce Claims Without Possession of Certificates
|
85
|
|
Section
11.13
|
Suits
for Enforcement
|
86
|
|
Section
11.14
|
Rights
of Certificateholders to Direct Trustee
|
86
|
|
Section
11.15
|
Representations
and Warranties of Trustee
|
86
|
|
Section
11.16
|
Maintenance
of Office or Agency
|
86
|
|
ARTICLE
XII
|
TERMINATION
|
88
|
|
Section
12.1
|
Termination
of Trust
|
88
|
|
Section
12.2
|
Optional
Purchase
|
89
|
|
Section
12.3
|
Final
Payment with Respect to any Series
|
89
|
|
Section
12.4
|
Termination
Rights of Holder of Transferor Certificate
|
90
|
|
ARTICLE
XIII
|
MISCELLANEOUS
PROVISIONS
|
92
|
|
Section
13.1
|
Amendment
|
92
|
|
Section
13.2
|
Protection
of Right, Title and Interest to Trust
|
93
|
|
Section
13.3
|
Limitation
on Rights of Certificateholders
|
94
|
|
Section
13.4
|
GOVERNING
LAW
|
95
|
|
Section
13.5
|
Notices
|
95
|
|
Section
13.6
|
Severability
of Provisions
|
96
|
|
Section
13.7
|
Assignment
|
96
|
|
Section
13.8
|
Certificates
Non Assessable and Fully Paid
|
96
|
|
Section
13.9
|
Further
Assurances
|
96
|
|
Section
13.10
|
No
Waiver; Cumulative Remedies
|
96
|
|
Section
13.11
|
Counterparts
|
96
|
|
Section
13.12
|
Third
Party Beneficiaries
|
96
|
iii
|
Section
13.13
|
Actions
by Certificateholders
|
97
|
|
Section
13.14
|
Rule
144A Information
|
97
|
|
Section
13.15
|
Merger
and Integration
|
97
|
|
Section
13.16
|
Headings
|
97
|
|
Section
13.17
|
Characterization
of the Trust
|
97
|
|
Section
13.18
|
Fiscal
Year
|
97
|
|
Section
13.19
|
Consequential
Damages
|
97
|
|
Section
13.20
|
Force
Majeure
|
98
|
|
Section
13.21
|
Waiver
of Jury Trial
|
98
|
|
ARTICLE
XIV
|
COMPLIANCE
WITH REGULATION AB
|
99
|
|
Section
14.1
|
Intent
of the Parties; Reasonableness
|
99
|
|
Section
14.2
|
Additional
Representations and Warranties of the Trustee
|
99
|
|
Section
14.3
|
Information
to Be Provided by the Trustee
|
100
|
|
Section
14.4
|
Trustee’s
Report on Assessment of Compliance and Attestation
|
101
|
|
Section
14.5
|
Information
to Be Provided by the Paying Agent
|
101
|
|
Section
14.6
|
Paying
Agent’s Report on Assessment of Compliance and Attestation
|
102
|
|
Section
14.7
|
Additional
Representations and Warranties of the Servicer
|
102
|
|
Section
14.8
|
Information
to Be Provided by the Servicer
|
103
|
|
Section
14.9
|
Servicer’s
Report on Assessment of Compliance and Attestation
|
105
|
|
Section
14.10
|
Use
of Subservicers and Servicing Participants
|
106
|
EXHIBITS
|
Exhibit
A
|
Form
of Transferor Certificate
|
|
Exhibit
B
|
Form
of Assignment of Receivables in Additional Accounts
|
|
Exhibit
C
|
Form
of Monthly Servicer’s Certificate
|
|
Exhibit
D
|
Form
of Annual Servicer’s Certificate
|
|
Exhibit
E
|
Form
of Annual Opinion of Counsel
|
|
Exhibit
F
|
Form
of Reassignment of Receivables
|
|
Exhibit
G
|
Form
of Reconveyance of Receivables
|
|
Exhibit
H
|
Form
of Annual Certification
|
|
Exhibit
I
|
Servicing
Criteria to be Addressed in Assessment of Compliance
(Trustee)
|
|
Exhibit
J
|
Servicing
Criteria to be Addressed in Assessment of Compliance (Paying
Agent)
|
|
Exhibit
K
|
Servicing
Criteria to be Addressed in Assessment of Compliance
(Servicer/Subservicer)
|
|
Exhibit
L
|
Form
of Trustee’s Regulation AB
Certificate
|
SCHEDULES
Schedule
1 List
of Accounts (Deemed Incorporated)
iv
FIFTH
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT, dated as of December
19,
2007 (this “Agreement”), by and between CHASE BANK USA, NATIONAL
ASSOCIATION, a national banking association (“Chase USA”), as transferor
(the “Transferor”) and as servicer (the “Servicer”) and THE BANK
OF NEW YORK, a New York banking corporation, as trustee (the “Trustee”)
and as paying agent (the “Paying Agent”) of the Chase Credit Card Master
Trust (the “Trust”).
WHEREAS,
JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank and successor
to
Chemical Bank and a predecessor entity to JPMorgan Chase Bank, National
Association, a national banking association), a New York banking corporation,
and the Trustee were parties to a Pooling and Servicing Agreement, dated as
of
October 19, 1995 (the “Original Pooling and Servicing
Agreement”);
WHEREAS,
Chase USA (formerly known as Chase Manhattan Bank USA, National Association
and
The Chase Manhattan Bank (USA)), as transferor on and after June 1, 1996,
JPMorgan Chase Bank, as transferor prior to June 1, 1996 and as servicer, and
the Trustee were parties to an Amended and Restated Pooling and Servicing
Agreement, dated as of June 1, 1996 (the “Amended and Restated Pooling and
Servicing Agreement”), which amended and restated the Original Pooling and
Servicing Agreement in its entirety;
WHEREAS,
all of the parties to the Amended and Restated Pooling and Servicing Agreement
(or the respective successor entities thereto) were parties to a Second Amended
and Restated Pooling and Servicing Agreement, dated as of September 1, 1996
(the
“Second Amended and Restated Pooling and Servicing Agreement”), which
amended and restated the Amended and Restated Pooling and Servicing Agreement
in
its entirety;
WHEREAS,
all of the parties to the Second Amended and Restated Pooling and Servicing
Agreement (or the respective successor entities thereto) were parties to a
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 as of July 15, 2004, the Fourth Amendment thereto, dated as
of
October 15, 2004 and the Fifth Amendment thereto, dated as of February 1, 2006
(as amended, supplemented or otherwise modified, the “Third Amended and
Restated Pooling and Servicing Agreement”), which amended and restated the
Second Amended and Restated Pooling and Servicing Agreement in its
entirety;
WHEREAS,
all of the parties to the Third Amended and Restated Pooling and Servicing
Agreement (or the respective successor entities thereto) are parties to a Fourth
Amended and Restated Pooling and Servicing Agreement, dated as of March 14,
2006, as amended by Amendment No. 1 thereto, dated as of August 1,
2007 (as amended, supplemented or otherwise modified, the “Fourth
Amended and Restated Pooling and Servicing Agreement”), which amended and
restated the Third Amended and Restated Pooling and Servicing Agreement in
its
entirety;
Fifth
A&R CHAMT
PSA
WHEREAS,
subsection 13.1(b) of the Fourth Amended and Restated Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee, without
the consent of any of the Certificateholders, may amend the Fourth Amended
and
Restated Pooling and Servicing Agreement from time to time so long as (i) the
Trustee shall have received an Officer’s Certificate from the Servicer to the
effect that such amendment will not materially and adversely affect the
interests of any Certificateholder and will not significantly change the
Permitted Activities of the Trust, (ii) the Servicer shall have provided a
Tax
Opinion with respect to such amendment and (iii) the Servicer shall have
provided at least ten (10) Business Days’ prior written notice to each Rating
Agency of such amendment and the Rating Agency Condition shall have been
satisfied;
WHEREAS,
(i) the Trustee has received an Officer’s Certificate from the Servicer to the
effect that such amendment will not materially and adversely affect the
interests of any Certificateholder and will not significantly change the
Permitted Activities of the Trust; (ii) the Servicer has provided a Tax Opinion
with respect to such amendment and (iii) the Rating Agency Condition has been
satisfied; and
WHEREAS,
the parties (or successor entities thereto) to the Fourth Amended and Restated
Pooling and Servicing Agreement desire to amend and restate the Fourth Amended
and Restated Pooling and Servicing Agreement to read in its entirety as set
forth below.
NOW,
THEREFORE, pursuant to subsection 13.1(b) of the Fourth Amended and Restated
Pooling and Servicing Agreement, the parties hereto hereby agree that, effective
on and as of the date hereof, the Fourth Amended and Restated Pooling and
Servicing Agreement is hereby amended to read in its entirety as
follows:
In
consideration of the mutual agreements herein contained, each party agrees
as
follows for the benefit of the other parties and the
Certificateholders:
ARTICLE
I
DEFINITIONS
Section
1.1 Definitions. Whenever
used in this Agreement, the following words and phrases shall have the following
meanings:
“Account”
shall mean each VISA® and MasterCard®1
credit card account established pursuant to a
Credit Card Agreement between the Transferor and any Person identified by
account number and by the Receivable balance as of the Cut-Off Date
or as of an Addition Date in a list (in the form of a computer file,
microfiche list, CD-ROM or such other form as is agreed upon between the
Transferor and the Trustee) delivered to the Trustee by the Transferor pursuant
to Section 2.1 or 2.6. The definition of Account shall include
each
2
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
Information” shall have the meaning specified in subsection
2.2(b).
“Accumulation
Period” shall mean, with respect to any Series, or any Class within a
Series, a period following the Revolving Period during which Collections of
Principal Receivables are accumulated in an account for the benefit of the
Investor Certificateholders of a Series, or a Class within such Series, which
shall be the controlled accumulation period, the rapid accumulation period
or
other accumulation period, in each case as defined with respect to such Series
in the related Supplement.
“Addition
Cut-Off Date” shall mean, with respect to any Additional Account, the date
as of which such Additional Account shall have been selected by the Transferor
for inclusion as an Account pursuant to Section 2.6.
“Addition
Date” shall mean each date as of which Additional Accounts will be included
as Accounts pursuant to Section 2.6.
“Additional
Accounts” shall have the meaning specified in subsection
2.6(a).
“Affiliate”
shall mean, with respect to any specified Person, any other Person directly
or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Aggregate
Addition Limit” shall mean the aggregate amount of Principal Receivables
(exclusive of the aggregate amount of Principal Receivables in any Approved
Accounts), which would either (x) with respect to any three-month period, equal
15% of the aggregate amount of Principal Receivables (inclusive of the aggregate
amount of Principal Receivables in Approved Accounts added during such period)
as of the first day of such three-month period or (y) with respect to any
twelve-month period, equal 20% of the aggregate amount of Principal Receivables
(inclusive of the aggregate amount of Principal Receivables in Approved Accounts
added during such period) as of the first day of such twelve-month
period.
“Aggregate
Investor Default Amount” shall have, with respect to any Series of
Certificates, the meaning stated in the related Supplement.
“Aggregate
Investor Interest” shall mean, as of any date of determination, the sum of
the Investor Interests of all Series of Certificates issued and outstanding
on
such date of determination.
3
“Aggregate
Investor Percentage” with respect to Principal Receivables, Finance Charge
Receivables and Receivables in Defaulted Accounts, as the case may be, shall
mean, as of any date of determination, the sum of such Investor Percentages
of
all Series of Certificates issued and outstanding on such date of determination;
provided, however, that the Aggregate Investor Percentage shall
not exceed 100%.
“Agreement”
shall mean this Fifth Amended and Restated Pooling and Servicing Agreement
and
all amendments hereof and supplements hereto, including any
Supplement.
“Amendment
Closing Date” shall mean December 19, 2007.
“Amortization
Period” shall mean, with respect to any Series, or any Class within a
Series, a period following the Revolving Period during which principal is
distributed to Investor Certificateholders, which shall be the controlled
amortization period, the principal amortization period, the rapid amortization
period, or other amortization period, in each case as defined with respect
to
such Series in the related Supplement.
“Annual
Membership Fee” shall have the meaning specified in the Credit Card
Agreement applicable to each Account for annual membership fees or similar
terms.
“Applicants”
shall have the meaning specified in Section 6.7.
“Appointment
Day” shall have the meaning specified in subsection 9.2(a).
“Approved
Accounts” shall mean each Additional Account added to the Trust with respect
to which the Rating Agency Condition has been satisfied.
“Assignment”
shall have the meaning specified in subsection 2.6(c)(ii).
“Authorized
Newspaper” shall mean a newspaper of general circulation in the Borough of
Manhattan, The City of New York printed in the English language and customarily
published on each Business Day, whether or not published on Saturdays, Sundays
and holidays.
“Average
Principal Receivables” shall mean, for any period, an amount equal to (a)
the sum of the aggregate amount of Principal Receivables at the end of each
day
during such period dividedby (b) the number of days in such
period.
“Bank
Portfolio” shall mean the VISA® and
MasterCard® accounts
owned by
the Transferor.
“Bankruptcy
Code” shall mean the United States federal Bankruptcy Code, Title 11 of the
United States Code, as amended.
“Base
Rate” shall have the meaning, with respect to any Series, specified in the
related Supplement.
“Bearer
Certificateholder” shall have the meaning specified in Section
6.1.
4
“Bearer
Certificates” shall have the meaning specified in Section 6.1.
“Bearer
Rules” shall mean the provisions of the Internal Revenue Code, in effect
from time to time, governing the treatment of bearer obligations, including
sections 163(f), 871, 881, 1441, 1442 and 4701, and any regulations thereunder
including, to the extent applicable to any Series, Proposed or Temporary
Regulations.
“BIF”
shall mean the Bank Insurance Fund administered by the FDIC.
“Book-Entry
Certificates” shall mean certificates evidencing a beneficial interest in
the Investor Certificates, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in Section 6.10;
provided, however that after the occurrence of a condition
whereupon book-entry registration and transfer are no longer authorized and
Definitive Certificates are to be issued to the Certificate Owners, such
certificates shall no longer be “Book-Entry Certificates.”
“Business
Day” shall mean any day other than a Saturday, a Sunday or a day on which
banking institutions in New York, New York (or, with respect to any Series,
any
additional city specified in the related Supplement) are authorized or obligated
by law or executive order to be closed.
“Cash
Advance Fees” shall have the meaning specified in the Credit Card Agreement
applicable to each Account for cash advance fees or similar terms.
“Certificate”
shall mean any one of the Investor Certificates of any Series or the Transferor
Certificate.
“Certificateholder”
or “Holder” shall mean the Person in whose name a Certificate is
registered in the Certificate Register; if applicable, the holder of any Bearer
Certificate or Coupon, as the case may be or such other person deemed to be
a
“Certificateholder” or “Holder” in any Series Supplement; and, if used with
respect to the Transferor Interest, a Person in whose name the Transferor
Certificate is registered in the Certificate Register or a Person in whose
name
ownership of the uncertificated interest in the Transferor Interest is recorded
in the books and records of the Trustee.
“Certificate
Interest” shall mean interest payable in respect of the Investor
Certificates of any Series pursuant to Article IV of the Supplement for such
Series.
“Certificate
Owner” shall mean, with respect to a Book-Entry Certificate, the Person who
is the beneficial owner of such Book-Entry Certificate, as may be reflected
on
the books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant,
in
accordance with the rules of such Clearing Agency).
“Certificate
Principal” shall mean principal payable in respect of the Investor
Certificates of any Series pursuant to Article IV of this
Agreement.
5
“Certificate
Rate” shall mean, with respect to any Series of Certificates (or, for any
Series with more than one Class, for each Class of such Series), the percentage
(or formula on the basis of which such rate shall be determined) stated in
the
related Supplement.
“Certificate
Register” shall mean the register maintained pursuant to Section 6.3,
providing for the registration of the Certificates and transfers and exchanges
thereof.
“Chase
Portfolio Account” shall mean a VISA® or MasterCard®
account owned by
Chase USA.
“Chase
USA” shall mean Chase Bank USA, National Association, a national banking
association organized and existing under the laws of the United States of
America and having its headquarters in the City of Newark, State of
Delaware.
“Class”
shall mean, with respect to any Series, any one of the classes of Certificates
of that Series as specified in the related Supplement.
“Clearing
Agency” shall mean an organization registered as a “clearing agency”
pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
“Clearing
Agency Participant” shall mean a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency or
Foreign Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency or Foreign Clearing Agency.
“Clearstream”
shall mean Clearstream Banking, société anonyme.
“Closing
Date” shall mean, with respect to any Series, the date of issuance of such
Series of Certificates, as specified in the related Supplement.
“Code”
or “Internal Revenue Code” shall mean the Internal Revenue Code of 1986,
as amended.
“Collateral
Interest” shall have the meaning, with respect to any Series, specified in
the related Supplement.
“Collection
Account” shall have the meaning specified in subsection 4.2(a).
“Collections”
shall mean all payments (including Insurance Proceeds) received by the Servicer
in respect of the Receivables, in the form of cash, checks, wire transfers,
ATM
transfers or other form of payment in accordance with the Credit Card Agreement
in effect from time to time. A Collection processed on an Account in
excess of the aggregate amount of Receivables in such Account as of the Date
of
Processing of such Collection shall be deemed to be a payment in respect of
Principal Receivables to the extent of such excess. Collections with
respect to any Monthly Period shall include the amount of Interchange (if any)
and the amount of Recoveries (if any) allocable to the Trust with respect to
such Monthly Period, to be applied as if such amounts were Collections of
Finance Charge Receivables for all purposes.
6
“Commission”
shall mean the Securities and Exchange Commission, as from time to time
constituted and created under the Exchange Act, or, if at any time after the
execution of this Agreement such Commission is not existing, then the body
performing the duties of, and that is replacing the Commission at such
date.
“Companion
Series” shall mean (i) each Series which has been paired with another series
(which Series may be prefunded in whole or in part), such that the reduction
of
the Investor Interest of such Series results in the increase of the Investor
Interest of such other Series, as described in the related Supplements, and
(ii)
such other Series, as described in the related Supplements.
“Controlled
Distribution Amount,” with respect to any Series, shall have the meaning
specified in the related Supplement.
“Corporate
Trust Office” shall mean the principal office of the Trustee at which at any
particular time its corporate trust business shall be administered, which office
at the date of the execution of this Agreement is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
“Coupon”
shall have the meaning specified in Section 6.1.
“Credit
Adjustment” shall have the meaning specified in subsection
4.3(c).
“Credit
Card Agreement” shall mean the agreement and Federal Truth in Lending
Statement for VISA® and MasterCard®
credit card accounts
between any Obligor and the Transferor, as such agreement may be amended,
modified or otherwise changed from time to time.
“Credit
Card Guidelines” shall mean the Transferor’s policies and procedures
relating to the operation of its credit card business, including, without
limitation, the policies and procedures for determining the creditworthiness
of
credit card customers, the extension of credit to credit card customers, and
relating to the maintenance of credit card accounts and collection of credit
card receivables, as such policies and procedures may be amended from time
to
time.
“Credit
Enhancement” shall mean, with respect to any Series, the subordination, the
cash collateral guaranty or account, collateral interest, letter of credit,
surety bond, insurance policy, spread account, reserve account, cross-support
feature or any other contract or agreement for the benefit of the
Certificateholders of such Series (or Certificateholders of a Class within
such
Series) as designated in the applicable Supplement.
“Credit
Enhancement Provider” shall mean, with respect to any Series, the Person, if
any, designated as such in the related Supplement.
“Cut-Off
Date” shall mean September 26, 1995.
“Date
of Processing” shall mean, with respect to any transaction, the date on
which such transaction is first recorded on the Servicer’s computer master file
of VISA® and
MasterCard®
accounts (without regard to the effective date of such
recordation).
7
“Default
Amount” shall mean, with respect to any Defaulted Account, the amount of
Principal Receivables (other than Ineligible Receivables) in such Defaulted
Account on the day such Account became a Defaulted Account.
“Defaulted
Account” shall mean 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 VISA® and MasterCard®
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.
“Definitive
Certificate” shall have the meaning specified in Section 6.10.
“Delaware
Act” shall mean the Asset Backed Securities Facilitation Act located in
Title 6, Chapter 27A of the Delaware Code.
“Depository”
shall have the meaning specified in Section 6.10.
“Depository
Agreement” shall mean, with respect to a Series having Book-Entry
Certificates, the agreement among the Transferor, the Trustee and the Clearing
Agency, or as otherwise provided in the related Supplement.
“Determination
Date” shall mean, unless otherwise specified in the related Series
Supplement, the tenth calendar day of each month, or if such day is not a
Business Day, the next preceding Business Day.
“Distribution
Account” shall have the meaning specified in subsection 4.2(c).
“Distribution
Date” shall mean, with respect to each Series, the dates specified in the
related Supplement.
“Dollars”,
“$” or “U.S. $” shall mean United States dollars.
“Eligible
Account” shall mean, as of the Cut-Off Date (or, with respect to Additional
Accounts as of the relevant Addition Cut-Off Date), each Account owned by the
Transferor:
(a) which
is in existence and maintained with the Transferor;
(b) which
is payable in Dollars;
(c) the
Obligor on which has provided, as its most recent billing address, an address
which is located in the United States or its territories or
possessions;
8
(d) which
the Transferor has not classified on its electronic records as counterfeit,
deleted, fraudulent, stolen or lost;
(e) which
the Transferor has not charged off in its customary and usual manner for
charging off such Accounts as of the Cut-Off Date (or, with respect to
Additional Accounts, as of the relevant Addition Cut-Off Date); and
(f) the
Obligor of which has not been identified by the Transferor on its electronic
records as being involved in a voluntary or involuntary bankruptcy
proceeding.
“Eligible
Deposit Account” shall mean either (a) a segregated account with an Eligible
Institution or (b) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States or any one of the states thereof, including the District of Columbia
(or
any domestic branch of a foreign bank), and acting as a trustee for funds
deposited in such account, so long as any of the securities of such depository
institution shall have a credit rating from each Rating Agency in one of its
generic credit rating categories which signifies investment grade.
“Eligible
Institution” shall mean (a), the Servicer, (b) a depository institution
(which may be the Trustee or an Affiliate) organized under the laws of the
United States or any one of the states thereof which at all times (i) has either
(x) a long-term unsecured debt rating of “A2” or better by ▇▇▇▇▇’▇ or (y) a
certificate of deposit rating of “P-1” by ▇▇▇▇▇’▇, (ii) has either (x) a
long-term unsecured debt rating of “AAA” by Standard & Poor’s or (y) a
certificate of deposit rating of “A-l+” by Standard & Poor’s and (iii) is a
member of the FDIC or (c) any other institution that is acceptable to the Rating
Agencies.
“Eligible
Receivable” shall mean each Receivable:
(a) which
has arisen under an Eligible Account (in the case of Accounts conveyed to the
Trust on the Initial Closing Date as of the Cut-Off Date and in the case of
Additional Accounts conveyed to the Trust on the relevant Addition Date as
of
the Addition Cut-Off Date);
(b) which
was created in compliance, in all material respects, with all Requirements
of
Law applicable to the Transferor and pursuant to a Credit Card Agreement which
complies, in all material respects, with all Requirements of Law applicable
to
the Transferor;
(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 by the Transferor in connection with the creation
of
such Receivable or the execution, delivery and performance by the Transferor
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 as of
such date of creation;
(d) as
to which, as of the Closing Date, or in the case of Receivables in Additional
Accounts as of the relevant Addition Date, the Transferor or the Trust had
good
title thereto, free and clear of all Liens arising under or through the
Transferor or any of its Affiliates (other than Liens permitted pursuant to
subsection 2.5(b));
9
(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
affected by bankruptcy, insolvency, reorganization, moratorium and other similar
laws, now or hereafter in effect, relating to or affecting creditors’ rights
generally, general equitable principles (whether considered in a suit in equity
or at law) and an implied covenant of good faith and fair dealing;
and
(f) which
constitutes an “account” or “general intangible” under and as defined in Article
9 of the UCC.
“Enhancement
Invested Amount” shall have the meaning, with respect to any Series,
specified in the related Supplement.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
“Euroclear
Operator” shall mean ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels,
Belgium office, as operator of the Euroclear System.
“Excess
Funding Account” shall have the meaning specified in subsection
4.2(d).
“Excess
Funding Amount” shall mean, as of any date of determination, the principal
amount on deposit in the Excess Funding Account.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended.
“Extended
Trust Termination Date” shall have the meaning specified in subsection
12.1(a).
“FDIC”
shall mean the Federal Deposit Insurance Corporation.
“Finance
Charge Account” shall have the meaning specified in subsection
4.2(b).
“Finance
Charge Receivables” shall mean Receivables created in respect of the
Periodic Finance Charges, Cash Advance Fees and Late Fees and similar fees
and
charges, Annual Membership Fees and Special Fees to the extent such Special
Fees
are categorized as Finance Charge Receivables. Finance Charge
Receivables with respect to any Monthly Period shall include the amount of
Interchange (if any), Recoveries (if any), Insurance Proceeds and investment
earnings from any of the Trust Accounts, and other amounts allocable to any
Series of Certificates pursuant to any Supplement with respect to such Monthly
Period that are to be treated as Finance Charge Receivables but shall exclude
charges for credit insurance.
“Foreign
Clearing Agency” shall mean Clearstream and the Euroclear
Operator.
“Funding
Period” shall have the meaning specified in Section 4.4.
“Global
Certificate” shall have the meaning specified in
Section 6.13.
10
“Governmental
Authority” shall mean 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.
“Group”
shall mean, with respect to any Series, the group of Series in which the related
Supplement specifies that such Series shall be included.
“Holder
of the Transferor Certificate” or “holder of the Transferor
Certificate” shall mean the Holder of the Transferor Certificate or the
Holder of any uncertificated interest in the Transferor Interest.
“Ineligible
Receivable” shall have the meaning specified in subsection
2.4(d)(iii).
“Initial
Closing Date” shall mean October 19, 1995.
“Initial
Investor Interest” shall mean, with respect to any Series of Certificates,
the amount stated in the related Supplement.
“Insolvency
Event” shall have the meaning specified in subsection 9.2(a).
“Insurance
Proceeds” shall mean 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”
shall mean, (1) with respect to any Monthly Period prior to the September 1996
Monthly Period, the product of (x) the amounts recorded by the Transferor as
interchange with respect to the Bank Portfolio for such Monthly Period and
(y)
the Trust Percentage; and (2) with respect to each Monthly Period commencing
with the September 1996 Monthly Period, the product of (x) the amounts recorded
by the Transferor as interchange with respect to the Bank Portfolio for such
Monthly Period and (y) a fraction, the numerator of which is the total amount
of
purchases of merchandise and services relating to the Accounts made during
such
Monthly Period and the denominator of which is the total amount of purchases
of
merchandise and services relating to the Bank Portfolio with respect to such
Monthly Period.
“Invested
Amount” shall have, with respect to each Series, the meaning specified in
the related Supplement.
“Investment
Company Act” shall mean the Investment Company Act of 1940, as amended from
time to time.
“Investor
Account” shall mean each of the Finance Charge Account, the Principal
Account, the Excess Funding Account and the Distribution Account.
“Investor
Certificate” shall mean any one of the certificates (including, without
limitation, the Bearer Certificates, the Registered Certificates or the Global
Certificates) issued by the Trust, executed by the Transferor and authenticated
by the Trustee substantially in the form (or forms in the case of a Series
with
multiple Classes) of the investor certificate attached to the related
Supplement.
11
“Investor
Certificateholder” shall mean each holder of record of an Investor
Certificate.
“Investor
Charge-Off” shall have, with respect to each Series, the meaning specified
in the applicable Supplement.
“Investor
Default Amount” shall have, with respect to any Series of Certificates, the
meaning stated in the related Supplement.
“Investor
Interest” shall have, with respect to any Series of Certificates, the
meaning stated in the related Supplement.
“Investor
Percentage” shall have, with respect to Principal Receivables, Finance
Charge Receivables and Receivables in Defaulted Accounts, and any Series of
Certificates, the meaning stated in the related Supplement.
“Investor
Servicing Fee” shall have, with respect to each Series, the meaning
specified in Section 3.2.
“Issuing
Entity” shall mean, the Chase Issuance Trust, a Delaware statutory
trust.
“JPMorgan
Chase Bank” shall mean JPMorgan Chase Bank, National Association, a national
banking association organized and existing under the laws of the United
States.
“Late
Fees” shall have the meaning specified in the Credit Card Agreement
applicable to each Account for late fees or similar terms.
“Lien”
shall mean any mortgage, deed of trust, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement or preferential arrangement of any kind
or
nature whatsoever, including, without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing or comparable law of any jurisdiction
to
evidence any of the foregoing; provided, however, that any
assignment pursuant to Section 7.2 shall not be deemed to constitute a
Lien.
“Minimum
Aggregate Principal Receivables” shall mean, as of any date of
determination, the sum of the numerators used on such date to calculate the
Investor Percentage with respect to Principal Receivables for all Series
outstanding on such date, less the amount on deposit in the Excess Funding
Account as of such date of determination.
“Minimum
Transferor Interest” shall mean, with respect to any Monthly Period, an
amount equal to the product of the Minimum Transferor Interest Percentage and
the sum of (i) the Average Principal Receivables for such Monthly Period, (ii)
the Excess Funding Amount and (iii) any amounts on deposit in any Principal
Funding Account and any other Series Account (if so specified in the applicable
Supplement).
“Minimum
Transferor Interest Percentage” shall mean the
highest percentage specified as the “Minimum Transferor Interest
Percentage” in any Supplement; provided,
12
however,
that the Transferor may reduce the Minimum Transferor Interest Percentage upon
(w) 30 days’ prior notice to the Trustee, each Rating Agency and any Credit
Enhancement Provider entitled to receive such notice pursuant to the relevant
Supplement, (x) written confirmation from each Rating Agency that such action
will satisfy the Rating Agency Condition, (y) delivery to the Trustee and each
such Credit Enhancement Provider of an Officer’s Certificate stating that the
Transferor reasonably believes that such reduction will not, based on the facts
known to such officer at the time of such certification, then or thereafter
cause a Pay Out Event to occur with respect to any Series and (z) delivery
to
the Trustee of a Tax Opinion; providedfurther that the Minimum
Transferor Interest Percentage shall not at any time be less than
2%.
“Monthly
Period” shall mean, unless otherwise defined in any Supplement, the period
from and including the first day of a calendar month to and including the last
day of a calendar month.
“Moody’s”
shall mean ▇▇▇▇▇’▇ Investors Service, Inc.
“Most
Recent Quarterly Filing Date” shall mean each date on which a revised base
prospectus is filed with the Commission pursuant to Rule 424(b) of the Rules
and
Regulations under the Securities Act which shall be (a) February 1, May 1,
August 1 and November 1 or, if any such date is not a Business Day, the next
succeeding Business Day, unless five Business Days prior to such date the
Transferor shall have notified the Trustee that such date shall not be a “Most
Recent Quarterly Filing Date” and (b) any other Business Day designated by the
Transferor upon at least five Business Days’ prior notice to the
Trustee.
“New
Issuance” shall have the meaning specified in subsection
6.9(b).
“New
Issuance Date” shall have the meaning specified in subsection
6.9(b).
“New
Issuance Notice” shall have the meaning specified in subsection
6.9(b).
“Notice
Date” shall have the meaning specified in subsection 2.6(c)(i).
“Obligor”
shall mean, with respect to any Account, the Person or Persons obligated to
make
payments with respect to such Account, including any guarantor
thereof.
“Officer’s
Certificate” shall mean a certificate signed by any Vice President or more
senior officer of the Transferor or Servicer and delivered to the
Trustee.
“Opinion
of Counsel” shall mean a written opinion of counsel, who may be counsel for
or an employee of the Person providing the opinion, and who shall be reasonably
acceptable to the Trustee.
“Original
Pooling and Servicing Agreement” shall have the meaning specified in the
recitals herein.
“Participation”
shall have the meaning specified in subsection 2.6(a)(ii).
13
“Paying
Agent” shall mean any paying agent appointed pursuant to Section 6.6 and
shall initially be the Trustee.
“Pay
Out Commencement Date” shall mean, (a) with respect to each Series, the date
on which a Trust Pay Out Event is deemed to occur pursuant to Section 9.1 or
(b)
with respect to any Series, a Series Pay Out Event is deemed to occur pursuant
to the Supplement for such Series.
“Pay
Out Event” shall mean, with respect to each Series, a Trust Pay Out Event or
a Series Pay Out Event.
“Periodic
Finance Charges” shall have the meaning specified in the Credit Card
Agreement applicable to each Account for finance charges (due to periodic rate)
or any similar term.
“Permitted
Activities” shall mean the primary activities of the Trust, which shall
be:
(a) holding
Receivables transferred from the Transferor and other assets of the Trust,
including any Credit Enhancement with respect to any Series and passive
derivative financial instruments that pertain to beneficial interests issued
or
sold to parties other than the Transferor, its Affiliates or its
agents;
(b) issuing
Certificates and other interests in the Trust assets;
(c) receiving
Collections and making payments on such Certificates and interests in accordance
with the terms of this Agreement and any Series Supplement; and
(d) engaging
in other activities that are necessary or incidental to accomplish these limited
purposes, which activities cannot be contrary to the status of the Trust as
a
qualified special purpose entity under existing accounting
literature.
“Permitted
Investments” shall mean, unless otherwise provided in the Supplement with
respect to any Series:
(a) book-entry
securities or negotiable instruments or securities represented by instruments
in
bearer or registered form which evidence (i) obligations of or fully guaranteed
by the United States of America; (ii) demand deposits, time deposits or
certificates of deposit of any depositary institution or trust company
incorporated under the laws of the United States of America or any state thereof
(or domestic branches of foreign banks) which mature no later than 90 days
after
the date of investment, and subject to supervision and examination by federal
or
state banking or depositary institution authorities; provided,
however, that at the time of the Trust’s investment or contractual
commitment to invest therein, the certificates of deposit or short-term deposits
of such depositary institution or trust company shall have a credit rating
from
Moody’s and Standard & Poor’s of “P-1” and “A-1+”, respectively; (iii)
commercial paper, other than commercial paper issued by the Transferor or any
of
its Affiliates, having, at the time of the Trust’s investment or contractual
commitment to invest therein, a rating from Moody’s and Standard & Poor’s of
“P-1” and “A-l+”, respectively; and (iv) bankers’ acceptances issued
by
14
any
depository institution or trust company described in clause (a)(ii) above other
than JPMorgan Chase Bank;
(b) demand
deposits in the name of the Trust or the Trustee in any depositary institution
or trust company referred to in clause (a)(ii) above;
(c) repurchase
agreements transacted with either:
(i) an
entity subject to the Bankruptcy Code, provided that (A) the repurchase
agreement matures prior to the next Distribution Date or is due on demand,
(B)
the Trustee or a third party acting solely as agent for the Trustee has
possession of the collateral, (C) the Trustee on behalf of the Trust has a
security interest in the collateral, (D) the market value of the collateral
is
maintained at the requisite collateral percentage of the obligation in
accordance with the standards of the Rating Agencies, (E) the failure to
maintain the requisite collateral level will obligate the Trustee to liquidate
the collateral immediately, (F) the securities subject to the repurchase
agreement are either obligations of, or fully guaranteed as to principal and
interest by, the United States of America or any instrumentality or agency
thereof, certificates of deposit or bankers acceptances and (G) the securities
subject to the repurchase agreement are free and clear of any third party lien
or claim; or
(ii) a
financial institution insured by the FDIC, or any broker-dealer with “retail
customers” that is under the jurisdiction of the Securities Investors Protection
Corp. (“SIPC”), provided that (A) the market value of the collateral is
maintained at the requisite collateral percentage of the obligation in
accordance with the standards of the Rating Agencies, (B) the Trustee or a
third
party (with a short-term debt rating of P-1 or higher by Moody’s) acting solely
as agent for the Trustee has possession of the collateral, (C) the Trustee
on
behalf of the Trust has a security interest in the collateral, (D) the
collateral is free and clear of third party liens and, in the case of an SIPC
broker, was not acquired pursuant to a repurchase or reverse repurchase
agreement and (E) the failure to maintain the requisite collateral percentage
will obligate the Trustee to liquidate the collateral; provided,
however, that at the time of the Trust’s investment or contractual
commitment to invest in any repurchase agreement, the short-term deposits or
commercial paper rating of such entity or institution in subsections (i) and
(ii) shall have a credit rating of “P-1” from Moody’s and “A-1+” from Standard
& Poor’s; and
(d) such
other investments, other than investments in the Transferor or any of its
Affiliates, where the short-term unsecured debt or deposits of the obligor
on
such investments are rated “A-1+” by Standard and Poor’s and “P-1” by
Moody’s.
