Exhibit 99.2
PROVIDIAN MASTER TRUST
RECEIVABLES PURCHASE AGREEMENT
between
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
and
CARD ACQUISITION FUNDING LLC
Dated as of February 5, 2002
RECEIVABLES PURCHASE AGREEMENT, dated as of February 5, 2002 (this
"Agreement"), by and between CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, a
banking corporation organized and existing under the laws of the United States
(together with its permitted successors and assigns, "Chase USA"), and CARD
ACQUISITION FUNDING LLC, a Delaware limited liability company, together with
its permitted successors and assigns (the "Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser desires to purchase, from time to time, Receivables
(hereinafter defined) existing or arising in designated credit card accounts
owned by Chase USA;
WHEREAS, Chase USA desires to sell and assign, from time to time, certain
Receivables to Purchaser upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, it is hereby agreed by and between Chase USA and
Purchaser as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following words and phrases shall have the
following meanings, when used in this Agreement:
"Account" shall mean (a) each Existing Account identified by account
number and by the Receivable balance in an Account Schedule delivered to
Purchaser on or before the Initial Purchase Date and (b) each Additional
Account designated under Section 2.02. "Account" shall also mean each account
into which an Account is transferred (a "Transferred Account"); provided that
(i) such transfer is made in accordance with the Lending Guidelines and (ii)
such Transferred Account can be traced or identified, by reference to or by
way of an Account Schedule delivered to Purchaser, as an account into which an
Account has been transferred. The term "Account" shall refer to an Additional
Account only from and after the Addition Date with respect thereto. The term
"Account" shall not include any Deleted Account or any Account all the
Receivables in which are reassigned to Chase USA in accordance with the terms
of this Agreement.
"Account Schedule" shall mean a computer file or microfiche list
containing a true and complete list of all Accounts specifying for each such
Account, as of the Initial Purchase Cut-Off Date, in the case of the Existing
Accounts, and the applicable Additional Cut-Off Date, in the case of
Additional Accounts, (A) its account number, (B) the aggregate amount
outstanding in such Account and (C) the aggregate amount of Principal
Receivables in such Account. Such list, as supplemented from time to time,
shall be marked as Schedule 1 to this Agreement, shall be delivered by Chase
USA to Purchaser, and is hereby incorporated into and made a part of this
Agreement. Chase USA shall, from time to time, delete from Schedule 1 any
Account that, pursuant to the terms of this Agreement, is no longer an
Account.
"Addition Date" shall mean, with respect to Additional Accounts, the date
on which the Receivables in such Additional Accounts are first Conveyed to
Purchaser pursuant to Section 2.02.
"Additional Account" shall mean each revolving credit card account or
other revolving credit account established pursuant to a Lending Agreement,
other than an Existing Account as so designated pursuant to subsection 2.02(a)
of this Agreement and as identified in the Account Schedule pursuant to
subsection 2.02(b)(v).
"Additional Cut-Off Date" shall mean, with respect to any Additional
Accounts, the date specified in the related Supplemental Conveyance.
"Allocated Interchange" for each calendar month means the amount
determined as provided in Section 2.04.
"Annual Membership Fees" shall mean the fees specified in the Lending
Agreement applicable to each Account for annual fees if such fees are provided
for with respect to such Account.
"Applicable Trust Cut-Off Date" shall mean, with respect to accounts
which were designated to the Trust under the terms of the Pooling and
Servicing Agreement prior to the Initial Purchase Cut-Off Date, (i) May 31,
1993 with respect to each Initial Account and (ii) with respect to each
account added to the Trust after May 31, 1993 and before the Initial Purchase
Cut-Off Date, the cut-off date for such account under the terms of the Pooling
and Servicing Agreement.
"Bank Portfolio" shall mean the MasterCard and VISA credit card accounts
owned by Chase USA.
"Business Day" shall mean any day other than (a) a Saturday or Sunday or
(b) any other day on which national banking associations or state banking
institutions in New York, New York are authorized or obligated by law,
executive order or governmental decree to be closed or, (c) prior to the
Servicing Transition Date, any other day on which national banking
associations or state banking institutions in Tilton, New Hampshire or San
Francisco, California, are authorized or obligated by law, executive order or
governmental decree to be closed.
"Closing Date" shall mean each Closing Date as defined in the Pooling and
Servicing Agreement.
"Collections" shall mean all payments (excluding Insurance Proceeds and
other amounts constituting Recoveries of Principal Receivables or Finance
Charge Receivables) received by the Servicer in respect of the Receivables, in
the form of cash, checks (to the extent collected), wire transfers, electronic
transfers, ATM transfers or other form of payment in accordance with the
Lending Agreement in effect from time to time on any Receivables and shall
include Allocated Interchange.
"Convey" shall have the meaning specified in subsection 2.01(a) and
"Conveyance" shall refer to the nominal form of such term.
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"Debtor Relief Laws" shall mean (a) the United States Bankruptcy Code and
(b) all other applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, suspension of
payments, readjustment of debt, marshalling of assets, assignment for the
benefit of creditors and similar debtor relief laws from time to time in
effect in any jurisdiction affecting the rights of creditors generally or the
rights of creditors of national banks.
"Defaulted Receivables" shall mean all Receivables which are charged off
as uncollectible in accordance with the Lending Guidelines and the Servicer's
customary and usual servicing procedures for servicing consumer revolving
credit card and other revolving credit account receivables comparable to the
Receivables. A Receivable shall become a Defaulted Receivable on the day on
which such Receivable is recorded as charged off on the Servicer's computer
master file of consumer revolving credit card accounts but, in any event,
shall be deemed a Defaulted Receivable no later than the day the related
Account becomes 180 days delinquent (210 days after the date of the billing
statement) unless the Obligor cures such default by making a partial payment
which satisfies the criteria for curing delinquencies set forth in the
applicable Lending Guidelines.
"Deleted Account" shall mean any Removed Account as to which Chase USA
has received notice from the Servicer that all Receivables owned by Purchaser
in such Removed Account have either been paid or charged off pursuant to the
Pooling and Servicing Agreement.
"Eligible Account" shall mean a revolving credit card account or other
consumer revolving credit account owned by Chase USA or a Predecessor Seller,
as applicable, which (i), if it is an Existing Account, as of the Applicable
Trust Cut-Off Date or (ii), if it is an Additional Account, as of the related
Additional Date:
(a) is in existence and maintained by Chase USA or a Predecessor
Seller;
(b) is payable in United States dollars;
(c) except as provided below, has not been identified as an account
the credit card or checks, if any, with respect to which have been
reported to Chase USA or a Predecessor Seller as having been lost or
stolen;
(d) the Obligor of which has provided, as his or her billing address
at the date such account was opened, an address located in the United
States (or its territories or possessions) or a military address;
(e) has not been and does not have any Receivables which have been
sold, pledged, assigned or otherwise conveyed to any person (except
pursuant to this Agreement or the Pooling and Servicing Agreement),
unless any such pledge or assignment is released on or before the initial
Closing Date or Addition Date, as applicable;
(f) except as provided below, does not have any Receivables which
are Defaulted Receivables; and
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(g) except as provided below, does not have any Receivables which
have been identified by Chase USA or a Predecessor Seller or the relevant
Obligor as having been incurred as a result of fraudulent use of any
related credit card or check.
