Exhibit 10.1
ASSIGNMENT No. 26 OF RECEIVABLES IN ADDITIONAL AC- COUNTS, (this
"Assignment") dated as of June 1, 2003, by and between CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, a national banking corporation organized and existing
under the laws of the United States of America ("Chase USA"), and THE BANK OF
NEW YORK, a banking corporation organized and existing under the laws of the
State of New York (the "Trustee") pursuant to the Pooling and Servicing
Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Chase USA, as Transferor on and after June 1, 1996, JPMorgan
Chase Bank, as Transferor prior to June 1, 1996 and as Servicer, and the
Trustee are parties to the Third Amended and Restated Pooling and Servicing
Agree-ment, dated as of November 15, 1999, as amended by the First Amendment
thereto dated as of March 31, 2001 and the Second Amendment thereto dated as of
March 1, 2002 (hereinafter as such agreement may have been, or may from time to
time be, amended, supplemented or otherwise modified, the "Pooling and Servicing
Agree-ment");
WHEREAS, pursuant to the Pooling and Servicing Agreement, Chase USA
wishes to designate Additional Accounts of Chase USA to be included as Accounts
and to convey the Receivables of such Additional Accounts, whether now existing
or hereafter created, to the Trust as part of the corpus of the Trust (as each
such term is defined in the Pooling and Servicing Agreement); and
WHEREAS, the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, Chase USA and the Trustee hereby agree as follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings
when used herein, unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, June 1, 2003.
"Notice Date" shall mean, with respect to the Additional Accounts
designated hereby, May 13, 2003.
2. Designation of Additional Accounts. Chase USA shall deliver to the
Trustee not later than five Business Days after the Addition Date, a computer
file or microfiche list containing a true and complete list of each MasterCard
and VISA account which as of the Addition Date shall be deemed to be an
Additional Account, such accounts being identified by ac-count number and by the
amount of Receivables in such accounts as of the close of business on the
Addition Date. Such list shall be delivered five Busi- ness Days after the date
of this Assignment and shall be marked as Schedule 1 to this Assignment and, as
of the Addition Date, shall be incorporated into and made a part of this
Assignment.
3. Conveyance of Receivables.
▇. ▇▇▇▇▇ USA does hereby transfer, assign, set-over and otherwise
convey to the Trustee on behalf of the Trust for the benefit of the
Certificateholders, without recourse on and after the Addition Date, all right,
title and interest of Chase USA in and to the Receivables now existing and
hereafter created in the Additional Accounts designated hereby, all monies due
or to become due with respect thereto (including all Finance Charge Receivables)
and all proceeds of such Receivables, Recoveries, Interchange, Insurance
Proceeds relating to such Receivables and the proceeds of any of the foregoing.
B. In connection with such transfer, Chase USA agrees to record and
file, at its own expense, a financing statement with respect to the Receivables
now existing and hereafter created in the Additional Accounts designated hereby
(which may be a single financing statement with respect to all such Receivables)
for the transfer of accounts as defined in Section 9-102 of the UCC as in effect
in the State of New York meeting the requirements of applicable state law in
such manner and such jurisdictions as are necessary to perfect the assignment of
such Receivables to the Trustee on behalf of the Trust for the benefit of the
Certificateholders (the "Secured Party"), and to deliver a file-stamped copy of
such financing statement or other evidence of such filing (which may, for
purposes of this Section 3, consist of telephone confirmation of such filing) to
the Trustee on or prior to the date of this Assignment.
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C. It is the intention of the parties hereto that all transfers of
Receivables to the Trust pursuant to this Assignment be subject to, and be
treated in accordance with, the Delaware Act and each of the parties hereto
agrees that this Assignment has been entered into by the parties hereto in
express reliance upon the Delaware Act. For purposes of complying with the
requirements of the Delaware Act, each of the parties hereto hereby agrees that
any property, assets or rights purported to be transferred, in whole or in part,
by Chase USA pursuant to this Assignment shall be deemed to no longer be the
property, assets or rights of Chase USA. The parties hereto acknowl- edge 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 indi- cate in its
computer files that Receivables created in connection with the Additional
Accounts designated hereby have been transferred to the Trust pursuant to this
Assignment for the benefit of the Certificateholders.