“Person”
shall mean any legal person, including any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, governmental entity or other entity of
similar nature.
“Pool
Factor” shall mean, except with respect to any Series issued in more than
one Class, a number carried out to seven decimals representing the ratio of
the
applicable Investor Interest as of such Record Date (determined after taking
into account any reduction in the Investor Interest which will occur on the
following Distribution Date) to the applicable Initial
15
Investor
Interest, and with respect to a Series having more than one Class, as specified
in the Supplement relating to such Series.
“Portfolio
Yield” shall have the meaning, with respect to any Series, specified in the
related Supplement.
“Pre-Funding
Account” shall have the meaning specified in Section 4.4.
“Principal
Account” shall have the meaning specified in subsection 4.2(b).
“Principal
Receivable” shall mean each Receivable other than (i) Finance Charge
Receivables, and (ii) Receivables in Defaulted Accounts. A Receivable
shall be deemed to have been created at the end of the day on the Date of
Processing of such Receivable. In calculating the aggregate amount of
Principal Receivables on any day, the amount of Principal Receivables shall
be
reduced by the aggregate amount of credit balances in the Accounts on such
day. Any Receivables which the Transferor is unable to transfer as
provided in subsection 2.5(e) shall not be included in calculating the aggregate
amount of Principal Receivables.
“Principal
Sharing Series” shall mean a Series that, pursuant to the related
Supplement, is entitled to Shared Principal Collections.
“Principal
Shortfalls” shall mean, with respect to a Transfer Date, the aggregate
amount for all outstanding Series that the related Supplements specify are
“Principal Shortfalls” for such Transfer Date.
“Principal
Terms” shall have the meaning, with respect to any Series issued pursuant to
a New Issuance, specified in subsection 6.9(c).
“Rating
Agency” shall mean, with respect to each Series, the rating agency or
agencies, if any, specified in the related Supplement.
“Rating
Agency Condition” shall mean, at any time with respect to a Series, the
written confirmation of the Rating Agency that a specified event or modification
of the terms of such Series will not result in the withdrawal or downgrade
of
the rating of the Certificates of any Series then in effect.
“Reassignment”
shall have the meaning specified in subsection 2.7(b)(ii).
“Reassignment
Date” shall have the meaning specified in subsection 2.4(e).
“Receivable”
shall mean any amount owing by any Obligor including, without limitation,
amounts owing for the payment of goods and services, cash advances, access
checks, Annual Membership Fees, Cash Advance Fees, Periodic Finance Charges,
Late Fees and Special Fees, if any but excluding credit insurance
premiums.
“Record
Date” shall mean, with respect to any Distribution Date, the last Business
Day of the preceding Monthly Period.
16
“Recoveries”
shall mean (i) with respect to any Monthly Period or any shorter period
commencing on or after the Restated Recovery Determination Date, the product
of
(a) all amounts recorded as recoveries on the Bank Portfolio by the Servicer
during such Monthly Period or such shorter period, as the case may be, and
(b) a
fraction, the numerator of which shall be the Default Amount for such Monthly
Period or shorter period, as applicable, and the denominator of which shall
be
the aggregate amount of Principal Receivables in the Bank Portfolio which were
charged off by the Servicer as uncollectible for such Monthly Period or shorter
period, as applicable, and (ii) with respect to any Monthly Period or any
shorter period ending prior to the Restated Recovery Determination Date, the
product of (a) all amounts recorded as recoveries on the Bank Portfolio by
the
Servicer during such Monthly Period or such shorter period, as the case may
be,
and (b) the Trust Percentage for such Monthly Period or such shorter period,
as
applicable.
“Registered
Certificates” shall have the meaning specified in Section 6.1.
“Regulation
AB” shall mean Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, and all related rules and regulations of the
Commission, as such may be amended from time to time, and subject to such
clarification and interpretation as have been provided by the Commission in
the
adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Removal
Cut-Off Date” shall mean, with respect to any Removed Account, the date as
of which the Receivables in such Removed Account shall have been selected by
the
Transferor for removal from the Trust pursuant to Section 2.7; provided,
however, that in no event shall a Removal Cut-Off Date be greater
than
ten months prior to the related Removal Date.
“Removal
Date” shall mean the date on which Receivables in certain designated Removed
Accounts will be reassigned by the Trustee to the Transferor.
“Removal
Notice Date” shall mean the day no later than the fifth Business Day prior
to a Removal Date.
“Removed
Accounts” shall have the meaning specified in subsection
2.7(a).
“Requirements
of Law” for any Person shall mean 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, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local (including, without limitation, usury laws,
the
federal Truth in Lending Act and Regulation Z and Regulation B of the Board
of
Governors of the Federal Reserve System).
“Responsible
Officer” shall mean any officer within the corporate trust department of the
Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the
Persons who at the time shall be such
17
officers,
respectively, or to whom any corporate trust matter is referred because of
such
Person's knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this
Agreement.
“Restated
Recovery Determination Date” shall mean April 1, 1998.
“Revolving
Period” shall have, with respect to each Series, the meaning specified in
the related Supplement.
“SAIF”
shall mean the Savings Association Insurance Fund administered by the
FDIC.
“Sarbanes
Certification” shall mean the certification specified in paragraph (2) of
Exchange Act Rules 13a-14 and 15d-14 as set forth in Item 601(31)(ii) of
Regulation S-K as such may be amended from time to time or any successor or
replacement specified by the Commission or its staff from time to
time.
“Securities
Act” shall mean the Securities Act of 1933, as amended.
“Securitization
Transaction” shall mean any New Issuance or new notes issued by the Issuing
Entity, whether publicly offered or privately placed, rated or
unrated.
“Series”
shall mean any Series of Investor Certificates, which may include within any
such Series a Class or Classes of Investor Certificates subordinate to another
such Class or Classes of Investor Certificates.
“Series
Account” shall mean any account or accounts established pursuant to a
Supplement for the benefit of such Series.
“Series
Pay Out Event” shall have, with respect to any Series, the meaning specified
pursuant to the Supplement for the related Series.
“Series
Servicing Fee Percentage” shall mean, with respect to any Series, the amount
specified in the related Supplement.
“Series
Termination Date” shall mean, with respect to any Series of Certificates,
the date stated in the related Supplement.
“Servicer”
shall mean initially Chase USA, and its permitted successors and assigns and
thereafter any Person appointed as successor as herein provided to service
the
Receivables.
“Servicer
Default” shall have the meaning specified in Section 10.1.
“Servicer
Rating Event” shall mean the Servicer’s failure to maintain a short-term
credit rating of at least “A-1” by Standard and Poor’s and “P-1” by Moody’s and,
if rated by Fitch, at least “F1” by Fitch; provided, however, that
the Transferor may allow the Servicer to
18
maintain
a short-term credit rating below “A-1” or “P-1” or, to the extent rated by
Fitch, “F1,” as the case may be, provided that such action will satisfy the
Rating Agency Condition.
“Servicing
Criteria” shall mean the “servicing criteria” set forth in Item 1122(d) of
Regulation AB.
“Servicing
Fee” shall have the meaning specified in Section 3.2.
“Servicing
Officer” shall mean any officer of the Servicer involved in, or responsible
for, the administration and servicing of the Receivables whose name appears
on a
list of servicing officers furnished to the Trustee by the Servicer, as such
list may from time to time be amended.
“Servicing
Participant” shall mean the Servicer, any Subservicer or any Person that
participates in any of the servicing functions specified in Item 1122(d) of
Regulation AB with respect to Accounts; provided, however, that
“Servicing Participant” shall not include the Trustee, whose obligations in
relation to Item 1122(d) of Regulation AB are set forth in Article XIV, but
are
not contained in Sections 14.9 or 14.10 hereof.
“Servicing
Party” shall have the meaning specified in subsection 14.8(a).
“SFAS
140” shall mean Statement of Financial Accounting Standard No. 140,
Accounting for Transfers and Servicing of Financial Assets and Extinguishments
of Liabilities.
“Shared
Excess Finance Charge Collections” shall mean, with respect to any Transfer
Date, the aggregate amount for all outstanding Series that the related
supplements specify are to be treated as “Shared Excess Finance Charge
Collections” for such Transfer Date.
“Shared
Principal Collections” shall mean, with respect to any Transfer Date, the
aggregate amount for all outstanding Series that the related Supplements specify
are to be treated as “Shared Principal Collections” for such Transfer
Date.
“Special
Fees” shall mean any fees which are not now but from time to time may be
assessed on the Accounts. On or after the date on which any of such
Special Fees begin to be assessed on the Accounts, the Transferor may designate
in an Officer’s Certificate whether such Special Fees shall be treated as
Principal Receivables or Finance Charge Receivables.
“Standard
& Poor’s” shall mean Standard & Poor’s Ratings Services, a Division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
“Static
Pool Information” shall mean static pool information as described in
Items 1105(b) and 1105(c) of Regulation AB.
“Subservicer”
shall mean any Person that services the Receivables on behalf of the Servicer
or
any other Subservicer and is responsible for the performance (whether directly
or through Subservicers or Servicing Participants) of a substantial portion
of
the material servicing functions required to be performed by the Servicer under
this Agreement or any Supplement that
19
are
identified in Item 1122(d) of Regulation AB. For the avoidance of
doubt, “Subservicer” shall not include the Trustee.
“Successor
Servicer” shall have the meaning specified in subsection
10.2(a).
“Supplement”
or “Series Supplement” shall mean, with respect to any Series, a
supplement to this Agreement complying with the terms of Section 6.9 of this
Agreement, executed in conjunction with any issuance of any Series of
Certificates (or, in the case of the issuance of Certificates on the Initial
Closing Date, the supplement executed in connection with the issuance of such
Certificates).
“Tax
Opinion” shall mean with respect to any action, an Opinion of Counsel
delivered to the Trust and the Trustee to the effect that, for U.S. federal
income tax purposes, (a) such action will not adversely affect the tax
characterization as debt of Investor Certificates of any outstanding Series
or
Class that were characterized as debt at the time of their issuance, (b)
following such action the Trust will not be deemed to be an association (or
a
“publicly traded partnership” within the meaning of Section 7704(b) of the Code)
taxable as a corporation and (c) such action will not cause or constitute a
taxable event in which gain or loss would be recognized by any Investor
Certificateholder or the Trust.
“Termination
Notice” shall have, with respect to any Series, the meaning specified in
subsection 10.1(d).
“Transfer
Agent and Registrar” shall have the meaning specified in Section 6.3 and
shall initially be the Corporate Trust Office.
“Transfer
Date” shall mean, unless otherwise specified in the related Supplement, with
respect to any Series, the Business Day immediately prior to each Distribution
Date.
“Transferor”
shall mean (i) with respect to the time period prior to June 1, 1996, JPMorgan
Chase Bank and (ii) with respect to the time period beginning on June 1, 1996,
Chase USA and its successors in interest and permitted assigns.
“Transferor
Certificate” shall mean, if the Transferor elects to evidence its interest
in the Transferor Interest in certificated form pursuant to Section 6.1, a
certificate executed and delivered by the Transferor and authenticated by the
Trustee substantially in the form of Exhibit A; provided, that at any
time there shall be only one Transferor Certificate;
providedfurther, that in any Supplement, “Transferor Certificate”
shall mean either a certificate executed and delivered by the
Transferor and
authenticated by the Trustee substantially in the form of Exhibit A or the
uncertificated interest in the Transferor Interest.
“Transferor
Interest” shall mean, on any date of determination, the aggregate amount of
Principal Receivables and the principal amounts on deposit in the Excess Funding
Account, any Principal Funding Account and any other Series Account (if so
provided in the applicable Supplement) at the end of the day immediately prior
to such date of determination, minus the Aggregate Investor Interest at
the end of such day, minus the aggregate Enhancement Invested Amounts (if
such amounts are not included in the Investor Interest in the applicable
Supplement), if any, for each Series outstanding at the end of such
day.
20
“Transferor
Percentage” shall mean, on any date of determination, when used with respect
to Principal Receivables, Finance Charge Receivables and Receivables in
Defaulted Accounts, a percentage equal to 100% minus the Aggregate
Investor Percentage with respect to such categories of Receivables.
“Transferor
Servicing Fee” shall have the meaning specified in Section 3.2.
“Transferred
Account” shall mean (a) an Account with respect to which a new credit
account number has been issued by the Servicer or the Transferor under
circumstances resulting from a lost or stolen credit card or from the transfer
from one affinity group to another affinity group and not requiring standard
application and credit evaluation procedures under the Credit Card Guidelines
or
(b) an Eligible Account resulting from 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 either case can be traced or identified by reference
to or
by way of the list (in the form of a computer file, microfiche list, CD-ROM
or
in such other form as is agreed upon between the Transferor and the Trustee)
delivered to the Trustee pursuant to Section 2.1 or 2.6 as an account into
which
an Account has been transferred.
“Trust”
shall mean the trust created by this Agreement, the corpus of which shall
consist of the Receivables now existing or hereafter created and arising in
connection with the Accounts, all monies due or to become due with respect
to
the Receivables, all proceeds (as defined in Section 9-315 of the UCC) of the
Receivables and Insurance Proceeds relating to the Receivables, the right to
receive certain amounts paid or payable as Interchange and Recoveries, such
funds as from time to time are deposited in the Collection Account, the Finance
Charge Account, the Principal Account, the Distribution Account, the Excess
Funding Account and any Series Account and the rights to any Credit Enhancement
with respect to any Series. The name of such Trust shall be “The
Chase Credit Card Master Trust” or any other name at the option of the
Transferor; provided, however, that at least 5 Business Days prior
to any change in the name of the Trust, the Transferor shall give written notice
of such change to the Servicer, the Trustee, each Rating Agency, any Credit
Enhancement Provider and all Certificateholders.
“Trust
Accounts” shall mean the Collection Account, the Principal Account, the
Finance Charge Account, the Distribution Account and the Excess Funding
Account.
“Trust
Assets” shall have the meaning specified in Section 2.1.
“Trust
Extension” shall have the meaning specified in subsection
12.1(a).
“Trust
Pay Out Event” shall have, with respect to each Series, the meaning
specified in Section 9.1.
“Trust
Percentage” shall mean, with respect to any Monthly Period, a fraction
expressed as a percentage, the numerator of which is the aggregate principal
amount of Principal Receivables as of the close of business on the last day
of
the prior Monthly Period and the denominator of which is the aggregate principal
balance of the Bank Portfolio as of the close of business on the last day of
the
prior Monthly Period.
21
“Trust
Termination Date” shall mean (i) if a Trust Extension shall not have
occurred, the earliest to occur of (a) the first Business Day after the
Distribution Date following the date on which funds shall have been deposited
in
the Distribution Account or the applicable Series Account for the payment of
Investor Certificateholders of each Series then issued and outstanding
sufficient to pay in full such Certificates, (b) the date specified in
subsection 9.2(b) and (c) August 31, 2016, and (ii) if a Trust Extension shall
have occurred, the Extended Trust Termination Date.
“Trustee”
shall mean The Bank of New York, a New York banking corporation, and its
successors and any corporation resulting from or surviving any consolidation
or
merger to which it or its successors may be a party and any successor trustee
appointed as herein provided.
“UCC”
shall mean the Uniform Commercial Code, as amended from time to time, as in
effect in the State of Delaware, as applicable.
“Undivided
Interest” shall mean the undivided interest in the Trust evidenced by an
Investor Certificate.
Section
1.2 Other
Definitional Provisions.
(a) All
terms defined in any Supplement or this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As
used herein and in any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms not defined in Section 1.1, and accounting
terms partially defined in Section 1.1 to the extent not defined, shall have
the
respective meanings given to them under generally accepted accounting principles
or regulatory accounting procedures applicable to the Transferor, as
applicable. To the extent that the definitions of accounting terms
herein are inconsistent with the meanings of such terms under generally accepted
accounting principles or such regulatory accounting procedures, the definitions
contained herein shall control.
(c) The
agreements, representations and warranties of Chase USA in this Agreement and
in
any Supplement in its capacities as Transferor and Servicer shall be deemed
to
be the agreements, representations and warranties of Chase USA solely in such
capacities for the time periods and for so long as Chase USA acts in such
capacities under this Agreement.
(d) The
words “hereof,” “herein” and “hereunder” and words of similar import when used
in this Agreement shall refer to any Supplement or this Agreement as a whole
and
not to any particular provision of this Agreement or any Supplement; and
Section, subsection, Schedule and Exhibit references contained in this Agreement
or any Supplement are references to Sections, subsections, Schedules and
Exhibits in or to this Agreement or any Supplement 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
22
agreement
refer to such agreement, as amended, supplemented or otherwise modified from
time to time. The Monthly Servicer Report, the form of which is
attached as Exhibit C, shall be in substantially the form of Exhibit C, with
such changes as the Servicer may determine to be necessary or desirable;
provided, however, that no such change shall serve to exclude
information required by the Agreement or any Supplement. The Servicer
shall, upon making such determination, deliver to the Trustee and each Rating
Agency an Officer’s Certificate to which shall be annexed the form of the
related Exhibit, as so changed. Upon the delivery of such Officer’s
Certificate to the Trustee, the related Exhibit, as so changed, shall
for all purposes of this Agreement constitute such Exhibit. The
Trustee may conclusively rely upon such Officer’s Certificate in determining
whether the related Exhibit, as changed, conforms to the requirements of this
Agreement.
[End
of Article I]
23
ARTICLE
II
CONVEYANCE
OF RECEIVABLES;
ISSUANCE
OF CERTIFICATES
Section
2.1 Conveyance
of Receivables. By execution of the Original Pooling and
Servicing Agreement, the Transferor transferred, assigned, set over, and
otherwise conveyed to the Trust for the benefit of the Certificateholders,
without recourse, all of its right, title and interest in and to (i) the
Receivables existing as of the Cut-Off Date and thereafter created and arising
in connection with the Accounts (other than Additional Accounts), (ii) all
monies due or to become due with respect to such Receivables, (iii) all proceeds
of such Receivables, (iv) Insurance Proceeds relating to such Receivables,
(v)
Recoveries, (vi) Interchange and (vii) each of the Trust
Accounts. The property described in the preceding sentence and all
Receivables arising in each Additional Account designated on and after each
applicable Addition Date, together with all monies and the other property
credited to the Collection Account, the Principal Account, the Finance Charge
Account and the Distribution Account or any other Series Account shall
constitute the assets of the Trust (collectively, the “Trust
Assets”). Notwithstanding anything in this Agreement to the contrary,
the parties hereto agree to treat the transfer, assignment, set over, and
conveyance to the Trust of all of the Transferor’s right, title and interest in
and to (I) the Receivables existing as of the Cut-Off Date and thereafter
created and arising in connection with the Accounts (other than Additional
Accounts), (II) all monies due or to become due with respect to such
Receivables, (III) all proceeds of such Receivables, (IV) Insurance Proceeds
relating to such Receivables, (V) Recoveries and (VI) Interchange as a sale,
and
not as a secured borrowing, for accounting (but not for tax)
purposes.
In
connection with such initial transfer, assignment, set-over and conveyance,
the
Transferor filed a financing statement and certain continuation statements
(and
agrees to file, at its own expense, any additional continuation statements
with
respect to such financing statement when applicable) with respect to the
Receivables existing as of the Cut-Off Date and thereafter created for the
perfection of a security interest (as defined in the UCC) in accounts and
general intangibles (as defined in Section 9-102(a)(2) and (a)(42),
respectively, of the UCC) meeting the requirements of applicable state law
in
such manner and in such jurisdictions as are necessary to perfect such security
interest in favor of the Trust, and delivered, or will deliver, when applicable,
a file-stamped copy of such financing statement or continuation statement or
other evidence of such filing to the Trustee on or prior to the date of issuance
of the Certificates, and in the case of any continuation statements filed
pursuant to this Section 2.1, as soon as practicable after receipt thereof
by
the Transferor. Upon receipt of written request from the Transferor
to release the receivables in such credit card accounts as are specified in
such
request, the Trustee is hereby authorized and hereby agrees to promptly
authorize the filing of such UCC-3 amendments or releases as are requested
by
the Transferor in furtherance of the release of such credit card accounts;
provided, however, that except as permitted pursuant to Section
2.7, no such release shall apply to the Accounts, including any Additional
Accounts. In addition, the Trustee is hereby authorized to execute
such intercreditor or other agreements as may be requested in writing by the
Transferor in connection with the foregoing and which shall be in form and
substance reasonably satisfactory to the Trustee. The foregoing
transfer, assignment, set-over and conveyance to the Trust has been made to
the
Trustee, on behalf of the Trust, and each
24
reference
in this Agreement to such transfer, assignment, set-over and conveyance shall
be
construed accordingly.
In
connection with such initial transfer, the Transferor, at its own expense,
on or
prior to the Initial Closing Date (i) annotated and indicated in its computer
files that Receivables created in connection with the Accounts have been
transferred to the Trust pursuant to this Agreement for the benefit of the
Certificateholders and (ii) delivered to the Trustee a true and complete list
(in the form of a computer file, microfiche list, CD-ROM or such other form
as
is agreed upon between the Transferor and the Trustee) of all the Accounts
identified by account number and setting forth the Receivable balance as of
the
Cut-Off Date. Such list was marked as Schedule 1 to this Agreement
and was delivered to the Trustee as confidential and proprietary, and is hereby
incorporated into and made a part of this Agreement. The Transferor
further agrees not to remove such indication in the file referenced in clause
(i) of this paragraph with respect to any Account during the term of this
Agreement unless and until such Account becomes a Removed Account or a Defaulted
Account.
The
Transferor hereby grants to the Trust for the benefit of the Certificateholders
a security interest in all of the Transferor’s right, title and interest in, to
and under the Receivables existing as of the Cut-Off Date and thereafter created
and arising in connection with the Accounts (other than Additional Accounts),
all moneys due or to become due with respect to such Receivables, all proceeds
of such Receivables and all Insurance Proceeds relating to such Receivables,
all
Recoveries, Interchange and all proceeds thereof and each of the Trust Accounts
to secure a loan in an amount equal to the unpaid principal amount of the
Investor Certificates issued hereunder or to be issued pursuant to this
Agreement and the interest accrued at the related Certificate Rate, and this
Agreement shall constitute a security agreement under applicable
law.
Pursuant
to the request of the Transferor, the Trustee shall cause Certificates in
authorized denominations evidencing interests in the Trust to be duly
authenticated and delivered to or upon the order of the Transferor pursuant
to
Section 6.2.
Notwithstanding
anything else in this Agreement to the contrary, it is understood and agreed
that the ownership interest or lien conveyed or granted by JPMorgan Chase Bank,
as Transferor, to the Trustee in Receivables and other property under the
Original Pooling and Servicing Agreement shall remain in full force and effect
and shall in no way be affected by the amendment and restatement of the Original
Pooling and Servicing Agreement by this Agreement.
The
parties hereto agree that all transfers of Receivables to the Trust pursuant
to
this Agreement are subject to, and shall be treated in accordance with, the
Delaware Act whether such transfers were made prior to or after the date that
the Delaware Act became applicable thereto, and each of the parties hereto
agrees that this Agreement has been entered into by the parties hereto in
express reliance on the Delaware Act. For the purposes of complying
with the requirements of the Delaware Act, each of the parties hereto hereby
agrees that any property, assets or rights purported to be transferred, in
whole
or in part, by Chase USA pursuant to this Agreement shall be deemed to no longer
be the property, assets or rights of Chase USA. Each of the parties
hereto acknowledges and agrees that each such transfer is occurring in
connection with a “securitization transaction” within the meaning of the
Delaware Act.
25
Section
2.2 Acceptance
by Trustee.
(a) The
Trustee hereby acknowledges its acceptance, on behalf of the Trust, of all
right, title and interest previously held by the Transferor in and to the
Receivables existing as of the Cut-Off Date and thereafter created and arising
in connection with the Accounts, all monies due or to become due with respect
thereto (including all Finance Charge Receivables), all proceeds of such
Receivables, Insurance Proceeds relating to such Receivables, all Recoveries
and
Interchange and the proceeds thereof, and declares that it shall maintain such
right, title and interest, upon the Trust herein set forth, for the benefit
of
all Certificateholders. The Trustee further acknowledges that, prior
to or simultaneously with the execution and delivery of this Agreement, the
Transferor delivered to the Trustee the list (in the form of a computer file,
microfiche list, CD-ROM or in such other form as is agreed upon between the
Transferor and the Trustee) described in the third paragraph of Section
2.1.
(b) The
Trustee hereby agrees not to disclose to any Person any of the account numbers
or other information contained in any list of Accounts delivered to the Trustee
by the Transferor pursuant to Sections 2.1, 2.6 and 2.7 (“Account
Information”) except as required in connection with the performance of its
duties hereunder or in enforcing the rights of the Certificateholders or to
a
Successor Servicer appointed pursuant to Section 10.2, or as mandated pursuant
to any Requirement of Law applicable to the Trustee or as requested by any
Person in connection with financing statements filed with the
Trust. The Trustee agrees to take such measures as shall be
reasonably requested by the Transferor to protect and maintain the security
and
confidentiality of such information, and, in connection therewith, shall allow
the Transferor to inspect the Trustee’s security and confidentiality
arrangements from time to time during normal business hours upon prior written
notice. In the event that the Trustee is required by law to disclose
any Account Information, the Trustee shall provide the Transferor with prompt
written notice, unless such notice is prohibited by law, of any such request
or
requirement so that the Transferor may request a protective order or other
appropriate remedy. The Trustee shall use its best efforts to provide
the Transferor with written notice no later than five Business Days prior to
any
disclosure pursuant to this subsection 2.2(b).
(c) The
Trustee shall have no power to create, assume or incur indebtedness or other
liabilities in the name of the Trust other than as contemplated in this
Agreement.
Section
2.3 Representations
and Warranties of the Transferor. The Transferor hereby
represents and warrants to the Trust as of the Amendment Closing
Date:
(a) Organization
and Good Standing. The Transferor is a banking corporation duly
organized and validly existing in good standing under the laws of the
jurisdiction of its organization and has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Agreement
and to execute and deliver to the Trustee the Certificates pursuant hereto,
and,
in all material respects, to own its properties and conduct its business as
such
properties are presently owned and such business is presently
conducted.
26
(b) Due
Qualification. The Transferor is duly qualified to do business
and is in good standing (or is exempt from such requirement) and has obtained
all necessary licenses and approvals with respect to the Transferor in each
jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would render any Credit Card Agreement relating to an Account or
any
Receivable unenforceable by the Transferor or the Trust or would have a material
adverse effect on the Certificateholders; provided, however, that
no representation or warranty is made with respect to any qualifications,
licenses or approvals which the Trustee would have to obtain to do business
in
any state in which the Trustee seeks to enforce any Account or
Receivable.
(c) Due
Authorization. The execution and delivery of this Agreement and
the execution and delivery to the Trustee of the Certificates by the Transferor
and the consummation of the transactions provided for in this Agreement have
been duly authorized by the Transferor by all necessary corporate action on
its
part and this Agreement will remain, from the time of its execution, an official
record of the Transferor.
(d) No
Conflict. The execution and delivery of this Agreement and the
Certificates, the performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof 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 the Transferor is a party or by which it or any of its properties are
bound, except to the extent that the same could not reasonably be expected
to
have a material adverse effect on the Certificateholders.
(e) No
Violation. The execution and delivery of this Agreement, any
Supplement and the Certificates, the performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof will
not
conflict with or violate any Requirements of Law applicable to the Transferor,
except to the extent that the same could not reasonably be expected to have
a
material adverse effect on the Certificateholders.
(f) 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 Agreement
or
the Certificates, (ii) seeking to prevent the issuance of the Certificates
or
the consummation of any of the transactions contemplated by this Agreement
or
the Certificates, (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 Agreement, (iv)
seeking any determination or ruling that would materially and adversely affect
the validity or enforceability of this Agreement or the Certificates or (v)
seeking to affect adversely the income tax attributes of the Trust.
(g) Eligibility
of Accounts. As of the Cut-Off Date, each Account was an Eligible
Account and no selection procedures adverse to the Investor Certificateholders
have been employed by the Transferor in selecting the Accounts from among the
Eligible Accounts in the Bank Portfolio.
27
(h) All
Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any governmental body or official
required in connection with the execution and delivery of this Agreement and
the
Certificates, the performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof, have been obtained, except where the
failure to obtain such approvals, authorizations, consents, orders or other
actions could not reasonably be expected to have a material adverse effect
on
the Certificateholders.
The
representations and warranties set forth in this Section 2.3 shall survive
the
transfer and assignment of the respective Receivables to the Trust, and
termination of the rights and obligations of the Servicer pursuant to Section
10.1. The Transferor hereby represents and warrants to the Trust,
with respect to any Series of Certificates, as of its Closing Date, unless
otherwise stated in such Supplement, that the representations and warranties
of
the Transferor set forth in this Section 2.3 are true and correct as of such
date (for the purposes of such representations and warranties,
“Certificates” shall mean the Certificates issued on the related Closing
Date). Upon discovery by the Transferor, the Servicer or the Trustee
of a breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the
others.
Section
2.4 Representations
and Warranties of the Transferor Relating to this Agreement and the
Receivables.
(a) Binding
Obligation; Valid Transfer and Assignment. The Transferor hereby
represents and warrants to the Trust that:
(i) As
of the Amendment Closing Date, this Agreement constitutes a valid and legally
binding obligation of the Transferor, enforceable against the Transferor in
accordance with its terms, except (A) as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors’ rights generally and the rights of creditors of banking corporations
organized under the laws of the state of its organization, and (B) as may be
limited by general equitable principles (whether considered in a proceeding
in
equity or at law) and an implied covenant of good faith and fair
dealing.
(ii) As
of the Initial Closing Date, the Original Pooling and Servicing Agreement
constituted either (A) a valid transfer, assignment, set-over and conveyance
to
the Trust of all right, title and interest of the Transferor in and to the
Receivables existing on such date and thereafter created and arising in
connection with the Accounts (other than Receivables in Additional Accounts),
all proceeds of such Receivables and Insurance Proceeds relating thereto, and
such Receivables and all proceeds thereof and Insurance Proceeds relating
thereto will be held by the Trust free and clear of any Lien of any Person
claiming through or under the Transferor or any of its Affiliates except for
(x)
Liens permitted under subsection 2.5(b), (y) the interest of the Transferor
as
Holder of the Transferor Certificate and (z) the Transferor’s right, if any, to
interest accruing on, and investment earnings, if any, in respect of the
Finance
28
Charge
Account, the Principal Account or any Series Account, as provided in this
Agreement or the related Supplement, or (B) a grant of a security interest
(as
defined in the UCC) in such property to the Trust, which is enforceable with
respect to the existing Receivables, the proceeds thereof and Insurance Proceeds
relating thereto, and which will be enforceable with respect to such Receivables
created on and after the Initial Closing Date, the proceeds thereof and
Insurance Proceeds relating thereto, upon such creation. If this
Agreement constitutes the grant of a security interest to the Trust in such
property, upon the filing of the financing statement described in Section 2.1
and in the case of the Receivables created on and after the Initial Closing
Date
and proceeds thereof and Insurance Proceeds relating thereto, upon such
creation, the Trust shall have a first priority perfected security interest
in
the Transferor’s rights in such property (subject to Section 9-315 of the UCC),
except for Liens permitted under subsection 2.5(b). Neither the
Transferor nor any Person claiming through or under the Transferor shall have
any claim to or interest in the Principal Account, the Finance Charge Account,
the Distribution Account or any Series Account, except for the Transferor’s
rights to receive interest accruing on, and investment earnings in respect
of,
the Finance Charge Account and Principal Account as provided in this Agreement
(or, if applicable, any Series Account as provided in any Supplement) and,
if
this Agreement constitutes the grant of a security interest in such property,
except for the interest of the Transferor in such property as a debtor for
purposes of the UCC.
(b) Eligibility
of Receivables. The Transferor hereby represents and warrants to
the Trust that:
(i) As
of the Cut-Off Date with respect to each Receivable in Accounts selected on
such
date and as of the applicable Addition Cut-Off Date with respect to each
Receivable in Additional Accounts, such Receivable is an Eligible
Receivable.
(ii) As
of the Cut-Off Date with respect to each Receivable in Accounts selected on
such
date and as of the applicable Addition Cut-Off Date with respect to each
Receivable in Additional Accounts, such Receivable has been transferred to
the
Trust free and clear of any Lien of any Person claiming through or under the
Transferor or any of its Affiliates (other than Liens permitted under subsection
2.5(b)) and in compliance, in all material respects, with all Requirements
of
Law applicable to the Transferor.
(iii) As
of the Cut-Off Date with respect to each Receivable in Accounts selected on
such
date and as of the applicable Addition Cut-Off Date with respect to each
Receivable in Additional Accounts, all consents, licenses, approvals or
authorizations of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Transferor in
connection with the conveyance of such Receivable to the Trust have been duly
obtained, effected or given and are in full force and effect.
29
(iv) On
each day on which any new Receivable is created, the Transferor shall be deemed
to represent and warrant to the Trust that (A) each Receivable created on such
day is an Eligible Receivable, (B) each Receivable created on such day has
been
conveyed to the Trust in compliance, in all material respects, with all
Requirements of Law applicable to the Transferor, (C) with respect to each
such
Receivable, all consents, licenses, approvals or authorizations of or
registrations or declarations with, any Governmental Authority required to
be
obtained, effected or given by the Transferor in connection with the conveyance
of such Receivable to the Trust have been duly obtained, effected or given
and
are in full force and effect and (D) the representations and warranties set
forth in subsection 2.4(a) are true and correct with respect to each Receivable
created on such day as if made on such day.
(v) As
of the Initial Closing Date, Schedule 1 to this Agreement, and as of the
applicable Addition Cut-Off Date with respect to Additional Accounts designated
pursuant to subsections 2.6(a) and (b), the related list (in the form of a
computer file, microfiche list, CD-ROM or such other form as is agreed upon
between the Transferor and the Trustee) referred to in Section 2.6, is an
accurate and complete listing in all material respects of all the Accounts
as of
the Cut-Off Date, or with respect to Additional Accounts, if applicable, as
of
the applicable Addition Cut-Off Date and the information contained therein
with
respect to the identity of such Accounts and the Receivables existing thereunder
is true and correct in all material respects as of the Cut-Off Date or, if
applicable, such applicable Addition Cut-Off Date.