"Eligible Accounts" shall also mean an account which meets the requirements
set forth above except for any one or more of provisions (c), (f) or (g) if
the Receivables of such Account have been written off, or with respect to
which Chase USA believes the related Obligor is bankrupt, or as to which
certain Receivables have been identified by the Obligor as having been
incurred as a result of fraudulent use of any credit cards or checks, or as to
which any credit cards or checks have been reported to Chase USA as lost or
stolen, in each case as of the Applicable Trust Cut-Off Date, with respect to
an Existing Account, and as of the related Additional Date, with respect to
Additional Accounts; provided that (a) the balance of all Receivables included
in such Accounts is reflected on the books and records of Chase USA (and is
treated for purposes of this Agreement) as "zero", and (b) charging or check
privileges with respect to all such Accounts have been canceled in accordance
with the Lending Guidelines and will not be reinstated by Chase USA.
"Eligible Receivable" shall mean a Receivable:
(a) which has arisen under an Eligible Account;
(b) which was in compliance with the Lending Guidelines and all
Requirements of Law applicable to Chase USA or a Predecessor Seller, and
pursuant to a Lending Agreement which complies with all Requirements of
Law applicable to Chase USA or a Predecessor Seller;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations with, any Governmental Authority
required to be obtained or given by Chase USA or a Predecessor Seller in
connection with the creation of such Receivable or the execution,
delivery and performance by Chase USA or a Predecessor Seller of its
obligations, if any, under the related Lending Agreement have been duly
obtained or given and are in full force and effect as of such date of
creation of such Receivable;
(d) as to which, at the time of its transfer to Purchaser, Chase USA
will have good and marketable title, free and clear of all Liens;
(e) which has been the subject of a valid transfer and assignment
from Chase USA to Purchaser of all of Chase USA's right, title and
interest therein;
(f) which at the time of transfer to Purchaser is the legal, valid
and binding payment obligation of the Obligor thereon, legally
enforceable against such Obligor in accordance with its terms, except as
such enforceability may be limited by applicable Debtor Relief Laws and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
(g) which constitutes an "account" as defined in Article 9 of the
UCC;
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(h) which, at the time of its transfer to Purchaser, has not been
waived or modified except as ordered by a court of competent jurisdiction
or other Governmental Authority or in the ordinary course of Chase USA's
business and in accordance with the Lending Guidelines;
(i) which, at the time of its transfer to Purchaser, is not subject
to any right of rescission, setoff, counterclaim or any other defense of
the Obligor (including the defense of usury), other than defenses arising
out of applicable Debtor Relief Laws and except as such enforceability
may be limited by general principles of equity (whether considered in a
suit at law or equity) or as to which the Servicer would be required by
Section 3.09 of the Pooling and Servicing Agreement to make an
adjustment;
(j) as to which, at the time of its transfer to Purchaser, Chase USA
has satisfied all obligations to be fulfilled by Chase USA at the time it
is transferred to Purchaser;
(k) as to which, at the time of its transfer to Purchaser, Chase USA
has not taken any action which, or failed to take any action the omission
of which, would, at the time of its transfer to Purchaser, impair the
rights of Purchaser hereunder; and
(l) which, if arising under an Account not originated by Chase USA
or an Affiliate of Chase USA or a Predecessor Seller, will not be
designated as an Additional Account unless the Rating Agency Condition
has been satisfied.
"Existing Account" shall mean an Account listed on the Account Schedule
delivered by Chase USA to Purchaser on or prior to the Initial Purchase Date.
"Finance Charge Receivables" shall mean all Receivables that represent
amounts billed to the Obligors on any Account in respect of (i) Periodic
Finance Charges, (ii) Returned Cash Advance Check Fees, (iii) Late Fees, (iv)
Overlimit Fees, (v) Returned Payment Check Fees, and (vi) all other fees and
charges (excluding Principal Receivables). Collections of Finance Charge
Receivables shall include the Allocated Interchange.
"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.
"Initial Purchase Cut-Off Date" shall mean ___________, 2001.
"Initial Purchase Date" shall mean February 5, 2002.
"Insolvency Event" shall have the meaning specified in Section 8.02.
"Insurance Proceeds" shall mean any amounts recovered by
Chase USA or the Servicer pursuant to any credit insurance policies covering
any Obligor with respect to Receivables under such Obligor's Account.
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"Interchange" shall mean all interchange fees payable to Chase USA, in
its capacity as a credit card issuer, through MasterCard System, the VISA
System and any other similar entity's or organization's system relating to
consumer revolving credit card accounts in connection with cardholder charges
for goods and services.
"Late Fees" shall mean the fees specified in the Lending Agreement
applicable to each Account for late fees with respect to such Account.
"Lending Agreement" shall mean, with respect to an Account, the
agreements between Chase USA or a Predecessor Seller and the related Obligor,
governing the terms and conditions of such Account, as such agreements may be
amended, modified or otherwise changed from time to time and as distributed
(including any amendments and revisions thereto) to holders of such Account.
"Lending Guidelines" shall mean the written policies and procedures of
Chase USA relating to the operation of its consumer revolving lending
business, including, without limitation, the written policies and procedures
for determining the creditworthiness of credit card or other revolving credit
account customers, the extension of credit to credit card and other revolving
credit account customers and relating to the maintenance of credit card and
other revolving credit accounts and collection of receivables with respect
thereto, as such policies and procedures may be amended, modified, or
otherwise changed from time to time in conformance with all Requirements of
Law, the failure to comply with which would have a material adverse effect on
the interests of Purchaser hereunder or under the Pooling and Servicing
Agreement.
"Lien" or "Liens" shall mean any security interest, mortgage, deed of
trust, pledge, hypothecation, assignment, participation or equity interest,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement or preferential arrangement of any kind
or nature whatsoever, including any conditional sale or other title retention
agreement, or any financing lease having substantially the same economic
effect as any of the foregoing.
"Monthly Period" shall mean a calendar month.
"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, but excluding any merchant.
"Officer's Certificate" shall mean, with respect to Chase USA, a
certificate signed by any Vice President or more senior officer of Chase USA
and, with respect to Purchaser, unless otherwise specified in this Agreement,
a certificate delivered to Chase USA signed by an officer of, or an authorized
person on behalf of, the Purchaser.
"Original Pooling and Servicing Agreement" shall mean the Pooling and
Servicing Agreement, dated as of June 1, 1993, by and between Chase USA, a
national banking association, as successor to First Deposit National Bank and
First Deposit National Credit Card Bank, as Seller and as Servicer, and
Bankers Trust Company, as Trustee, as amended and in existence prior to
Initial Purchase Date.
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"Overlimit Fees" shall have the meaning specified in the Lending
Agreement applicable to each Account for overlimit fees if such fees are
provided for with respect to such Account.
"Pay Out Event" shall have the meaning set forth in the Pooling and
Servicing Agreement.
"Periodic Finance Charges" shall have the meaning specified in the
Lending Agreement applicable to each Account for finance charges (due to
periodic rate) or any similar term.
"Person" shall mean any legal person, including any individual,
corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization,
governmental entity or any other entity of similar nature.
