Exhibit 10.1
ASSIGNMENT No. 22 OF RECEIVABLES IN ADDITIONAL AC-COUNTS,
(this "Assignment") dated as of September 1, 2002, by and between CHASE
MANHATTAN BANK USA, NATIONAL ASSOCIATION, a national banking corporation
organized and existing under the laws of the United States of America ("Chase
USA"), and THE BANK OF NEW YORK, a banking corporation organized and existing
under the laws of the State of New York (the "Trustee") pursuant to the Pooling
and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Chase USA, as Transferor on and after June 1, 1996,
JPMorgan Chase Bank (formerly, The Chase Manhattan Bank), as Transferor prior to
June 1, 1996 and as Servicer, and the Trustee are parties to the Third Amended
and Restated Pooling and Servicing Agreement, dated as of November 15, 1999, as
amended by the First Amendment thereto dated as of March 31, 2001 and the Second
Amendment thereto dated as of March 1, 2002 (hereinafter as such agreement may
have been, or may from time to time be, amended, supplemented or otherwise
modified, the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement,
Chase USA wishes to designate Additional Accounts of Chase USA to be included as
Accounts and to convey the Receivables of such Additional Accounts, whether now
existing or hereafter created, to the Trust as part of the corpus of the Trust
(as each such term is defined in the Pooling and Servicing Agreement); and
WHEREAS, the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, Chase USA and the Trustee hereby agree as
follows:
1. Defined Terms. All terms defined in the Pooling
and Servicing Agreement and used herein shall have such defined
meanings when used herein, unless otherwise defined herein.
"Addition Date" shall mean, with respect to the
Additional Accounts designated hereby, September 1, 2002.
"Notice Date" shall mean, with respect to the
Additional Accounts designated hereby, July 3, 2002.
2. Designation of Additional Accounts. Chase USA
shall deliver to the Trustee not later than five Business Days after the
Addition Date, a computer file or microfiche list containing a true and complete
list of each MasterCard and VISA account which as of the Addition Date shall be
deemed to be an Additional Account, such accounts being identified by account
number and by the amount of Receivables in such accounts as of the close of
business on the Addition Date. Such list shall be delivered five Business Days
after the date of this Assignment and shall be marked as Schedule 1 to this
Assignment and, as of the Addition Date, shall be incorporated into and made a
part of this Assignment.
3. Conveyance of Receivables.
▇. ▇▇▇▇▇ USA does hereby transfer, assign, set-over
and otherwise convey to the Trustee on behalf of the Trust for the benefit of
the Certificateholders, without recourse on and after the Addition Date, all
right, title and interest of Chase USA in and to the Receivables now existing
and hereafter created in the Additional Accounts designated hereby, all monies
due or to become due with respect thereto (including all Finance Charge
Receivables) and all proceeds of such Receivables, Recoveries, Interchange,
Insurance Proceeds relating to such Receivables and the proceeds of any of the
foregoing.
B. In connection with such transfer, Chase USA agrees
to record and file, at its own expense, a financing statement with respect to
the Receivables now existing and hereafter created in the Additional Accounts
designated hereby (which may be a single financing statement with respect to all
such Receivables) for the transfer of accounts as defined in Section 9-102 of
the UCC as in effect in the State of New York meeting the requirements of
applicable state law in such manner and such jurisdictions as are necessary to
perfect the assignment of such Receivables to the Trustee on behalf of the Trust
for the benefit of the Certificateholders (the "Secured Party"), and to deliver
a file-stamped copy of such financing statement or other evidence of such filing
(which may, for purposes of this Section 3, consist of telephone.
confirmation of such filing) to the Trustee on or prior to the date of this
Assignment.
C. It is the intention of the parties hereto that all
transfers of Receivables to the Trust pursuant to this Assignment be subject to,
and be treated in accordance with, the Delaware Act and each of the parties
hereto agrees that this Assignment has been entered into by the parties hereto
in express reliance upon the Delaware Act. For purposes of complying with the
requirements of the Delaware Act, each of the parties hereto hereby agrees that
any property, assets or rights purported to be transferred, in whole or in part,
by Chase USA pursuant to this Assignment shall be deemed to no longer be the
property, assets or rights of Chase USA. The parties hereto acknowledge and
agree that each such transfer is occurring in connection with a " securitization
transaction" within the meaning of the Delaware Act.
D. In connection with such transfer, Chase USA
further agrees, at its own expense, on or prior to the date of this Assignment
to indicate in its computer files that Receivables created in connection with
the Additional Accounts designated hereby have been transferred to the Trust
pursuant to this Assignment for the benefit of the Certificateholders.
▇. ▇▇▇▇▇ USA hereby grants to the Secured Party a
security interest in all of Chase USA's right, title and interest in, to and
under the Receivables now existing and hereafter created in the Additional
Accounts designated hereby, all monies due or to become due with respect to such
Receivables, Insurance Proceeds relating to such Receivables, Recoveries,
Interchange and the proceeds to any of the foregoing to secure a loan in an
amount equal to the unpaid principal amount of the Investor Certificates issued
or to be issued pursuant to the Pooling and Servicing Agreement and the
interests accrued at the related Certificate Rates, and this Assignment shall
constitute a security agreement under applicable law. Chase USA shall execute
continuation statements and provide other further assurances to maintain the
perfection and priority of such security interest of the Secured Party.
4. Acceptance by Trustee. The Trustee hereby
acknowledges its acceptance on behalf of the Trust for the benefit of the
Certificateholders of all right, title and interest previously held by Chase USA
in and to the Receivables now existing and hereafter created, and declares
that it shall maintain
such right, title and interest, upon the Trust herein set forth, for the benefit
of all Certificateholders.