(c) Notice
of Breach. The representations and warranties set forth in this
Section 2.4 shall survive the transfer and assignment of the respective
Receivables to the Trust. Upon discovery by the Transferor, the
Servicer or the Trustee of a breach of any of the representations and warranties
set forth in this Section 2.4, the party discovering such breach shall give
prompt written notice to the other parties mentioned above. The
Transferor agrees to cooperate with the Servicer and the Trustee in attempting
to cure any such breach.
(d) Transfer
of Ineligible Receivables.
(i) Automatic
Removal. In the event of a breach with respect to a Receivable of
any representations and warranties set forth in subsection 2.4(b)(ii), or in
the
event that a Receivable is not an Eligible Receivable as a result of the failure
to satisfy the conditions set forth in clause (d) of the definition of Eligible
Receivable, and any of the following three 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 Receivable or its proceeds are
impaired or the proceeds of such Receivable are not available for any reason
to
the Trust free and clear of any Lien; (B) the Lien upon the subject Receivable
(1) arises in favor of the United States of America or any state thereof or
any
agency or instrumentality thereof and involves taxes or liens arising under
Title IV of ERISA or (2) has been consented to by the Transferor; or (C) the
unsecured short-term debt rating of the Transferor is not at least “P-1” by
Moody’s and “A
30
1”
by Standard & Poor’s and the Lien upon the subject Receivable ranks prior to
the Lien created pursuant to this Agreement; then, upon the earlier to occur
of
the discovery of such breach or event by the Transferor or the Servicer or
receipt by the Transferor of written notice of such breach or event given by
the
Trustee, each such Receivable shall be automatically removed from the Trust
on
the terms and conditions set forth in subsection 2.4(d)(iii).
(ii) Removal
After Cure Period. In the event of a breach of any of the
representations and warranties set forth in subsection 2.4(b) other than a
breach or event as set forth in clause (d)(i) above, and as a result of such
breach the related Account becomes a Defaulted Account or the Trust’s rights in,
to or under the Receivable or its proceeds are impaired or the proceeds of
such
Receivable are not available for any reason to the Trust free and clear of
any
Lien, then, upon the expiration of 60 days (or such longer period as may be
agreed to by the Trustee in its sole discretion, but in no event later than
120
days) from the earlier to occur of the discovery of any such event by either
the
Transferor or the Servicer, or receipt by the Transferor of written notice
of
any such event given by the Trustee, each such Receivable shall be removed
from
the Trust on the terms and conditions set forth in subsection 2.4(d)(iii);
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 created on such
day.
(iii) Procedures
for Removal. When the provisions of subsection 2.4(d)(i) or (ii)
above require removal of a Receivable, the Transferor shall accept reassignment
of such Receivable (an “Ineligible Receivable”) by directing the Servicer
to deduct the principal balance of each such Ineligible Receivable from the
Principal Receivables in the Trust and to decrease the Transferor Interest
by
such amount. On and after the date of such removal, each Ineligible
Receivable shall be deducted from the aggregate amount of Principal Receivables
used in the calculation of any Investor Percentage, the Transferor Percentage
or
the Transferor Interest. In the event that the exclusion of an
Ineligible Receivable from the calculation of the Transferor Interest would
cause the Transferor Interest to be reduced below the Minimum Transferor
Interest, the Transferor shall immediately, but in no event later than 10
Business Days after such event, make a deposit into the Excess Funding Account
in immediately available funds in an amount equal to the amount by which the
Transferor Interest would be reduced below the Minimum Transferor
Interest. The portion of such deposit allocated to the Investor
Certificates of each Series shall be distributed to the Investor
Certificateholders of each Series in the manner specified in Article IV, if
applicable, on the Distribution Date relating to the Monthly Period in which
such deposit is made. Upon the reassignment to the Transferor of an
Ineligible Receivable, the Trust shall automatically and without further action
be deemed to transfer, assign, set-over and otherwise convey to the Transferor,
without recourse, representation or warranty, all the right, title and interest
of the Trust in and to such Ineligible Receivable, all monies due or to become
due with respect to such
31
Ineligible
Receivable and all proceeds of such Ineligible Receivable and Insurance Proceeds
relating to such Ineligible Receivable allocated to such Ineligible Receivable
pursuant to any Supplement. Upon such deduction or deposit, the
reassigned Ineligible Receivable shall be treated by the Trust as collected
in
full as of the date on which it was transferred. The Trustee shall
execute such documents and instruments of transfer or assignment (each in form
and substance reasonably satisfactory to the Trustee) and take other actions
as
shall reasonably be requested by the Transferor to evidence the conveyance
of
such Ineligible Receivable pursuant to this subsection
2.4(d)(iii). The obligation of the Transferor set forth in this
subsection 2.4(d)(iii), or the automatic removal of such Receivable from the
Trust, as the case may be, shall constitute the sole remedy respecting any
breach of the representations and warranties set forth in the above-referenced
subsections with respect to such Receivable available to Certificateholders
or
the Trustee on behalf of Certificateholders.
(iv) Proceeds
Held by Servicer. For the purposes of subsections 2.4(d)(i) and
(ii) above, proceeds of a Receivable shall not be deemed to be impaired
hereunder solely because such proceeds are held by the Servicer (if the Servicer
is the Transferor) for more than the applicable period under Section 9-315(d)
of
the UCC.
(e) Reassignment
of Trust Portfolio. In the event of a breach of any of the
representations and warranties set forth in subsection 2.4(a), either the
Trustee or the Holders of Investor Certificates evidencing Undivided Interests
aggregating more than 50% of the Aggregate Investor Interest, by notice then
given in writing to the Transferor (and to the Trustee and the Servicer, if
given by the Investor Certificateholders), may direct the Transferor to accept
reassignment of an amount of Principal Receivables (as specified below) within
60 days of such notice (or within such longer period as may be specified in
such
notice), and the Transferor shall be obligated to accept reassignment of such
Principal Receivables on a Distribution Date specified by the Transferor (such
Distribution Date, the “Reassignment Date”) occurring within such
applicable period on the terms and conditions set forth below; provided,
however, that no such reassignment shall be required to be made if,
at
any time during such applicable period, the representations and warranties
contained in subsection 2.4(a) shall then be true and correct in all material
respects. The Transferor shall deposit on the Transfer Date (in New
York Clearing House, next day funds) preceding the Reassignment Date an amount
equal to the reassignment deposit amount for such Receivables in the
Distribution Account or Series Account, as provided in the related Supplement,
for distribution to the Investor Certificateholders pursuant to Article
XII. The reassignment deposit amount with respect to each Series for
such reassignment, unless otherwise stated in the related Supplement, shall
be
equal to (i) the Investor Interest of such Series at the end of the day on
the
last day of the Monthly Period preceding the Reassignment Date, less the amount,
if any, previously allocated for payment of principal to such Certificateholders
on the related Distribution Date in the Monthly Period in which the Reassignment
Date occurs, plus (ii) an amount equal to all interest accrued but unpaid on
the
Investor Certificates of such Series at the applicable Certificate Rate through
the Reassignment Date, less the amount, if any, previously allocated for payment
of interest to the Certificateholders of such Series on the related Distribution
Date in the Monthly Period in which the Reassignment Date
occurs.
32
Payment
of the reassignment deposit amount with respect to each Series, and all other
amounts in the Distribution Account or the applicable Series Account in respect
of the preceding Monthly Period, shall be considered a prepayment in full of
the
Receivables represented by the Investor Certificates. On the
Distribution Date following the Transfer Date on which such amount has been
deposited in full into the Distribution Account or the applicable Series
Account, the Receivables and all monies due or to become due with respect to
such Receivables and all proceeds of the Receivables and Insurance Proceeds
relating to such Receivables and Interchange (if any) and Recoveries (if any)
allocable to the Series shall be released to the Transferor after payment of
all
amounts otherwise due hereunder on or prior to such dates and the Trustee shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or warranty, as shall be prepared by and as
are
reasonably requested by the Transferor to vest in the Transferor, or its
designee or assignee, all right, title and interest of the Trust in and to
the
Receivables, all monies due or to become due with respect to such Receivables
and all proceeds of the Receivables and Insurance Proceeds relating to such
Receivables and Interchange (if any) and Recoveries (if any) allocable to the
Series. If the Trustee or the Investor Certificateholders give notice
directing the Transferor to accept reassignment as provided above, the
obligation of the Transferor to accept reassignment of the Receivables and
pay
the reassignment deposit amount pursuant to this subsection 2.4(e) shall
constitute the sole remedy respecting a breach of the representations and
warranties contained in subsection 2.4(a) available to the Investor
Certificateholders or the Trustee on behalf of the Investor
Certificateholders.
Section
2.5 Covenants
of the Transferor. The Transferor hereby covenants
that:
(a) Receivables
to be Accounts. Except in connection with the enforcement
thereof, the Transferor will take no action to cause any Receivable to be
evidenced by any instrument (as defined in the UCC). Each Receivable
shall be payable pursuant to a contract which does not create a Lien on any
goods purchased thereunder. The 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, the 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, whether now
existing or hereafter created, or any interest therein; the Transferor will
immediately notify the Trustee of the existence of any Lien on any Receivable,
and the Transferor shall defend the right, title and interest of the Trust
in,
to and under the Receivables, whether now existing or hereafter created, against
all claims of third parties claiming through or under the Transferor;
provided, however, that nothing in this subsection 2.5(b) shall
prevent or be deemed to prohibit the 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 the 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) Finance
Charges and Other Fees. The Transferor, except as otherwise
required by any Requirement of Law, or as is deemed by the Transferor to
be
33
necessary
in order for the Transferor to maintain its credit card business, based upon
a
good faith assessment by the Transferor, in its sole discretion, of the nature
of the competition in the credit card business, shall not at any time reduce
the
Periodic Finance Charges assessed on any Receivable or other fees on any Account
if, as a result of such reduction, the Transferor’s reasonable expectation of
the Portfolio Yield as of such date (after giving effect to any concurrent
exercise of a discount option) would be less than the Base Rate.
(d) Credit
Card Agreements and Account Guidelines. The Transferor 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 VISA U.S.A., Inc. and MasterCard International Inc., except
insofar as any failure to comply or perform would not materially and adversely
affect the rights of the Trust or the Certificateholders hereunder or under
the
Certificates. The Transferor may change the terms and provisions of
the Credit Card Agreements or the Credit Card Guidelines in any respect
(including, without limitation, 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 the Transferor, cause a Pay
Out Event to occur, and (ii) is made applicable to the comparable segment of
the
revolving credit card accounts owned and serviced by the 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 the Transferor and an unrelated third
party or by the terms of the Credit Card Agreements.
(e) Account
Allocations.
(i) in
the event that the Transferor is unable for any reason to transfer Receivables
to the Trust in accordance with the provisions of this Agreement (including,
without limitation, by reason of the application of the provisions of Section
9.2 or an order by any federal governmental agency having regulatory authority
over the Transferor or any court of competent jurisdiction that the Transferor
not transfer any additional Principal Receivables to the Trust) then, in any
such event, (A) the Transferor agrees to allocate and pay to the Trust, after
the date of such inability, all Collections with respect to Principal
Receivables, and all amounts which would have constituted Collections with
respect to Principal Receivables but for the Transferor’s inability to transfer
such Receivables (up to an aggregate amount equal to the amount of Principal
Receivables in the Trust on such date); (B) the Transferor agrees to have such
amounts applied as Collections in accordance with Article IV; and (C) for only
so long as all Collections and all amounts which would have constituted
Collections are allocated and applied in accordance with clauses (A) and (B)
above, Principal Receivables (and all amounts which would have constituted
Principal Receivables but for the Transferor’s inability to transfer Receivables
to the Trust) that are written off as uncollectible in accordance with this
Agreement shall continue to be allocated in accordance with Article IV, and
all
amounts that would have constituted Principal Receivables but for the
Transferor’s inability to transfer Receivables to the Trust shall be deemed to
be Principal Receivables for the
34
purpose
of calculating (I) the applicable Investor Percentage with respect to any Series
and (II) the Aggregate Investor Percentage thereunder. If the
Transferor is unable pursuant to any Requirement of Law to allocate Collections
as described above, the Transferor agrees that it shall in any such event
allocate, after the occurrence of such event, payments on each Account with
respect to the principal balance of such Account first to the oldest principal
balance of such Account and to have such payments applied as Collections in
accordance with Article IV. The parties hereto agree that Finance
Charge Receivables, whenever created, accrued in respect of Principal
Receivables that 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
that Collections with respect thereto shall continue to be allocated and paid
in
accordance with Article IV.
(ii) In
the event that, pursuant to subsection 2.4(d), the Transferor accepts
reassignment of an Ineligible Receivable as a result of a breach of the
representations and warranties in subsection 2.4(b) relating to such Receivable,
then, in any such event, the Transferor agrees to account for payments received
with respect to such Ineligible Receivable separately from its accounting for
Collections on Principal Receivables retained by the Trust. If
payments received from or on behalf of an Obligor are not specifically
applicable either to an Ineligible Receivable of such Obligor reassigned to
the
Transferor or to the Receivables of such Obligor retained in the Trust, then
the
Transferor agrees to allocate payments proportionately based on the total amount
of Principal Receivables of such Obligor retained in the Trust and the total
amount owing by such Obligor on any Ineligible Receivables reassigned to the
Transferor, and the portion allocable to any Principal Receivables retained
in
the Trust shall be treated as Collections and deposited in accordance with
the
provisions of Article IV.
(f) Conveyance
of Accounts. The Transferor may transfer Accounts (i) directly to
any Affiliate that executes an agreement assuming with respect to such Accounts
the obligations and duties of the Transferor or indirectly to any Affiliate
in
one or more substantially simultaneous transactions among the Transferor, such
Affiliate and any other Affiliates of the Transferor or (ii) to any other
Person, provided that such other Person executes such an agreement and the
Rating Agency Condition is satisfied; provided, however, that the
Transferor shall not be prohibited hereby from conveying, assigning, exchanging
or otherwise transferring the Accounts in connection with a transaction
complying with the provisions of Section 7.2.
Section
2.6 Addition
of Accounts.
(a) (i) If
(A) as of the end of any Monthly Period, the Transferor Interest is less than
the Minimum Transferor Interest for that period, the Transferor shall designate
additional eligible VISA® or MasterCard®
accounts from the
Bank Portfolio (“Additional Accounts”) to be included as Accounts in
a
35
sufficient
amount such that the Transferor Interest after giving effect to such addition
will be at least equal to the Minimum Transferor Interest, or (B) as of the
end
of any Monthly Period, the sum of the aggregate amount of Principal Receivables
is less than the Minimum Aggregate Principal Receivables (as adjusted for any
Series having a Companion Series as described in the Supplement for such
Series), the Transferor shall designate Additional Accounts to be included
as
Accounts in a sufficient amount such that the aggregate amount of Principal
Receivables will be equal to or greater than the Minimum Aggregate Principal
Receivables; provided, however, that in the event of a Servicer
Rating Event, the Transferor Interest and the sum of the aggregate amount of
Principal Receivables will be determined on a daily basis in accordance with
a
method to be determined by the Servicer, subject to satisfaction of the Rating
Agency Condition. Receivables from such Additional Accounts shall be
transferred to the Trust on or before the tenth Business Day following the
end
of such Monthly Period.
(ii) In
lieu of, or in addition to, designating Additional Accounts pursuant to clause
(i) above, the Transferor may, subject to the conditions specified in subsection
2.6(c) below, convey to the Trust participations representing undivided
interests in a pool of assets primarily consisting of receivables arising under
revolving credit card accounts or other revolving credit accounts owned by
the
Transferor or any Affiliate of the Transferor and collections thereon
(“Participations”). The addition of Participations in the
Trust pursuant to subsection 2.6 (a) or (b) shall be effected by an amendment
hereto, dated the applicable Addition Date, pursuant to subsection
13.1(a).
(b) In
addition to its obligation under subsection 2.6(a), the Transferor may, but
shall not be obligated to, designate from time to time Additional Accounts
of
the Transferor to be included as Accounts or Participations to be included
as
Trust Assets, in either case as of the applicable Addition Date.
(c) The
Transferor agrees that any such transfer of Receivables from Additional
Accounts, under subsection 2.6(a) or (b) shall satisfy the following conditions
(to the extent provided below):
(i) On
or before the fifth Business Day prior to the Addition Date with respect to
additions pursuant to subsection 2.6(a) and on or before the tenth Business
Day
prior to the Addition Date with respect to additions pursuant to subsection
2.6(b) (the “Notice Date”), the Transferor shall give the Trustee, each
Rating Agency and the Servicer written notice that such Additional Accounts
or
Participations will be included, which notice shall specify the approximate
aggregate amount of the Receivables to be transferred.
(ii) On
or before the Addition Date, the Transferor shall have delivered to the Trustee
a written assignment (including an acceptance by the Trustee on behalf of the
Trust for the benefit of the Investor Certificateholders) in substantially
the
form of Exhibit B (the “Assignment”) and shall have
indicated
36
in
its computer files that the Receivables created in connection with the
Additional Accounts have been transferred to the Trust. Within five
Business Days after the Addition Date, the Transferor shall have delivered
to
the Trustee a true and complete list (in the form of a computer file, microfiche
list, CD-ROM or such other form as is agreed upon between the Transferor and
the
Trustee) of all Additional Accounts, identified by account number and the
aggregate amount of the Receivables in each such Additional Account as of the
Addition Cut-Off Date, and such list shall, as of the Addition Date, modify
and
amend and be incorporated into and made a part of such Assignment and this
Agreement.
(iii) The
Transferor shall represent and warrant that (w) the designation of Receivables
in Additional Accounts by the Transferor and the acceptance thereof by the
Trustee will not (I) adversely affect the tax characterization as debt of any
Class of Investor Certificates of any outstanding Series or Class in respect
of
which an opinion was delivered at the time of issuance that such Class would
be
treated as debt for U.S. federal income tax purposes, (II) cause the Trust
following such designation and acceptance to be deemed to be an association
(or
a “publicly traded partnership” within the meaning of Section 7704(b) of the
Code) taxable as a corporation and (III) cause or constitute a taxable event
in
which gain or loss would be recognized by any Investor Certificateholder or
the
Trust, (x) each Additional Account is, as of the Addition Date, an Eligible
Account, and each Receivable in such Additional Account is, as of the Addition
Date, an Eligible Receivable, (y) no selection procedures believed by the
Transferor to be materially adverse to the interests of the Investor
Certificateholders were utilized in selecting the Additional Accounts from
the
available Eligible Accounts from the Bank Portfolio, and (z) as of the Addition
Date, the Transferor is not insolvent.
(iv) The
Transferor shall represent and warrant that, as of the Addition Date, the
Assignment constitutes either (x) a valid transfer and assignment to the Trust
of all right, title and interest of the Transferor in and to the Receivables
then existing and thereafter created in the Additional Accounts, and all
proceeds (as defined in the UCC) of such Receivables and Insurance Proceeds
relating thereto and such Receivables and all proceeds thereof and Insurance
Proceeds relating thereto will be held by the Trust free and clear of any Lien
of any Person claiming through or under the Transferor or any of its Affiliates,
except for (I) Liens permitted under subsection 2.5(b), (II) the interest of
the
Transferor as Holder of the Transferor Certificate and (III) the Transferor’s
right to receive interest accruing on, and investment earnings in respect of,
the Finance Charge Account and the Principal Account, or any Series Account
as
provided in this Agreement and any related Supplement or (y) a grant of a
security interest (as defined in the UCC), in such property to the Trust, which
is enforceable with respect to then existing Receivables of the Additional
Accounts, the proceeds (as defined in the UCC), thereof and Insurance Proceeds
relating thereto upon the conveyance of such Receivables to the Trust, and
which
will be enforceable with respect to the Receivables thereafter created in
respect of Additional Accounts conveyed on such Addition Date, the proceeds
(as
defined in
37
the
UCC) thereof and Insurance Proceeds relating thereto upon such creation; and
(z)
if the Assignment constitutes the grant of a security interest to the Trust
in
such property, upon the filing of a financing statement as described in Section
2.1 with respect to such Additional Accounts and in the case of the Receivables
thereafter created in such Additional Accounts and the proceeds (as defined
in
the UCC) thereof, and Insurance Proceeds relating thereto, upon such creation,
the Trust shall have a first priority perfected security interest in such
property (subject to Section 9-315 of the UCC), except for Liens permitted
under
subsection 2.5(b).
(v) The
Transferor shall deliver an Officer’s Certificate substantially in the form of
Schedule 2 to Exhibit B to the Trustee confirming the items set forth in
paragraph (iii) above.
(vi) The
Transferor shall deliver the following two Opinions of Counsel to the
Trustee: (1) with respect to certain matters relating to the transfer
of the Receivables in the Additional Accounts to the Trust and the perfection
of
the Trust’s interest in the Receivables in the Additional Accounts and (2) with
respect to the applicability of certain provisions of the Federal Deposit
Insurance Act, as amended by the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, with respect to the effect of receivership on the
Transferor’s security interest in the Receivables in the Additional
Accounts.
(vii) If
with respect to any three-month period or with respect to any twelve-month
period, the aggregate amount of Principal Receivables in the accounts designated
to have their Receivables added to the Trust shall exceed the applicable
Aggregate Addition Limit, the Rating Agency Condition shall have been satisfied
with respect to the inclusion of any Receivables in any account to be added
as
an Additional Account pursuant to subsection 2.6(b) in excess of the applicable
Aggregate Addition Limit, except to the extent any such Receivables arise in
accounts that are Approved Accounts.
(viii) With
respect to a Participation included as Trust Assets pursuant to subsection
2.6(b), the Transferor shall deliver a Tax Opinion.
Section
2.7 Removal
of Accounts
.
(a) Subject
to the conditions set forth below, the Transferor may, but shall not be
obligated to, designate Receivables from certain Accounts (the “Removed
Accounts”) for deletion and removal from the Trust. On or before
the fifth Business Day (the “Removal Notice Date”) prior to the date on
which the designated Removed Accounts will be reassigned by the Trustee to
the
Transferor (the “Removal Date”), the Transferor shall give the Trustee,
the Servicer and each Rating Agency written notice that the Receivables from
such Removed Accounts are to be reassigned to the Transferor.
(b) The
Transferor shall be permitted to designate and require reassignment to it of
the
Receivables from Removed Accounts only upon satisfaction of the following
conditions:
38
(i) The
removal of any Receivables of any Removed Accounts on any Removal Date shall
not, in the reasonable belief of the Transferor, (A) cause a Pay Out Event
to
occur; provided, however, that for the purposes of this subsection
2.7(b)(i), the Receivables of each Removed Account shall be considered to have
been removed as of the Removal Date, (B) cause the Transferor Interest to be
less than the Minimum Transferor Interest on such Removal Date, (C) cause the
sum of the aggregate amount of Principal Receivables and the Excess Funding
Amount to be less than the Minimum Aggregate Principal Receivables, or (D)
result in the failure to make any payment specified in the related Supplement
with respect to any Series;
(ii) On
or prior to the Removal Date, the Transferor shall have delivered to the Trustee
for execution a written assignment in substantially the form of Exhibit F (each
a “Reassignment”) and the Transferor shall have, within five Business
Days after the Removal Date, delivered to the Trustee a true and complete list
(in the form of a computer file, microfiche list, CD-ROM or such other form
as
is agreed upon between the Transferor and the Trustee) of all Removed Accounts,
identified by account number and the aggregate amount of the Receivables in
such
Removed Accounts as of the Removal Cut-Off Date, which list shall, as of the
Removal Date, modify and amend and be incorporated into and made a part of
such
Reassignment and this Agreement;
(iii) The
Transferor shall represent and warrant that (x) the designation and
reassignment of such Receivables from Removed Accounts will not (A) adversely
affect the tax characterization as debt of any Class of Investor Certificates
of
any outstanding Series or Class in respect of which an opinion was delivered
at
the time of issuance that such Class would be treated as debt for U.S. federal
income tax purposes, (B) cause the Trust following such designation and
acceptance to be deemed to be an association (or a “publicly traded partnership”
within the meaning of Section 7704(b) of the Code) taxable as a corporation
and
(C) cause or constitute a taxable event in which gain or loss would be
recognized by any Investor Certificateholder or the Trust, (y) no selection
procedures believed by the Transferor to be materially adverse to the interests
of the Certificateholders were utilized in selecting the Removed Accounts to
be
removed from the Trust, and (z) (I) a random selection procedure was used by
the
Transferor in selecting the Removed Accounts and only one such removal of
randomly selected accounts shall occur in the then current Monthly Period,
(II)
the Removed Accounts are subject to an arrangement with a third party pursuant
to which such third party has the right or the option to purchase the Removed
Accounts and which right or option has arisen in response to a third-party
action or decision not to act and not the unilateral action of the Transferor
and such right or option has been exercised by the third party or (III) the
Removed Accounts were selected using another method that will not preclude
transfers of Receivables to the Trust from being accounted for as sales under
generally accepted accounting principles or prevent the Trust from continuing
to
39
qualify
as a qualifying special purpose entity in accordance with SFAS 140 (or any
relevant replacement statement);
(iv) As
of the Removal Notice Date, either (x) the Receivables are not more than 15%
delinquent by estimated principal amount and the weighted averaged delinquency
of such Receivables is not more than 60 days, or (y) the Receivables are not
more than 7% delinquent by estimated principal amount and the weighted average
delinquency of such Receivables does not exceed 90 days;
(v) On
or prior to the Removal Date, if such removal is pursuant to subsection
2.7(b)(iii)(z)(III), the Rating Agency Condition shall have been satisfied;
and
(vi) The
Transferor shall have delivered to the Trustee an Officer’s Certificate
confirming the items set forth in clauses (i) through (v) above. The
Trustee may conclusively rely on such Officer’s Certificate, shall have no duty
to make inquiries with regard to the matters set forth therein and shall incur
no liability in so relying.
Upon
satisfaction of the above conditions, the Trustee shall execute and deliver
the
Reassignment to the Transferor, and the Receivables from the Removed Accounts
shall no longer constitute a part of the Trust.
[End
of Article II]
40
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
RECEIVABLES
Section
3.1 Acceptance
of Appointment and Other Matters Relating to the Servicer.
(a) Chase
USA agrees to act as the Servicer under this Agreement. The Investor
Certificateholders of each Series by their acceptance of the related
Certificates consent to Chase USA acting as Servicer.
(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 and 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 10.1, the
Servicer is hereby authorized and empowered (i) to make withdrawals from the
Collection Account as set forth in this Agreement, (ii) unless such power and
authority is revoked by the Trustee on account of the occurrence of a Servicer
Default pursuant to Section 10.1, to instruct the Trustee to make withdrawals
and payments from the Finance Charge Account, the Principal Account, the Excess
Funding Account and any Series Account, in accordance with such instructions
as
set forth in this Agreement, (iii) unless such power and authority is revoked
by
the Trustee on account of the occurrence of a Servicer Default pursuant to
Section 10.1, to instruct the Trustee in writing, as set forth in this
Agreement, (iv) to execute and deliver, on behalf of the Trust for the benefit
of the Certificateholders, 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 and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivables and (v) to make any filings,
reports, notices, applications, registrations with, and to seek any consents
or
authorizations from the Securities and Exchange 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. The Trustee agrees that it shall promptly follow the
instructions of the Servicer to withdraw funds from the Principal Account,
the
Finance Charge Account, the Excess Funding Account, or any Series Account and
to
take any action required under any Credit Enhancement at such time as required
under this Agreement. The Trustee shall execute at the Servicer’s
written request such documents prepared by the Transferor and acceptable to
the
Trustee as may be necessary or appropriate to enable the Servicer to carry
out
its servicing and administrative duties hereunder.
41
(c) In
the event that the Transferor is unable for any reason to transfer Receivables
to the Trust in accordance with the provisions of this Agreement (including,
without limitation, by reason of the application of the provisions of Section
9.2 or the order of any federal governmental agency having regulatory authority
over the Transferor or any court of competent jurisdiction that the Transferor
not transfer any additional Principal Receivables to the Trust) then, in any
such event, (A) the Servicer agrees to allocate, after such date, all
collections with respect to Principal Receivables, and all amounts which would
have constituted Collections with respect to Principal Receivables but for
the
Transferor’s inability to transfer such Receivables (up to an aggregate amount
equal to the aggregate amount of Principal Receivables in the Trust as of such
date) in accordance with subsection 2.5(e); (B) the Servicer agrees to apply
such amounts as Collections in accordance with Article IV, and (C) for only
so
long as all Collections and all amounts which would have constituted Collections
are allocated and applied in accordance with clauses (A) and (B) above,
Principal Receivables (and all amounts which would have constituted Principal
Receivables but for the Transferor’s inability to transfer Receivables to the
Trust) that are written off as uncollectible in accordance with this Agreement
shall continue to be allocated in accordance with Article IV and all amounts
which would have constituted Principal Receivables but for the Transferor’s
inability to transfer Receivables to the Trust shall be deemed to be Principal
Receivables for the purpose of calculating (i) the applicable Investor
Percentage with respect to any Series and (ii) the Aggregate Investor Percentage
thereunder. If the Servicer is unable pursuant to any Requirement of
Law to allocate payments on the Accounts as described above, the Servicer agrees
that it shall in any such event allocate, after the occurrence of such event,
payments on each Account with respect to the principal balance of such Account
first to the oldest principal balance of such Account and to have such payments
applied as Collections in accordance with Article IV. The parties
hereto agree that Finance Charge Receivables, whenever created, accrued in
respect of Principal Receivables which have been conveyed to the Trust, or
which
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 that Collections with respect thereto shall
continue to be allocated and paid in accordance with Article IV.
(d) In
the event that, pursuant to subsection 2.4(d), the Transferor accepts
reassignment of an Ineligible Receivable as a result of a breach of the
representations and warranties in subsection 2.4(b) relating to such Receivable,
then, in any such event, the Servicer agrees to account for payments received
with respect to such Ineligible Receivable separately from its accounting for
Collections on Principal Receivables retained by the Trust. If
payments received from or on behalf of an Obligor are not specifically
applicable either to an Ineligible Receivable of such Obligor reassigned to
the
Transferor or to Receivables of such Obligor retained in the Trust, then the
Servicer agrees to allocate payments proportionately based on the total amount
of Principal Receivables of such Obligor retained in the Trust and the total
amount owing by such Obligor on any Ineligible Receivables purchased by the
Transferor, and the portion allocable to any Principal Receivables retained
in
the Trust shall be treated as Collections and deposited in accordance with
the
provisions of Article IV.
42
(e) The
Servicer shall not 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 in connection with
servicing other credit card receivables.
(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 receivables covering such actions and in such amounts as the
Servicer believes to be reasonable from time to time.
Section
3.2 Servicing
Compensation. As compensation for its servicing activities
hereunder and reimbursement for its expenses as set forth in the immediately
following paragraph, the Servicer shall be entitled to receive a servicing
fee
(the “Servicing Fee”) prior to the termination of the Trust pursuant to Section
12.1. The Servicing Fee shall be payable, with respect to each
Series, at the times and in the amounts set forth in the related
Supplement. The Servicing Fee shall be allocated between the Investor
Certificates (the “Investor Servicing Fee”) and the Transferor Certificate (the
“Transferor Servicing Fee”).
The
Servicer’s expenses include the amounts due to the Trustee pursuant to Section
11.5 and the reasonable fees and disbursements of independent public accountants
and all other expenses incurred by the Servicer in connection with its
activities hereunder; provided, however that the Servicer shall
not be liable for any liabilities, costs or expenses of the Trust, the Investor
Certificateholders or the Certificate Owners arising under any tax law,
including without limitation any federal, state or local 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). The Servicer shall be required to pay such expenses for
its own account and shall not be entitled to any payment therefor other than
the
servicing fee specified herein.
Section
3.3 Representations
and Warranties of the Servicer. Chase USA, as initial Servicer,
hereby makes, as of the Amendment Closing Date, and any successor Servicer
by
its appointment hereunder shall make, as of the date of its appointment, the
following representations and warranties on which the Trustee has relied in
accepting the Receivables in Trust and in authenticating the
Certificates:
(a) Organization
and Good Standing. The Servicer is a banking corporation duly
organized, validly existing and in good standing under the laws of the state
of
its organization, 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 as such business is presently conducted, and to execute, deliver
and
perform its obligations under this Agreement.
(b) Due
Qualification. The Servicer is duly qualified to do business and
is in good standing (or is exempt from such requirement) and has obtained all
necessary licenses and approvals, except to the extent that the failure so
to
qualify or register would not have a material adverse effect on the Servicer’s
ability to perform its obligations hereunder.
43
(c) Due
Authorization. The execution, delivery, and performance of this
Agreement have been duly authorized by the Servicer by all necessary corporate
action on the part 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
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 or the rights of
creditors of banking corporations organized under the laws of the State of
New
York.
(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 except to the extent
that
the same could not reasonably be expected to have a material adverse effect
on
the Certificateholders or any Credit Enhancement Provider.
(f) No
Proceedings. There are no proceedings or investigations pending
or, to the best knowledge of the Servicer, threatened against the Servicer
before any court, regulatory body, administrative agency or other tribunal
or
governmental instrumentality seeking to prevent the issuance of the Certificates
or 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 a material adverse effect
on
the Certificateholders or any Credit Enhancement Provider.
Section
3.4 Reports
and Records for the Trustee.
(a) Daily
Reports. On each Business Day during any period during which the
Servicer is required to make daily deposits to the Collection Account pursuant
to subsection 4.3(a), the Servicer shall prepare and make available at the
office of the Servicer for inspection by the Trustee a record setting forth
(i)
the aggregate amount of Collections
44
processed
by the Servicer on the preceding Business Day and (ii) the aggregate amount
of
Receivables as of the close of business on the preceding Business
Day.
(b) Monthly
Servicer’s Certificate. Unless otherwise stated in the related
Supplement with respect to any Series, on each Determination Date the Servicer
shall forward, as provided in Section 13.5, to the Trustee, the Paying Agent,
any Credit Enhancement Provider and each Rating Agency, a certificate of a
Servicing Officer in the form of Exhibit C (which includes the Schedule thereto
specified as such in each Supplement) setting forth (i) the aggregate amount
of
Collections processed during the preceding Monthly Period, (ii) the aggregate
amount of the applicable Investor Percentage of Collections of Principal
Receivables processed by the Servicer pursuant to Article IV during the
preceding Monthly Period with respect to each Series then outstanding, (iii)
the
aggregate amount of the applicable Investor Percentage of Collections of Finance
Charge Receivables processed by the Servicer pursuant to Article IV during
the
preceding Monthly Period with respect to each Series then outstanding, (iv)
the
aggregate amount of Receivables processed as of the end of the last day of
the
preceding Monthly Period, (v) the balance on deposit in the Finance Charge
Account, the Principal Account or any Series Account applicable to any Series
then outstanding on such Determination Date with respect to Collections
processed by the Servicer during the preceding Monthly Period, (vi) the
aggregate amount, if any, of withdrawals, drawings or payments under any Credit
Enhancement, if any, for each Series then outstanding required to be made with
respect to the previous Monthly Period in the manner provided in the related
Supplement, (vii) the sum of all amounts payable to the Investor
Certificateholders of each Series (or for a Series of more than one Class,
each
such Class) on the succeeding Distribution Date in respect of Certificate
Principal and Certificate Interest with respect to such preceding Monthly Period
and (viii) such other matters as are set forth in Exhibit C.
Section
3.5 Annual
Servicer’s Certificates.