"Chase USA" shall have the meaning set forth in the preamble to this
Agreement.
"Pooling and Servicing Agreement" shall mean the Pooling and Servicing
Agreement dated as of June 1, 1993 as amended and restated on February 5,
2002, by and among Purchaser, as Transferor, Chase USA, as Servicer, and
Bankers Trust Company, as Trustee, as further amended and supplemented from
time to time.
"Predecessor Seller" shall mean any of First Deposit National Bank, First
Deposit National Credit Card Bank and Providian National Bank, each in its
capacity as a seller under the Original Pooling and Servicing Agreement.
"Principal Receivables" shall mean any Receivable other than Finance
Charge Receivables.
"Purchaser" shall have the meaning set forth in the preamble to this
Agreement.
"Monthly Purchase Price" shall have the meaning set forth in subsection
3.01(a).
"Purchase Price Adjustment" shall have the meaning specified in Section
3.02.
"Purchased Assets" shall have the meaning set forth in subsection
2.01(a).
"Rating Agency" shall mean, with respect to any series or class of
securities or interests issued by the Trust, each statistical rating agency
selected by the seller under the Original Pooling and Servicing Agreement or
the transferor under the Pooling and Servicing Agreement to rate the
securities or interests of such series or class, as specified in the related
Supplement.
"Rating Agency Condition" shall mean, with respect to any action, that
each Rating Agency shall have notified Purchaser in writing that such action
will not result in a reduction or withdrawal of the rating of any outstanding
Series or Class with respect to which it is a Rating Agency.
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"Receivable" shall mean any amount owing by the Obligor under an Account
from time to time, including amounts owing for Principal Receivables and
amounts payable for Finance Charge Receivables.
"Recoveries" shall mean (i) with respect to any Monthly Period commencing
prior to the Servicing Transition Date, all amounts received with respect to
Receivables which have previously become Defaulted Receivables, including
Insurance Proceeds during such Monthly Period and (ii) with respect to any
Monthly Period commencing on or after the Servicing Transition 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 which shall be the Defaulted Receivables
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.
"Removed Account" shall mean any Account as to which Chase USA has
received notice from the Servicer that such Account is a "Removed Account" as
defined in the Pooling and Servicing Agreement.
"Requirements of Law" with respect to 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).
"Returned Cash Advance Check Fees" shall mean the fees specified in the
Lending Agreement applicable to each Account payable for returned checks drawn
on an Account.
"Returned Payment Check Fees" shall mean the fees specified in the
Lending Agreement applicable to each Account for returned payment checks.
"Seller Note" shall have the meaning set forth in subsection 3.01 (b).
"Servicer" shall mean the entity acting as servicer under the Pooling and
Servicing Agreement.
"Supplement" shall mean a supplement to the Pooling and Servicing
Agreement executed by and delivered in connection with a series of investor
certificates issued under the Pooling and Servicing Agreement and all
amendments and supplements thereto.
"Supplemental Conveyance" shall have the meaning set forth in subsection
2.02(b)(vi).
"Tax Opinion" shall mean, with respect to any action, an written opinion
of counsel to the effect that, for Federal income tax purposes, (a) such
action will not adversely
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affect the tax characterization as debt of those securities issued by the
Trust 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
publicly traded partnership) taxable as a corporation and (c) such action will
not cause or constitute an event in which gain or loss would be recognized by
any owner or holder of an interest or security issued by the Trust or the
Trust.
"Transfer Restriction Event" shall mean that Chase USA is unable for any
reason to transfer Receivables to Purchaser in accordance with the provisions
of this Agreement, including by reason of the application of the provisions of
Section 8.02 or any order of any Governmental Authority.
"Trust" shall mean the Master Trust, as created by the Pooling and
Servicing Agreement.
"Trustee" shall mean the entity acting as trustee under the Pooling and
Servicing Agreement.
"UCC" shall mean the Uniform Commercial Code, as amended from time to
time, as in effect in either the State of New York or the State of Delaware,
as applicable and in any other State where the filing of a financing statement
is required to perfect Purchaser's interest in the Receivables and the
proceeds thereof or in any other specified location.
Section 1.02. Other Definitional Provisions.
(a) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement; and Section, subsection,
Schedule and Exhibit references contained in this Agreement are references to
Sections, subsections, Schedules and Exhibits in or to this Agreement unless
otherwise specified.
(b) Unless otherwise defined herein, capitalized terms used in the above
recitals and in this Agreement shall have the respective meanings assigned
them in the Pooling and Servicing Agreement.
[END OF ARTICLE I]
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ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase.
(a) In consideration of the payment of the Purchase Price as provided
herein, Chase USA does hereby sell, transfer, assign, set over and otherwise
convey to Purchaser (collectively, "Convey"), without recourse except as
provided herein, all of its right, title and interest, whether now owned or
hereafter acquired, in, to and under the Receivables existing at the close of
business on the Initial Purchase Cut-Off Date, in the case of Receivables
existing and arising in the Existing Accounts, and at the close of business on
each Additional Cut-Off Date, in the case of Receivables existing and arising
in the Additional Accounts, and in each case thereafter created from time to
time in the Existing Accounts and the Additional Accounts, Allocated
Interchange, all monies due or to become due and all amounts received or
receivable with respect thereto, all Collections with respect thereto and all
proceeds (including "proceeds" as defined in the UCC) thereof. Such property
shall constitute the "Purchased Assets." The Receivables arising after the
Initial Purchase Cut-Off Date and on or before the Initial Purchase Date in
the Existing Accounts and the related Purchased Assets, shall be and hereby
are Conveyed by Chase USA to Purchaser on the Initial Purchase Date and the
Purchase Price shall be paid as provided in subsection 3.01(a) of this
Agreement. The Receivables arising after the Initial Purchase Date in the
Existing Accounts and the related Purchased Assets shall be and hereby are
Conveyed by Chase USA and purchased by Purchaser on the date such Receivables
arise, and the Purchase Price shall be paid as provided in subsection 3.01(a)
of this Agreement. The Receivables existing in Additional Accounts at the
close of business on the related Additional Cut-Off Date and the Receivables
arising after the Additional Cut-Off Date and on or before the related
Addition Date and the related Purchased Assets, shall be and hereby are
Conveyed by Chase USA and purchased by Purchaser on the related Addition Date
and the Purchase Price shall be paid as provided in subsection 3.01(a) of this
Agreement. The Receivables arising after such Addition Date in such Additional
Accounts and the related Purchased Assets shall be and hereby are Conveyed by
Chase USA and purchased by Purchaser on the date such Receivables arise and
the Purchase Price shall be paid as provided in subsection 3.01(a) of this
Agreement.
(b) Chase USA shall record and file, at its own expense, financing
statements (and continuation statements and amendments when applicable) with
respect to the Purchased Assets meeting the requirements of applicable state
law in such manner and in such jurisdictions as are necessary to perfect, and
maintain the perfection of, the Conveyance of such Purchased Assets to
Purchaser, and shall deliver a file stamped copy of each such financing
statement to Purchaser on or prior to the Initial Purchase Date, in the case
of Purchased Assets relating to the Existing Accounts, and (if any additional
filing is so necessary) the applicable Addition Date, in the case of Purchased
Assets relating to Additional Accounts.