▇. ▇▇▇▇▇ USA hereby grants to the Secured Party a security interest in
all of Chase USA's right, title and interest in, to and under the Receivables
now existing and hereafter created in the Additional Accounts designated hereby,
all monies due or to become due with respect to such Receivables, Insurance
Proceeds relating to such Receivables, Recoveries, Interchange and the proceeds
to any of the foregoing to secure a loan in an amount equal to the unpaid
principal amount of the Investor Certificates issued or to be issued pursuant to
the Pooling and Servicing Agreement and the interests accrued at the related
Certificate Rates, and this Assignment shall constitute a security agreement
under applicable law. Chase USA shall execute continuation statements and
provide other further assurances to maintain the perfection and priority of such
security interest of the Secured Party.
4. Acceptance by Trustee. The Trustee hereby acknowledges its
acceptance on behalf of the Trust for the benefit of the Certificateholders of
all right, title and interest previously held by Chase USA in and to the
Re-ceivables 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.
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5. Representations and Warranties of Chase USA. Chase USA hereby
represents and warrants to the Secured Party as of the Addition Date:
A. Legal, Valid and Binding Obligation. This Assignment constitutes a
legal, valid and binding obligation of Chase USA en- forceable against Chase USA
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insol- vency, reorganization, moratorium or other similar
laws now or here- after in effect affecting the enforcement of creditors' rights
in general and the rights of creditors of banking associations and except as
such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
B. Eligibility of Accounts and Receivables. Each Additional Account
designated hereby is an Eligible Account and each Receiv- able in such
Additional Account is an Eligible Receivable.
C. Selection Procedures. No selection procedures believed by Chase USA
to be materially adverse to the interests of the Investor Certificateholders
were utilized in selecting the Additional Accounts designated hereby from the
available Eligible Accounts in the Bank Portfolio.
D. Insolvency. Chase USA is not insolvent and, after giving effect to
the conveyance set forth in Section 3 of this Assignment, will not be insolvent.
E. Transfer. This Assignment constitutes either: (i) a valid transfer
and assignment to the Trust of all right, title and interest of Chase USA in and
to Receivables now existing and hereafter created in the Additional Accounts
designated hereby, and all proceeds (as defined in the UCC) of such Receivables
and Insurance Proceeds relating thereto, and such Receivables and any proceeds
thereof and Insurance Proceeds relating thereto will be held by the Secured
Party free and clear of any Lien of any Person claiming through or under Chase
USA or any of its Affiliates except for (x) Liens permitted
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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 Re-
ceivables 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 Receiv- ▇▇▇▇▇ 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 Assign- ment 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 Addi-
tional 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 per- fected 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.
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G. Breach of Representations and Warranties. The provision set forth in
Section 2.4(d) of the Pooling and Servicing Agreement shall be applicable to any
breach of the representations and warranties of this Section 5 with respect to
any Receivable.
6. Conditions Precedent. The acceptance by the Trustee set forth in
Section 4 and the amendment of the Pooling and Servicing Agree-ment 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 deliv- ered 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 Servic- ing Agreement for designating
Additional Accounts and conveying the Principal Receivables of such Account,
whether now existing or hereafter created, have been satisfied and (ii) each of
the representa- tions 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 deliv- ered to the Trustee
an Opinion of Counsel with respect to the Addi- tional Accounts designated
hereby substantially in the form of Exhibit E to the Pooling and Servicing
Agreement.
7. Amendment of the Pooling and Servicing Agreement. The Pooling and
Servicing Agreement is hereby amended to provide that all references therein to
the "Pooling and Servicing Agreement," to "this Agree-ment" and "herein" shall
be deemed from and after the Addition Date to be a dual reference to the Pooling
and Servicing Agreement as supplemented by this Assignment and by Assignment No.