(a) Servicer
Compliance Statement. Within the earlier of 90 days after the end
of each fiscal year of the Servicer or such date as required by Regulation
AB,
beginning after the end of fiscal year 2006, the Servicer will deliver to the
Trustee, any Credit Enhancement Provider and each Rating Agency, the statement
of compliance required under Item 1123 of Regulation AB with respect to such
fiscal year in substantially the form of Exhibit D, which statement shall be
in
the form of an Officer’s Certificate of the Servicer to the effect that (i) a
review of the activities of the Servicer during such fiscal year and of its
performance under this Agreement was made under the supervision of the officer
signing such certificate and (ii) to the best of such officer’s knowledge, based
on such review, the Servicer has fulfilled all of its obligations under this
Agreement throughout such fiscal year, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. A
copy of such statement may be obtained by any Investor Certificateholder by
a
request in writing to the Trustee addressed to the Corporate Trust
Office.
(b) Report
of Assessment of Compliance with Servicing Criteria. Within the
earlier of 90 days after the end of each fiscal year of the Servicer or such
date as required by Regulation AB, beginning after the end of fiscal year 2006,
the Servicer will deliver to the Trustee, any Credit Enhancement Provider and
each Rating Agency, a report of
45
compliance
with servicing criteria required under Item 1122 of Regulation AB with respect
to such fiscal year in substantially the form of Exhibit H, which report will
be
in the form of an Officer’s Certificate of the Servicer to the effect that (i)
the Servicer is responsible for assessing compliance with the servicing
obligations under this Agreement; (ii) the Servicer has used the criteria in
paragraph (d) of Item 1122 of Regulation AB to assess compliance with the
servicing obligations under this Agreement; (iii) the Servicer has assessed
compliance with the servicing obligations under this Agreement as of and for
the
period ending the end of such fiscal year and has disclosed any material
instance of noncompliance identified by the Servicer; and (iv) a registered
public accounting firm has issued an attestation report on the Servicer’s
assessment of compliance with the servicing obligations under this Agreement
as
of and for the period ending the end of such fiscal year. A copy of
such report may be obtained by any Investor Certificateholder by a request
in
writing to the Trustee addressed to the Corporate Trust Office.
Section
3.6 Annual
Independent Accountants’ Servicing Report.
(a) Within
the earlier of 90 days after the end of each fiscal year of the Servicer or
such
date as required by Regulation AB, beginning after the end of fiscal year 2006,
the Servicer shall cause a registered public accounting firm (who may also
render other services to the Servicer or the Transferor) to furnish to the
Trustee, any Credit Enhancement Provider and each Rating Agency an attestation
report on each assessment of compliance with the servicing criteria with respect
to the Servicer or any Affiliate thereof during the related fiscal year
delivered by such accountants pursuant to Rule 13a-18 or Rule 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. A copy of such report or
reports may be obtained by any Investor Certificateholder by a request in
writing to the Trustee addressed to the Corporate Trust Office.
(b) [RESERVED].
Section
3.7 Tax
Treatment. Except as otherwise provided in any related
Supplement, the Transferor has structured this Agreement and the Investor
Certificates with the intention that the Investor Certificates will qualify
under applicable federal, state, local and foreign tax law as
indebtedness. Unless otherwise specified in the related Supplement,
the Transferor, the Servicer, the Holder of the Transferor Certificate, each
Investor Certificateholder, and each Certificate Owner, agree to treat and
to
take no action inconsistent with the treatment of the Investor Certificates
(or
beneficial interest therein) as indebtedness for purposes of federal, state,
local and foreign income or franchise taxes and any other tax imposed on or
measured by income. Each Investor Certificateholder and the Holder of
the Transferor Certificate, by acquisition of its interest in the Transferor
Interest; each Certificate Owner, by acquisition of a beneficial interest in
a
Certificate; and any owner of any Collateral Interest or interest therein,
by
acquisition of such interest therein, agrees to be bound by the provisions
of
this Section 3.7. Each Certificateholder agrees that it will cause
any Certificate Owner acquiring an interest in a Certificate through it to
comply with this Agreement as to treatment as indebtedness under applicable
tax
law, as described in this Section 3.7.
Section
3.8 Notices
to the Transferor. In the event that the Transferor is no longer
acting as Servicer, any Successor Servicer appointed pursuant to Section 10.2
shall
46
deliver
or make available to the Transferor each certificate and report required to
be
prepared, forwarded or delivered thereafter pursuant to Sections 3.4, 3.5 and
3.6.
[End
of Article III]
47
ARTICLE
IV
RIGHTS
OF CERTIFICATEHOLDERS AND ALLOCATION
AND
APPLICATION OF COLLECTIONS
Section
4.1 Rights
of Certificateholders. Each Series of Investor Certificates shall
represent Undivided Interests in the Trust, including the benefits of any Credit
Enhancement issued with respect to such Series and the right to receive the
Collections and other amounts at the times and in the amounts specified in
this
Article IV to be deposited in the Investor Accounts and any other Series Account
(if so specified in the related Supplement) or to be paid to the Investor
Certificateholders of such Series; provided, however, that the aggregate
interest represented by such Certificates at any time in the Principal
Receivables shall not exceed an amount equal to the Investor Interest at such
time. The Transferor Certificate or, as the case may be, the
uncertificated interest in the Transferor Interest shall represent the remaining
undivided interest in the Trust not allocated to the Investor Certificates
and
the other interests issued by the Trust, including the right to receive the
Collections and other amounts at the times and in the amounts specified in
this
Article IV to be paid to the Holder of the Transferor Certificate; provided,
however, that if the Transferor elects to have its interest in the Transferor
Interest be uncertificated as provided in Section 6.1 hereof, then such
uncertificated interest shall represent the Transferor Interest; provided
further, that the aggregate interest represented by such Transferor Certificate
in the Principal Receivables or, as the case may be, the aggregate
uncertificated interest of the Transferor in the Principal Receivables, shall
not exceed the Transferor Interest at any time and such Transferor Certificate
or, as the case may be, such uncertificated interest shall not represent any
interest in the Investor Accounts, except as provided in this Agreement, or
have
the benefit of any Credit Enhancement issued with respect to any
Series.
Section
4.2 Establishment
of Accounts.
(a) The
Collection Account. The Servicer, for the benefit of the
Certificateholders, shall establish and maintain in the name of the Trustee,
on
behalf of the Trust, an Eligible Deposit Account bearing a designation clearly
indicating that the funds deposited therein are held in trust for the benefit
of
the Certificateholders (the “Collection Account”). Pursuant to
authority granted to it pursuant to subsection 3.1(b), the Servicer shall have
the revocable power to withdraw funds from the Collection Account for the
purposes of carrying out its duties hereunder.
(b) The
Finance Charge and Principal Accounts. The Trustee, for the
benefit of the Investor Certificateholders, shall establish and maintain in
the
State of New York with the Paying Agent in the name of the Trust two Eligible
Deposit Accounts (the “Finance Charge Account” and the “Principal
Account”, respectively), bearing a designation clearly indicating that the
funds therein are held for the benefit of the Investor Certificateholders;
provided, however, that each of such accounts may be established
as sub-accounts of the Collection Account. The Trustee shall possess
all right, title and interest in all funds on deposit from time to time in
the
Finance Charge Account and the Principal Account
48
and
in all proceeds thereof. The Finance Charge Account and the Principal
Account shall be under the sole dominion and control of the Trustee for the
benefit of the Investor Certificateholders. Pursuant to authority
granted to it hereunder, the Servicer shall have the revocable power to instruct
the Trustee to withdraw funds from the Finance Charge Account and the Principal
Account for the purpose of carrying out the Servicer’s duties
hereunder. The Trustee at all times shall maintain accurate records
reflecting each transaction in the Principal Account and the Finance Charge
Account and that funds held therein shall at all times be held in trust for
the
benefit of the Investor Certificateholders.
(c) The
Distribution Account. The Trustee, for the benefit of the
Investor Certificateholders, shall cause to be established and maintained in
the
name of the Trust, an Eligible Deposit Account bearing a designation clearly
indicating that the funds deposited therein are held in trust for the benefit
of
the Investor Certificateholders (the “Distribution
Account”). The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Distribution Account
and in all proceeds thereof. The Distribution Account shall be under
the sole dominion and control of the Trustee for the benefit of the Investor
Certificateholders.
(d) The
Excess Funding Account. The Trustee, for the benefit of the
Investor Certificateholders, shall establish and maintain an Eligible Deposit
Account bearing a designation clearly indicating that the funds therein are
held
for the benefit of the Investor Certificateholders (the “Excess Funding
Account”). The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Excess Funding Account
and in all proceeds thereof. The Excess Funding Account shall be
under the sole dominion and control of the Trustee for the benefit of the
Investor Certificateholders. If, at any time, the Excess Funding
Account ceases to be an Eligible Deposit Account, the Trustee shall notify
the
Rating Agency and within 10 Business Days establish a new Eligible Deposit
Account which shall be designated as the new Excess Funding Account and shall
transfer any cash or any investments to such new Excess Funding
Account. From the date such new Excess Funding Account is
established, it shall be the “Excess Funding
Account.” Pursuant to authority granted to it hereunder, the
Servicer shall have the revocable power to instruct the Trustee to withdraw
funds from the Excess Funding Account for the purpose of carrying out the
Servicer’s duties hereunder. The Trustee at all times shall maintain
accurate records reflecting each transaction in the Excess Funding Account
and
that funds held therein shall at all times be held in trust for the benefit
of
the Investor Certificateholders. In no event shall it be the
responsibility of the Trustee to determine whether the Excess Funding Account
is
an Eligible Deposit Account.
(e) Series
Accounts. If so provided in the related Supplement, the Trustee,
for the benefit of the Investor Certificateholders, shall cause to be
established and maintained in the name of the Trust, one or more Series
Accounts. Each such Series Account shall bear a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Investor Certificateholders of such Series. Each such Series Account
will be an Eligible Deposit Account, if so provided in the related Supplement,
and will have such other features, and amounts therein will be applied, as
set
forth in the related Supplement.
49
(f) Administration
of the Finance Charge, Principal Accounts and Excess Funding
Account. Funds on deposit in the Principal Account, the Finance
Charge Account and the Excess Funding Account shall at all times be invested
in
Permitted Investments. Any such investment shall mature and such
funds shall be available for withdrawal on or prior to the Transfer Date related
to the Monthly Period in which such funds were processed for collection, or
if
so specified in the related Supplement, immediately preceding a Distribution
Date. The Trustee shall maintain for the benefit of the Investor
Certificateholders possession of the negotiable instruments or securities
evidencing the Permitted Investments described in clause (a) of the definition
thereof from the time of purchase thereof until the time of sale or maturity;
provided, however that no such investment shall be disposed of
prior to its maturity date. At the end of each month, all interest
and earnings (net of losses and investment expenses) on funds on deposit in
the
Principal Account and the Finance Charge Account shall be deposited by the
Trustee in an Eligible Deposit Account in the name of the Transferor, or a
Person designated in writing by the Servicer, which shall not constitute a
part
of the Trust, or shall otherwise be turned over by the Trustee to the Transferor
not less frequently than monthly, and all interest and earnings (net of losses
and investment expenses) on funds on deposit in the Excess Funding Account
shall
be deposited by the Trustee in the Finance Charge Account for application as
Collections of Finance Charge Receivables. Subject to the
restrictions set forth above, the Servicer, or a Person designated in writing
by
the Servicer, of which the Trustee shall have received written notification
thereof, shall instruct the Trustee with respect to the investment of funds
on
deposit in the Principal Account and the Finance Charge Account. For
purposes of determining the availability of funds or the balances in the Finance
Charge Account, the Principal Account and, except as provided in the second
preceding sentence, the Excess Funding Account, for any reason under this
Agreement, all investment earnings on such funds shall be deemed not to be
available or on deposit. In no event shall it be the responsibility
of the Trustee to determine whether an investment is a Permitted
Investment.
Section
4.3 Collections
and Allocations.
(a) Collections. Except
as provided below, the Servicer shall deposit all Collections in the Collection
Account as promptly as possible after the Date of Processing of such
Collections, but in no event later than the second Business Day following such
Date of Processing. 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, and in no such event
shall the Servicer deposit any Collections thereafter into any account
established, held or maintained with the Servicer.
The
Servicer shall allocate such amounts to each Series of Investor Certificates
and
to the Holder of the Transferor Certificate in accordance with this Article
IV
and shall withdraw the required amounts from the Collection Account or pay
such
amounts to the Holder of the Transferor Certificate in accordance with this
Article IV, in both cases as modified by any Supplement. The Servicer
shall make such deposits or payments on the date indicated in the applicable
Supplement in immediately available funds or as otherwise provided in the
Supplement for any Series of Certificates with respect to such
Series.
50
Notwithstanding
anything in this Agreement to the contrary, for so long as, and only so long
as,
the Transferor shall remain the Servicer hereunder, and (w)(i) the Servicer
provides to the Trustee a letter of credit covering collection risk of the
Servicer, and (ii) the Transferor shall not have received a notice from any
Rating Agency that such a letter of credit would result in the withdrawal or
downgrade of such Rating Agency’s then-existing rating of the Investor
Certificates, or (x) the Servicer shall have and maintain a certificate of
deposit or short-term deposit rating of “P-1” by Moody’s and of “A-1” by
Standard & Poor’s, the Servicer need not deposit Collections into the
Collection Account, the Principal Account, the Finance Charge Account, the
Excess Funding Account or any Series Account, as provided in any Supplement,
or
make payments to the Holder of the Transferor Certificate as provided in Article
IV, but may make such deposits, payments and withdrawals on each Transfer Date
in an amount equal to the net amount of such deposits, payments and withdrawals
which would have been made but for the provisions of this
paragraph.
Notwithstanding
anything else in this Agreement to the contrary, with respect to any Monthly
Period, whether the Servicer is required to make monthly or daily deposits
from
the Collection Account into the Finance Charge Account, the Principal Account,
the Excess Funding Account or any Series Account, as provided in any Supplement,
(y) the Servicer will only be required to deposit Collections from the
Collection Account into the Finance Charge Account, the Principal Account,
the
Excess Funding Account or any Series Account in an amount equal to the lesser
of
(I) the amount required to be deposited into any such deposit account pursuant
to the terms of this Agreement or any Supplement and (II) the amount required
to
be distributed on or prior to the related Distribution Date to Investor
Certificateholders or to any Credit Enhancement Provider pursuant to the terms
of any Supplement or agreement relating to such Credit Enhancement and (z)
if at
any time prior to such Distribution Date the amount of Collections deposited
in
the Collection Account exceeds the amount required to be deposited pursuant
to
clause (y) above, the Servicer will be permitted to withdraw the excess from
the
Collection Account.
(b) Allocations
for the Holder of the Transferor Certificate. Throughout the
existence of the Trust, unless otherwise stated in any Supplement, the Servicer
shall allocate to the Holder of the Transferor Certificate an amount equal
to
the product of (A) the Transferor Percentage and (B) the aggregate amount of
such Collections allocated to Principal Receivables and Finance Charge
Receivables, respectively, in respect of each Monthly
Period. Notwithstanding anything in this Agreement to the contrary,
unless otherwise stated in any Supplement, the Servicer need not deposit this
amount or any other amounts so allocated to the Holder of the Transferor
Certificate pursuant to any Supplement into the Collection Account and shall
pay, or be deemed to pay, such amounts as collected to the Holder of the
Transferor Certificate.
(c) Adjustments
for Miscellaneous Credits and Fraudulent Charges. The Servicer
shall be obligated to reduce on a net basis in each Monthly Period the aggregate
amount of Principal Receivables used to calculate the Transferor Interest as
provided in this subsection 4.3(c) (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
51
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 the
calculation of the Transferor Interest would cause the Transferor Interest
to be
an amount less than the Minimum Transferor Interest, the Transferor shall make
a
deposit, no later than the Business Day following the Date of Processing of
such
Credit Adjustment, into the Excess Funding Account in immediately available
funds in an amount equal to the amount by which such Credit Adjustment would
cause the Transferor Interest to be less than the Minimum Transferor Interest
on
such Date of Processing.
(d) Transfer
of Defaulted Accounts and Accounts with Zero Balances. Unless
otherwise provided in any Supplement, on the date on which (i) an Account
becomes a Defaulted Account, (ii) an Account (A) with respect to which the
card
has been lost, stolen or authorization prohibited, and (B) which has had an
outstanding balance of zero for at least six months, has been closed by the
Servicer, or (iii) an Account (A) which has been designated by the Servicer
as
“frozen”, revoked or interest accrual prohibited, and (B) which has had an
outstanding balance of zero for at least two months, has been closed by the
Servicer, the Trust shall automatically and without further action or
consideration be deemed to transfer, set over, and otherwise convey to the
Transferor, without recourse, representation or warranty, all the right, title
and interest of the Trust in and to the Receivables in such Defaulted Accounts
and Accounts with zero balances, including, with respect to Defaulted Accounts,
all monies due or to become due with respect to such Receivables, all proceeds
of such Receivables and Insurance Proceeds relating to such Receivables
allocable to the Trust. Notwithstanding any such transfer of
Accounts, amounts recovered with respect to such Defaulted Accounts may still
be
allocated to the Trust to the extent provided for in the definition of
Recoveries.
(e) Operation
of Excess Funding Account. On each Determination Date on which
one or more Series is in its Amortization Period or Accumulation Period, the
Servicer shall determine the aggregate amount of Principal Shortfalls, if any,
with respect to each such Series that is a Principal Sharing Series, and the
Servicer shall instruct the Trustee to withdraw such amount (up to the Excess
Funding Amount) from the Excess Funding Account on the next succeeding Transfer
Date and deposit such amount into the Distribution Account for allocation among
each such Series as Shared Principal Collections as specified in each related
Supplement. On any Business Day on which the Transferor Interest
exceeds the Minimum Transferor Interest, the Servicer shall instruct the Trustee
to withdraw the amount of such excess (up to the Excess Funding Amount) from
the
Excess Funding Account on such day and pay such amount to the Holder of the
Transferor Certificate.
Section
4.4 Allocations
During Funding Period. To the extent that the Servicer
establishes an Eligible Deposit Account as a pre-funding account (the
“Pre-Funding Account”) with respect to any Series, bearing a designation
indicating that the funds deposited therein are for the benefit of such Series,
during the period (the “Funding Period”), as set forth in the related
Supplement, that the Pre-Funding Account maintains a balance, the date upon
which an increase in the Invested Amount of such Series in accordance with
the
terms of such related Supplement occurs shall be treated as an Addition Date
solely for the purpose of calculating the
52
applicable
Investor Percentages. Such Addition Date shall be deemed to occur on
the date of each such increase and the applicable Investor Percentages shall
be
calculated accordingly.
Section
4.5 [RESERVED].
[THE
REMAINDER OF ARTICLE IV IS RESERVED AND SHALL BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]
[End
of Article IV]
53
ARTICLE
V
[ARTICLE
V IS RESERVED AND SHALL
BE
SPECIFIED IN ANY SUPPLEMENT
WITH
RESPECT TO ANY SERIES]
[End
of Article V]
54
ARTICLE
VI
THE
CERTIFICATES
Section
6.1 The
Certificates. Subject to Sections 6.10 and 6.13, the Investor
Certificates of each Series and any Class thereof may be issued in bearer form
(the “Bearer Certificates”) to a certificateholder (“Bearer
Certificateholder”) with attached interest coupons and a special coupon
(collectively, the “Coupons”) or in fully registered form (the “Registered
Certificates”), and shall be substantially in the form of the exhibits with
respect thereto attached to the related Supplement. The Transferor
may elect at any time, by written notice to the Trustee, to have its interest
in
the Transferor Interest be (i) an uncertificated interest or (ii) evidenced
by a
Transferor Certificate. If the Transferor elects to have its interest
in the Transferor Interest be uncertificated, it shall deliver to the Trustee
for cancellation any Transferor Certificate previously issued. If the
Transferor elects to have its interest in the Transferor Interest be evidenced
by a Transferor Certificate, the Transferor Certificate shall be issued pursuant
hereto or to Section 6.9 or Section 6.10, substantially in the form of Exhibit
A
and shall upon issue be executed and delivered by the Transferor to the Trustee
for authentication and redelivery as provided in Sections 2.1 and
6.2. The Investor Certificates shall, upon issue pursuant hereto or
to Section 6.9 or Section 6.10, be executed and delivered by the Transferor
to
the Trustee for authentication and redelivery as provided in Sections 2.1 and
6.2. Any Investor Certificate shall be issuable in a minimum
denomination of $1,000 Undivided Interest and integral multiples thereof, unless
otherwise specified in any Supplement. The Transferor Certificate, if
applicable, shall be issued as a single certificate. Each Certificate
shall be executed by manual or facsimile signature on behalf of the Transferor
by its President or any Vice President. Certificates bearing the
manual or facsimile signature of the individual who was, at the time when such
signature was affixed, authorized to sign on behalf of the Transferor or the
Trustee shall not be rendered invalid, notwithstanding that such individual
has
ceased to be so authorized prior to the authentication and delivery of such
Certificates or does not hold such office at the date of such
Certificates. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by or on behalf of the Trustee by the manual signature
of a
duly authorized signatory, and such certificate of authentication upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication except Bearer
Certificates which shall be dated the applicable New Issuance Date.
Section
6.2 Authentication
of Certificates. Contemporaneously with the initial assignment
and transfer of the Receivables, whether now existing or hereafter created
(other than Receivables in Additional Accounts) and the other components to
the
Trust, the Trustee shall authenticate and deliver the initial Series of Investor
Certificates, upon the written order of the Transferor, to the underwriters
for
the sale of the Book-Entry Certificates evidenced by such Investor Certificates,
and against payment to the Transferor of the Initial Investor Interest (net
of
any purchase or underwriting discount). Upon the receipt of such
payment and the issuance of the Investor Certificates, such Investor
Certificates shall be fully paid and
55
non-assessable. The
Trustee shall authenticate and deliver the Transferor Certificate to the
Transferor simultaneously with its delivery to the Transferor of the initial
Series of Investor Certificates. In connection with the New Issuance
as provided in Section 6.9 and the satisfaction of certain other conditions
specified therein, the Trustee shall authenticate and deliver the Investor
Certificates of additional Series (with the designation provided in the related
Supplement), upon the order of the Transferor, to the Persons designated in
such
Supplement. If specified in the related Supplement for any Series,
the Trustee shall authenticate and deliver outside the United States the Global
Certificate that is issued upon original issuance thereof, upon the written
order of the Transferor, to the Depository against payment of the purchase
price
therefor. If specified in the related Supplement for any Series, the
Trustee shall authenticate Book-Entry Certificates that are issued upon original
issuance thereof, upon the written order of the Transferor, to a Clearing Agency
or its nominee as provided in Section 6.10 against payment of the purchase
price
thereof.
Section
6.3 Registration
of Transfer and Exchange of Certificates.
(a) The
Trustee shall cause to be kept at the office or agency to be maintained by
a
transfer agent and registrar (the “Transfer Agent and Registrar”), in
accordance with the provisions of Section 11.16, a register (the “Certificate
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Transfer Agent and Registrar shall provide for the registration
of the Investor Certificates of each Series (unless otherwise provided in the
related Supplement) and of transfers and exchanges of the Investor Certificates
as herein provided. The Bank of New York is hereby initially
appointed Transfer Agent and Registrar for the purposes of registering the
Investor Certificates and transfers and exchanges of the Investor Certificates
as herein provided. If any form of Investor Certificate is issued as
a Global Certificate, the Trustee may, or if and so long as any Series of
Investor Certificates are listed on the Luxembourg Stock Exchange and such
exchange shall so require, the Trustee shall appoint a co-transfer agent and
co-registrar in Luxembourg or another European city. Any reference in
this Agreement to the Transfer Agent and Registrar shall include any co-transfer
agent and co-registrar unless the context otherwise requires. The
Transfer Agent and Registrar shall be permitted to resign as Transfer Agent
and
Registrar upon 30 days’ written notice to the Servicer. In the event
that The Bank of New York or any successor shall no longer be the Transfer
Agent
and Registrar, the Trustee shall appoint a successor Transfer Agent and
Registrar.
Upon
surrender for registration of transfer of any Certificate at any office or
agency of the Transfer Agent and Registrar, the Transferor shall execute,
subject to the provisions of subsection 6.3(c), and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of like
aggregate Undivided Interests; provided, however that the
provisions of this paragraph shall not apply to Bearer
Certificates.
At
the option of an Investor Certificateholder, Investor Certificates may be
exchanged for other Investor Certificates of the same Series in authorized
denominations of like aggregate Undivided Interests, upon surrender of the
Investor Certificates to be exchanged at any such office or
agency. At the option of any Holder of Registered Certificates,
Registered Certificates may be exchanged for other Registered Certificates
of
the same Series in authorized
56
denominations
of like aggregate Undivided Interests in the Trust, upon surrender of the
Registered Certificates to be exchanged at any office or agency of the Transfer
Agent and Registrar maintained for such purpose. At the option of a
Bearer Certificateholder, subject to applicable laws and regulations (including
without limitation, the Bearer Rules), Bearer Certificates may be exchanged
for
other Bearer Certificates or Registered Certificates of the same Series in
authorized denominations of like aggregate Undivided Interests in the Trust,
in
the manner specified in the Supplement for such Series, upon surrender of the
Bearer Certificates to be exchanged at an office or agency of the Transfer
Agent
and Registrar located outside the United States. Each Bearer
Certificate surrendered pursuant to this Section 6.3 shall have attached thereto
(or be accompanied by) all unmatured Coupons, provided that any Bearer
Certificate so surrendered after the close of business on the Record Date
preceding the relevant Distribution Date after the related Series Termination
Date need not have attached the coupons relating to such Distribution
Date.
Whenever
any Investor Certificates of any Series are so surrendered for exchange, the
Transferor shall execute, and the Trustee shall authenticate and (unless the
Transfer Agent and Registrar is different from the Trustee, in which case the
Transfer Agent and Registrar shall) deliver, the Investor Certificates of such
Series which the Certificateholder making the exchange is entitled to
receive. Every Investor Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in a form satisfactory to the Trustee and the Transfer
Agent and Registrar duly executed by the Certificateholder thereof or his
attorney-in-fact duly authorized in writing.
The
preceding provisions of this Section 6.3 notwithstanding, the Trustee or the
Transfer Agent and Registrar, as the case may be, shall not be required to
register the transfer of or exchange any Investor Certificate of any Series
for
a period of 15 days preceding the due date for any payment with respect to
the
Investor Certificates of such Series.
Unless
otherwise provided in the related Supplement, no service charge shall be made
for any registration of transfer or exchange of Certificates, but the Transfer
Agent and Registrar may require payment of a sum sufficient to cover any tax
or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
All
Investor Certificates (together with any Coupons attached to Bearer
Certificates) surrendered for registration of transfer and exchange shall be
canceled by the Transfer Agent and Registrar and disposed of in a manner
satisfactory to the Trustee. The Trustee shall cancel and destroy any
Global Certificates upon the exchange thereof in full for Definitive
Certificates and shall deliver a certificate of destruction to the
Transferor. Such certificate shall also state that a certificate or
certificates of each Foreign Clearing Agency to the effect referred to in
Section 6.12 was received with respect to each portion of such Global
Certificate exchanged for Definitive Certificates.
The
Transferor shall execute and deliver to the Trustee or the Transfer Agent and
Registrar, as applicable, Bearer Certificates and Registered Certificates in
such amounts and at such times as are necessary to enable the Trustee to fulfill
its responsibilities under this Agreement and the Certificates.
57
(b) Except
as provided in Section 6.9 or 7.2 or in any Supplement, in no event shall the
Transferor Certificate or any interest therein, or, as the case may be, the
uncertificated interest in the Transferor Interest or any interest therein,
be
transferred hereunder, in whole or in part, unless the Transferor shall have
consented in writing to such transfer and the Trustee shall have received a
Tax
Opinion with respect to such transfer (a copy of which shall be provided to
the
Rating Agencies).
(c) Unless
otherwise provided in the related Supplement, registration of transfer of
Registered Certificates containing a legend relating to the restrictions on
transfer of such Registered Certificates (which legend shall be set forth in
the
Supplement relating to such Investor Certificates) shall be effected only if
the
conditions set forth in such related Supplement are satisfied.
Whenever
a Registered Certificate containing the legend sat forth in the related
Supplement is presented to the Transfer Agent and Registrar for registration
of
transfer, the Transfer Agent and Registrar shall promptly seek instructions
from
the Servicer regarding such transfer. The Transfer Agent and
Registrar and the Trustee shall be entitled to receive written instructions
signed by a Servicing Officer prior to registering any such transfer or
authenticating new Registered Certificates, as the case may be. The
Servicer hereby agrees to indemnify the Transfer Agent and Registrar and the
Trustee and to hold each of them harmless against any loss, liability or expense
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by them in reliance on any such written
instructions furnished pursuant to this subsection 6.3(c).
(d) The
Transfer Agent and Registrar will maintain at its expense in the Borough of
Manhattan, the City of New York (and subject to this Section 6.3, if specified
in the related Supplement for any Series, any other city designated in such
Supplement) an office or offices or an agency or agencies where Investor
Certificates of such Series may be surrendered for registration of transfer
or
exchange.
Section
6.4 Mutilated,
Destroyed, Lost or Stolen Certificates. If (a) any mutilated
Certificate (together, in the case of Bearer Certificates, with all unmatured
Coupons, if any, appertaining thereto) is surrendered to the Transfer Agent
and
Registrar, or the Transfer Agent and Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b) there
is delivered to the Transfer Agent and Registrar and the Trustee such security
or indemnity as may be reasonably required by them to save each of them
harmless, then, in the absence of notice to the Trustee that such Certificate
has been acquired by a bona fide purchaser, the Transferor shall execute and
the
Trustee shall authenticate and (unless the Transfer Agent and Registrar is
different from the Trustee, in which case the Transfer Agent and Registrar
shall) deliver (in compliance with applicable law), in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and aggregate Undivided Interest. In connection with
the issuance of any new Certificate under this Section 6.4, the Trustee or
the
Transfer Agent and Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Transfer Agent and Registrar) connected therewith. Any
duplicate Certificate issued pursuant to this Section 6.4
58
shall
constitute complete and indefeasible evidence of ownership in the Trust, as
if
originally issued, whether or not the lost, stolen or destroyed certificate
shall be found at any time.
Section
6.5 Persons
Deemed Owners. Prior to due presentation of a Certificate for
registration of transfer, the Trustee, the Paying Agent, the Transfer Agent
and
Registrar and any agent of any of them may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions pursuant to Article V (as described in any Supplement)
and for all other purposes whatsoever, and neither the Trustee, the Paying
Agent, the Transfer Agent and Registrar nor any agent of any of them shall
be
affected by any notice to the contrary; provided, however, that in determining
whether the holders of Investor Certificates evidencing the requisite Undivided
Interests have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, unless otherwise expressly specified herein or
in
the related Supplement, Investor Certificates owned by the Transferor, the
Servicer or any Affiliate thereof shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Investor Certificates which a Responsible Officer in
the
Corporate Trust Office of the Trustee knows to be so owned shall be so
disregarded. Investor Certificates so owned that have been pledged in
good faith shall not be disregarded as outstanding, if the pledgee establishes
to the satisfaction of the Trustee the pledgee’s right so to act with respect to
such Investor Certificates and that the pledgee is not the Transferor, the
Servicer or an Affiliate thereof.
In
the case of a Bearer Certificate, the Trustee, the Paying Agent, the Transfer
Agent and Registrar and any agent of any of them may treat the holder of a
Bearer Certificate or Coupon as the owner of such Bearer Certificate or Coupon
for the purpose of receiving distributions pursuant to Article IV and Article
XII and for all other purposes whatsoever, and neither the Trustee, the Paying
Agent, the Transfer Agent and Registrar nor any agent of any of them shall
be
affected by any notice to the contrary. Certificates so owned which
have been pledged in good faith shall not be disregarded and may be regarded
as
outstanding, if the pledgee establishes to the satisfaction of the Trustee
the
pledgee’s right so to act with respect to such Investor Certificates and that
the pledgee is not the Transferor, the Servicer or an Affiliate
thereof.
Section
6.6 Appointment
of Paying Agent.
(a) The
Paying Agent shall make distributions to Investor Certificateholders from the
appropriate account or accounts maintained for the benefit of Certificateholders
as specified in this Agreement or the related Supplement for any Series pursuant
to Articles IV and V (as described in the related Supplement). Any
Paying Agent shall have the revocable power to withdraw funds from such
appropriate account or accounts for the purpose of making distributions referred
to above. The Trustee (or the Servicer if the Trustee is the Paying
Agent) may revoke such power and remove the Paying Agent, if the Trustee (or
the
Servicer if the Trustee is the Paying Agent) determines in its sole discretion
that the Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect or for other good cause. The
Trustee (or the Servicer if the Trustee is the Paying Agent) shall notify the
Rating Agency of the removal of any Paying Agent. The Paying Agent,
unless the Supplement with respect to any Series states otherwise, shall be
the
59
Trustee. If
any form of Investor Certificate is issued as a Global Certificate, or if and
so
long as any Series of Investor Certificates are listed on the Luxembourg Stock
Exchange and such exchange shall so require, the Trustee shall appoint a
co-paying agent in Luxembourg or another European city. The Paying
Agent shall be permitted to resign as Paying Agent upon 30 days’ written notice
to the Servicer. In the event that any Paying Agent shall no longer
be the Paying Agent, the Trustee shall appoint a successor to act as Paying
Agent (which shall be a bank or trust company). The provisions of
Sections 11.1, 11.2 and 11.3 shall apply to the Trustee also in the capacity
of
Paying Agent, for so long as the Trustee shall act as Paying
Agent. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
If
specified in the related Supplement for any Series, so long as the Investor
Certificates of such Series are outstanding, the Transferor shall maintain
a
co-paying agent in New York City (for Registered Certificates only) or any
other
city designated in such Supplement which, if and so long as any Series of
Investor Certificates is listed on the Luxembourg Stock Exchange or other stock
exchange and such exchange so requires, shall be in Luxembourg or the location
required by such other stock exchange.
(b) The
Trustee shall cause the Paying Agent (other than itself) to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee that such Paying Agent will hold all sums, if any, held by it for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall agree, and if the Trustee is the Paying Agent
it
hereby agrees, that it shall comply with all requirements of the Internal
Revenue Code regarding the withholding by the Trustee of payments in respect
of
federal income taxes due from Certificate Owners.
Section
6.7 Access
to List of Certificateholders’ Names and Addresses. The Trustee
will furnish or cause to be furnished by the Transfer Agent and Registrar to
the
Servicer or the Paying Agent, within five Business Days after receipt by the
Trustee of a request therefor from the Servicer or the Paying Agent,
respectively, in writing, a list in such form as the Servicer or the Paying
Agent may reasonably require, of the names and addresses of the Investor
Certificateholders as of the most recent Record Date for payment of
distributions to Investor Certificateholders. Unless otherwise
provided in the related Supplement, holders of Investor Certificates evidencing
Undivided Interests aggregating not less than 10% of the Investor Interest
of
the Investor Certificates of any Series (the “Applicants”) may apply in writing
to the Trustee, and if such application states that the Applicants desire to
communicate with other Investor Certificateholders of any Series with respect
to
their rights under this Agreement or under the Investor Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee, after having been adequately indemnified by such
Applicants for its costs and expenses, shall afford or shall cause the Transfer
Agent and Registrar to afford such Applicants access during normal business
hours to the most recent list of Certificateholders held by the Trustee or
the
Transfer Agent and Registrar and shall give the Servicer notice that such
request has been made, within five Business Days after the receipt of such
application. Such list shall be as of a date no more than 45 days
prior to the date of receipt of such Applicants’ request. Every
Certificateholder, by receiving and holding a Certificate, agrees with the
Trustee that neither the Trustee, the Transfer Agent and Registrar, nor any
of
60
their
respective agents shall be held accountable by reason of the disclosure of
any
such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was
obtained.