(c) Chase USA shall, at its own expense, (i) on or prior to (x) the
Initial Purchase Date, in the case of the Existing Accounts, or (y) the
applicable Addition Date, in the case of Additional Accounts, indicate in the
appropriate computer files that Receivables created in connection with the
Accounts have been conveyed to Purchaser pursuant to this Agreement
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and Purchaser has transferred the Receivables to the Trustee pursuant to the
Pooling and Servicing Agreement and (ii) on or prior to the Initial Purchase
Date and each Addition Date, as applicable, deliver to Purchaser and the
Trustee an Account Schedule containing a true and complete list of all such
Accounts specifying for each such Account, as of the Initial Purchase Cut-Off
Date, in the case of the Existing Accounts and the applicable Additional
Cut-Off Date, in the case of Additional Accounts, its account number, the
aggregate amount outstanding in such Account and the aggregate amount of
Principal Receivables outstanding in such Account. Chase USA agrees that it
will maintain the Account Schedule as a true and complete list of all Accounts
and will supplement or amend the Account Schedule on each Addition Date and
periodically, as needed, to remove Deleted Accounts. Chase USA agrees not to
alter the computer designation which indicate that the receivables in an
Account have been conveyed to Purchaser and transferred to the Trust unless
and until such Account is no longer an Account or unless and until (i) Chase
USA shall give written notice of any such alteration to Purchaser and (ii)
Chase USA shall have taken such action as is necessary or advisable to cause
the interest of Purchaser in the Purchased Assets to continue to be perfected
and of first priority.
(d) The parties hereto intend that the Conveyance of Chase USA's right,
title and interest in and to the Purchased Assets shall constitute an absolute
sale, conveying good title free and clear of any liens, claims, encumbrances
or rights of others from Chase USA to Purchaser. It is the intention of the
parties hereto that the arrangements with respect to the Purchased Assets
shall, for all purposes, including for accounting purposes, constitute a
purchase and sale of such Purchased Assets and not a loan.
Section 2.02. Addition of Accounts.
(a) (i) If, from time to time, Purchaser becomes obligated to
designate Additional Accounts pursuant to subsection 2.08(a) of the
Pooling and Servicing Agreement, then Purchaser shall give Chase USA
written notice thereof on or before the tenth Business Day prior to the
Addition Date therefor, and upon receipt of such notice Chase USA shall
on or before the Addition Date designate sufficient Eligible Accounts to
be included as Additional Accounts as requested by Purchaser.
(ii) Additionally, Chase USA may, from time to time, at its option,
designate newly originated or acquired Eligible Accounts or any other
Eligible Accounts to be included as Additional Accounts.
Any failure of Chase USA to designate Eligible Accounts containing a
sufficient amount of Eligible Receivables when requested by Purchaser solely
as a result of the unavailability of a sufficient amount of Eligible
Receivables shall not constitute a breach of this Agreement.
(b) On the Addition Date with respect to any Additional Accounts, such
Additional Accounts shall become Accounts and Purchaser shall purchase the
Receivables in such Additional Accounts (as of the Additional Cut-Off Date)
and the related Purchased Assets, subject to the satisfaction of the following
conditions on or prior to such Addition Date:
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(i) Chase USA shall have delivered to Purchaser copies of UCC
financing statements covering such Additional Accounts, if necessary to
perfect Purchaser's interest in the Receivables arising therein and the
related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition
Date, no Insolvency Event with respect to Chase USA shall have occurred
nor shall the transfer of the Receivables arising in the Additional
Accounts have been made in contemplation of the occurrence thereof;
(iii) Chase USA shall have delivered to Purchaser an Officer's
Certificate, dated the Addition Date, stating that (x) as of the such
Addition Date, the Additional Accounts are all Eligible Accounts, (y) the
conditions set forth in clauses (i) and (ii) above have been satisfied
and (z) Chase USA reasonably believes that (A) the sale by Chase USA to
Purchaser of the Receivables arising in the Additional Accounts 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 under
the Pooling and Servicing Agreement and (B), no selection procedure was
utilized by Chase USA which would result in a selection of Additional
Accounts (from among the available Eligible Accounts owned by Chase USA)
that would be materially adverse to the interests of Purchaser as of the
Addition Date;
(iv) Chase USA shall have delivered to Purchaser and each Rating
Agency an Opinion of Counsel, which counsel shall be outside counsel,
dated the Addition Date, which opinion shall be in substantially the form
of Exhibit B hereto; provided that, if Purchaser agrees to such later
date, the Opinion of Counsel described in this subsection 2.02(b)(iv)
shall not be required to be delivered on the Addition Date, but shall be
delivered to Purchaser and each Rating Agency within 30 days after the
Addition Date;
(v) Chase USA shall have delivered to Purchaser an Account Schedule
including the Additional Accounts;
(vi) With respect to such Additional Accounts Chase USA and
Purchaser shall have entered into a duly executed written assignment
substantially in the form of Exhibit A (the "Supplemental Conveyance");
and
(vii) The addition of such Additional Accounts shall comply with the
applicable conditions to the addition of Accounts pursuant to Section
2.08 of the Pooling and Servicing Agreement.
Section 2.03. [Reserved].
Section 2.04. Allocated Interchange. For each Monthly Period, beginning
with February 5, 2002 Monthly Period, Chase USA shall calculate the amount of
the Allocated Interchange as described in this Section. The Allocated
Interchange for each Monthly Period shall be paid by Chase USA to Purchaser in
immediately available funds on or before the succeeding Transfer Date. For
each Monthly Period, the "Allocated Interchange" shall be an amount equal to
the product of (a) the total amount of Interchange recorded by Chase USA
during that Monthly Period in respect of the Bank Portfolio and (b) a fraction
the numerator of
12
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.
[END OF ARTICLE II]
13
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price.
(a) As consideration for the sale to the Purchaser of the Purchased
Assets on the Initial Purchase Date and thereafter, the Purchaser shall pay to
Chase USA an amount equal to the amount of the Principal Receivables created
and sold pursuant hereto from and including the Initial Purchase Date;
provided that the purchase price for Receivables sold hereunder in respect of
Additional Accounts on the relevant Addition Date shall also include an amount
equal to accrued Finance Charge Receivables in respect thereof as determined
by Chase USA. The purchase price for Receivables created in any Monthly Period
(the "Monthly Purchase Price") shall be paid to Chase USA monthly in arrears
on the succeeding Distribution Date in cash to the extent of Purchaser
Available Funds and, if Purchaser Available Funds are less than the Monthly
Purchase Price (the amount of such deficiency, the "Deferred Purchase Price"),
by increasing the principal balance of the Seller Note. "Purchaser Available
Funds" means, on any Distribution Date, the net amount of funds received by
the Purchaser under the Pooling and Servicing Agreement on such Distribution
Date after giving effect to all required payments, transfers and deposits
required to be made by the Transferor pursuant to the Pooling and Servicing
Agreement on such Distribution Date less the amount of interest due to Chase
USA under the Seller Note. If there is more than one Account Owner at any
time, Chase USA, each such other Account Owner and the Purchaser shall agree
on a formula for allocating Purchaser Available Funds (and consequently the
Deferred Purchase Price) among such Account Owners and such formula shall be
deemed to modify the definition of "Purchaser Available Funds" hereunder.