1 of Receivables in Additional
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Accounts, dated as of July 1, 1996, Assignment No. 2 of Receivables in
Additional Accounts, dated as of September 1, 1996, Assignment No.3 of
Receivables in Additional Accounts, dated as of December 1, 1997, Assign- ment
No. 4 of Receivables in Additional Accounts, dated as of February 1, 1998,
Assignment No. 5 of Receivables in Additional Accounts, dated as of April 1,
1998, Assignment No. 6 of Receivables in Additional Accounts, dated as of August
1, 1998, Assignment No. 7 of Receivables in Additional Accounts, dated as of
November 1, 1998, Assignment No. 8 of Receivables in Additional Accounts, dated
as of February 1, 1999, Assignment No. 9 of Receivables in Additional Accounts,
dated as of April 1, 1999, Assignment No. 10 of Receivables in Additional
Accounts, dated as of July 1, 1999, Assignment No. 11 of Receivables in
Additional Accounts, dated as of October 1, 1999, Assignment No. 12 of
Receivables in Additional Accounts, dated as of February 1, 2000, Assignment No.
13 of Receivables in Addi- tional Accounts, dated as of April 1, 2000,
Assignment No. 14 of Receivables in Additional Accounts, dated as of May 1,
2000, Assignment No. 15 of Receivables in Additional Accounts, dated as of
August 1, 2000, Assignment No. 16 of Receivables in Additional Accounts, dated
as of July 1, 2001, Assignment No. 17 dated as of September 1, 2001, Assignment
No. 18 of Receivables in Additional Accounts, dated as of November 1, 2001,
Assign- ment No. 19 of Receivables in Additional Accounts, dated as of March 6,
2002, Assignment No. 20 of Receivables in Additional Accounts, dated as of April
1, 2002, Assignment No. 21 of Receivables in Additional Accounts, dated as of
May 1, 2002, Assignment No. 22 of Receivables in Additional Accounts, dated as
of September 1, 2002, Assignment No. 23 of Receivables in Additional Accounts,
dated as of November 1, 2002, Assignment No. 24 of Receivables in Additional
Accounts, dated as of February 1, 2003, Assign- ment No. 25 of Receivables in
Additional Accounts, dated as of April 1, 2003, Reassignment No. 1 of
Receivables in Removed Accounts, dated as of September 30, 1997 and Reassignment
No. 2 of Receivables in Removed Accounts, dated as of December 1, 1997. Except
as expressly amended here-by, 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 noncompli- ance with any term or provisions of the Pooling and Servicing
Agreement.
8. Survival. The representations, warranties and cove- nants of the
parties hereto shall survive the assignment of the Receivables pursuant to this
Assignment and the termination of this Assignment, and shall inure to the
benefit of the Trust. Notwithstanding to the contrary in this Assignment, the
representations and warranties of the Chase USA herein shall not survive after
the tenth (10th ) anniversary of the Addition Date.
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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 representa-tives of the parties or, in
the case of a waiver, by an authorized representative of the party waiving
compliance and, in all cases, subject to confirmation by each Rating Agency then
rating any Investor Certificates. No such written instrument shall be effective
unless it expressly recites that it is intended to amend, supersede, cancel,
renew or extend this Assignment or to waive compliance with one or more of the
terms hereof, as the case may be. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any such right, power
or privilege, or any single or partial exercise of any such right, power or
privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege.
10. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
11. GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY, CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELA-WARE 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.
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IN WITNESS WHEREOF, the undersigned have caused this Assign- ment of
Receivables in Additional Accounts to be duly executed and delivered by their
respective duly authorized officers on the day and year first above written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
Schedule 1
to Assignment of
Receivables in
Additional Accounts
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ADDITIONAL ACCOUNTS
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