Section
6.8 Authenticating
Agent.
(a) The
Trustee may appoint one or more authenticating agents with respect to the
Certificates which shall be authorized to act on behalf of the Trustee in
authenticating the Certificates in connection with the issuance, delivery,
registration of transfer, exchange or repayment of the
Certificates. Whenever reference is made in this Agreement to the
authentication of Certificates by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an authenticating
agent. Each authenticating agent must be acceptable to the
Transferor.
(b) Any
institution succeeding to the corporate agency business of an authenticating
agent shall continue to be an authenticating agent without the execution or
filing of any paper or any further act on the part of the Trustee or such
authenticating agent.
(c) An
authenticating agent may at any time resign by giving written notice of
resignation to the Trustee and to the Transferor. The Trustee may at
any time terminate the agency of an authenticating agent by giving notice of
termination to such authenticating agent and to the Transferor. Upon
receiving such a notice of resignation or upon such a termination, or in case
at
any time an authenticating agent shall cease to be acceptable to the Trustee
or
the Transferor, the Trustee promptly may appoint a successor authenticating
agent. Any successor authenticating agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
authenticating agent. No successor authenticating agent shall be
appointed unless acceptable to the Trustee and the Transferor.
(d) The
Trustee agrees to pay each authenticating agent from time to time reasonable
compensation for its services under this Section 6.8, and the Trustee shall
be
entitled to be reimbursed and the Servicer shall reimburse the Trustee for
such
reasonable payments actually made, subject to the provisions of Section
11.5.
(e) The
provisions of Sections 11.1, 11.2 and 11.3 shall be applicable to any
authenticating agent.
(f) Pursuant
to an appointment made under this Section 6.8, the Certificates may have
endorsed thereon, in lieu of the Trustee’s certificate of authentication, an
alternate certificate of authentication in substantially the following
form:
61
This
is one of the certificates described in the Pooling and Servicing
Agreement.
______________________________,
as
Authenticating Agent
for
the Trustee
By:___________________________
Authorized
signatory
Section
6.9 New
Issuances.
(a) Upon
the issuance of Investor Certificates of a new Series, the Trustee shall issue
to the Holder of the Transferor Certificate under Section 6.1, for execution
and
redelivery to the Trustee for authentication under Section 6.2, Investor
Certificates of such Series. Each Investor Certificate of any such
Series shall be substantially in the form specified in the related Supplement
and shall bear upon its face the designation for such Series to which it
belongs, as selected by the Transferor. Except as specified in any
Supplement for a related Series, all Investor Certificates of any Series shall
rank paripassu and be equally and ratably entitled as provided
herein to the benefits hereof (except that the Credit Enhancement provided
for
any Series shall not be available for any other Series) without preference,
priority or distinction on account of the actual time or times of authentication
and delivery, all in accordance with the terms and provisions of this Agreement
and the related Supplement.
(b) The
Holder of the Transferor Certificate may permit Investor Certificates of one
or
more new Series to be issued (each, a “New Issuance”) by notifying the
Trustee in writing at least three days in advance (a “New Issuance
Notice”) of the date upon which the New Issuance is to occur (a “New
Issuance Date”). Any New Issuance Notice shall state the
designation of any Series (and Class thereof, if applicable) to be issued on
the
New Issuance Date and, with respect to each such Series: (i) its
Initial Investor Interest (or the method for calculating such Initial Investor
Interest), (ii) its Certificate Rate (or the method for allocating interest
payments or other cash flows to such Series), if any, and (iii) the Credit
Enhancement Provider, if any, with respect to such Series. On the New
Issuance Date, the Trustee shall authenticate and deliver the Investor
Certificates of any such Series only upon delivery to it of the
following: (A) a Supplement satisfying the criteria set forth in
subsection 6.9(c) executed by the Transferor and specifying the Principal Terms
of such Series, (B) the applicable Credit Enhancement, if any, (C) the
agreement, if any, pursuant to which the Credit Enhancement Provider agrees
to
provide any Credit Enhancement, (D) an Opinion of Counsel to the effect that,
unless otherwise stated in the related Supplement, the Investor Certificates
of
the newly issued Series or Class of Investor Certificates will be treated as
debt for United States federal income and Delaware state income and corporate
franchise tax purposes, (E) a Tax Opinion with respect to the issuance of such
Series, (F) written confirmation from each Rating Agency that the New Issuance
will satisfy the Rating Agency Condition, and (G) an Officer’s Certificate
signed by a Vice President (or any more senior officer) of the Transferor,
that
on the New Issuance Date (x) the Transferor, after giving effect to such New
Issuance, would not be required to add Additional Accounts pursuant to
subsection 2.6(a) and (y) after giving effect to such New Issuance, the
Transferor Interest would be at least equal to the
62
Minimum
Transferor Interest. Upon satisfaction of such conditions, the
Trustee shall issue the Investor Certificates of such Series and, if there
is a
currently existing Transferor Certificate, upon presentation of such Transferor
Certificate to the Trustee for cancellation, a new Transferor Certificate,
if
applicable, dated the New Issuance Date, as provided above. There is
no limit to the number of New Issuances that may be performed under this
Agreement.
(c) In
conjunction with a New Issuance, the parties hereto shall execute a Supplement,
which shall specify the relevant terms with respect to the Investor Certificates
of any newly issued Series, which may include without limitation: (i)
its name or designation, (ii) the Initial Investor Interest or the method of
calculating the Initial Investor Interest, (iii) the method of determining
any
adjusted Investor Interest, if applicable, (iv) the Certificate Rate (or formula
for the determination thereof), (v) the Closing Date, (vi) each Rating Agency
rating such Series, (vii) the name of the Clearing Agency, if any, (viii) the
rights of the Holder of the Transferor Certificate that have been transferred
to
the Holders of such Series pursuant to such New Issuance (including any rights
to allocations of Collections of Finance Charge Receivables and Principal
Receivables), (ix) the interest payment date or dates and the date or dates
from
which interest shall accrue, (x) the periods during which or dates on which
principal will be paid or accrued, (xi) the method of allocating Collections
with respect to Principal Receivables for such Series and, if applicable, with
respect to other Series, the method by which the principal amount of Investor
Certificates of such Series shall amortize or accrete and the method for
allocating Collections with respect to Finance Charge Receivables and
Receivables in Defaulted Accounts, (xii) any other Collections with respect
to
Receivables or other amounts available to be paid with respect to such Series,
(xiii) the names of any accounts to be used by such Series and the terms
governing the operation of any such account and use of moneys therein, (xiv)
the
Servicing Fee and the Series Servicing Fee Percentage, (xv) the Minimum
Transferor Interest and the Series Termination Date, (xvi) the terms of any
Credit Enhancement with respect to such Series and the Credit Enhancement
Provider, if applicable, (xvii) the Base Rate applicable to such Series, (xviii)
the terms on which the Certificates of such Series may be repurchased or
remarketed to other investors, (xix) any deposit into any account provided
for
such Series, (xx) the number of Classes of such Series and, if more than one
Class, the rights and priorities of each such Class, (xxi) whether Interchange
or other fees will be included in the funds available to be paid for such
Series, (xxii) the priority of any Series with respect to any other Series,
(xxiii) the Minimum Aggregate Principal Receivables, (xxiv) whether such Series
will be part of a Group, (xxv) whether such Series will or may be a Companion
Series and the Series with which it will be paired, if applicable, and (xxvi)
any other relevant terms of such Series (including whether or not such Series
will be pledged as collateral for an issuance of any other securities, including
commercial paper) (all such terms, the “Principal Terms” of such
Series). The terms of such Supplement may modify or amend the terms
of this Agreement solely as applied to such new Series. If on the
date of the issuance of such Series there is issued and outstanding one or
more
Series of Investor Certificates and no Series of Investor Certificates is
currently rated by a Rating Agency, then as a condition to such New Issuance
a
nationally recognized investment banking firm or commercial bank shall also
deliver to the Trustee an officer’s certificate stating, in substance, that the
New Issuance will not have an adverse effect on the timing or distribution
of
payments to the Investor Certificates of such other Series then issued and
outstanding.
63
Section
6.10 Book-Entry
Certificates. Unless otherwise provided in any related
Supplement, the Investor Certificates, upon original issuance, shall be issued
in the form of typewritten Certificates representing the Book-Entry
Certificates, to be delivered to the depository specified in such Supplement
(the “Depository”) which shall be the Clearing Agency or Foreign Clearing
Agency, by or on behalf of such Series. The Investor Certificates of
each Series shall, unless otherwise provided in the related Supplement,
initially be registered on the Certificate Register in the name of the nominee
of the Clearing Agency or Foreign Clearing Agency. No Certificate
Owner will receive a definitive certificate representing such Certificate
Owner’s interest in the related Series of Investor Certificates, except as
provided in Section 6.12. Unless and until definitive, fully registered Investor
Certificates of any Series (“Definitive Certificates”) have been issued to
Certificate Owners pursuant to Section 6.12:
(i) the
provisions of this Section 6.10 shall be in full force and effect with respect
to each such Series;
(ii) the
Transferor, the Servicer, the Paying Agent, the Transfer Agent and Registrar
and
the Trustee may deal with the Clearing Agency and the Clearing Agency
Participants for all purposes (including the making of distributions on the
Investor Certificates of each such Series) as the authorized representatives
of
the Certificate Owners;
(iii) to
the extent that the provisions of this Section 6.10 conflict with any other
provisions of this Agreement, the provisions of this Section 6.10 shall control
with respect to each such Series; and
(iv) the
rights of Certificate Owners of each such Series shall be exercised only through
the Clearing Agency or Foreign Clearing Agency and the applicable Clearing
Agency Participants and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency or Foreign
Clearing Agency and/or the Clearing Agency Participants. Pursuant to
the Depository Agreement applicable to a Series, unless and until Definitive
Certificates of such Series are issued pursuant to Section 6.12, the initial
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of principal and interest
on
the Investor Certificates to such Clearing Agency Participants.
Section
6.11 Notices
to Clearing Agency. Whenever notice or other communication to the
Certificateholders is required under this Agreement, unless and until Definitive
Certificates shall have been issued to Certificate Owners pursuant to Section
6.12, the Trustee shall give all such notices and communications specified
herein to be given to Holders of the Investor Certificates to the Clearing
Agency or Foreign Clearing Agency for distribution to Holders of Investor
Certificates.
Section
6.12 Definitive
Certificates. If (i) (A) the Transferor advises the Trustee in
writing that the Clearing Agency or Foreign Clearing Agency is no longer willing
or able to discharge properly its responsibilities under the applicable
Depository Agreement, and (B) the Trustee or the Transferor is unable to locate
a qualified successor, (ii) the Transferor, at its
64
option,
advises the Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency or Foreign Clearing Agency with respect to any
Series of Certificates or (iii) after the occurrence of a Servicer Default,
Certificate Owners of a Series representing beneficial interests aggregating
not
less than 50% of the Investor Interest of such Series advise the Trustee and
the
applicable Clearing Agency or Foreign Clearing Agency through the applicable
Clearing Agency Participants in writing that the continuation of a book-entry
system through the applicable Clearing Agency or Foreign Clearing Agency is
no
longer in the best interests of the Certificate Owners, the Trustee shall notify
all Certificate Owners of such Series, through the applicable Clearing Agency
Participants, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners of such Series requesting the
same. Upon surrender to the Trustee of the Investor Certificates of
such Series by the applicable Clearing Agency or Foreign Clearing Agency,
accompanied by registration instructions from the applicable Clearing Agency
or
Foreign Clearing Agency for registration, the Trustee shall issue the Definitive
Certificates of such Series. Neither the Transferor nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates of such
Series all references herein to obligations imposed upon or to be performed
by
the applicable Clearing Agency or Foreign Clearing Agency shall be deemed to
be
imposed upon and performed by the Trustee, to the extent applicable with respect
to such Definitive Certificates, and the Trustee shall recognize the Holders
of
the Definitive Certificates of such Series as Certificateholders of such Series
hereunder.
Section
6.13 Global
Certificate. If specified in the related Supplement for any
Series, the Investor Certificates may be initially issued in the form of a
single temporary Global Certificate (the “Global Certificate”) in bearer form,
without interest coupons, in the denomination of the Initial Investor Interest
and substantially in the form attached to the related
Supplement. Unless otherwise specified in the related Supplement, the
provisions of this Section 6.13 shall apply to such Global
Certificate. The Global Certificate will be authenticated by the
Trustee upon the same conditions, in substantially the same manner and with
the
same effect as the Definitive Certificates. The Global Certificate
may be exchanged in the manner described in the related Supplement for
Registered or Bearer Certificates in definitive form.
Section
6.14 Meetings
of Certificateholders. To the extent provided by the
Supplement for any Series issued in whole or in part in Bearer Certificates,
the
Servicer or the Trustee may at any time call a meeting of the Certificateholders
of such Series, to be held at such time and at such place as the Servicer or
the
Trustee, as the case may be, shall determine, for the purpose of approving
a
modification of or amendment to, or obtaining a waiver of, any covenant or
condition set forth in this Agreement with respect to such Series or in the
Certificates of such Series, subject to Section 13.1 of this
Agreement.
[End
of Article VI]
65
ARTICLE
VII
OTHER
MATTERS RELATING
TO
THE TRANSFEROR
Section
7.1 Liability
of the Transferor. The Transferor shall be liable in accordance
herewith to the extent of the obligations specifically undertaken by the
Transferor.
Section
7.2 Merger
or Consolidation of, or Assumption of the Obligations of, the
Transferor.
(a) The
Transferor shall not consolidate with or merge into any other corporation or
convey or transfer its properties and assets substantially as an entirety to
any
Person, unless:
(i) (A)
the Transferor is the surviving entity or (B) if the Transferor is not the
surviving entity, the corporation formed by such consolidation or into which
the
Transferor is merged or the Person which acquires by conveyance or transfer
the
properties and assets of the Transferor substantially as an entirety shall
be
organized and existing under the laws of the United States of America or any
state thereof or the District of Columbia, and shall be a national banking
association, state banking corporation or other entity which is not subject
to
the bankruptcy laws of the United States of America and shall expressly assume,
by an agreement supplemental hereto, executed and delivered to the Trustee,
in
form satisfactory to the Trustee, the performance of every covenant and
obligation of the Transferor, as applicable hereunder and shall benefit from
all
the rights granted to the Transferor, as applicable hereunder. To the
extent that any right, covenant or obligation of the 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. In
furtherance hereof, in applying this Section 7.2 to a successor entity, Section
9.2 hereof shall be applied by reference to events of involuntary liquidation,
receivership or conservatorship applicable to such successor entity as shall
be
set forth in the Officer’s Certificate described in subsection
7.2(a)(ii);
(ii) the
Transferor shall have delivered to the Trustee an Officer’s Certificate signed
by a Vice President (or any more senior officer) of the Transferor stating
that
such consolidation, merger, conveyance or transfer and such supplemental
agreement comply with this Section 7.2 and that all conditions precedent herein
provided for relating to such transaction have been complied with and an Opinion
of Counsel that such supplemental agreement is legal, valid and binding with
respect to the Transferor; and
66
(iii) the
Transferor shall have delivered notice to the Rating Agency of such
consolidation, merger, conveyance or transfer.
(b) The
obligations of the Transferor hereunder shall not be assignable nor shall any
Person succeed to the obligations of the Transferor hereunder (i) except for
mergers, consolidations, assumptions or transfers in accordance with the
provisions of the foregoing paragraph or (ii) unless the assignee with respect
to such obligations shall be organized and existing under the laws of the United
States of America or any state thereof or the District of Columbia, and shall
be
a national banking association, state banking corporation or other entity which
is not subject to the bankruptcy laws of the United States of America and shall
expressly assume, by an agreement supplemental hereto, executed and delivered
to
the Trustee, in form satisfactory to the Trustee, the performance of every
covenant and obligation of the Transferor, as applicable hereunder and shall
benefit from all the rights granted to the Transferor, as applicable
hereunder. To the extent that any right, covenant or obligation of
the Transferor, as applicable hereunder, is inapplicable to the assignee, such
assignee shall be subject to such covenant or obligation, or benefit from such
right, as would apply, to the extent practicable, to such assignee.
Section
7.3 Limitation
of Liability. The directors, officers, employees or agents of the
Transferor shall not be under any liability to the Trust, the Trustee, the
Certificateholders, any Credit Enhancement Provider or any other Person
hereunder or pursuant to any document delivered hereunder, it being expressly
understood that all such liability is expressly waived and released as a
condition of, and as consideration for, the execution of this Agreement and
any
Supplement and the issuance of the Certificates; provided, however, that this
provision shall not protect the officers, directors, employees, or agents of
the
Transferor against any liability which would otherwise be imposed by reason
of
willful misfeasance or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties
hereunder. Except as provided in Section 7.4, the Transferor shall
not be under any liability to the Trust, the Trustee, the Certificateholders,
any Credit Enhancement Provider or any other Person for any action taken or
for
refraining from the taking of any action in its capacity as Transferor pursuant
to this Agreement or any Supplement whether arising from express or implied
duties under this Agreement or any Supplement; provided, however, that this
provision shall not protect the Transferor against any liability which would
otherwise be imposed by reason of willful misfeasance or gross negligence in
the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Transferor and any director, officer, employee
or agent may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder.
Section
7.4 Liabilities. Notwithstanding
Section 7.3 (and notwithstanding Sections 3.2, 8.3, 8.4 and 11.11), or any
other
provision herein, the Transferor by entering into this Agreement, any Holder
of
the Transferor Certificate and any holder of an interest in the Transferor
Interest by its acceptance thereof, agree to be liable, directly to any creditor
or claimant for the entire amount of any liabilities, including without
limitation, any taxes imposed on the Trust, losses, claims or damages (other
than those that would be incurred by an Investor Certificateholder or a Credit
Enhancement Provider, if any, if the Investor Certificates or Collateral
Interest, as the case may be, were notes secured by the Receivables, for
example, as a result of the performance of the Receivables, market fluctuations,
a shortfall or failure to make
67
payment
under any Credit Enhancement or other similar market or investment risks
associated with ownership of the Investor Certificates) arising out of or based
on the arrangement created by this Agreement (to the extent that, if the Trust
assets at the time the claim is made were used to pay in full all outstanding
Certificates of all Series, the Trust assets that would remain after the
Investor Certificateholders and Credit Enhancement Providers, if any, were
paid
in full would be insufficient to pay any such losses, claims, damages or
liabilities) as though this Agreement created a partnership under the New York
Revised Limited Partnership Act in which the Transferor, the holder of the
Transferor Certificate and such holder of an interest in the Transferor
Certificate were the general partners of such partnership. The rights
created by this Section 7.4 shall run directly to and be enforceable by the
injured party subject to the limitations hereof. To the extent
provided in Section 8.4, the Servicer will (from its own assets and not from
the
assets of the Trust) indemnify and hold harmless the Transferor and each holder
of an interest in the Transferor Interest against and from certain losses,
claims, damages and liabilities of the Transferor as described in this Section
arising from the actions or omissions of the Servicer.
[End
of Article VII]
68
ARTICLE
VIII
OTHER
MATTERS RELATING
TO
THE SERVICER
Section
8.1 Liability
of the Servicer. The Servicer shall be liable in accordance
herewith only to the extent of the obligations specifically undertaken by the
Servicer in such capacity herein.
Section
8.2 Merger
or Consolidation of, or Assumption of the Obligations of, the
Servicer. The Servicer shall not consolidate with or merge into
any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) (A)
the Servicer is the surviving entity or (B) if the Servicer is not the surviving
entity, 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 a corporation
organized and existing under the laws of the United States of America or any
state thereof or the District of Columbia, and shall be a state banking
corporation or national banking association or other entity which is not subject
to the bankruptcy laws of the United States of America and shall expressly
assume, by an agreement supplemental hereto, executed and delivered to the
Trustee in form satisfactory to the Trustee, 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 shall have delivered to the Trustee an Officer’s Certificate that such
consolidation, merger, conveyance or transfer and such supplemental agreement
comply with this Section 8.2 and that all conditions precedent herein provided
for relating to such transaction have been complied with and an Opinion of
Counsel that such supplemental agreement is legal, valid and binding with
respect to the Servicer; and
(iii) the
Servicer shall have delivered notice to the Rating Agency of such consolidation,
merger, conveyance or transfer.
Section
8.3 Limitation
of Liability of the Servicer and Others. The directors, officers,
employees or agents of the Servicer shall not be under any liability to the
Trust, the Trustee, the Certificateholders, any Credit Enhancement Provider
or
any other Person hereunder or pursuant to any document delivered hereunder,
it
being expressly understood that all such liability is expressly waived and
released as a condition of, and as consideration for, the execution of this
Agreement and any Supplement and the issuance of the Certificates;
provided,
69
however,
that this provision shall not protect the directors, officers, employees and
agents of the Servicer against any liability which would otherwise be imposed
by
reason of willful misfeasance or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties
hereunder. Except as provided in Section 8.4 with respect to the
Trust and the Trustee, its officers, directors, employees and agents, the
Servicer shall not be under any liability to the Trust, the Trustee, its
officers, directors, employees and agents, the Certificateholders or any other
Person for any action taken or for refraining from the taking of any action
in
its capacity as Servicer pursuant to this Agreement or any Supplement; provided,
however, that this provision shall not protect the Servicer against any
liability which would otherwise be imposed by reason of willful misfeasance
or
gross negligence in the performance of duties or by reason of its reckless
disregard of its obligations and duties hereunder or under any
Supplement. The Servicer may rely in good faith on any document of
any kind prima facie properly executed and submitted by any Person 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 to service the Receivables in accordance with this
Agreement which in its reasonable opinion may cause it to incur any expense
or
liability.
Section
8.4 Servicer
Indemnification of the Trust and the Trustee. The Servicer shall
indemnify and hold harmless the Trust and the Trustee, its officers, directors,
employees and agents, from and against any reasonable loss, liability, expense,
damage or injury suffered or sustained by reason of any acts or omissions or
alleged acts or omissions of the Servicer with respect to activities of the
Trust or the Trustee pursuant to this Agreement or any Supplement, 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 Trustee if such acts, omissions or alleged
acts
or omissions constitute or are caused by fraud, negligence, bad faith or willful
misconduct by the Trustee; provided, further, that the Servicer shall not
indemnify the Trust, the Investor Certificateholders or the Certificate Owners
for any liabilities, costs or expenses of the Trust with respect to any action
taken by the Trustee at the request of the Investor Certificateholders;
provided, further, that the Servicer shall not indemnify the Trust, the Investor
Certificateholders or the Certificate Owners as to any losses, claims or damages
incurred by any of them in their capacities as investors, including without
limitation losses incurred as a result of Defaulted Accounts or Receivables
which are written off as uncollectible; and provided, further, that the Servicer
shall not indemnify the Trust, the Investor Certificateholders or the
Certificate Owners for any liabilities, costs or expenses of the Trust, the
Investor Certificateholders or the Certificate Owners arising under any tax
law,
including without limitation, 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 Investor Certificateholders
or
the Certificate Owners in connection herewith to any taxing
authority. Any such indemnification shall not be payable from the
assets of the Trust. The provisions of this indemnity shall run
directly to and be enforceable by an injured party subject to the limitations
hereof. The provisions of this Section 8.4 shall survive termination
of this Agreement and the resignation or removal of the Trustee.
Section
8.5 The
Servicer Not to Resign. The Servicer shall not resign from the
obligations and duties hereby imposed on it except upon determination that
(i)
the
70
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. Any such determination permitting the resignation of the
Servicer shall be evidenced as to clause (i) above by an Opinion of Counsel
to
such effect delivered to the Trustee. No such resignation shall
become effective until the Trustee or a Successor Servicer shall have assumed
the responsibilities and obligations of the Servicer in accordance with Section
10.2 hereof. If the Trustee is unable within 120 days of the date of
such determination to appoint a Successor Servicer, the Trustee shall serve
as
Successor Servicer hereunder.
Section
8.6 Access
to Certain Documentation and Information Regarding the
Receivables. The Servicer shall provide to the Trustee access to
the documentation regarding the Accounts and the Receivables in such cases
where
the Trustee is required in connection with the enforcement of the rights of
the
Investor Certificateholders, or by applicable statutes or regulations to review
such documentation, such access being afforded without charge but only (i)
upon
reasonable request, (ii) during normal business hours, (iii) subject to the
Servicer’s normal security and confidentiality procedures and (iv) at offices
designated by the Servicer. Nothing in this Section 8.6 shall
derogate from the obligation of the Transferor, the Trustee or the Servicer
to
observe any applicable law prohibiting disclosure of information regarding
the
Obligors and the failure of the Servicer to provide access as provided in this
Section 8.6 as a result of such obligations shall not constitute a breach of
this Section 8.6.
Section
8.7 Delegation
of Duties. In the ordinary course of business, the Servicer may
at any time delegate any duties hereunder to any Person who agrees to conduct
such duties in accordance with the Credit Card Guidelines. Any such
delegations 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 8.5. If any such delegation is to a party other
than First Data Resources, Inc., a credit card processor located in Omaha,
Nebraska, Total Systems Services, Inc., a credit card processor located in
Georgia, or an Affiliate of the Servicer, notification thereof shall be given
to
each Rating Agency.
Section
8.8 Examination
of Records. The Servicer shall clearly and unambiguously identify
each Account (including any Additional Account designated pursuant to Section
2.6) in its computer or other records to reflect that the Receivables arising
in
such Account have been conveyed to the Trust pursuant to this
Agreement. The Servicer shall, prior to the sale or other transfer to
a third party of any receivable held in its custody, examine its computer and
other records to determine that such receivable is not a
Receivable.
[End
of Article VIII]
71
ARTICLE
IX
PAY
OUT EVENTS
Section
9.1 Pay
Out Events. If any one of the following events (each, a “Trust
Pay Out Event”) shall occur:
(a) (i)
a court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Transferor in an involuntary case under the Bankruptcy
Code or any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, which decree or order is not stayed, or any other similar
relief shall be granted under any applicable federal or state law, (ii) an
involuntary case is commenced against the Transferor under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect which
remains undismissed, undischarged or unbonded for a period of 60 days or (iii)
the Transferor shall have a decree or an order for relief entered with respect
to it or commence a voluntary case under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect;
(b) the
Transferor shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to all or substantially all
of
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 conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Transferor;
or
the Transferor shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its
creditors or voluntarily suspend payment of its obligations; or the Transferor
shall become unable for any reason to transfer Receivables to the Trust in
accordance with the provisions of this Agreement; or
(c) the
Trust shall become subject to regulation by the Commission as an “investment
company” within the meaning of the Investment Company Act;
then
a Pay Out Event with respect to all Series of Certificates shall occur without
any notice or other action on the part of the Trustee or the Investor
Certificateholders immediately upon the occurrence of such event.
Section
9.2 Additional
Rights Upon the Occurrence of Certain Events.
(a) If
any event set forth in subsection 9.1(a) or (b) shall occur (any such event,
an
“Insolvency Event”), the Transferor shall on the day of such Insolvency
Event (the “Appointment Day”) immediately cease to transfer Principal
Receivables to the Trust and shall promptly give notice to the Trustee of such
Insolvency Event and the arrangement among the parties created hereby shall
be
deemed to have been dissolved, subject to the liquidation and winding-up
procedures described below. Notwithstanding any cessation
of
72
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 and paid in
accordance with Article IV. Within 15 days of the Appointment Day,
the Trustee shall (i) publish a notice in an Authorized Newspaper that an
Insolvency Event has occurred and that the Trustee intends to sell, dispose
of
or otherwise liquidate the Receivables and (ii) send written notice to the
Investor Certificateholders describing the provisions of this Section 9.2 and
requesting instructions from such Holders. Unless within 75 days from
the day notice pursuant to clause (i) above is first published the Trustee
shall
have received written instructions from Holders of Investor Certificates
evidencing more than 50% of the Investor Interest of each Series issued and
outstanding (or, if any such Series has two or more Classes, each Class) to
the
effect that such Certificateholders disapprove of the liquidation of the
Receivables and wish to continue having Principal Receivables transferred to
the
Trust as before such Insolvency Event or violation, the Trustee shall use its
best efforts to sell, dispose of or otherwise liquidate the Receivables by
the
solicitation of competitive bids and on terms equivalent to the best purchase
offer as determined by the Trustee. None of the Transferor, any
Affiliate of the Transferor or any agent of the Transferor shall be permitted
to
purchase such Receivables in such case. The Trustee may obtain a
prior determination from any such conservator, receiver or liquidator that
the
terms and manner of any proposed sale, disposition or liquidation are
commercially reasonable. The provisions of Section 9.1 and this
Section 9.2 shall not be deemed to be mutually exclusive.
(b) The
proceeds from the sale, disposition or liquidation of the Receivables pursuant
to subsection 9.2(a) shall be treated as Collections on the Receivables and
shall be allocated and deposited in accordance with the provisions of Article
IV; provided, that the Trustee shall determine conclusively in its sole
discretion the amount of such proceeds which are allocable to Finance Charge
Receivables and the amount of such proceeds which are allocable to Principal
Receivables. On the day following the last Distribution Date in the
Monthly Period during which such proceeds are distributed to the Investor
Certificateholders of each Series, the Trust shall terminate.
(c) The
Trustee may appoint an agent or agents to assist with its responsibilities
pursuant to this Article IX with respect to competitive bids.
[End
of Article IX]
73
ARTICLE
X
SERVICER
DEFAULTS
Section
10.1 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
instructions or notice to the Trustee pursuant to Article IV or to instruct
the
Trustee to make any required drawing, withdrawal, or payment under any Credit
Enhancement on or before the date occurring ten Business Days after the date
such payment, transfer, deposit, withdrawal or drawing or such instruction
or
notice is required to be made or given, as the case may be, under the terms
of
this Agreement;
(b) failure
on the part of the Servicer duly to observe or perform in any respect any other
covenants or agreements of the Servicer set forth in this Agreement, which
has a
material adverse effect on the Investor Certificateholders of any Series 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 Trustee, or to the Servicer and the Trustee
by
the Holders of Investor Certificates evidencing Undivided Interests aggregating
not less than 50% of the Investor Interest of any Series adversely affected
thereby and continues to materially adversely affect such Investor
Certificateholders for such period; or the Servicer shall delegate its duties
under this Agreement, except as permitted by Section 8.7;
(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 a material adverse effect on the Investor
Certificateholders of any Series and which continues to be incorrect in any
material respect 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 Trustee, or to the Servicer and the Trustee by the Holders
of
Investor Certificates evidencing Undivided Interests aggregating not less than
50% of the Investor Interest of any Series adversely affected thereby and
continues to materially adversely affect such Investor Certificateholders for
such period; or
(d) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any 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 of 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 conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for 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
74
insolvency
or reorganization statute, make any assignment for the benefit of its creditors
or voluntarily suspend payment of its obligations; then, so long as such
Servicer Default shall not have been remedied, either the Trustee, or the
Holders of Investor Certificates evidencing Undivided Interests aggregating
more
than 50% of the Aggregate Investor Interest, by notice then given in writing
to
the Servicer (and to the Trustee if given by the Investor Certificateholders)
(a
“Termination Notice”), may terminate all of the rights and obligations of
the Servicer as Servicer under this Agreement. After receipt by the
Servicer of such Termination Notice, and on the date that a Successor Servicer
shall have been appointed by the Trustee pursuant to Section 10.2, all authority
and power of the Servicer under this Agreement shall pass to and be vested
in a
Successor Servicer; and, without limitation, the 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 transfer
of
servicing rights and obligations. The Servicer agrees to cooperate
with the Trustee and such Successor Servicer in effecting the termination of
the
responsibilities and rights of the Servicer to conduct servicing hereunder
including, without limitation, the transfer to such Successor Servicer of all
authority of the Servicer to service the Receivables provided for under this
Agreement, including, without limitation, 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, the
Finance Charge Account, the Principal Account, the Excess Funding Account and
any Series Account, or which shall thereafter be received with respect to the
Receivables, 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 promptly 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
Receivables in the manner and at such times as the Successor Servicer shall
reasonably request. To the extent that compliance with this Section
10.1 shall require the Servicer to disclose to the Successor Servicer
information of any kind which the Servicer reasonably deems to be confidential,
the Successor Servicer shall be required to enter into such customary licensing
and confidentiality agreements as the Servicer shall deem necessary to protect
its interests. The Servicer shall, on the date of any servicing
transfer, transfer all of its rights and obligations under the Credit
Enhancement with respect to any Series to the Successor Servicer.
Notwithstanding
the foregoing, a delay in or failure of performance referred to in subsection
10.1(a) for a period of 10 Business Days or in subsection 10.1(b) or (c) for
a
period of 60 days, 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, riot
or
sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes,
earthquakes, nuclear disasters or meltdowns, floods, power outages or similar
causes. The preceding sentence shall not relieve the Servicer from
using its best efforts to perform its obligations in a timely manner in
accordance with the terms of this Agreement and the Servicer shall provide
the
Trustee, any Credit Enhancement Provider, the Transferor and the Holders of
Investor
75
Certificates
with an Officer’s Certificate giving prompt notice of such failure or delay by
it, together with a description of the cause of such failure or delay and its
efforts so to perform its obligations.
Section
10.2 Trustee
to Act; Appointment of Successor.
(a) On
and after the receipt by the Servicer of a Termination Notice pursuant to
Section 10.1, 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 Trustee in writing or, if no such date is specified
in such Termination Notice, or otherwise specified by the Trustee, until a
date
mutually agreed upon by the Servicer and the Trustee. The Trustee
shall notify each Rating Agency of such removal of the Servicer. The
Trustee shall, as promptly as possible after the giving of a Termination Notice,
appoint a successor Servicer (the “Successor Servicer”), and such
Successor Servicer shall accept its appointment by a written assumption in
a
form acceptable to the Trustee. The Trustee may obtain bids from any
potential successor Servicer. If the Trustee is unable to obtain any
bids from any potential successor Servicer and the Servicer delivers an
Officer’s Certificate to the effect that the Servicer cannot in good faith cure
the Servicer Default which gave rise to a transfer of servicing, and if the
Trustee is legally unable to act as Successor Servicer, then the Trustee shall
(i) notify each Credit Enhancement Provider of the proposed sale of the
Receivables and shall provide each such Credit Enhancement Provider an
opportunity to bid on the Receivables and (ii) use its best efforts to sell,
dispose of or otherwise liquidate the Receivables by the solicitation of
competitive bids and on terms equivalent to the best purchase offer as
determined by the Trustee. None of the Transferor, any Affiliate of
the Transferor or any agent of the Transferor shall be permitted to purchase
such Receivables in such case. The proceeds of such sale shall be
deposited into the Distribution Account or any Series Account, as provided
in
the related Supplement, for distribution to the Investor Certificateholders
of
each outstanding Series pursuant to Section 12.3 of this
Agreement. In the event that a Successor Servicer has not been
appointed and has not accepted its appointment at the time when the Servicer
ceases to act as Servicer, the Trustee without further action shall
automatically be appointed the Successor Servicer. Notwithstanding
the above, the Trustee shall, if it is legally unable so to act, petition a
court of competent jurisdiction to appoint any established financial institution
having, in the case of an entity that is subject to risk-based capital adequacy
requirements, risk-based capital of at least $50,000,000 or, in the case of
an
entity that is not subject to risk-based capital requirements, having a net
worth of not less than $50,000,000 and whose regular business includes the
servicing of VISA® or MasterCard®
credit card
receivables as the Successor Servicer hereunder.