(b) On the Initial Purchase Date, the Purchaser shall deliver to Chase
USA a promissory note, substantially in the form of Exhibit C (the "Seller
Note"), to evidence the obligation of the Purchaser to pay the Deferred
Purchase Price together with the obligation of the Purchaser to pay the
portion of the purchase price of the Transferor Interest not contributed to
its capital pursuant to the Contribution and Sale Agreement, dated February 5,
2002 between Chase USA and the Purchaser.
(c) On each Distribution Date on which Purchaser Available Funds exceed
the Monthly Purchase Price, the Purchaser shall prepay the Seller Note in an
amount equal to the lesser of such excess and the unpaid principal balance of
the Seller Note. In addition, on each Closing Date the Purchaser shall prepay
the Seller Note by an amount equal to the lesser of the net proceeds received
by the Purchaser in connection with the issuance of the Investor Certificates
on such date and the unpaid principal balance of the Seller Note. If there is
more than one Originator at any time, Chase USA, each such other Originator
and the Purchaser shall agree on a formula for allocating such excess funds
among the several Originators.
Section 3.02. Adjustments to Purchase Price. The Purchase Price with
respect to any Purchase Price Payment Date shall be reduced (a "Purchase Price
Adjustment") with respect to any Principal Receivable previously conveyed to
Purchaser by Chase USA if the amount of such Principal Receivables is adjusted
downward because of a rebate, refund, unauthorized charge or billing error to
an account holder, or because such Principal Receivable
14
was created in respect of merchandise which was refused or returned by an
account holder, or if the Servicer otherwise adjusts downward the amount of
any Principal Receivable without receiving Collections therefor or charging
off such amount as uncollectible, or if the Principal Receivable is adjusted
by the Servicer because it was discovered to have been created through a
fraudulent or counterfeit charge. The amount of such reduction shall equal the
reduction in the amount of such Receivable resulting from the occurrence of
such event. Such payment shall be paid by deducting such amount from the
purchase price owing to Chase USA by the Purchaser on the Distribution Date
following the Monthly Period in which such adjustment occurs or if no such
amount is owed then by deducting such amount from the balance of the Seller
Note; provided that if such adjustment causes the Purchaser to be required to
make a deposit in the Special Funding Account, then Chase USA shall pay such
adjustment payment to the Purchaser in cash on or prior to the date on which
the Purchaser is required to make such deposit in immediately available funds.
[END OF ARTICLE III]
15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of Chase USA Relating to
Chase USA.
(a) Representations and Warranties. Chase USA hereby represents and
warrants to, and agrees with, Purchaser as of the Initial Purchase Date, each
Closing Date and each Addition Date, that:
(i) Organization. Chase USA is a national banking association duly
organized and validly existing in good standing under the laws of the
United States and has full corporate power, authority and legal right to
own its properties as such properties are presently owned, and to conduct
its consumer revolving lending business as such business is presently
conducted, and to execute, deliver and perform its obligations under this
Agreement and each Supplemental Conveyance.
(ii) Due Qualification. Chase USA is duly qualified to do business
and is in good standing as a foreign corporation (or is exempt from such
requirements), and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to so qualify or to obtain such
licenses and approvals would render any Lending Agreement relating to an
Account or any Receivable transferred to Purchaser unenforceable by Chase
USA, Purchaser, the Servicer or any transferee or agent thereof or would
have a material adverse effect on the interests of Purchaser.
(iii) Due Authorization. The execution, delivery and performance of
this Agreement and each Supplemental Conveyance by Chase USA and the
consummation by Chase USA of the transactions provided for in this
Agreement and any Supplemental Conveyance executed on such Addition Date
have been duly authorized by Chase USA by all necessary corporate action
on the part of Chase USA and this Agreement and such Supplemental
Conveyance will remain, from the time of its execution, an official
record of Chase USA.
(iv) No Conflict. The execution and delivery by Chase USA of this
Agreement and any Supplemental Conveyance executed on such Addition Date,
the performance by Chase USA of the transactions contemplated by this
Agreement and such Supplemental Conveyance and the fulfillment by Chase
USA of the terms hereof and thereof 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 Chase USA is a party or by which it or any of
its properties are bound.
(v) No Violation. The execution and delivery by Chase USA of this
Agreement and any Supplemental Conveyance executed on such Addition Date,
the performance by Chase USA of the transactions contemplated by this
Agreement and such
16
Supplemental Conveyance and the fulfillment by Chase USA of the terms
hereof and thereof will not conflict with or violate any Requirements of
Law applicable to Chase USA, except to the extent that the same could not
reasonably be expected to have a material adverse effect on the ability
of Chase USA to perform its obligations hereunder or on the interest of
the Purchaser in the Receivables.
(vi) No Proceedings. There are no proceedings or investigations
pending, or to the best knowledge of Chase USA threatened, against Chase
USA, before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality (i) asserting the invalidity of
this Agreement or any Supplemental Conveyance executed on such Addition
Date, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or such Supplemental Conveyance, (iii)
seeking any determination or ruling that, in the reasonable judgment of
Chase USA, would materially and adversely affect the performance by Chase
USA of its obligations under this Agreement or such Supplemental
Conveyance, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement or such Supplemental Conveyance or (v) seeking to affect
adversely the income tax attributes of the Trust.
(vii) All Consents. All approvals, authorizations, consents, orders
or other actions of any Person or of any Governmental Authority or
official required in connection with the execution and delivery by Chase
USA of this Agreement and each Supplemental Conveyance executed on such
Addition Date, the performance by Chase USA of the transactions
contemplated by this Agreement and such Supplemental Conveyance and the
fulfillment by Chase USA of the terms hereof and thereof, 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 ability of Chase USA to
perform its obligations hereunder or on the interest of the Purchaser in
the Receivables.
(viii) Insolvency. No Insolvency Event with respect to Chase USA has
occurred and the transfer of the Receivables and the related Purchased
Assets by Chase USA to Purchaser has not been made in contemplation of
the occurrence thereof.
(ix) FDIC Insurance. Chase USA is an insured institution for
purposes of the Federal Deposit Insurance Act.
(b) Notice of Breach. The representations and warranties of Chase USA set
forth in this Section 4.01 shall survive the transfer and assignment by Chase
USA of the Receivables and related to Purchased Assets to Purchaser. Upon
discovery by Chase USA or Purchaser of a breach of any of the representations
and warranties by Chase USA set forth in this Section 4.01, the party
discovering such breach shall give prompt written notice to the other party
and to the Trustee. Chase USA agrees to cooperate with Purchaser in attempting
to cure any such breach.
Section 4.02. Representations and Warranties of Chase USA Relating to the
Agreement, the Supplemental Conveyances and the Receivables.