5. Representations and Warranties of Chase USA. Chase
USA hereby represents and warrants to the Secured Party as of the Addition Date:
A. Legal, Valid and Binding Obligation. This
Assignment constitutes a legal, valid and binding obligation
of Chase USA enforceable against Chase USA in accordance with
its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and
the rights of creditors of banking associations and except as
such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity).
B. Eligibility of Accounts and Receivables. Each
Additional Account designated hereby is an Eligible Account
and each Receivable in such Additional Account is an
Eligible Receivable.
C. Selection Procedures. No selection procedures
believed by Chase USA to be materially adverse to the
interests of the Investor Certificateholders were utilized in
selecting the Additional Accounts designated hereby from the
available Eligible Accounts in the Bank Portfolio.
D. Insolvency. Chase USA is not insolvent and, after
giving effect to the conveyance set forth in Section 3 of this
Assignment, will not be insolvent.
E. Transfer. This Assignment constitutes either:
(i) a valid transfer and assignment to the Trust of all right,
title and interest of Chase USA in and to Receivables now
existing and hereafter created in the Additional Accounts
designated hereby, and all proceeds (as defined in the UCC) of
such Receivables and Insurance Proceeds relating thereto, and
such Receivables and any proceeds thereof and Insurance
Proceeds relating thereto will be held by the Secured Party
free and clear of any Lien of any Person claiming through or
under Chase USA or any of its Affiliates except for (x) Liens
permitted.
under subsection 2.5(b) of the Pooling and Servicing
Agreement, (y) the interest of the holder of the Transferor
Certificate and (z) Chase USA's right to receive interest
accruing on, and investment earnings in respect of, the
Finance Charge Account and the Principal Account as provided
in the Pooling and Servicing Agreement; or (ii) a valid and
continuing security interest (as defined in the UCC) in the
Receivables now existing or hereafter created in the
Additional Accounts in favor of the Secured Party, the
proceeds (as defined in the UCC) thereof and Insurance
Proceeds relating thereto, upon the conveyance of such
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 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.
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 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 Servicing Agreement for designating
Additional Accounts and conveying the Principal Receivables of
such Account, whether now existing or hereafter created, have
been satisfied and (ii) each of the representations and
warranties made by Chase USA in Section 5 is true and correct
as of the Addition Date. The Trustee may conclusively rely on
such Officer's Certificate, shall have no duty to make
inquiries with regard to the matters set forth therein, and
shall incur no liability in so relying.
B. Opinion of Counsel. Chase USA shall have deliv-
ered to the Trustee an Opinion of Counsel with respect to the
Additional Accounts designated hereby substantially in the
form of Exhibit E to the Pooling and Servicing Agreement.
7. Amendment of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement is hereby amended to provide that all
references therein to the "Pooling and Servicing Agreement," to "this 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
Accounts, dated as of July 1, 1996, Assignment No. 2 of Receivables in
Additional Accounts, dated as of September 1, 1996, Assignment No.3 of
Receivables in Additional Accounts, dated as of December 1, 1997, Assignment
No. 4 of Receivables in Additional Accounts, dated as of February 1, 1998,
Assignment No. 5 of Receivables in Additional Accounts, dated as of April 1,
1998, Assignment No. 6 of Receivables in Additional Accounts, dated as of August
1, 1998, Assignment No. 7 of Receivables in Additional Accounts, dated as of
November 1, 1998, Assignment No. 8 of Receivables in Additional Accounts, dated
as of February 1, 1999, Assignment No. 9 of Receivables in Additional Accounts,
dated as of April 1, 1999, Assignment No. 10 of Receivables in Additional
Accounts, dated as of July 1, 1999, Assignment No. 11 of Receivables in
Additional Accounts, dated as of October 1, 1999, Assignment No. 12 of
Receivables in Additional Accounts, dated as of February 1, 2000, Assignment No.
13 of Receivables in Additional Accounts, dated as of April 1, 2000,
Assignment No. 14 of Receivables in Additional Accounts, dated as of May 1,
2000, Assignment No. 15 of Receivables in Additional Accounts, dated as of
August 1, 2000, Assignment No. 16 of Receivables in Additional Accounts, dated
as of July 1, 2001, Assignment No. 17 dated as of September 1, 2001, Assignment
No. 18 of Receivables in Additional Accounts, dated as of November 1, 2001,
Assignment No. 19 of Receivables in Additional Accounts, dated as of March 6,
2002, Assignment No. 20 of Receivables in Additional Accounts, dated as of April
1, 2002, Assignment No. 22 of Receivables in Additional Accounts, dated as of
May 1, 2002, Reassignment No. 1 of Receivables in Removed Accounts, dated as of
September 30, 1997 and Reassignment No. 2 of Receivables in Removed Accounts,
dated as of December 1, 1997. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions to the Pooling and
Servicing Agreement shall remain 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 to the contrary in
this Assignment, the representations and warranties of the Chase USA herein
shall not survive after the tenth (10 th ) anniversary of the Addition Date.
9. Waivers and Amendments. This Assignment may be
amended, superseded, canceled, renewed or extended and the terms hereof may be
waived, only by a written instrument signed by authorized representatives of
the parties or, in the case of a waiver, by an authorized representative of the
party waiving compliance and, in all cases, subject to confirmation by each
Rating Agency then rating any Investor Certificates. No such written instrument
shall be effective unless it expressly recites that it is intended to amend,
supersede, cancel, renew or extend this Assignment or to waive compliance with
one or more of the terms hereof, as the case may be. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any such right,
power or privilege, or any single or partial exercise of any such right, power
or privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege.
10. Counterparts. This Assignment may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
11. GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED
BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF 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.
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/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
Schedule 1
to Assignment of
Receivables in
Additional Accounts
ADDITIONAL ACCOUNTS