(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. Any Successor Servicer, by its acceptance of its
appointment, will automatically agree to be bound by the terms and provisions
of
each Credit Enhancement.
76
(c) In
connection with such appointment and assumption, the 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 Servicing Fee permitted to be paid to the Servicer pursuant to
Section 3.2. The 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 Article
IV
to pay its share of the compensation of the Successor Servicer.
(d) All
authority and power granted to the Successor Servicer under this Agreement
shall
automatically cease and terminate upon termination of the Trust pursuant to
Section 12.1 and shall pass to and be vested in the Transferor and, without
limitation, the Transferor is hereby authorized and empowered to execute and
deliver, on behalf of the Successor 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 Successor Servicer agrees to cooperate with the
Transferor in effecting the termination of the responsibilities and rights
of
the Successor Servicer to conduct servicing on the Receivables. The
Successor Servicer shall transfer its electronic records relating to the
Receivables to the Transferor in such electronic form as the Transferor may
reasonably request and shall transfer all other records, correspondence and
documents to the Transferor in the manner and at such times as the Transferor
shall reasonably request. To the extent that compliance with this
Section 10.2 shall require the Successor Servicer to disclose to the Transferor
information of any kind which the Successor Servicer deems to be confidential,
the Transferor shall be required to enter into such customary licensing and
confidentiality agreements as the Successor Servicer shall deem necessary to
protect its interests.
Section
10.3 Notification
to Certificateholders. Within two Business Days after the
Servicer becomes aware of any Servicer Default, the Servicer shall give written
notice thereof to the Trustee and any Credit Enhancement Provider and the
Trustee shall give notice to the Investor Certificateholders at their respective
addresses appearing in the Certificate Register. Upon any termination
or appointment of a Successor Servicer pursuant to this Article X, the Trustee
shall give prompt written notice thereof to Investor Certificateholders at
their
respective addresses appearing in the Certificate Register.
Section
10.4 Waiver
of Past Defaults. The Holders of Investor Certificates evidencing
Undivided Interests aggregating not less than 66-2/3% of the Investor Interest
of each Series adversely affected by any default by the Servicer or the
Transferor may, on behalf of all Certificateholders of such Series, waive any
default by the Servicer or the Transferor 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
pursuant to Article IV which default does not result from the failure of the
Paying Agent to perform its obligations to make any required deposits or
payments of interest and principal in accordance with Article
IV. 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.
77
[End
of Article X]
78
ARTICLE
XI
THE
TRUSTEE
Section
11.1 Duties
of Trustee.
(a) The
Trustee, prior to the occurrence of any Servicer Default and after the curing
of
all Servicer Defaults which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this
Agreement. If a Responsible Officer has received written notice that
a Servicer Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct
of
such person’s own affairs.
(b) The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they substantially conform
to
the requirements of this Agreement.
(c) Subject
to subsection 11.1(a), no provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however,
that:
(i) the
Trustee shall not be personally liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless
it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(ii) the
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Investor Certificates evidencing Undivided Interests
aggregating more than 50% of the Investor Interest of any Series relating to
the
time, method and place of conducting any proceeding for any remedy available
to
the Trustee, or exercising any trust or power conferred upon the Trustee in
relation to such Series, under this Agreement; and
(iii) the
Trustee shall not be charged with knowledge of any failure by the Servicer
referred to in clauses (a) and (b) of Section 10.1 unless a Responsible Officer
of the Trustee obtains actual knowledge of such failure or the Trustee receives
written notice of such failure from the Servicer or any Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 10% of
the
Investor Interest of any Series adversely affected thereby.
(d) The
Trustee shall not be required to expend or risk its own funds or otherwise
incur
financial liability in the performance of any of its duties
hereunder,
79
or
in the exercise of any of its rights or powers, if there is reasonable ground
for believing that the repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it, and none of the
provisions contained in this Agreement shall in any event require the Trustee
to
perform, or be responsible for the manner of performance of, any of the
obligations of the Servicer under this Agreement except during such time, if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms
of
this Agreement.
(e) Except
for actions expressly authorized by this Agreement, the Trustee shall take
no
action reasonably likely to impair the interests of the Trust in any Receivable
now existing or hereafter created or to impair the value of any Receivable
now
existing or hereafter created.
(f) Except
as provided in this subsection 11.1(f), the Trustee shall have no power to
vary
the corpus of the Trust including, without limitation, the power to (i) accept
any substitute obligation for a Receivable initially assigned to the Trust
under
Section 2.1 or 2.6 hereof, (ii) add any other investment, obligation or security
to the Trust, except for an addition permitted under Section 2.6 or (iii)
withdraw from the Trust any Receivables, except for a withdrawal permitted
under
Sections 2.7, 9.2, 10.2, 12.1 or 12.2 or subsections 2.4(d) or 2.4(e) or Article
IV.
(g) In
the event that the Paying Agent or the Transfer Agent and Registrar shall fail
to perform any obligation, duty or agreement in the manner or on the day
required to be performed by the Paying Agent or the Transfer Agent and
Registrar, as the case may be, under this Agreement, the Trustee shall be
obligated promptly to perform such obligation, duty or agreement in the manner
so required.
(h) If
the Transferor has agreed to transfer any of its credit card receivables (other
than the Receivables) to another Person, upon the written request of the
Transferor, the Trustee will enter into such intercreditor agreements with
the
transferee of such receivables as are customary and necessary (and in form
and
substance reasonably satisfactory to the Trustee) to identify separately the
rights, if any, of the Trust and such other Person in the Transferor’s credit
card receivables; provided, however that the Trustee shall not be
required to enter into any intercreditor agreement which could adversely affect
the interests of the Certificateholders and, upon the request of the Trustee,
the Transferor will deliver an Opinion of Counsel on any matters relating to
such intercreditor agreement, reasonably requested by the Trustee.
Section
11.2 Certain
Matters Affecting the Trustee. Except as otherwise provided in
Section 11.1:
(a) the
Trustee may rely on and shall be protected in acting on, or in refraining from
acting in accord with, any assignment of Receivables in Additional Accounts,
the
initial report, the monthly Servicer’s certificate, the annual Servicer’s
certificate, the monthly payment instructions and notification to the Trustee,
the monthly Certificateholder’s statement, any resolution, Officer’s
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
80
appraisal,
bond or other paper or document reasonably believed by it to be genuine and
to
have been signed or presented to it pursuant to this Agreement by the proper
party or parties;
(b) the
Trustee may consult with counsel of its selection, and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in accordance
with such Opinion of Counsel;
(c) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Agreement or any Credit Enhancement, or to institute,
conduct or defend any litigation hereunder or in relation hereto, at the
request, order or direction of any of the Certificateholders or any Credit
Enhancement Provider, pursuant to the provisions of this Agreement, unless
such
Certificateholders or Credit Enhancement Provider shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee against
the
costs, expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the obligations,
upon the occurrence of any Servicer Default (which has not been cured), to
exercise such of the rights and powers vested in it by this Agreement and any
Credit Enhancement, and to use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the conduct
of his own affairs;
(d) the
Trustee shall not be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement except to the extent
of
the Trustee’s negligence;
(e) the
Trustee shall not be bound to make any investigation into the facts of matters
stated in any assignment of Receivables in Additional Accounts, the initial
report, the monthly Servicer’s certificate, the annual Servicer’s certificate,
the monthly payment instructions and notification to the Trustee, the monthly
Certificateholder’s statement, any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or
other paper or document, unless requested in writing so to do by Holders of
Investor Certificates evidencing Undivided Interests aggregating more than
50%
of the Investor Interest of any Series which could be adversely affected if
the
Trustee does not perform such acts;
(f) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys or a custodian
appointed with due care by it hereunder; and
(g) except
as may be required by subsection 11.1(a), or otherwise expressly required herein
or in any Supplement, the Trustee shall not be required to make any initial
or
periodic examination of any documents or records related to the Receivables
or
the Accounts for the purpose of establishing the presence or absence of defects,
the compliance by the Transferor with its representations and warranties or
for
any other purpose.
81
Section
11.3 Trustee
Not Liable for Recitals in Certificates. The Trustee assumes no
responsibility for the correctness of the recitals contained herein and in
the
Certificates (other than the certificate of authentication on the
Certificates). Except as set forth in Section 11.15, the Trustee
makes no representations as to the validity or sufficiency of this Agreement
or
of the Certificates (other than the certificate of authentication on the
Certificates) or of any Receivable or related document. The Trustee
shall not be accountable for the use or application by the Transferor of any
of
the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Transferor in respect of the Receivables
or
deposited in or withdrawn from the Collection Account, the Principal Account
or
the Finance Charge Account or any Series Account by the Servicer.
Section
11.4 Trustee
May Own Certificates. The Trustee in its individual or any other
capacity may become the owner or pledgee of Investor Certificates with the
same
rights as it would have if it were not the Trustee.
Section
11.5 The
Servicer to Pay Trustee’s Fees and Expenses. The Servicer
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to receive such reasonable compensation as shall be agreed
upon from time to time between the Servicer and the Trustee (which shall not
be
limited by any provision of law in regard to the compensation of a trustee
of an
express trust) for all services rendered by it in the execution of the Trust
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and, subject to Section 8.4, the Servicer
will
pay or reimburse the Trustee (without reimbursement from any Investor Account,
any Series Account or otherwise) upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement except any such expense, disbursement
or
advance as may arise from its own negligence, bad faith or willful misfeasance
and except as provided in the following sentence. If the Trustee is
appointed Successor Servicer pursuant to Section 10.2, the provisions of this
Section 11.5 shall not apply to expenses, disbursements and advances made or
incurred by the Trustee in its capacity as Successor Servicer.
The
obligations of the Servicer under this Section 11.5 shall survive the
termination of the Trust and the resignation or removal of the
Trustee.
Section
11.6 Eligibility
Requirements for Trustee. The Trustee hereunder shall at all
times be a corporation organized and doing business under the laws of the United
States of America or any state thereof authorized under such laws to exercise
corporate trust powers, having a long-term unsecured debt rating of at least
“Baa3” by ▇▇▇▇▇’▇ and “BBB-“ by Standard & Poor’s, having, in the case of an
entity that is subject to risk-based capital adequacy requirements, risk-based
capital of at least $50,000,000 or, in the case of an entity that is not subject
to risk-based capital adequacy requirements, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section 11.6, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in the most recent
report of condition so published. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of
this
82
Section
11.6, the Trustee shall resign immediately in the manner and with the effect
specified in Section 11.7.
Section
11.7 Resignation
or Removal of Trustee.
(a) The
Trustee may at any time resign and be discharged from the Trust hereby created
by giving written notice thereof to the Servicer. Upon receiving such
notice of resignation, the Servicer shall promptly appoint a successor trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and
have accepted within 30 days after the giving of such notice of resignation,
the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of Section 11.6 hereof and shall fail to resign after written request
therefor by the Transferor, or if at any time the Trustee shall be legally
unable to act, or shall be adjudged as bankrupt or insolvent, or a receiver
of
the Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Transferor
may,
but shall not be required to, remove the Trustee and promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee.
(c) Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 11.7 shall not become
effective until acceptance of appointment by the successor trustee as provided
in Section 11.8 hereof and any liability of the Trustee arising hereunder shall
survive such appointment of a successor trustee.
Section
11.8 Successor
Trustee.
(a) Any
successor trustee appointed as provided in Section 11.7 hereof shall execute,
acknowledge and deliver to the Transferor and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as Trustee
herein. The predecessor Trustee shall deliver to the successor
trustee all documents and statements held by it hereunder, and the Transferor
and the predecessor Trustee shall execute and deliver such instruments and
do
such other things as may reasonably be required for fully and certainly vesting
and confirming in the successor trustee all such rights, powers, duties and
obligations.
(b) No
successor trustee shall accept appointment as provided in this Section 11.8
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 11.6 hereof.
83
(c) Upon
acceptance of appointment by a successor trustee as provided in this Section
11.8, such successor trustee shall mail notice of such succession hereunder
to
all Certificateholders at their addresses as shown in the Certificate
Register.
Section
11.9 Merger
or Consolidation of Trustee. Any Person into which the Trustee
may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any Person succeeding to the corporate trust business
of
the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be eligible under the provisions of Section 11.6 hereof,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto, anything herein to the contrary
notwithstanding.
Section
11.10 Appointment
of Co-Trustee or Separate Trustee.
(a) Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust may
at
the time be located, the Trustee shall have the power and may execute and
deliver all instruments, subject to the prior written consent of the Transferor,
to appoint one or more Persons to act as a co-trustee or co-trustees, or
separate trustee or separate trustees, of all or any part of the Trust, and
to
vest in such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust, or any part thereof, and, subject
to the other provisions of this Section 11.10, such powers, duties, obligations,
rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
11.6 and no notice to Certificateholders of the appointment of any co-trustee
or
separate trustee shall be required under Section 11.8 hereof.
(b) Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any laws of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall
be incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no
trustee hereunder shall be personally liable by reason of any act or omission
of
any other trustee hereunder; and
84
(iii) the
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate
trustee or co-trustee shall refer to this Agreement and the conditions of this
Article XI. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Servicer.
(d) Any
separate trustee or co-trustee may at any time constitute the Trustee as its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section
11.11 Tax
Returns. In the event the Trust shall be required to file tax
returns, the Trustee, as soon as practicable after it is made aware of such
requirement, shall prepare or cause to be prepared any tax returns required
to
be filed by the Trust and, to the extent possible, shall file such returns
at
least five days before such returns are due to be filed. The Trustee
is hereby authorized to sign any such return on behalf of the Trust, in the
event that the Trustee is determined to be the person required by law to sign
such return. The Servicer shall prepare or shall cause to be prepared
all tax information required by law to be distributed to Certificateholders
and
shall deliver such information to the Trustee at least five days prior to the
date it is required by law to be distributed to
Certificateholders. The Servicer, upon request, in the event that the
Trustee is determined to be the person required by law to sign such return,
will
furnish the Trustee with all such information known to the Servicer as may
be
reasonably required in connection with the preparation of all tax returns of
the
Trust. In no event shall the Trustee or the Servicer be liable for
any liabilities, costs or expenses of the Trust, the Investor Certificateholders
or the Certificate Owners arising under any tax law, including without
limitation federal, state, local or foreign income or excise taxes or any other
tax imposed on or measured by income (or any interest or penalty with respect
thereto or arising from a failure to comply therewith).
Section
11.12 Trustee
may Enforce Claims Without Possession of Certificates. All rights
of action and claims under this Agreement or any Series of Certificates may
be
prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto,
and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee. Any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances
of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of any
85
Series
of Certificates, as their interests may appear, in respect of which such
judgment has been obtained.
Section
11.13 Suits
for Enforcement. If a Servicer Default shall occur and be
continuing, the Trustee, in its discretion may, subject to the provisions of
Section 10.1, proceed to protect and enforce its rights and the rights of the
Holders of any Series of Certificates under this Agreement by a suit, action
or
proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or in
aid
of the execution of any power granted in this Agreement or for the enforcement
of any other legal, equitable or other remedy as the Trustee, being advised
by
counsel, shall deem most effectual to protect and enforce any of the rights
of
the Trustee or the Holders of any Series of Certificates.
Section
11.14 Rights
of Certificateholders to Direct Trustee. Holders of Investor
Certificates evidencing Undivided Interests aggregating more than 50% of the
Aggregate Investor Interest (or, with respect to any remedy, trust or power
that
does not relate to all Series, 50% of the Aggregate Investor Interest of the
Investor Certificates of all Series to which such remedy, trust or power
relates) shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided, however, that, subject
to
Section 11.1, the Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that the action
so
directed may not lawfully be taken, or if the Trustee in good faith shall,
by a
Responsible Officer or Responsible Officers of the Trustee, determine that
the
proceedings so directed would be illegal or subject it to personal liability
or
be unduly prejudicial to the rights of Certificateholders not parties to such
direction; and provided, further, that nothing in this Agreement shall impair
the right of the Trustee to take any action deemed proper by the Trustee and
which is not inconsistent with such direction of such Holders of Investor
Certificates.
Section
11.15 Representations
and Warranties of Trustee. The Trustee represents and warrants
that:
(i) the
Trustee is a banking corporation organized, existing and authorized to engage
in
the business of banking under the laws of the State of New York;
(ii) the
Trustee has full power, authority and right to execute, deliver and perform
this
Agreement, and has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement; and
(iii) this
Agreement has been duly executed and delivered by the Trustee.
Section
11.16 Maintenance
of Office or Agency. The Trustee will maintain at its expense in
the Borough of Manhattan, the City of New York an office or offices, or agency
or agencies, where notices and demands to or upon the Trustee in respect of
the
Certificates and this Agreement may be served. The Trustee initially
designates its Corporate Trust Office as its office for such purposes in New
York. The Trustee will give prompt written notice to
the
86
Servicer
and to Certificateholders (or in the case of Holders of Bearer Certificates,
in
the manner provided for in the related Supplement) of any change in the location
of the Certificate Register or any such office or agency.
[End
of Article XI]
87
ARTICLE
XII
TERMINATION
Section
12.1 Termination
of Trust.
(a) The
respective obligations and responsibilities of the Transferor, the Servicer
and
the Trustee created hereby (other than the obligation of the Trustee to make
payments to Certificateholders as hereinafter set forth) shall terminate, except
with respect to the duties described in Sections 8.4 and 11.5 and subsections
2.4(c) and 12.3(b), on the Trust Termination Date; provided,
however, that the Trust shall not terminate on the date specified
in
clause (i) of the definition of “Trust Termination Date” if each of the
Servicer and the Holder of the Transferor Certificate notify the Trustee in
writing, not later than five Business Days preceding such date, that they desire
that the Trust not terminate on such date, which notice (such notice, a
“Trust Extension”) shall specify the date on which the Trust shall
terminate (such date, the “Extended Trust Termination Date”);
provided, however, that the Extended Trust Termination Date shall
be not later than the day prior to the expiration of 21 years after the death
of
the last survivor of the descendants living on the date of this Agreement of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States of America to the
Court of St. James’s. The Servicer and the Holder of the Transferor
Certificate may, on any date following the Trust Extension, so long as no Series
of Certificates is outstanding, deliver a notice in writing to the Trustee
changing the Extended Trust Termination Date.
(b) All
principal or interest with respect to any Series of Investor Certificates shall
be due and payable no later than the Series Termination Date with respect to
such Series. Unless otherwise provided in a Supplement, in the event
that the Investor Interest of any Series of Certificates is greater than zero
on
its Series Termination Date (after giving effect to all transfers, withdrawals,
deposits and drawings to occur on such date and the payment of principal to
be
made on such Series on such date), the Trustee will sell or cause to be sold,
and pay the proceeds first, to all Certificateholders of such Series pro
rata in final payment of all principal of and accrued interest on such Series
of
Certificates, and second, as provided in the related Supplement, an
amount of Principal Receivables and the related Finance Charge Receivables
(or
interests therein) up to 110% of the sum of the Investor Interest of such Series
plus the Enhancement Invested Amount or the Collateral Interest (if not included
in the Investor Interest) of such Series, if any, at the close of business
on
such date (but not more than an amount of Principal Receivables and the related
Finance Charge Receivables equal to the sum of (1) the product of (A) the
Transferor Percentage, (B) the aggregate amount of Principal Receivables in
the
Trust and (C) a fraction the numerator of which is the applicable Investor
Percentage with respect to Finance Charge Receivables and the denominator of
which is the sum of all Investor Percentages with respect to Finance Charge
Receivables of all Series and (2) the Investor Interest of such Series plus
the
Enhancement Invested Amount or the Collateral Interest (if not included in
the
Investor Interest) of such Series). The Trustee shall (i) notify each
Credit Enhancement Provider of the proposed sale of such Receivables and shall
provide each Credit Enhancement Provider an opportunity to bid on such
Receivables and (ii) use its best efforts to sell, dispose of or
88
otherwise
liquidate the Receivables by the solicitation of competitive bids and on terms
equivalent to the best purchase offer as determined by the
Trustee. None of the Transferor, any Affiliate of the Transferor or
any agent of the Transferor shall be permitted to purchase such Receivables
in
such case. Any proceeds of such sale in excess of such principal and
interest paid shall be paid to the Holder of the Transferor
Certificate. Upon such Series Termination Date with respect to the
applicable Series of Certificates, final payment of all amounts allocable to
any
Investor Certificates of such Series shall be made in the manner provided in
Section 12.3.
Section
12.2 Optional
Purchase. (a) If so provided in any Supplement, the
Transferor (so long as the Transferor is the Servicer or an Affiliate of the
Servicer) may, but shall not be obligated to, cause a final distribution to
be
made in respect to the related Series of Certificates on a Distribution Date
specified in such Supplement by depositing into the Distribution Account or
the
applicable Series Account, not later than the Transfer Date preceding such
Distribution Date, for application in accordance with Section 12.3, the amount
specified in such Supplement.
(b) The
amount deposited pursuant to subsection 12.2(a) shall be paid to the Investor
Certificateholders of the related Series pursuant to Section 12.3 on the related
Distribution Date following the date of such deposit. All
Certificates of a Series which are purchased by the Transferor pursuant to
subsection 12.2(a) shall be delivered by the Transferor upon such purchase
to,
and be canceled by, the Transfer Agent and Registrar and be disposed of in
a
manner satisfactory to the Trustee and the Transferor. The Investor
Interest of each Series which is purchased by the Transferor pursuant to
subsection 12.2(a) shall, for the purposes of the definition of “Transferor
Interest,” be deemed to be equal to zero on the Distribution Date following the
making of the deposit, and the Transferor Interest shall thereupon be deemed
to
have been increased by the Investor Interest of such Series.
Section
12.3 Final
Payment with Respect to any Series.
(a) Written
notice of any termination, specifying the Distribution Date upon which the
Investor Certificateholders of any Series may surrender their Certificates
for
payment of the final distribution with respect to such Series and cancellation,
shall be given by the Trustee to Investor Certificateholders of such Series
mailed not later than the fifth day of the month of such final distribution
(subject to at least two Business Days’ prior notice from the Servicer to the
Trustee) (or in the manner provided by the Supplement relating to such Series)
specifying (i) the Distribution Date (which shall be the Distribution Date
in
the month (x) in which the deposit is made pursuant to subsection 2.4(e),
9.2(a), 10.2(a) or 12.2(a) of this Agreement or such other section as may be
specified in the related Supplement, or (y) in which the related Series
Termination Date occurs) upon which final payment of such Investor Certificates
will be made upon presentation and surrender of such Investor Certificates
at
the office or offices therein designated (which, in the case of Bearer
Certificates, shall be outside the United States), (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Investor Certificates at the office or offices therein
specified. The Servicer shall also deliver to the Trustee, as soon as
is practicable but in any event not later than three Business Days after the
Determination Date
89
relating
to the final payment described in the preceding sentence, an Officer’s
Certificate setting forth the information, to the extent available, specified
in
Article V (as described in the related Supplement) of this Agreement covering
the period during the then current calendar year through the date of such notice
and setting forth the date of such final distribution.
(b) Notwithstanding
the termination of the Trust pursuant to subsection 12.1(a) or the occurrence
of
the Series Termination Date with respect to any Series, all funds then on
deposit in the Finance Charge Account, the Principal Account, the Excess Funding
Account, the Distribution Account or any Series Account applicable to the
related Series shall continue to be held in trust for the benefit of the
Certificateholders of the related Series and the Paying Agent or the Trustee
shall pay such funds to the Certificateholders of the related Series upon
surrender of their Certificates (which surrenders and payments, in the case
of
Bearer Certificates, shall be made only outside the United
States). In the event that all of the Investor Certificateholders of
any Series shall not surrender their Certificates for cancellation within six
months after the date specified in the above-mentioned written notice, the
Trustee shall give a second written notice (or, in the case of Bearer
Certificates, publication notice) to the remaining Investor Certificateholders
of such Series upon receipt of the appropriate records from the Transfer Agent
and Registrar to surrender their Certificates for cancellation and receive
the
final distribution with respect thereto. If within one and one-half
years after the second notice with respect to a Series, all the Investor
Certificates of such Series shall not have been surrendered for cancellation,
the Trustee may take appropriate steps or may appoint an agent to take
appropriate steps, to contact the remaining Investor Certificateholders of
such
Series concerning surrender of their Certificates, and the cost thereof shall
be
paid out of the funds in the Distribution Account or any Series Account held
for
the benefit of such Investor Certificateholders. The Trustee and the
Paying Agent shall pay to the Transferor upon request any monies held by them
for the payment of principal or interest which remains unclaimed for two
years. After payment to the Transferor, Investor Certificateholders
entitled to the money must look to the Transferor for payment as general
creditors unless an applicable abandoned property law designates another
Person.
(c) All
Certificates surrendered for payment of the final distribution with respect
to
such Certificates and cancellation shall be canceled by the Transfer Agent
and
Registrar and be disposed of in a manner satisfactory to the Trustee and the
Transferor.
Section
12.4 Termination
Rights of Holder of Transferor Certificate. Upon the termination
of the Trust pursuant to Section 12.1, and after payment of all amounts due
hereunder on or prior to such termination and the surrender of the Transferor
Certificate, if applicable, the Trustee shall execute a written reconveyance
substantially in the form of Exhibit G pursuant to which it shall reconvey
to
the Holder of the Transferor Certificate (without recourse, representation
or
warranty) all right, title and interest of the Trust in and to the Receivables,
whether then existing or thereafter created, all moneys due or to become due
with respect to such Receivables (including all accrued interest theretofore
posted as Finance Charge Receivables) and all proceeds of such Receivables
and
Insurance Proceeds relating to such Receivables and Interchange (if any)
allocable to the Trust pursuant to any Supplement, except for amounts, if any,
held by the Trustee pursuant to subsection 12.3(b). The Trustee shall
execute and deliver such instruments of transfer and assignment, in each case
without recourse,
90
as
shall be reasonably requested by the Holder of the Transferor Certificate to
vest in such Holder all right, title and interest which the Trust had in the
Receivables.
[End
of Article XII]
91
ARTICLE
XIII
MISCELLANEOUS
PROVISIONS
Section
13.1 Amendment.
(a) This
Agreement (including any Supplement) may be amended from time to time by the
Transferor, the Servicer and the Trustee, without the consent of any of the
Certificateholders (i) to cure any ambiguity, to revise any exhibits or
schedules (other than Schedule 1), or to correct or supplement any provisions
herein or thereon or (ii) to add any other provisions with respect to matters
or
questions raised under this Agreement which shall not be inconsistent with
the
provisions of this Agreement; provided, however, that such action
shall not, (A) as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any of the Certificateholders unless such
Certificateholders have consented thereto or (B) as evidenced by an Officer’s
Certificate, significantly change the Permitted Activities of the
Trust.
(b) This
Agreement (including any Supplement) and any schedule or exhibit thereto may
also be amended from time to time by the Transferor, the Servicer and the
Trustee, without the consent of any of the Certificateholders, 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
Holders of Certificates; provided, however, that (i) the Servicer
shall have provided an Officer’s Certificate to the Trustee to the effect that
such amendment will not materially and adversely affect the interests of any
Certificateholder and will not significantly change the Permitted Activities
of
the Trust, (ii) the Servicer shall have provided a Tax Opinion with respect
to
such amendment and (iii) the Servicer shall have provided at least ten (10)
Business Days’ prior written notice to each Rating Agency of such amendment and
the Rating Agency Condition shall have been satisfied; provided,
further, that such amendment shall not, without the consent of each
Certificateholder of each Series affected thereby, (A) reduce in any manner
the
amount of, or delay the timing of, distributions which are required to be made
on any Certificate of such Series, (B) alter the requirements for changing
the
Minimum Transferor Interest Percentage for such Series, (C) change the
definition of or the manner of calculating the interest of any Certificateholder
of such Series, (D) change the manner in which the Transferor Interest is
determined or (E) reduce the percentage pursuant to subsection 13.1(c) required
to consent to any such amendment.
(c) This
Agreement and any Supplement may also be amended from time to time by the
Transferor, the Servicer and the Trustee (x) with the consent of
Certificateholders evidencing Undivided Interests aggregating more than 50%
of
the Investor Interest of each and every Series adversely affected, 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 Certificateholders of any Series then issued and outstanding if such
amendment would not, as evidenced by an Officer’s Certificate, significantly
change the Permitted Activities of the Trust or (y) with the consent
of
92
Certificateholders
evidencing Undivided Interests aggregating more than 50% of the Investor
Interest, for the purpose of significantly changing the Permitted Activities
of
the Trust; provided, however, that no such amendment under this
subsection shall, in each case without the consent of each Certificateholder
of
the Series affected (i) reduce in any manner the amount of, or delay the timing
of, distributions which are required to be made on any Certificate of such
Series; (ii) change the definition of or the manner of calculating the Investor
Interest, the Investor Percentage or the Investor Default Amount of such Series
or (iii) reduce the aforesaid percentage required to consent to any such
amendment.
(d) It
shall not be necessary to obtain the consent of Certificateholders under this
Section 13.1 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 Certificateholders shall be subject
to
such reasonable requirements as the Trustee may prescribe.
(e) Promptly
after the execution of any amendment pursuant to subsections 13.1(a) or 13.1(c),
the Trustee shall furnish notification of the substance of such amendment to
each Rating Agency providing a rating for any Series.
(f) Any
Supplement executed and delivered pursuant to Section 6.9 and any amendments
regarding the addition to or removal of Receivables from the Trust as provided
in Sections 2.6 or 2.7, executed in accordance with the provisions hereof,
shall
not be considered amendments to this Agreement for the purpose of Section
13.1.
(g) In
connection with any amendment, the Trustee may request, in addition to the
Opinion of Counsel required by subsection 13.2(d), an Opinion of Counsel from
the Transferor or the Servicer to the effect that the amendment complies with
all requirements of this Agreement. The Trustee may, but shall not be
obligated to, enter into any amendment which affects the Trustee’s rights,
duties or immunities under this Agreement or otherwise.
Section
13.2 Protection
of Right, Title and Interest to Trust.
(a) The
Servicer shall cause this Agreement, all amendments hereto and/or all financing
statements and continuation statements and any other necessary documents
covering the Certificateholders and the Trustee’s right, title and interest to
the Trust 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 Certificateholders or the Trustee, as the case may be, hereunder
to all property comprising the Trust. The Servicer shall deliver to
the Trustee file-stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above, promptly after the same become
available following such recording, registration of filing. The
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 subsection 13.2(a).
93
(b) Within
30 days after the Transferor makes any change in its name, identity or corporate
structure which would make any financing statement or continuation statement
filed in accordance with subsection 13.2(a) seriously misleading within the
meaning of Section 9-506 of the UCC, the Transferor shall give the 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
in the Receivables and the proceeds thereof.
(c) The
Transferor will give the Trustee prompt written notice of any change in the
jurisdiction in which it is located (as such location is determined pursuant
to
Section 9-307 of the UCC), provided, that, as a result of such
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 statements. If so required, the Transferor shall file
such financing statements as may be necessary to continue the perfection of
the
Trust’s security interest in the Receivables and the proceeds thereof within the
time specified in Section 9-316(a) of the UCC.
(d) The
Servicer will deliver to the Trustee on or before March 31 of each year an
Opinion of Counsel, substantially in the form of Exhibit E.
Section
13.3 Limitation
on Rights of Certificateholders.
(a) The
death or incapacity of any Certificateholder shall not operate to terminate
this
Agreement or the Trust, nor shall such death or incapacity entitle such
Certificateholder’s legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding-up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) No
Certificateholder shall have any right to vote (except with respect to the
Investor Certificateholders as provided in Section 13.1 hereof) or in any manner
otherwise control the operation and management of the Trust, or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in
the
terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person
by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) No
Certificateholder shall have any right by virtue of any provisions of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Certificateholder
previously shall have given written notice to the Trustee, and unless the
Holders of Certificates evidencing Undivided Interests aggregating more than
50%
of the Investor Interest of any Series which may be adversely affected but
for
the institution of such suit, action or proceeding, shall have made written
request upon the Trustee to institute such action, suit or proceeding in its
own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee, for 60 days after its receipt
of
such notice, request and offer of indemnity, shall have neglected or refused
to
institute any such action,
94
suit
or proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Certificateholders shall have the right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this
Agreement to affect, disturb or prejudice the rights of the Certificateholders
of any other of the Certificates, or to obtain or seek to obtain priority over
or preference to any other such Certificateholder, or to enforce any right
under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 13.3, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section
13.4 GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section
13.5 Notices. All
demands, notices, instructions, directions and communications hereunder shall
be
in writing and shall be deemed to have been duly given (i) when personally
delivered, (ii) two Business Days after being sent by courier, (iii) five
Business Days after being mailed by registered mail, return receipt requested,
(iv) if sent by facsimile transmission, or (v) if sent by electronic mail or
by
such other means acceptable to the recipient (a) in the case of the Transferor
and Servicer, to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President, telephone: (▇▇▇) ▇▇▇-▇▇▇▇, fax: (▇▇▇)
▇▇▇-▇▇▇▇ (electronic mail: ▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇) with a copy to
JPMorgan Chase & Co., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President - Securitization, telephone: (▇▇▇)
▇▇▇-▇▇▇▇, fax: (▇▇▇) ▇▇▇-▇▇▇▇ (electronic mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇),
(b)
in the case of the Trustee, to the Corporate Trust Office, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇, Assistant Treasurer, telephone: (▇▇▇) ▇▇▇-▇▇▇▇, fax: (▇▇▇) ▇▇▇-▇▇▇▇
(electronic mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇), (c) in the case of the Credit
Enhancement Provider for a particular Series, to the address, if any, specified
in the Supplement relating to such Series and (d) in the case of the Rating
Agency for a particular Series, to the address, if any, specified in the
Supplement relating to such Series; or, as to each party, at such other address,
facsimile number or electronic mail as shall be designated by such party in
a
written notice to each other party. Unless otherwise provided with
respect to any Series in the related Supplement any notice required or permitted
to be mailed to a Certificateholder shall be given by first-class mail, postage
prepaid, at the address of such Certificateholder as shown in the Certificate
Register, or with respect to any notice required or permitted to be made to
the
Holders of Bearer Certificates, by publication in the manner provided in the
related Supplement. If and so long as any Series or Class is listed
on the Euro MTF market of the Luxembourg Stock Exchange and such exchange shall
so require, any notice to Investor Certificateholders shall be published in
an
authorized newspaper of general circulation in Luxembourg within the time period
prescribed in this Agreement. Any notice so mailed within the time
period prescribed in this Agreement shall be conclusively presumed to have
been
duly given, whether or not the Certificateholder receives such
notice.
95
Section
13.6 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 covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of
this
Agreement and shall in no way affect the validity of enforceability of the
other
provisions of this Agreement or of the Certificates or rights of the
Certificateholders thereof.
Section
13.7 Assignment. Notwithstanding
anything to the contrary contained herein, except as provided in Section 8.2,
this Agreement may not be assigned by the Servicer without the prior consent
of
Holders of Investor Certificates evidencing Undivided Interests aggregating
not
less than 66 2/3% of the Investor Interest of each Series on a Series by Series
basis.
Section
13.8 Certificates
Non-Assessable and Fully Paid. It is the intention of the parties
to this Agreement that the Certificateholders shall not be personally liable
for
obligations of the Trust, that the Undivided Interests represented by the
Certificates shall be non-assessable for any losses or expenses of the Trust
or
for any reason whatsoever, and that Certificates upon authentication thereof
by
the Trustee pursuant to Sections 2.1 and 6.2 are and shall be deemed fully
paid.