17
(a) Representations and Warranties. Chase USA hereby represents and
warrants to Purchaser as of the Initial Purchase Date, as of each Closing Date
and, with respect to Additional Accounts, the Receivables in which are being
transferred by Chase USA to Purchaser, as of the related Addition Date with
respect to related Receivables and Accounts that:
(i) this Agreement and, in the case of Additional Accounts, the
related Supplemental Conveyance executed on such Addition Date, each
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 Debtor Relief Laws and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
(ii) as of the Initial Purchase Date and as of the related Addition
Date with respect to Additional Accounts, Schedule 1 to this Agreement,
as supplemented to each Addition Date, is an accurate and complete
listing in all material respects of all the Accounts as of the Initial
Purchase Cut-Off Date or such Additional Cut-Off Date, as the case may
be, and the information contained therein with respect to the identity of
such Accounts and the Receivables existing in such Accounts is true and
correct in all material respects as of the Initial Purchase Cut-Off Date
or such Additional Cut-Off Date, as the case may be;
(iii) each Receivable conveyed to Purchaser has been conveyed to
Purchaser free and clear of any Lien of any Person claiming through or
under Chase USA or any of its Affiliates and in compliance, in all
material respects, with all Requirements of Law applicable to Chase USA;
(iv) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required to
be obtained, effected or given by Chase USA in connection with the
Conveyance by Chase USA of Receivables to Purchaser have been duly
obtained, effected or given and are in full force and effect;
(v) this Agreement or, in the case of Additional Accounts, the
related Supplemental Conveyance, constitutes a valid sale, transfer and
assignment to Purchaser of all right, title and interest of Chase USA in
the Receivables and the related Purchased Assets Conveyed hereunder and
such sale is perfected under the UCC;
(vi) with respect to Additional Accounts, on the applicable Addition
Date, each related Additional Account is an Eligible Account;
(vii) on the applicable Addition Date, each Receivable contained in
any related Additional Accounts is an Eligible Receivable;
(viii) as of the date of the creation of any new Receivable in an
Account, such Receivable is an Eligible Receivable; and
(ix) on each Addition Date, no selection procedure has been utilized
by Chase USA which Chase USA reasonably believes would result in a
selection of Additional Accounts (from among the available Eligible
Accounts owned by Chase USA on the
18
applicable Additional Cut-Off Date) that would be materially adverse to
the interests of Purchaser.
(b) Notice of Breach. The representations and warranties of Chase USA set
forth in this Section 4.02 shall survive the Conveyance of the Receivables and
the related Purchased Assets to Purchaser. Upon discovery by either Chase USA
or Purchaser of a breach of any of the representations and warranties set
forth in this Section 4.02, the party discovering such breach shall give
written notice to the other party and the Trustee. Chase USA agrees to
cooperate with Purchaser and the Trustee in attempting to cure any such
breach.
Section 4.03. Representations and Warranties of Purchaser. As of the
Initial Purchase Date and each Addition Date, Purchaser hereby represents and
warrants to Chase USA that:
(a) Organization and Good Standing. Purchaser is a limited liability
company duly organized and validly existing under the laws of the State of
Delaware and has, in all material respects, full power and authority to own
its properties as such properties are presently owned and to conduct its
business as such business is presently conducted, and to execute, deliver and
perform its obligations under this Agreement and each Supplemental Conveyance.
(b) Due Authorization. The execution, delivery and performance by
Purchaser of this Agreement and any other document or instrument delivered
pursuant hereto, including any Supplemental Conveyance executed on such
Addition Date, to which Purchaser is a party, and the consummation by
Purchaser of the transactions provided for in this Agreement and each
Supplemental Conveyance, have been duly authorized by Purchaser by all
necessary action on the part of Purchaser.
(c) No Conflict. The execution and delivery of this Agreement and each
Supplemental Conveyance by Purchaser, the performance by Purchaser of the
transactions contemplated by this Agreement and each Supplemental Conveyance,
and the fulfillment by Purchaser of the terms hereof and thereof applicable to
Purchaser, 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 Purchaser is a party or
by which it or any of its properties are bound.
(d) No Violation. The execution and delivery of this Agreement and each
Supplemental Conveyance by Purchaser, the performance by Purchaser of the
transactions contemplated by this Agreement and each Supplemental Conveyance
and the fulfillment by Purchaser of the terms hereof and thereof applicable to
Purchaser will not conflict with or violate any Requirements of Law applicable
to Purchaser.
(e) No Proceedings. There are no proceedings or investigations pending,
or to the best knowledge of Purchaser, threatened, against Purchaser, before
any court, regulatory body, administrative agency, or other tribunal of
governmental instrumentality (i) asserting the invalidity of this Agreement or
any Supplemental Conveyance, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement, or any Supplemental
19
Conveyance, (iii) seeking any determination or ruling that, in the reasonable
judgment of Purchaser, would materially and adversely affect the performance
by Purchaser of its obligations under this Agreement or any Supplemental
Conveyance or (iv) seeking any determination or ruling that would materially
and adversely affect the validity or enforceability of this Agreement or any
Supplemental Conveyance.
(f) All Consents. All approvals, authorizations, consents, orders or
other actions of or registrations or declarations with any Governmental
Authority or official required to be obtained, effected or given by Purchaser
in connection with the execution and delivery by Purchaser of this Agreement
and any Supplemental Conveyance and the performance by Purchaser of the
transactions contemplated by this Agreement and any Supplemental Conveyance
have been duly obtained, effected or given and are in full force and effect.
The representations and warranties set forth in this Section 4.03 shall
survive the Conveyance of the Receivables and the related Purchased Assets to
Purchaser. Upon discovery by Chase USA or Purchaser of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other party and the Trustee. Purchaser
agrees to cooperate with Chase USA in attempting to cure any such breach.
[END OF ARTICLE IV]
20
ARTICLE V
COVENANTS
Section 5.01. Covenants of Chase USA. Chase USA hereby covenants as
follows:
(a) Receivables Not To Be Evidenced by Promissory Notes or Chattel Paper.
Except in connection with the enforcement or collection of an Account, Chase
USA will take no action to cause any Receivable Conveyed to Purchaser
hereunder to be evidenced by any instrument or chattel paper (as defined in
the UCC).
(b) Security Interests. Except for the Conveyances hereunder, Chase USA
will not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien arising through or under
Chase USA on any Receivables and the related Purchased Assets whether now
existing or hereafter created; Chase USA will immediately notify Purchaser and
the Trustee of the existence of any Lien arising through or under Chase USA on
any Receivables and the related Purchased Assets; and Chase USA shall defend
the right, title and interest of Purchaser in, to and under the Receivables
and the related Purchased Assets, whether now existing or hereafter created,
against all claims of third parties claiming through or under Chase USA.
(c) Notice of Liens. Chase USA shall notify Purchaser and the Trustee
promptly after becoming aware of any Lien arising through or under Chase USA
on any Receivables on the related Purchased Assets other than the Conveyances
hereunder.
(d) Periodic Finance Charges and Other Fees. Except as otherwise required
by any Requirement of Law or as is deemed by Chase USA in its sole discretion
to be necessary in order for it to maintain its lending business on a
competitive basis based on a good faith assessment by Chase USA of the nature
of its competition in the lending business, it shall not at any time reduce
the annual percentage rate of the Periodic Finance Charges assessed on the
Receivables transferred by it to Purchaser or other fees charged on any of the
Accounts if, as a result of any such reduction, either (i) Chase USA's
reasonable expectation is that such reduction will cause a Pay Out Event to
occur or (ii) such reduction is not also applied to any comparable segment of
consumer revolving accounts owned by Chase USA which have characteristics the
same as, or substantially similar to, such Accounts.