Section
13.9 Further
Assurances. The 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 Trustee more fully to effect
the purposes of this Agreement, including, without limitation, the execution
of
any financing statements or continuation statements relating to the Receivables
for filing under the provisions of the Uniform Commercial Code of any applicable
jurisdiction.
Section
13.10 No
Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Trustee, any Credit Enhancement Provider or
the
Investor Certificateholders, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or partial exercise
of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of any rights, remedies, powers
and
privileges provided by law.
Section
13.11 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
13.12 Third-Party
Beneficiaries. This Agreement will inure to the benefit of and be
binding upon the parties hereto, the Certificateholders and, to the extent
provided in the related Supplement, to the Credit Enhancement Provider named
therein, and their respective successors and permitted
assigns. Except as otherwise provided in this Article XIII, no other
Person will have any right or obligation hereunder.
96
Section
13.13 Actions
by Certificateholders.
(a) Wherever
in this Agreement a provision is made that an action may be taken or a notice,
demand or instruction given by Investor Certificateholders, such action, notice
or instruction may be taken or given by any Investor Certificateholder, unless
such provision requires a specific percentage of Investor
Certificateholders.
(b) Any
request, demand, authorization, direction, notice, consent, waiver or other
act
by a Certificateholder shall bind such Certificateholder and every subsequent
holder of such Certificate 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 Trustee or the Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
Section
13.14 Rule
144A Information. For so long as any of the Investor Certificates
of any Series or any Class are “restricted securities” within the meaning of
Rule 144(a)(3) under the Securities Act, each of the Transferor, the Servicer,
the Trustee and the Credit Enhancement Provider for such Series agree to
cooperate with each other to provide to any Investor Certificateholders of
such
Series or Class and to any prospective purchaser of Certificates designated
by
such an Investor Certificateholder upon the request of such Investor
Certificateholder 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
13.15 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
13.16 Headings. The
headings herein are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.
Section
13.17 Characterization
of the Trust. For purposes of SFAS 140, the parties hereto intend
that the Trust shall be treated as a “qualifying special purpose entity” as such
term is used in SFAS 140 and any successor rule thereto and its permitted
activities shall be limited in accordance with paragraph 35
thereof.
If
the transfer of the Receivables to the Trust is characterized as a loan to
the
Transferor secured by Receivables, the Transferor, in such circumstances, agrees
that it does not have the right to prepay such loan prior to the maturity date
thereof under any circumstances and does hereby irrevocably waive and relinquish
such right.
Section
13.18 Fiscal
Year. The fiscal year of the Trust will end on the last day of
each calendar year.
Section
13.19 Consequential
Damages. In no event shall the Trustee be responsible or liable
for special, indirect, or consequential loss or damage of any kind
97
whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
Section
13.20 Force
Majeure. In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of
war
or terrorism, civil or military disturbances, nuclear or natural catastrophes
or
acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood
that the Trustee shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable
under the circumstances.
Section
13.21 Waiver
of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT
TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE CERTIFICATES OR THE TRANSACTION CONTEMPLATED HEREBY.
[End
of Article XIII]
98
ARTICLE
XIV
COMPLIANCE
WITH REGULATION AB
Section
14.1 Intent
of the Parties; Reasonableness. The Transferor, the Servicer, the
Paying Agent and the Trustee acknowledge and agree that the purpose of this
Article XIV is to facilitate compliance by the Transferor with the provisions
of
Regulation AB and related rules and regulations of the
Commission. The Transferor shall exercise its right to request
delivery of information or other performance under these provisions solely
in
good faith and for purposes of the Transferor’s compliance with the Securities
Act, the Exchange Act and the rules and regulations of the Commission thereunder
(or the provision in a private offering of disclosure comparable to that
required under the Securities Act). The Trustee agrees to cooperate
in good faith with any reasonable request by the Transferor for information
regarding the Trustee which is required in order to enable the Transferor to
comply with the provisions of Regulation AB, including, without limitation,
Items 1103(a)(1), 1109(a), 1109(b), 1117, 1118, 1119 and 1122 of Regulation
AB
as it relates to the Trustee or to the Trustee’s obligations under this
Agreement or any Supplement. The Paying Agent agrees to cooperate in
good faith with any reasonable request by the Transferor for information
regarding the Paying Agent which is required in order to enable the Transferor
to comply with the provisions of Regulation AB, including, without limitation,
Items 1117, 1119 and 1122 of Regulation AB as it relates to the Paying Agent
or
to the Paying Agent’s obligations under this Agreement or any
Supplement. The Servicer agrees to cooperate in good faith with any
reasonable request by the Transferor for information regarding the Servicer
which is required in order to enable the Transferor to comply with the
provisions of Regulation AB, including, without limitation, Items 1103(a)(1),
1105, 1108, 1117, 1118, 1119, 1121, 1122 and 1123 of Regulation AB as it relates
to the Servicer or to the Servicer’s obligations under this Agreement or any
Supplement.
Section
14.2 Additional
Representations and Warranties of the Trustee. The Trustee shall
be deemed to represent to the Transferor, as of the date on which information
is
provided to the Transferor under Section 14.3 that, except as disclosed in
writing to the Transferor prior to such date to the best of its
knowledge: (i) neither the execution, delivery and performance by the
Trustee of this Agreement or any Supplement, the performance by the Trustee
of
its obligations under this Agreement or any Supplement nor the consummation
of
any of the transactions by the Trustee contemplated thereby, is in violation
of
any indenture, mortgage, bank credit agreement, note or bond purchase agreement,
long-term lease, license or other agreement or instrument to which the Trustee
is a party or by which it is bound, which violation would have a material
adverse effect on the Trustee’s ability to perform its obligations under this
Agreement or any Supplement, or of any judgment or order applicable to the
Trustee; and (ii) there are no proceedings pending or threatened against the
Trustee in any court or before any governmental authority, agency or arbitration
board or tribunal which, individually or in the aggregate, would have a material
adverse effect on the right, power and authority of the Trustee to enter into
this Agreement or any Supplement or to perform its obligations under this
Agreement or any Supplement.
99
Section
14.3 Information
to Be Provided by the Trustee. The Trustee shall (i) no later
than three Business Days before each Most Recent Quarterly Filing Date, provide
to the Transferor, in the form attached hereto as Exhibit L, or such other
form
as may mutually be agreed upon, such information regarding the Trustee as is
required for the purpose of compliance with Item 1117 of Regulation AB, and
(ii)
as promptly as practicable following notice to or discovery by the Trustee
of
any changes to such information, provide to the Transferor, in writing, such
updated information.
The
Trustee shall (i) no later than three Business Days before each Most Recent
Quarterly Filing Date, provide to the Transferor, in the form attached hereto
as
Exhibit L, or such other form as may mutually be agreed upon, such information
regarding the Trustee as is required for the purpose of compliance with the
provisions of Regulation AB, including, without limitation, Items 1103(a)(1),
1109(a), 1109(b), 1118 and 1119 of Regulation AB, and (ii) as promptly as
practicable following notice to or discovery by the Trustee of any changes
to
such information, provide to the Transferor, in writing, such updated
information. Such information shall include, at a
minimum:
(A) the
Trustee’s name and form of organization;
(B) a
description of the extent to which the Trustee has had prior experience serving
as a Trustee for asset-backed securities transactions involving credit card
receivables; and
(C) a
description of any affiliation between the Trustee and any of the following
parties to a Securitization Transaction, as such parties are identified to
the
Trustee by the Transferor in writing in advance of such Securitization
Transaction:
|
(1)
|
the
sponsor;
|
|
(2)
|
any
depositor;
|
|
(3)
|
the
issuing entity;
|
|
(4)
|
any
servicer;
|
|
(5)
|
any
other trustee;
|
|
(6)
|
any
originator;
|
|
(7)
|
any
significant obligor;
|
|
(8)
|
any
enhancement or support provider;
and
|
|
(9)
|
any
other material party related to any Securitization
Transaction.
|
In
addition, the Trustee shall provide a description of whether there is, and
if so
the general character of, any business relationship, agreement, arrangement,
transaction or understanding between the Trustee and any above-listed party
that
is entered into outside the ordinary course of business or is on terms other
than would be obtained in an arm’s length transaction with an unrelated third
party, apart from the Securitization Transactions, that currently exists or
that
existed during the past two years and that is material to an investor’s
understanding of the asset-backed securities.
100
Section
14.4 Trustee’s
Report on Assessment of Compliance and Attestation.
(a) On
or before March 1 of each calendar year, commencing in 2007, the Trustee
shall:
(i) deliver
to the Transferor a report regarding the Trustee’s assessment of compliance with
the Servicing Criteria during the immediately preceding calendar year, as
required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be addressed to the Transferor and
signed by an authorized officer of the Trustee, and shall address each of the
Servicing Criteria specified in Exhibit I, as may be amended from time to time
by the parties hereto;
(ii) deliver
to the Transferor a report of a registered public accounting firm reasonably
acceptable to the Transferor that attests to, and reports on, the assessment
of
compliance made by the Trustee and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act; and
(iii) deliver
to the Transferor and any other Person that will be responsible for signing
the
certification (a “Sarbanes Certification”) required by Rules 13a-14(d)
and 15d-14(d) under the Exchange Act (pursuant to Section 302 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) on behalf of the Issuing Entity or the Transferor
with respect to a Securitization Transaction a certification in the form
attached hereto as Exhibit H, or such other form as may mutually be agreed
upon.
(b) The
Trustee acknowledges that the parties identified in clause (a)(iii) above may
rely on the certification provided by the Trustee pursuant to such clause in
signing a Sarbanes Certification and filing such with the
Commission.
(c) Within
thirty (30) days of receipt, the Transferor shall provide a copy of all reports
prepared and delivered pursuant to this Section 14.4 to each Rating
Agency.
Section
14.5 Information
to Be Provided by the Paying Agent.
(a) For
so long as the Transferor is required to report under Regulation AB, the Paying
Agent shall (i) on or before the fifth Business Day of each month, provide
to
the Transferor, in writing, such information regarding the Paying Agent as
is
required for the purpose of compliance with Item 1117 of Regulation AB, (ii)
at
the time of the offering of any new Certificates issued by the Issuing Entity,
provide to the Transferor, in writing, such information regarding the Paying
Agent as is required for the purpose of compliance with Item 1117 of Regulation
AB, and (iii) as promptly as practicable following notice to or discovery by
the
Paying Agent of any changes to such information, provide to the Transferor,
in
writing, such updated information.
101
(b) Upon
request from the Transferor, the Paying Agent shall provide a description of
any
affiliation or material relationship, as specified in Item 1119 of Regulation
AB, between (i) the Paying Agent, on the one hand, and (ii) those parties to
the
Securitization Transaction as are identified by the Transferor in writing,
on
the other.
Section
14.6 Paying
Agent’s Report on Assessment of Compliance and Attestation.
(a) On
or before March 1 of each calendar year, commencing in 2007, for so long as
the
Transferor is required to report under Regulation AB, the Paying Agent
shall:
(i) deliver
to the Transferor a report regarding the Paying Agent’s assessment of compliance
with the Servicing Criteria during the immediately preceding calendar year,
as
required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be signed by an authorized officer
of the Paying Agent, and shall address each of the Servicing Criteria specified
in Exhibit J, as may be amended from time to time by the parties
hereto;
(ii) deliver
to the Transferor a report of a registered public accounting firm that attests
to, and reports on, the assessment of compliance made by the Paying Agent and
delivered pursuant to the preceding paragraph. Such attestation shall
be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under
the
Securities Act and the Exchange Act; and
(iii) deliver
to the Transferor and any other Person that will be responsible for signing
the
Sarbanes Certification on behalf of the Issuing Entity or the Transferor with
respect to a Securitization Transaction a certification in the form attached
hereto as Exhibit H, or such other form as may mutually be agreed
upon.
(b) The
Paying Agent acknowledges that the parties identified in clause (a)(iii) above
may rely on the certification provided by the Paying Agent pursuant to such
clause in signing a Sarbanes Certification and filing such with the
Commission.
(c) Within
thirty (30) days of receipt, the Transferor shall provide a copy of all reports
prepared and delivered pursuant to this Section 14.6 to each Rating
Agency.
Section
14.7 Additional
Representations and Warranties of the Servicer. The Servicer
shall be deemed to represent to the Transferor, as of the date on which
information is provided to the Transferor under Section 14.8 that, except as
disclosed in writing to the Transferor prior to such date to the best of its
knowledge: (i) the Servicer is not aware and has not received notice
that any default, early amortization or other performance triggering event
has
occurred as to any other securitization of credit card receivables due to any
act or failure to act of the Servicer; (ii) the Servicer has not been terminated
as servicer in a securitization involving credit card receivables, either due
to
a servicing default or to application of a servicing
102
performance
test or trigger; (iii) no material noncompliance with the applicable servicing
criteria with respect to other securitizations of credit card receivables
involving the Servicer as servicer has been disclosed or reported by the
Servicer; (iv) no material changes to the Servicer’s policies or procedures with
respect to the servicing function it will perform under this Agreement and
any
Supplement have occurred during the three-year period immediately preceding
the
related Securitization Transaction; (v) there are no aspects of the Servicer’s
financial condition that could have a material adverse effect on the performance
by the Servicer of its servicing obligations under this Agreement or any
Supplement; and (vi) there are no material legal or governmental proceedings
pending (or known to be contemplated) against the Servicer, any Subservicer
or
any third-party originator.
Section
14.8 Information
to Be Provided by the Servicer. In connection with any
Securitization Transaction, the Servicer shall (i) within five (5) Business
Days
following request by the Transferor, provide to the Transferor, in writing,
the
information specified in this Section 14.8, and (ii) as promptly as practicable
following notice to or discovery by the Servicer of any changes to such
information, provide to the Transferor, in writing, such updated
information.
(a) The
Servicer shall provide such information regarding the Servicer and each
Subservicer (each of the Servicer and each Subservicer, for purposes of this
paragraph, a “Servicing Party”) as the Transferor shall request for the
purpose of compliance with Item 1108 of Regulation AB. Such
information shall include, at a minimum:
(A) the
Servicing Party’s name and form of organization;
(B) a
description of how long the Servicing Party has been servicing credit card
accounts; a general discussion of the Servicing Party’s experience in servicing
assets of any type as well as a more detailed discussion of the Servicing
Party’s experience in, and procedures for, the servicing function it will
perform under this Agreement and any Supplement; information regarding the
size,
composition and growth of the Servicing Party’s portfolio of credit card
accounts of a type similar to the Accounts and information on factors related
to
the Servicing Party that may be material, in the good faith judgment of the
Transferor, to any analysis of the servicing of the Accounts or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether
any prior securitizations of credit card receivables involving the Servicing
Party has defaulted or experienced an early amortization or other performance
triggering event because of servicing during the three-year period immediately
preceding the related Securitization Transaction;
(2) the
extent of outsourcing the Servicing Party utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations
103
of
credit card receivables involving the Servicing Party as a servicer during
the
three-year period immediately preceding the related Securitization
Transaction;
(4) whether
the Servicing Party has been terminated as servicer in a securitization of
credit card receivables, either due to a servicing default or to application
of
a servicing performance test or trigger; and
(5) such
other information as the Transferor may reasonably request for the purpose
of
compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicing Party’s
policies or procedures with respect to the servicing function it will perform
under this Agreement and any Supplement;
(D) information
regarding the Servicing Party’s financial condition, to the extent that there is
a material risk that an adverse financial event or circumstance involving the
Servicing Party could have a material adverse effect on the performance by
the
Servicing Party of its servicing obligations under this Agreement or any
Supplement;
(E) a
description of the Servicing Party’s processes and procedures designed to
address any special or unique factors involved in servicing;
(F) a
description of the Servicing Party’s processes for handling delinquencies,
losses, bankruptcies and recoveries, such as sale of defaulted receivables;
and
(G) information
as to how the Servicing Party defines or determines delinquencies and
charge-offs, including the effect of any grace period, re-aging, restructuring,
partial payments considered current or other practices with respect to
delinquency and loss experience.
(b) As
a condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Supplement by any Person (i) into or
with which the Servicer or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Servicer or any Subservicer,
the Servicer shall provide to the Transferor at least fifteen (15) calendar
days
prior to the effective date of such succession or appointment, (x) written
notice to the Transferor of such succession or appointment and (y) in writing
and in form and substance reasonably satisfactory to the Transferor, all
information reasonably requested by the Transferor in order to comply with
its
reporting obligation under Item 6.02 of Form 8-K with respect to any Series
or
Class, or any notes issued by the Issuing Entity.
(c) In
addition to such information as the Servicer is obligated to provide pursuant
to
other provisions of this Agreement and any Supplement, if so requested by the
Transferor, the Servicer shall provide such information regarding the
performance of the Receivables or the servicing of the Accounts as is reasonably
required to facilitate
104
preparation
of distribution reports in accordance with Item 1121 of Regulation
AB. Such information shall be provided concurrently with the
distribution reports otherwise required to be delivered monthly by the Servicer
under this Agreement and any Supplement, commencing with the first such report
due not less than ten (10) Business Days following such request.
Section
14.9 Servicer’s
Report on Assessment of Compliance and Attestation.
(a) On
or before March 1 of each calendar year, commencing in 2007, the Servicer
shall:
(i) deliver
to the Transferor a report regarding the Servicer’s or any Subservicer’s
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be
addressed to the Transferor and signed by an authorized officer of the Servicer,
and shall address each of the Servicing Criteria specified in Exhibit K, as
may
be amended from time to time by the parties hereto;
(ii) deliver
to the Transferor a report of a registered public accounting firm reasonably
acceptable to the Transferor that attests to, and reports on, the assessment
of
compliance made by the Servicer and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act;
(iii) instruct
each Servicing Participant to deliver to the Transferor an assessment of
compliance and accountants’ attestation as and when provided in subsections
14.9(a) and (b); and
(iv) deliver
to the Transferor and any other Person that will be responsible for signing
the
Sarbanes Certification on behalf of the Issuing Entity or the Transferor with
respect to a Securitization Transaction a certification in the form attached
hereto as Exhibit H, or such other form as may be mutually agreed
upon.
The
Servicer acknowledges that the parties identified in clause (iv) above may
rely
on the certification provided by the Servicer pursuant to such clause in signing
a Sarbanes Certification and filing such with the Commission.
(b) Each
assessment of compliance provided by a Subservicer pursuant to subsection
14.9(a)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit K hereto delivered to the
Transferor concurrently with the execution of this Agreement or, in the case
of
a Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Servicing
Participant pursuant to subsection 14.9(a)(iii) need not address any elements
of
the Servicing Criteria other than those specified by the Servicer pursuant
to
Section 14.10.
105
(c) Within
thirty (30) days of receipt, the Transferor shall provide a copy of all reports
prepared and delivered pursuant to this Section 14.9 to each Rating
Agency.
Section
14.10 Use
of Subservicers and Servicing Participants.
(a) The
Servicer shall use its best efforts to hire or otherwise utilize only the
services of Subservicers that agree to comply with the provisions of subsection
14.10(b). The Servicer shall use its best efforts to hire or
otherwise utilize only the services of Servicing Participants, and shall use
its
best efforts to ensure that Subservicers hire or otherwise utilize only the
services of Servicing Participants, to fulfill any of the obligations of the
Servicer as servicer under this Agreement or any Supplement, if those Servicing
Participants agree to comply with the provisions of subsection
14.10(b).
(b) Except
as may otherwise be required pursuant to Section 8.7, it shall not be necessary
for the Servicer to seek the consent of the Transferor to the utilization of
any
Subservicer. The Servicer shall use its best efforts to cause any
Subservicer used by the Servicer (or by any Subservicer) for the benefit of
the
Transferor to comply with the provisions of this Section and with Sections
3.5,
14.7, 14.9 and subsection 14.8(c) to the same extent as if such Subservicer
were
the Servicer. The Servicer shall be responsible for obtaining from
each Subservicer and delivering to the Transferor any servicer compliance
statement required to be delivered by such Subservicer under Section 3.5, any
assessment of compliance and attestation required to be delivered by such
Subservicer under Section 14.9 and any certification required to be delivered
to
the Person that will be responsible for signing the Sarbanes Certification
as
and when required to be delivered.
(c) Except
as may otherwise be required pursuant to Section 8.7, it shall not be necessary
for the Servicer to seek the consent of the Transferor to the utilization of
any
Servicing Participant. The Servicer shall promptly upon request
provide to the Transferor a written description (in form and substance
satisfactory to the Transferor) of the role and function of each Servicing
Participant utilized by the Servicer or any Subservicer, specifying (i) the
identity of each such Servicing Participant and (ii) which elements of the
Servicing Criteria will be addressed in assessments of compliance provided
by
each Servicing Participant.
As
a condition to the utilization of
any Servicing Participant, the Servicer shall use its best efforts to cause
any
such Servicing Participant used by the Servicer (or by any Subservicer) for
the
benefit of the Transferor to comply with the provisions of Section 14.9 to
the
same extent as if such Servicing Participant were the Servicer. The
Servicer shall be responsible for obtaining from each Servicing Participant
and
delivering to the Transferor any assessment of compliance and attestation
required to be delivered by such Servicing Participant under Section 14.9,
in
each case as and when required to be delivered.
[End
of Article XIV]
106
IN
WITNESS WHEREOF, the Transferor and Servicer and the Trustee and Paying Agent
have caused this Agreement to be duly executed by their respective officers
as
of the day and year first above written.
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CHASE
BANK USA, NATIONAL ASSOCIATION,
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as
Transferor and Servicer
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By:
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/s/
▇▇▇▇▇ ▇. Schuck___________________
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
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THE
BANK OF NEW YORK,
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as
Trustee and Paying Agent
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By:
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/s/
▇▇▇▇▇▇▇ Burack_______________________
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Assistant
Treasurer
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Fifth
A&R CHAMT
PSA
EXHIBIT
A
TRANSFEROR
CERTIFICATE
No.
__ One
Unit
CHASE
CREDIT CARD MASTER TRUST
ASSET
BACKED CERTIFICATE
THIS
CERTIFICATE WAS ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY BE SOLD
ONLY PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE ACT OR AN
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE ACT. IN ADDITION,
THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO RESTRICTIONS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. A COPY OF THE
POOLING AND SERVICING AGREEMENT WILL BE FURNISHED TO THE HOLDER OF THIS
CERTIFICATE BY THE TRUSTEE UPON WRITTEN REQUEST.
This
Certificate represents an
Undivided
Interest in the
Chase
Credit Card Master Trust
Evidencing
an Undivided Interest in a trust, the corpus of which consists of a portfolio
of
VISA® and
MasterCard®2
credit card receivables generated or acquired
by Chase Bank USA, National Association, and other assets and interests
constituting the Trust under the Pooling and Servicing Agreement described
below.
(Not
an interest in or an obligation of Chase Bank USA, National Association or
any
Affiliate thereof.)
This
certifies that Chase Bank USA, National Association (the “Holder”) is the
registered owner of an undivided interest in a trust (the “Trust”), the
corpus of which consists of a portfolio of receivables (the
“Receivables”) now existing or hereafter created under selected VISA®
and MasterCard® credit card
accounts
(the “Accounts”) of Chase Bank USA, National Association (the
“Transferor”), a national banking association, all monies due or to
become due in payment of the Receivables (including all Finance Charge
Receivables), all proceeds of such Receivables and Insurance Proceeds relating
to the Receivables, the other assets and interests constituting the Trust and
the proceeds thereof pursuant to a Fifth Amended and Restated Pooling and
Servicing Agreement, dated as of December 19, 2007, as supplemented by any
Supplement relating to a Series of Investor Certificates (the “Pooling and
Servicing Agreement”),
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2
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VISA®
and
MasterCard®
are registered
trademarks of VISA U.S.A., Inc. and MasterCard International Inc.,
respectively.
|
A-1
by
and between Chase Bank USA, National Association, as Transferor and Servicer,
and The Bank of New York, as Trustee (the “Trustee”) and as Paying Agent,
a summary of certain of the pertinent provisions of which is set forth
herein.
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned to them in the Pooling and Servicing
Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the Holder
by virtue of the acceptance hereof assents and by which the Holder is
bound.
This
Certificate has not been registered or qualified under the Securities Act of
1933, as amended, or any state securities law. No sale, transfer or
other disposition of this Certificate shall be permitted other than in
accordance with the provisions of Section 6.3, 6.9 or 7.2 of the Pooling and
Servicing Agreement.
The
Receivables consist of Principal Receivables which arise generally from the
purchase of goods and services and of amounts advanced to cardholders as cash
advances, and of Finance Charge Receivables which arise generally from Periodic
Finance Charges and other fees and charges, as more fully specified in the
Pooling and Servicing Agreement.
This
Certificate is the Transferor Certificate (the “Certificate”), which
represents an Undivided Interest in the Trust, including the right to receive
the Collections and other amounts at the times and in the amounts specified
in
the Pooling and Servicing Agreement to be paid to the Holder of the Transferor
Certificate. The aggregate interest represented by this Certificate
in the Principal Receivables in the Trust shall not at any time exceed the
Transferor Interest at such time. In addition to this Certificate,
Series of Investor Certificates will be issued to investors pursuant to the
Pooling and Servicing Agreement, each of which will represent an Undivided
Interest in the Trust. This Certificate shall not represent any
interest in the Investor Accounts, any Series Accounts or any Credit
Enhancement, except to the extent provided in the Pooling and Servicing
Agreement. The Transferor Interest on any date of determination will
be an amount equal to the aggregate amount of Principal Receivables and the
principal amounts on deposit in the Excess Funding Account, any Principal
Funding Account and any other Series Account (if so provided in the applicable
Supplement) at the end of the day immediately prior to such date of
determination minus the Aggregate Investor Interest at the end of such
day, minus the aggregate Enhancement Invested Amounts (if such amounts
are not included in the Investor Interest in the applicable Supplement), if
any,
for each Series outstanding at the end of such day.
The
Servicer shall deposit all Collections in the Collection Account as promptly
as
possible after the Date of Processing of such Collections, but in no event
later
than the second Business Day following such Date of Processing (except as
provided below and except as provided in any Supplement to the Pooling and
Servicing Agreement). Unless otherwise stated in any Supplement,
throughout the existence of the Trust, the Servicer shall allocate to the Holder
of the Certificate an amount equal to the product of (A) the Transferor
Percentage and (B) the aggregate amount of such Collections allocated to
Principal Receivables and Finance Charge Receivables, respectively, in respect
of each Monthly Period. Notwithstanding the first sentence of this
paragraph, the Servicer need not deposit this amount or any other amounts so
allocated to
A-2
the
Certificate pursuant to the Pooling and Servicing Agreement into the Collection
Account and shall pay, or be deemed to pay, such amounts as collected to the
Holder of this Certificate.
Chase
Bank USA, National Association, as Servicer, is entitled to receive as servicing
compensation a monthly servicing fee. The portion of the servicing
fee which will be allocable to the Holder of this Certificate pursuant to the
Pooling and Servicing Agreement will be payable by the Holder of this
Certificate and neither the Trust nor the Trustee or the Investor
Certificateholders will have any obligations to pay such portion of the
servicing fee.
This
Certificate does not represent an obligation of, or any interest in, the
Transferor or the Servicer, and neither the Certificates nor the Accounts or
Receivables are insured or guaranteed by the Federal Deposit Insurance
Corporation or any other governmental agency or instrumentality. This
Certificate is limited in right of payment to certain Collections respecting
the
Receivables, all as more specifically set forth hereinabove and in the Pooling
and Servicing Agreement.
Upon
the termination of the Trust pursuant to Section 12.1 of the Pooling and
Servicing Agreement, the Trustee shall assign and convey to the Holder of this
Certificate (without recourse, representation or warranty) all right, title
and
interest of the Trust in the Receivables, whether then existing or thereafter
created, all monies due or to become due with respect thereto (including all
accrued interest theretofore posted as Finance Charge Receivables) and all
proceeds thereof and Insurance Proceeds relating thereto and Interchange
allocable to the Trust pursuant to any Supplement, except for amounts held
by
the Trustee pursuant to subsection 12.3(b) of the Pooling and Servicing
Agreement. The Trustee shall execute and deliver such instruments of
transfer and assignment, in each case without recourse, as shall be reasonably
requested by the Holder of this Certificate to vest in such Holder all right,
title and interest which the Trustee had in the Receivables.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, by manual signature, this Certificate shall not be entitled to
any
benefit under the Pooling and Servicing Agreement, or be valid for any
purpose.
A-3
IN
WITNESS WHEREOF, Chase Bank USA, National Association has caused this
Certificate to be duly executed under its official seal.
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CHASE
BANK USA, NATIONAL ASSOCIATION
Transferor
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By:
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Authorized
Officer
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[SEAL]
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Attested
to:
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By:
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Cashier
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Date:
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A-4
Trustee’s
Certificate of Authentication
CERTIFICATE
OF AUTHENTICATION
This
is the Transferor Certificate referred to in the within-mentioned Pooling and
Servicing Agreement.
THE
BANK OF NEW
YORK,
as
Trustee
By:
Authorized Officer
Authorized Officer
A-5
EXHIBIT
B
FORM
OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
ASSIGNMENT
No. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, (this “Assignment”) dated
as of _________, ______, by and between CHASE BANK USA, NATIONAL ASSOCIATION,
a
national banking association organized and existing under the laws of the United
States of America (“Chase USA”), and THE BANK OF NEW YORK, a banking
corporation organized and existing under the laws of the State of New York,
as
Trustee (the “Trustee”) of Chase Credit Card Master Trust (the
“Trust”), pursuant to the Pooling and Servicing Agreement referred
to
below.
W
I T N E S S E T H:
WHEREAS,
Chase USA, as Transferor and Servicer and the Trustee, on behalf of the Trust,
and Paying Agent are parties to the Fifth Amended and Restated Pooling and
Servicing Agreement, dated as of December 19, 2007 (the “Pooling and
Servicing Agreement”);
WHEREAS,
pursuant to the Pooling and Servicing Agreement, Chase USA wishes to designate
Additional Accounts of Chase USA to be included as Accounts and to convey the
Receivables of such Additional Accounts, whether now existing or hereafter
created, to the Trust as part of the corpus of the Trust (as each such term
is
defined in the Pooling and Servicing Agreement); and
WHEREAS,
the Trustee, on behalf of the Trust, is willing to accept such designation
and
conveyance subject to the terms and conditions hereof;
NOW,
THEREFORE, Chase USA and the Trustee hereby agree as follows:
1. Defined
Terms. All terms defined in the Pooling and Servicing Agreement
and used herein shall have such defined meanings when used herein, unless
otherwise defined herein.
“Addition
Cut-Off Date” shall mean, with respect to the Additional Accounts designated
hereby, ______________, ________.
“Addition
Date” shall mean, with respect to the Additional Accounts designated hereby,
______________, ________.
“Notice
Date” shall mean, with respect to the Additional Accounts designated hereby,
______________, ________.
2. Designation
of Additional Accounts. Chase USA shall deliver to the Trustee,
not later than five Business Days after the Addition Date, a true and complete
list (in the
B-1
form
of a computer file, microfiche list, CD-ROM or such other form as agreed upon
between the Transferor and the Trustee, on behalf of the Trust) of each
VISA® and
MasterCard® account which,
as of
the Addition Date, shall be deemed to be an Additional Account, each such
account being identified by account number and by the aggregate amount of
Receivables in such account as of the close of business on the Addition Cut-Off
Date. Such list shall be marked as Schedule 1 to this Assignment and
shall, as of the Addition Date, modify and amend and be incorporated into and
made a part of this Assignment and the Pooling and Servicing
Agreement.
3. Conveyance
of Receivables.
▇. ▇▇▇▇▇
USA does hereby transfer, assign, set-over and otherwise convey to the Trustee
on behalf of the Trust for the benefit of the Certificateholders, without
recourse on and after the Addition Date, all right, title and interest of Chase
USA in and to the Receivables now existing and hereafter created in the
Additional Accounts designated hereby, all monies due or to become due with
respect thereto (including all Finance Charge Receivables) and all proceeds
of
such Receivables, Recoveries, Interchange, Insurance Proceeds relating to such
Receivables and the proceeds of any of the foregoing.
B. In
connection with such transfer, Chase USA agrees to record and file, at its
own
expense, a financing statement with respect to the Receivables now existing
and
hereafter created in the Additional Accounts designated hereby (which may be
a
single financing statement with respect to all such Receivables or a financing
statement filed previously with respect to Receivables arising in Accounts
that
include the Additional Accounts designated hereby) for the transfer of accounts
as defined in Section 9-102 of the UCC as in effect in the State of Delaware
meeting the requirements of applicable state law in such manner and such
jurisdictions as are necessary to perfect the assignment of such Receivables
to
the Trustee on behalf of the Trust for the benefit of the Certificateholders
(the “Secured Party”), and to deliver a file-stamped copy of such
financing statement or other evidence of such filing to the Trustee on or prior
to the date of this Assignment.
C. The
parties hereto agree that all transfers of Receivables to the Trust pursuant
to
this Assignment are subject to, and shall be treated in accordance with, the
Delaware Act and each of the parties hereto agrees that this Assignment has
been
entered into by the parties hereto in express reliance upon the Delaware
Act. For purposes of complying with the requirements of the Delaware
Act, each of the parties hereto hereby agrees that any property, assets or
rights purported to be transferred, in whole or in part, by Chase USA pursuant
to this Assignment shall be deemed to no longer be the property, assets or
rights of Chase USA. The parties hereto acknowledge and agree that
each such transfer is occurring in connection with a “securitization
transaction” within the meaning of the Delaware Act.
D. In
connection with such transfer, Chase USA further agrees, at its own expense,
on
or prior to the date of this Assignment to indicate in its computer files that
Receivables created in connection with the Additional Accounts designated
hereby
B-2
have been transferred to the Trust pursuant to this Assignment for the benefit
of the Certificateholders.
▇. ▇▇▇▇▇
USA hereby grants to the Secured Party a security interest in all of Chase
USA’s
right, title and interest in, to and under the Receivables now existing and
hereafter created in the Additional Accounts designated hereby, all monies
due
or to become due with respect to such Receivables, Insurance Proceeds relating
to such Receivables, Recoveries, Interchange and the proceeds to any of the
foregoing to secure a loan in an amount equal to the unpaid principal amount
of
the Investor Certificates issued or to be issued pursuant to the Pooling and
Servicing Agreement and the interest accrued at the related Certificate Rate,
and this Assignment shall constitute a security agreement under applicable
law. Chase USA shall file continuation statements and provide other
further assurances to maintain the perfection and priority of such security
interest of the Secured Party.
4. Acceptance
by Trustee. The Trustee hereby acknowledges its acceptance on
behalf of the Trust for the benefit of the Certificateholders of all right,
title and interest previously held by Chase USA in and to the Receivables now
existing and hereafter created, and declares that it shall maintain such right,
title and interest, upon the Trust herein set forth, for the benefit of all
Certificateholders.
5. Representations
and Warranties of Chase USA. Chase USA hereby represents and
warrants to the Secured Party, as of the Addition Date (or such other date
as is
specified below), that:
A. Legal,
Valid and Binding Obligation. This Assignment constitutes a
legal, valid and binding obligation of Chase USA enforceable against Chase
USA
in accordance with its terms, except as such enforceability may be limited
by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors’ rights
in general and the rights of creditors of 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).
B. Eligibility
of Accounts and Receivables. As of the Addition Cut-Off Date,
each Additional Account designated hereby was an Eligible Account and each
Receivable in such Additional Account was an Eligible Receivable.