(e) Lending Agreements and Lending Guidelines. Chase USA shall comply
with and perform its obligations under the Lending Agreements relating to the
Accounts and the Lending Guidelines and all applicable rules and regulations
of MasterCard and VISA or their respective substantial equivalents except
insofar as any failure so to comply or perform would not materially and
adversely affect the rights of Purchaser. Subject to compliance with all
Requirements of Law, Chase USA may change the terms and provisions of the
Lending Agreements or the Lending Guidelines with respect to any of the
Accounts owned by it in any respect (including 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 in the reasonable judgment of Chase USA such
change is made applicable to any comparable segment of the consumer
21
revolving accounts owned by Chase USA which have characteristics the same as,
or substantially similar to, such Accounts.
(f) MasterCard and VISA. Chase USA, to the extent applicable to the
Accounts, shall use its best efforts to remain, either directly or indirectly,
a member in good standing of the MasterCard System, the VISA System and any
other similar entity's or organization's system relating to any other type of
revolving credit card accounts included as Accounts.
(g) Documentation of Transfer. Chase USA shall file the documents which
would be necessary to perfect and maintain the perfection of the sale of the
Receivables and the related Purchased Assets to Purchaser.
(h) Jurisdiction or Type of Organization. Within 30 days after Chase USA
makes any change in its name, identity or corporate structure which would make
any financing statement or continuation statement filed in accordance with
Section 2.01 or subsection 5.01(c) seriously misleading within the meaning of
Section 9-506 of the UCC, Chase USA shall give the Purchaser notice of any
such change and shall file such financing statements or amendments as may be
necessary to continue the perfection of the Purchaser's security interest in
the Receivables and the proceeds thereof. Chase USA will give the Purchaser
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) and
whether, as a result of such change, the applicable provisions of the UCC
would require the filing of any financing statements and shall file such
financing statements as may be necessary to continue the perfection of the
Purchaser's security interest in the Receivables and the proceeds thereof
within the time specified in Section 9-316(a) of the UCC.
Section 5.02. Account Allocations. If a Transfer Restriction Event
occurs, Chase USA agrees (except as prohibited by any order or any Requirement
of Law) to allocate and pay to Purchaser or at the direction of Purchaser
after the date of such Transfer Restriction Event, all Collections with
respect to Principal Receivables previously Conveyed to Purchaser. To the
extent that it is not clear to Chase USA whether Collections relate to a
Principal Receivable that was sold to Purchaser or to a Principal Receivable
that Chase USA is unable to sell to Purchaser, Chase USA agrees that it shall
allocate payments on each Account with respect to the principal balance of
such Account first to the oldest principal balance of such Account.
Notwithstanding any cessation in the Conveyance to Purchaser of additional
Principal Receivables, Principal Receivables sold to Purchaser prior to the
occurrence of the Transfer Restriction Event, Collections in respect of such
Principal Receivables, Finance Charge Receivables whenever created that accrue
in respect of such Principal Receivables, and Collections in respect of such
Finance Charge Receivables, shall continue to be property of Purchaser
available for Conveyance by Purchaser to the Trustee pursuant to the Pooling
and Servicing Agreement.
[END OF ARTICLE V]
22
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables.
(a) If any representation or warranty contained in subsection
4.02(a)(ii), (iii), (iv), (vi), (vii), (viii) or (ix) is not true and correct
in any material respect as of the date specified therein with respect to any
Receivable or any Account and as a result of such breach Purchaser is required
under subsection 2.05(a) of the Pooling and Servicing to accept reassignment
of such Receivables previously Conveyed by Chase USA to Purchaser pursuant to
this Agreement Trustee, Chase USA shall accept reassignment of such
Receivables on the terms and conditions set forth in subsection 6.01(b).
(b) Chase USA shall accept reassignment of any Receivables described in
subsection 6.01(a) from Purchaser on the date on which such Receivables are
reassigned to Purchaser pursuant to subsection 2.05(a) of the Pooling and
Servicing Agreement for a repurchase price equal to the principal balance of
such Receivable. Such purchase price shall be paid by deducting such amount
from the purchase price owing to Chase USA by the Purchaser on the Transfer
Date following the Monthly Period in which such repurchase occurs or if no
such amount is owed then by deducting such amount from the balance of the
Seller Note; provided that if the reduction of the Principal Receivables in
the Trust as a result of such repurchase causes the Purchaser to be required
to make a deposit in the Special Funding Account, then Chase USA shall pay
such purchase price to the Purchaser in cash on or prior to the date on which
the Purchaser is required to make such deposit in immediately available funds.
Upon payment by Chase USA of such amount, Purchaser shall automatically and
without further action Convey to Chase USA, without recourse, representation
or warranty, all the right, title and interest of Purchaser in and to such
Receivables and all Purchased Assets related thereto, all monies due or to
become due and all amounts received or receivable with respect thereto, and
all proceeds (including, without limitation, "proceeds" as defined in the UCC)
thereof. Such reassigned Receivables shall be treated by Purchaser as
collected in full as of the date on which they were reassigned. Purchaser
shall execute such documents and instruments of transfer or assignment and
take such other actions as shall reasonably be requested by Chase USA to
effect the conveyance of such Receivables and other property pursuant to this
subsection.
Section 6.02. Reassignment of Other Receivables.
(a) In the event any representation or warranty set forth in subsection
4.01(a)(i) or (iii) or in subsection 4.02(a)(i) or (v) is not true and correct
in any material respect and as a result of such breach Purchaser is required
under Section 2.06 of the Pooling and Servicing Agreement to accept a
reassignment of all of the Receivables previously sold by Chase USA to
Purchaser pursuant to this Agreement, Chase USA shall accept a reassignment of
such Receivables on the terms and conditions set forth in subsection 6.02(b).
(b) Chase USA shall accept reassignment of any Receivables described in
subsection 6.02(a) from Purchaser on the date on which such Receivables are
reassigned to Purchaser for a repurchase price equal to the principal balance
of such Receivable. Such
23
purchase price shall be paid by deducting such amount from the purchase price
owing to Chase USA by the Purchaser on the Transfer Date following the Monthly
Period in which such repurchase occurs or if no such amount is owed then by
deducting such amount from the balance of the Seller Note; provided that if
the reduction of the Principal Receivables in the Trust as a result of such
repurchase causes the Purchaser to be required to make a deposit in the
Special Funding Account, then Chase USA shall pay such purchase price to the
Purchaser in cash on or prior to the date on which the Purchaser is required
to make such deposit in immediately available funds. Upon payment by Chase USA
of such amount, Purchaser shall automatically and without further action
Convey to Chase USA, without recourse, representation or warranty, all the
right, title and interest of Purchaser in and to such Receivables, all
Allocated Interchange, and the related Purchased Assets. Purchaser shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested by Chase USA to effect the
conveyance of such Receivables and related Purchased Assets pursuant to this
subsection.