C. Selection
Procedures. No selection procedures believed by Chase USA to be
materially adverse to the interests of the Investor Certificateholders were
utilized in selecting the Additional Accounts designated hereby from the
available Eligible Accounts in the Bank Portfolio.
D. Insolvency. Chase
USA is not insolvent and, after giving effect to the conveyance set forth in
Section 3 of this Assignment, will not be insolvent.
E. Transfer. This
Assignment constitutes either: (i) a valid transfer and assignment to
the Trust of all right, title and interest of Chase USA in and to Receivables
now existing and hereafter created in the Additional Accounts
designated
B-3
hereby,
and all proceeds (as defined in the UCC) of such Receivables and Insurance
Proceeds relating thereto, and such Receivables and all proceeds thereof and
Insurance Proceeds relating thereto will be held by the Secured Party free
and
clear of any Lien of any Person claiming through or under Chase USA or any
of
its Affiliates except for (x) Liens permitted under subsection 2.5(b) of the
Pooling and Servicing Agreement, (y) the interest of the holder of the
Transferor Certificate and (z) Chase USA’s right to receive interest accruing
on, and investment earnings in respect of, the Finance Charge Account and the
Principal Account as provided in the Pooling and Servicing Agreement; or (ii)
a
valid and continuing security interest (as defined in the UCC) in the
Receivables now existing or hereafter created in the Additional Accounts in
favor of the Secured Party, the proceeds (as defined in the UCC) thereof and
Insurance Proceeds relating thereto, upon the conveyance of such Receivables
to
the Trust, which security interest is prior to all other Liens, and is
enforceable against creditors of and purchasers from Chase USA, and which will
be enforceable with respect to the Receivables thereafter created in respect
of
Additional Accounts designated hereby, the proceeds (as defined in the UCC)
thereof and Insurance Proceeds relating thereto, upon such creation; and (iii)
if this Assignment constitutes the grant of a security interest to the Secured
Party in such property, upon the filing of a financing statement described
in
Section 3 of this Assignment with respect to the Additional Accounts designated
hereby and in the case of the Receivables of such Additional Accounts thereafter
created and the proceeds (as defined in the UCC) thereof, and Insurance Proceeds
relating to such Receivables, upon such creation, the Secured Party shall have
a
first priority perfected security interest in such property (subject to Section
9-315 the UCC as in effect in the State of Delaware), except for Liens permitted
under subsection 2.5(b) of the Pooling and Servicing Agreement. Chase
USA has caused or will have caused, within ten days, the filing of all
appropriate financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest
in
the Receivables granted to the Secured Party hereunder. The Receivables
constitute “accounts” within the meaning of the applicable UCC.
F. Other
Liens. Other than the security interest granted to the Secured
Party pursuant to this Assignment, Chase USA has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the
Receivables. Chase USA has not authorized the filing of and is not
aware of any financing statements against Chase USA that include a description
of collateral covering the Receivables other than any financing statement (i)
relating to the security interest granted to the Secured Party hereunder, (ii)
that has been terminated, or (iii) that names The Bank of New York as secured
party. Chase USA is not aware of any judgment or tax lien filings against Chase
USA. Chase USA owns and has good and marketable title to the
Receivables free and clear of any Lien, claim or encumbrance of any
Person.
G. Breach
of Representations and Warranties. The provision set forth in
Section 2.4(d) of the Pooling and Servicing Agreement shall be applicable to
any
breach of the representations and warranties of this Section 5 with respect
to
any Receivable.
B-4
6. Conditions
Precedent. The acceptance by the Trustee set forth in Section 4
and the amendment of the Pooling and Servicing Agreement set forth in Section
7
are subject to the satisfaction, on or prior to the Addition Date, of the
following conditions precedent:
A. Officer’s
Certificate. Chase USA shall have delivered to the Trustee a
certificate of a Vice President or more senior officer substantially in the
form
of Schedule 2 hereto, certifying that (i) all requirements set forth in Section
2.6 of the Pooling and Servicing Agreement for designating Additional Accounts
and conveying the Principal Receivables of such Accounts, whether now existing
or hereafter created, have been satisfied or waived and (ii) each of the
representations and warranties made by Chase USA in Section 5 is true and
correct as of the Addition Date. The Trustee may conclusively rely on
such Officer’s Certificate, shall have no duty to make inquiries with regard to
the matters set forth therein, and shall incur no liability in so
relying.
B. Opinion
of Counsel. Chase USA shall have delivered to the Trustee the two
Opinions of Counsel referenced in subsection 2.6(c)(vi) of the Pooling and
Servicing Agreement with respect to the Additional Accounts designated
hereby.
7. Amendment
of the Pooling and Servicing Agreement. The Pooling and Servicing
Agreement is hereby amended to provide that all references therein to the
“Pooling and Servicing Agreement,” to “this Agreement” and “herein” shall be
deemed from and after the Addition Date to be a dual reference to the Pooling
and Servicing Agreement as supplemented by this Assignment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions to the Pooling and Servicing 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 provisions of the Pooling and Servicing
Agreement.
8. Survival. The
representations, warranties and covenants of the parties hereto shall survive
the assignment of the Receivables pursuant to this Assignment and the
termination of this Assignment, and shall inure to the benefit of the
Trust. Notwithstanding anything to the contrary in this Assignment,
the representations and warranties of Chase USA herein shall not survive after
the tenth (10th) anniversary of the Addition Date.
9. Waivers
and Amendments. This Assignment may be amended, superseded,
canceled, renewed or extended and the terms hereof may be waived, only by a
written instrument signed by authorized representatives of the parties or,
in
the case of a waiver, by an authorized representative of the party waiving
compliance and, in all cases, subject to confirmation by each Rating Agency
then
rating any Investor Certificates. No such written instrument shall be
effective unless it expressly recites that it is intended to amend, supersede,
cancel, renew or extend this Assignment or to waive compliance with one or
more
of the terms hereof, as the case may be. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as
a
waiver thereof, nor shall any waiver on the part of any party of any such right,
power or privilege, or any single or partial exercise of any such
right,
B-5
power
or privilege, preclude any further exercise thereof or the exercise of any
other
such right, power or privilege.
10. Counterparts. This
Assignment may be executed in two or more counterparts (and by different parties
on separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
11. GOVERNING
LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY, CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
12. Tax
Treatment. Nothing in this Assignment shall be deemed to require
any securitization transaction involving the Receivables to be treated as a
sale
for federal or state income tax purposes or to preclude treatment of any such
securitization transaction as debt for federal or state income tax
purposes.
B-6
IN
WITNESS WHEREOF, the undersigned have caused this Assignment of Receivables
in
Additional Accounts to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
CHASE
BANK USA,
NATIONAL
ASSOCIATION,
as
Transferor
By: ______________________________
Name:
Title:
THE
BANK OF NEW
YORK,
as
Trustee
By: ______________________________
Name:
Title:
B-7
|
Schedule
1
to Assignment of
Receivables in
Additional Accounts
|
ADDITIONAL
ACCOUNTS
B-8
|
Schedule
2
to Assignment of Receivables
in
Additional
Accounts
|
Chase
Bank USA, National Association
Chase
Credit Card Master Trust
Officer’s
Certificate
The
undersigned, being _____________ of Chase Bank USA, National Association, a
national banking association organized under the laws of the United States
(“Chase USA”), as Transferor under the Fifth Amended and Restated Pooling
and Servicing Agreement, dated as of December 19, 2007, as heretofore
supplemented and amended (the “Agreement”), by and between Chase USA, as
Transferor and Servicer, and The Bank of New York, as Trustee and Paying Agent
(the “Trustee”), and in connection with the execution of Assignment No.
__ of Receivables in Additional Accounts, dated as of _______________, 20__
(the
“Assignment”), between Chase USA, as Transferor, and the Trustee, hereby
represents and warrants to the Trustee that as of _____________, 20__
(capitalized terms used but not defined herein shall have the meanings provided
in the Agreement and the Assignment):
1. The
designation of Receivables in Additional Accounts by Chase USA and the
acceptance thereof by the Trustee will not (i) adversely affect the tax
characterization as debt of any Class of Investor Certificates of any
outstanding Series or Class in respect of which an opinion was delivered at
the
time of issuance that such Class would be treated as debt for U.S. federal
income tax purposes, (ii) cause the Trust following such designation and
acceptance to be deemed to be an association (or a “publicly traded partnership”
within the meaning of Section 7704(b) of the Code) taxable as a corporation
and
(iii) cause or constitute a taxable event in which gain or loss would be
recognized by any Investor Certificateholder or the Trust, (x) each Additional
Account is, as of the Addition Cut-Off Date, an Eligible Account, and each
Receivable in such Additional Account is, as of the Addition Cut-Off Date,
an
Eligible Receivable, (y) no selection procedures believed by Chase USA to be
materially adverse to the interests of the Investor Certificateholders were
utilized in selecting the Additional Accounts from the available Eligible
Accounts from the Bank Portfolio, and (z) as of the Addition Date, Chase USA
is
not insolvent;
2. As
of the Addition Date, the Assignment constitutes either (x) a valid transfer
and
assignment to the Trust of all right, title and interest of Chase USA in and
to
the Receivables then existing and thereafter created in the Additional Accounts,
and all proceeds (as defined in the UCC) of such Receivables and Insurance
Proceeds relating thereto and such Receivables and all proceeds thereof and
Insurance Proceeds relating thereto will be held by the Trust free and clear
of
any Lien of any Person claiming through or under Chase USA or any of its
Affiliates, except for (i) Liens permitted under subsection 2.5(b), (ii) the
interest of Chase USA as Holder of the Transferor Certificate and (iii) Chase
USA’s right to receive interest
B-9
accruing
on, and investment earnings in respect of, the Finance Charge Account and the
Principal Account, or any Series Account as provided in this Agreement and
any
related Supplement or (y) a grant of a security interest (as defined in the
UCC), in such property to the Trust, which is enforceable with respect to then
existing Receivables of the Additional Accounts, the proceeds (as defined in
the
UCC), thereof and Insurance Proceeds relating thereto upon the conveyance of
such Receivables to the Trust, and which will be enforceable with respect to
the
Receivables thereafter created in respect of Additional Accounts conveyed on
such Addition Date, the proceeds (as defined in the UCC), thereof and Insurance
Proceeds relating thereto upon such creation; and (z) if the Assignment
constitutes the grant of a security interest to the Trust in such property,
upon
the filing of a financing statement as described in Section 2.1 of the Agreement
with respect to such Additional Accounts and in the case of the Receivables
thereafter created in such Additional Accounts and the proceeds (as defined
in
the UCC), thereof, and Insurance Proceeds relating thereto, upon such creation,
the Trust shall have a first priority perfected security interest in such
property (subject to Section 9-315 of the UCC), except for Liens permitted
under
subsection 2.5(b) of the Agreement.
3. As
of the Addition Date, all requirements set forth in Section 2.6 of the Agreement
for designating Additional Accounts and conveying the Principal Receivables
of
such Account, whether now existing or hereafter created, have been satisfied
or
waived; and
4. Each
of the representations and warranties made by Chase USA in Section 5 of the
Assignment is true and correct as of the Addition Date.
IN
WITNESS WHEREOF, I have hereunto set my hand this _____ day of___________,
____.
By: _________________________
Name:
Title:
B-10
EXHIBIT
C
FORM
OF MONTHLY SERVICER’S CERTIFICATE
CHASE
BANK USA, NATIONAL ASSOCIATION
_____________________________________________
CHASE
CREDIT CARD MASTER TRUST
_____________________________________________
1. Capitalized
terms used in this Certificate have their respective meanings set forth in
the
Pooling and Servicing Agreement; provided, that the “preceding Monthly
Period” shall mean the Monthly Period immediately preceding the calendar month
in which this Certificate is delivered. This Certificate is delivered
pursuant to subsection 3.4(b) of the Fifth Amended and Restated Pooling and
Servicing Agreement, dated as of December 19, 2007 (the “Pooling
and Servicing Agreement”). References herein to certain sections
and subsections are references to the respective sections and subsections of
the
Pooling and Servicing Agreement.
2. Chase
Bank USA, National Association is the Servicer under the Pooling and Servicing
Agreement.
3. The
undersigned is a Servicing Officer.
4. The
date of this Certificate is a Determination Date under the Pooling and Servicing
Agreement.
|
5. The
aggregate amount of Collections processed during the preceding Monthly
Period was equal to (excluding Annual Membership Fees and
Interchange)
|
$__________
|
|
6. The
Aggregate Investor Percentage of Collections of Principal Receivables
processed by the Servicer during the preceding Monthly Period was
equal
to
|
$__________
|
|
7. The
Aggregate Investor Percentage of Collections of Finance Charge Receivables
processed by the Servicer during the preceding Monthly Period was
equal to
(excluding Annual Membership Fees and Interchange)
|
$__________
|
|
8. The
aggregate amount of Receivables processed by the Servicer as of the
end of
the last day of the preceding Monthly Period
|
$__________
|
C-1
|
9. Of the
balance on deposit in the Finance Charge Account, the amount attributable
to the Aggregate Investor Percentage of Collections processed by
the
Servicer during the preceding Monthly Period
|
$__________
|
|
10. Of
the balance on deposit in the Principal Account, the amount attributable
to the Aggregate Investor Percentage of Collections processed by
the
Servicer during the preceding Monthly Period
|
$__________
|
|
11. The
aggregate amount, if any, of withdrawals, drawings or payments under
any
Credit Enhancement, if any, required to be made with respect to any
Series
outstanding for the preceding Monthly Period
|
$__________
|
|
12. The
Aggregate Investor Percentage of Collections of Principal Receivables
processed by the Servicer during the current month is equal
to
|
$__________
|
|
13. The
amount equal to the Aggregate Investor Percentage of Annual Membership
Fees deposited to the Finance Charge Account or any Series Account
on or
before the Transfer Date during the current month is equal
to
|
$__________
|
|
14. The
aggregate amount of Interchange to be deposited in the Finance Charge
Account on the Transfer Date of the current month is equal
to
|
$__________
|
|
15. The
aggregate amount of all sums payable to the Investor Certificateholders
of
each Series on the succeeding Distribution Date with respect to
Certificate Principal
|
$__________
|
|
16. The
aggregate amount of all sums payable to the Investor Certificateholders
of
each Series on the succeeding Distribution Date with respect to
Certificate Interest
|
$__________
|
17. To the
knowledge of the undersigned, there are no Liens on any Receivables in the
Trust
except as described below:
[If
applicable, insert “None.”]
C-2
IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this
certificate this ____ day of __________, ____.
CHASE
BANK USA, NATIONAL
ASSOCIATION,
as Servicer
By: _____________________________
Name:
Title:
C-3
|
Schedule
to Monthly
Servicer’s
Certificate*
|
Chase
Bank USA, National Association
________________________________________
CHASE
CREDIT CARD MASTER TRUST
________________________________________
* A
separate schedule is to be attached for each Series, with appropriate changes
and additions to reflect the specifics of the related Series
Supplement.
C-4
EXHIBIT
D
FORM
OF ANNUAL SERVICER’S CERTIFICATE
Chase
Bank USA, National Association
___________________________________________________
CHASE
CREDIT CARD MASTER TRUST
___________________________________________________
The
undersigned, a duly authorized representative of Chase Bank USA, National
Association (“CUSA”), a national banking association organized under the
laws of the United States, as Servicer pursuant to the Fifth Amended and
Restated Pooling and Servicing Agreement dated as of December 19, 2007 (the
“Pooling and Servicing Agreement”) by and among CUSA, as Transferor and
Servicer, and The Bank of New York, as trustee and paying agent (the
“Trustee”) does hereby certify that:
1.
CUSA is the Servicer under the Pooling and Servicing Agreement.
2.
The undersigned is duly authorized pursuant to the Pooling and Servicing
Agreement to execute and deliver this Certificate to the Trustee.
3.
This Certificate is delivered pursuant to Section 3.5 of the Pooling and
Servicing Agreement.
4.
A review of the activities of the Servicer during [the period from the Closing
Date until December 31, ______] or [the calendar year ended December 31, ______]
was conducted under the supervision of the undersigned.
5.
Based on such review, the Servicer has, to the best of the knowledge of the
undersigned, fully performed all its obligations under the Pooling and Servicing
Agreement throughout such period and no default in the performance of such
obligations has occurred or is continuing except as set forth in paragraph
6
below.
6.
The following is a description of each failure of the Servicer to fulfill its
obligations under the provisions of the Pooling and Servicing Agreement,
including any Supplement, 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 failure, (ii) the action taken by the Servicer, if any, to remedy
each
such failure and (iii) the current status of each such failure:
[If
applicable, insert “None.”]
D-1
IN
WITNESS WHEREOF, the undersigned has duly executed this certificate this ____
day of ____________, ____.
CHASE
BANK USA,
NATIONAL
ASSOCIATION,
as
Servicer
By: ___________________________
Name:
Title:
D-2
EXHIBIT
E
FORM
OF ANNUAL OPINION OF COUNSEL
The
opinion set forth below, which is to be delivered pursuant to subsection 13.2(d)
of the Fifth Amended and Restated Pooling and Servicing Agreement, may be
subject to certain qualifications, assumptions, limitations and exceptions
taken
or made in the opinion of counsel delivered on the Closing Date with respect
to
similar matters.
No
filing or other action, other than such filing or action described in such
opinion, is necessary from the date of such opinion through March 31 of the
following year to continue the perfected status of the interest of the Trust
in
the collateral described in the financing statements referred to in such
opinion.
E-1
EXHIBIT
F
FORM
OF REASSIGNMENT OF RECEIVABLES
REASSIGNMENT
NO. ___ OF RECEIVABLES, dated as of ___________, _____, by and between Chase
Bank USA, National Association, a national banking association organized and
existing under the laws of the United States (the “Bank”), and The Bank
of New York, a banking corporation organized under the laws of the State of
New
York, as Trustee (the “Trustee”) of the Chase Credit Card Master Trust
(the “Trust”), pursuant to the Pooling and Servicing Agreement referred
to below.
W
I T N E S S E T H:
WHEREAS,
the Bank, as Transferor and Servicer, and the Trustee and Paying Agent are
parties to the Fifth Amended and Restated Pooling and Servicing Agreement,
dated
as of December 19, 2007 (the “Pooling and Servicing
Agreement”);
WHEREAS,
pursuant to the Pooling and Servicing Agreement, the Bank wishes to remove
all
Receivables from certain designated Accounts of the Bank (the “Removed
Accounts”) and to cause the Trustee to reconvey the Receivables of such
Removed Accounts, whether now existing or hereafter created, from the Trust
to
the Bank (as each such term is defined in the Pooling and Servicing Agreement);
and
WHEREAS,
the 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 Bank and the Trustee, on behalf of the Trust, hereby agree as
follows:
1. Defined
Terms. All terms defined in the Pooling and Servicing Agreement
and used herein shall have such defined meanings when used herein, unless
otherwise defined herein.
“Removal
Cut-Off Date” shall mean, with respect to the Removed Accounts designated
hereby, __________________, __________.
“Removal
Date” shall mean, with respect to the Removed Accounts designated hereby,
__________________, __________.
“Removal
Notice Date” shall mean, with respect to the Removed Accounts designated
hereby, __________________, __________ (which shall be a date on or prior
to the fifth Business Day prior to the Removal Date).
2. Designation
of Removed Accounts. The Bank shall deliver to the Trustee, not
later than five Business Days after the Removal Date, a true and complete list
(in the form of a computer file, microfiche list, CD-ROM or such other form
as
agreed upon between the Transferor and the Trustee, on behalf of the Trust)
of
each VISA® and
MasterCard®
account
F-1
which,
as of the Removal Date, shall be deemed to be a Removed Account, each such
account being identified by account number and by the aggregate amount of
Receivables in such account as of the close of business on the Removal Cut-Off
Date. Such list shall be marked as Schedule 1 to this Reassignment
and shall, as of the Removal Date, modify and amend and be incorporated into
and
made a part of this Reassignment and the Pooling and Servicing
Agreement.
3. Conveyance
of Receivables.
(a) The
Trustee, on behalf of the Trust, does hereby reconvey to the Bank, without
recourse on and after the Removal Date, all right, title and interest of the
Trust in and to the Receivables now existing and hereafter created in the
Removed Accounts designated hereby, all monies due or to become due with respect
thereto (including all Finance Charge Receivables), all proceeds (as defined
in
Section 9-306 of the UCC as in effect in the State of Delaware) of such
Receivables, Insurance Proceeds relating to such Receivables and the proceeds
thereof.
(b) In
connection with such transfer, the Trustee, on behalf of the Trust, agrees
to
authorize the Bank on or prior to the date of this Reassignment, to file a
termination statement (in form and substance reasonably satisfactory to the
Trustee) with respect to the Receivables now existing and hereafter created
in
the Removed Accounts designated hereby (which may be a single termination
statement with respect to all such Receivables) evidencing the release by the
Trust of its Lien on the Receivables in the Removed Accounts, and meeting the
requirements of applicable state law, in such manner and such jurisdictions
as
are necessary to remove such Lien.
4. Representations
and Warranties of the Bank. The Bank 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 Bank enforceable against the Bank
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).
(b) Selection
Procedures. No selection procedures believed by the Bank to be
materially adverse to the interests of the Investor Certificateholders were
utilized in selecting the Removed Accounts designated hereby.
5. Conditions
Precedent. The amendment of the Pooling and Servicing Agreement
set forth in Section 6 hereof is subject to the satisfaction, on or prior to
the
Removal Date, of the following condition precedent:
The
Bank shall have delivered to the Trustee an Officer’s Certificate certifying
that (i) as of the Removal Date, all requirements set forth in Section 2.7
of
the Pooling and Servicing Agreement for designating Removed Accounts and
reconveying the Receivables of such Removed Accounts, whether now existing
or
hereafter created, have been satisfied and (ii) each of the representations
and
F-2
warranties
made by the Bank in Section 4 hereof is true and correct as of the Removal
Date. The Trustee may conclusively rely on such Officer’s
Certificate, shall have no duty to make inquiries with regard to the matters
set
forth therein, and shall incur no liability in so relying.
6. Amendment
of the Pooling and Servicing Agreement. The Pooling and Servicing
Agreement is hereby amended to provide that all references therein to the
“Pooling and Servicing Agreement,” to “this Agreement” and to “herein” shall be
deemed from and after the Removal Date to be a dual reference to the Pooling
and
Servicing Agreement as supplemented by this Reassignment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions to the Pooling and Servicing 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 non-compliance with any term or provision of the Pooling and Servicing
Agreement.
7. 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 together shall constitute one and the same instrument.
8. 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.
F-3
IN
WITNESS WHEREOF, the undersigned have caused this Reassignment of Receivables
to
be duly executed and delivered by their respective duly authorized officers
on
the day and year first above written.
|
CHASE
BANK USA, NATIONAL ASSOCIATION
Transferor
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
CHASE
BANK USA, NATIONAL ASSOCIATION
Transferor
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
F-4
|
Schedule
I
to
Reassignment
of
Receivables
|
REMOVED
ACCOUNTS
F-5
EXHIBIT
G
FORM
OF RECONVEYANCE OF RECEIVABLES
RECONVEYANCE
OF RECEIVABLES, dated as of ____________ ___, ____, by and between Chase Bank
USA, National Association, a national banking association (the
“Transferor”), and The Bank of New York, a banking corporation organized
and existing under the laws of New York, as Trustee (the “Trustee”) of
the Chase Credit Card Master Trust (the “Trust”), pursuant to the Pooling
and Servicing Agreement referred to below.
W
I T N E S S E T H:
WHEREAS,
the Transferor and the Trustee are parties to the Fifth Amended and Restated
Pooling and Servicing Agreement dated as of December 19, 2007 (hereinafter
as
such agreement may have been, or may from time to time be, amended, supplemented
or otherwise modified, the “Pooling and Servicing
Agreement”);
WHEREAS,
pursuant to the Pooling and Servicing Agreement, the Transferor wishes to cause
the Trustee, on behalf of the Trust, to reconvey all of the Receivables and
proceeds thereof, whether now existing or hereafter created, from the Trust
to
the Transferor pursuant to the terms of Section 12.4 of the Pooling and
Servicing Agreement upon termination of the Trust pursuant to subsection 12.1(a)
of the Pooling and Servicing Agreement (as each such term is defined in the
Pooling and Servicing Agreement); and
WHEREAS,
the Trustee, on behalf of the Trust, is willing to reconvey Receivables subject
to the terms and conditions hereof;
NOW,
THEREFORE, the Transferor and the Trustee hereby agree as follows:
1. Defined
Terms. All terms defined in the Pooling and Servicing Agreement
and used herein shall have such defined meanings when used herein, unless
otherwise defined herein.
“Reconveyance
Date” shall mean ______________, ____.
2. Return
of Lists of Accounts. The Trustee, on behalf of the Trust, shall
deliver to the Transferor, not later than three Business Days after the
Reconveyance Date, each list of Accounts delivered to the Trustee pursuant
to
the terms of the Pooling and Servicing Agreement.
3. Conveyance
of Receivables. (a) The Trustee, on behalf of the
Trust, does hereby reconvey to the Transferor, without recourse, representation
or warranty, on and after the Reconveyance Date, all right, title and interest
of the Trust in and to each and every Receivable now existing and hereafter
created in the Accounts, all monies due or to become due with respect thereto
(including all Finance Charge Receivables), all proceeds (as defined in Section
9-306 of the UCC as in effect in the
G-1
4. State
of Delaware) of such Receivables and Insurance Proceeds relating to such
Receivables and any Interchange, except for amounts, if any, held by the
Trustee, on behalf of the Trust, pursuant to subsection 12.3(b) of the Pooling
and Servicing Agreement.
(b) In
connection with such transfer, the Trustee, on behalf of the Trust, agrees
to
authorize the filing, on or prior to the date of this Reconveyance, of such
UCC
termination statements (in form and substance reasonably satisfactory to the
Trustee) as the Transferor may reasonably request, evidencing the release by
the
Trust of its lien on the Receivables.
5. Counterparts. This
Reconveyance 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.
6. GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
G-2
IN
WITNESS WHEREOF, the undersigned have caused this Reconveyance of Receivables
to
be duly executed and delivered by their respective duly authorized officers
on
the day and year first above written.
|
CHASE
BANK USA, NATIONAL ASSOCIATION
as
Transferor
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
THE
BANK OF NEW YORK,
as
Trustee
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
G-3
SCHEDULE
I
LIST
OF ACCOUNTS
Delivered
to Trustee only
[Deemed
Incorporated]
G-4
EXHIBIT
H
FORM
OF ANNUAL CERTIFICATION
|
|
Re:
|
The
[ ]
agreement dated as of
[ ],
20[ ] (the “Agreement”), among [IDENTIFY
PARTIES]
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY] (the “Company”), certify to the Transferor, and its officers,
with the knowledge and intent that they will rely upon this certification,
that:
(1) I
have reviewed the report on assessment of the Company’s compliance provided in
accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (17
C.F.R. §229.1100, et seq.) (the “Servicing Assessment”), and the
registered public accounting firm’s attestation report provided in accordance
with Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the “Attestation Report”) that were delivered by the
Company to the Transferor pursuant to the Agreement (collectively, the
“Company Information”);
(2) To
the best of my knowledge, the Company Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Information; and
(3) To
the best of my knowledge, all of the Company Information required to be provided
by the Company under the Agreement has been provided to the
Transferor.
Date: ________________________________
By: ________________________________
Name:
Title:
H-1
EXHIBIT
I
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Trustee shall address, at a
minimum, the criteria identified below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the credit card accounts or accounts are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on credit card accounts are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations (A) are mathematically accurate;
(B) are
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C) are
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
|
I-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of credit card accounts serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related asset pool documents.
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements.
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on credit card accounts, including any payoffs, made in accordance
with
the related credit card accounts documents are posted to the Servicer’s
obligor records maintained no more than two business days after
receipt,
or such other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related asset pool documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the accounts and the accounts agree with the
Servicer’s records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s
account (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with
the
transaction agreements and related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
an Account
is delinquent in accordance with the transaction agreements. Such
records
are maintained on at least a monthly basis, or such other period
specified
in the transaction agreements, and describe the entity’s activities in
monitoring delinquent Accounts including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency
is
deemed temporary (e.g., illness or unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for Accounts with variable
rates are
computed based on the related Account documents.
|
|
I-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor’s Account documents, on at least an annual basis, or such other
period specified in the transaction agreements; (B) interest on
such funds
is paid, or credited, to obligors in accordance with applicable
Account
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related Accounts,
or such
other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
[NAME
OF
TRUSTEE]
Date: ________________________________
By: ________________________________
Name:
Title:
I-3
EXHIBIT
J
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Paying Agent shall address,
at a
minimum, the criteria identified below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the credit card accounts or accounts are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on credit card accounts are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
ü
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations (A) are mathematically accurate;
(B) are
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C) are
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
|
J-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of credit card accounts serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
ü
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
ü
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related asset pool documents.
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements.
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on credit card accounts, including any payoffs, made in accordance
with
the related credit card accounts documents are posted to the Servicer’s
obligor records maintained no more than two business days after receipt,
or such other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related asset pool documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the accounts and the accounts agree with the
Servicer’s records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s
account (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with
the
transaction agreements and related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period an
Account
is delinquent in accordance with the transaction agreements. Such
records
are maintained on at least a monthly basis, or such other period
specified
in the transaction agreements, and describe the entity’s activities in
monitoring delinquent Accounts including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency
is
deemed temporary (e.g., illness or unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for Accounts with variable rates
are
computed based on the related Account documents.
|
|
J-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor’s Account documents, on at least an annual basis, or such other
period specified in the transaction agreements; (B) interest on such
funds
is paid, or credited, to obligors in accordance with applicable Account
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related Accounts,
or such
other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
[NAME
OF PAYING
AGENT]
Date: _________________________
By: _________________________
Name:
Title:
J-3
EXHIBIT
K
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the [Servicer]/[Subservicer] shall
address, at a minimum, the criteria identified below as “Applicable Servicing
Criteria”:
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
INAPPLICABLE
SERVICING CRITERIA
|
|
|
Reference
|
Criteria
|
||
|
General
Servicing Considerations
|
|||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the credit card loans are maintained.
|
X
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on credit card accounts are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established for overcollateralization, are separately maintained
(e.g., with respect to commingling of cash) as set forth in the
transaction agreements.
|
X
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
| 2 |
If
any material servicing activities are outsourced to third
parties, Item 1122 (d) (1) (ii) would be included in the Applicable
Servicing Criteria for
Servicer.
|
K-1
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
INAPPLICABLE
SERVICING CRITERIA
|
|
|
Reference
|
Criteria
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of pool assets serviced by the
Servicer.
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X1
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X2
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X3
|
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related asset pool documents.
|
X
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
| 1 |
The
Asserting Party allocates amounts due to investors and remits
such amounts
to the Paying Agent in accordance with the timeframes, distribution
priority and other terms set forth in the
transaction agreements.
|
| 2 |
Amounts
remitted to the Paying Agent pursuant to the transaction agreements
are
posted to the Asserting Party’s records within two business
days.
|
| 3 |
The
Asserting Party agrees amounts remitted to investors per
the
investor reports to amounts remitted to the Paying Agent
per the bank
statements.
|
K-2
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
INAPPLICABLE
SERVICING CRITERIA
|
|
|
Reference
|
Criteria
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
|
|
1122(d)(4)(iv)
|
Payments
on credit card accounts, including any payoffs, made in accordance
with
the related credit card account documents are posted to the Servicer’s
obligor records maintained no more than two business days after
receipt,
or such other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related asset pool documents.
|
X
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the accounts agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's account (e.g.,
loan
modifications or re-agings) are made, reviewed and approved by
authorized
personnel in accordance with the transaction agreements and related
pool
asset documents.
|
X
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
an Account
is delinquent in accordance with the transaction agreements. Such
records
are maintained on at least a monthly basis, or such other period
specified
in the transaction agreements, and describe the entity’s activities
in monitoring delinquent Accounts including, for example, phone
calls,
letters and payment rescheduling plans in cases where delinquency
is
deemed temporary (e.g., illness or unemployment).
|
X
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for Accounts with variable
rates are
computed based on the related Account documents.
|
X
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
Exhibit
L
FORM
OF
CHASE
CREDIT CARD MASTER TRUST
TRUSTEE’S
CERTIFICATE
[ ]
[ ], 20[ ]
Reference
is hereby made to the FIFTH AMENDED AND RESTATED POOLING AND SERVICING
AGREEMENT, dated as of December 19, 2007 (the “Agreement”), by and among
CHASE BANK USA, NATIONAL ASSOCIATION (the “Bank”), a national banking
association, as Transferor and Servicer (in such capacities, the “Transferor and
Servicer”), and THE BANK OF NEW YORK, a New York banking corporation, as trustee
and paying agent (in such capacities, the “Trustee” and “Paying
Agent”) on behalf of the Certificateholders of the Chase Credit Card Master
Trust (the “Trust”).
In
connection with transactions contemplated by the applicable Terms Agreement
(the
“Terms Agreement”), each with respect to a specific tranche of notes,
dated the respective dates of the pricing of such notes, incorporating an
Underwriting Agreement, dated as of
[ ]
[ ], 20[ ] (together, the “Underwriting
Agreement”), by and among the representative of the several underwriters
(collectively, the “Underwriters”), the Bank and Chase Issuance Trust, a
Delaware statutory trust (the “Issuing Entity”), relating to the sale by
the Issuing Entity to the Underwriters of CHASEseries notes from the date hereof
through [ ]
[ ], 20[ ] (the “Notes”), the undersigned, an
authorized officer of the Trustee, hereby certifies the following:
1. To
the knowledge of the undersigned officer of the Trustee, as of the date and
time
of this certificate, the information provided by the Trustee in the base
prospectus, dated
[ ]
[ ], 20[ ] (the “Base Prospectus”), relating to the
offering of the Notes of the Issuing Entity in the form filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations under the
Securities Act, as excerpted in Schedule A hereto, is true and accurate
in all material respects.
2. To
the knowledge of the undersigned officer of the Trustee, as of the date and
time
of this certificate, there are no legal proceedings pending or known to be
contemplated against the Trustee or against any property of the Trustee, that
would be material to security holders of the Notes.
3. To
the knowledge of the undersigned officer of the Trustee, as of the date and
time
of this certificate, there are no governmental proceedings pending or known
to
be contemplated against the Trustee or against any property of the Trustee,
that
would be material to security holders of the Notes.
L-1
4. To
the knowledge of the undersigned officer of the Trustee, as of the date and
time
of this certificate, there are no business relationships, agreements,
arrangements, transactions or understandings that are entered into outside
the
ordinary course of business or on terms other than would be obtained in an
arm’s
length transaction with an unrelated third party, that currently exists or
that
existed during the past two years and that is material to security holders
of
the Notes between the Trustee and any of the following:
(a) the
Bank;
(b) Wilmington
Trust Company[;]/[; and]
(c) ▇▇▇▇▇
Fargo Bank, National Association[[; and]/[.]
L-2
IN
WITNESS WHEREOF, I have executed this certificate as of the date hereinabove
set
forth.
THE
BANK OF NEW
YORK,
as
Trustee
By: ___________________________
Name:
Title:
L-3
Schedule
A
1. Page
[ ] of Base Prospectus
[DESCRIPTION
OF THE BANK OF NEW
YORK]
2. Page
[ ] of Base Prospectus
[DESCRIPTION
OF THE BANK OF NEW
YORK]