[END OF ARTICLE VI]
24
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to Purchaser's Obligations on the Initial
Purchase Date. The obligation of Purchaser to purchase the Receivables in the
Existing Accounts on the Initial Purchase Date shall be subject to the
satisfaction of the following conditions:
(a) All representations and warranties of Chase USA contained in this
Agreement shall be true and correct on the Initial Purchase Date with the same
effect as though such representations and warranties had been made on such
date;
(b) All information relating to the Existing Accounts provided to
Purchaser shall be true and correct as of the Initial Purchase Cut-Off Date in
all material respects;
(c) Chase USA shall have (i) delivered to Purchaser a true and correct
Account Schedule with respect to the Existing Accounts and (ii) performed all
other obligations required to be performed by Chase USA on or before the
Initial Purchase Date under this Agreement;
(d) Chase USA shall have recorded and filed, at its expense, any
financing statement with respect to the Receivables and the related Purchased
Assets meeting the requirements of applicable law in such manner and in such
jurisdictions as are necessary to perfect the Conveyance of the Receivables
and the related Purchased Assets from Chase USA to Purchaser, and shall
deliver a file-stamped copy of such financing statements or other evidence of
such filings to Purchaser;
(e) All corporate and legal proceedings and all instruments in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to Purchaser, and Purchaser shall have received from Chase
USA copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions herein contemplated as
Purchaser may reasonably have requested; and
(f) Purchaser, as Transferor, Chase USA, as Servicer, and the Trustee
have executed and delivered the Pooling and Servicing Agreement.
Section 7.02. Conditions to Chase USA's Obligations on the Initial
Purchase Date. The obligation of Chase USA to Convey the Receivables in the
Existing Accounts on the Initial Purchase Date shall be subject to the
satisfaction of the following conditions:
(a) All representations and warranties of Purchaser contained in this
Agreement shall be true and correct on the Initial Purchase Date with the same
effect as though such representations and warranties had been made on such
date;
(b) Payment or provision for payment of the Purchase Price in accordance
with Section 3.01 hereof shall have been made; and
25
(c) All corporate and legal proceedings and all instruments in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to Chase USA, and Chase USA shall have received from
Purchaser copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions contemplated herein, as
Chase USA may reasonably have requested.
Section 7.03. Condition Precedent to all Purchases of Receivables. The
obligation of the Purchaser to purchase Receivables and the related assets to
be purchased hereunder pursuant to Section 2.01 on any date (including the
Initial Purchase Date) is subject to the condition that no Insolvency Event
shall have occurred and be continuing. The obligation of Chase USA to sell
Receivables and the related assets to be purchased hereunder pursuant to
Section 2.01 on any date (including the Initial Purchase Date) is subject to
the condition that no Insolvency Event with respect to the Purchaser shall
have occurred and be continuing
[END OF ARTICLE VII]
26
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01. Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue until the later of (a) the
termination of the Trust as provided in Article XII of the Pooling and
Servicing Agreement or (b) the termination of this Agreement by the mutual
agreement of the parties hereto.
Section 8.02. Purchase Termination. If Chase USA or the Purchaser 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 Chase USA or the Purchaser, as the case
may be, or of or relating to all or substantially all of or relating to 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
Chase USA or the Purchaser; or Chase USA or the Purchaser 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 (each, an "Insolvency Event"); then Chase
USA shall immediately cease to Convey any Principal Receivables to Purchaser
and shall promptly give notice to Purchaser and the Trustee of such Insolvency
Event. Notwithstanding any cessation of the Conveyance to Purchaser of
additional Principal Receivables, Principal Receivables sold to Purchaser
prior to the occurrence of such Insolvency Event, Collections in respect of
such Principal Receivables, Finance Charge Receivables whenever created that
accrue in respect of such Principal Receivables, and Collections in respect of
such Finance Charge Receivables shall continue to be property of Purchaser
available for transfer by Purchaser to the Trustee pursuant to the Pooling and
Servicing Agreement. To the extent that it is not clear to Chase USA whether
collections relate to a Principal Receivable that was sold to Purchaser or to
a Principal Receivable that Chase USA has not sold to Purchaser, Chase USA
agrees that it shall allocate payments on each Account with respect to the
principal balance of such Account first to the oldest principal balance of
such Account.
[END OF ARTICLE VIII]
27
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment. This Agreement may not be changed orally, but
only by an instrument in writing signed by each of Purchaser and Chase USA, in
accordance with this Section 9.01. This Agreement may be amended from time to
time by Purchaser and Chase USA (a) to cure any ambiguity, (b) to correct or
supplement any provisions herein which may be inconsistent with any other
provisions herein, (c) to add any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with
the provisions of this Agreement, (d) to change or modify the Purchase Price,
and (e) to change, modify, delete or add any other obligation of Chase USA or
Purchaser; provided, however, that no amendment pursuant to clause (d) or (e)
of this Section 9.01 shall be effective unless the Rating Agency Condition has
been satisfied; provided further that Purchaser shall have delivered to the
Trustee an Officer's Certificate to the effect that Purchaser reasonably
believes that such action shall not adversely affect in any material respect
the interests of any Investor Certificateholder. Any reconveyance or
reassignment executed in accordance with the provisions hereof shall not be
considered to be an amendment to this Agreement. A copy of any amendment to
this Agreement shall be sent to each Rating Agency.
Section 9.02. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 9.03. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered, mailed by registered mail, return receipt requested, or sent by
facsimile transmission (a) in the case of Chase USA, to [ ], (b) in the case
of Purchaser, to Purchaser, [address], Attention of [o] (facsimile no. (___)
_______) and (c) in the case of the Trustee, Bankers Trust Company, Four
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Corporate Trust Agency
Group (facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇), or, as to each party, at such other
address as shall be designated by such party in a written notice to each other
party in accordance with this Section 9.03.
Section 9.04. 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, and terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement.
Section 9.05. Assignment; Merger or Consolidation of, or Assumption of
the Obligations of Chase USA. Chase USA 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:
(a) (A) Chase USA is the surviving entity or (B) if Chase USA is not the
surviving entity, the corporation formed by such consolidation or into which
Chase USA is
28
merged or the Person which acquires by conveyance or transfer the properties
and assets of Chase USA substantially as an entirety shall be organized and
existing under the laws of the United States of America or any State 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 Purchaser, in
form satisfactory to the Purchaser, the performance of every covenant and
obligation of Chase USA, as applicable hereunder and shall benefit from all
the rights granted to Chase USA, as applicable hereunder. To the extent that
any right, covenant or obligation of Chase USA, 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;
(b) Chase USA shall have delivered to the Purchaser an Officer's
Certificate signed by a Vice President (or any more senior officer) of Chase
USA stating that such consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section 9.05 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; and
(c) Chase USA shall have delivered notice to the Rating Agency of such
consolidation, merger, conveyance or transfer.
Section 9.06. Assignments. The obligations of Chase USA hereunder
shall not be assignable nor shall any Person succeed to the obligations of
Chase USA hereunder (i) except for mergers, consolidations, assumptions or
transfers in accordance with the provisions of Section 9.05 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 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 Purchaser, in form
satisfactory to the Purchaser, the performance of every covenant and
obligation of Chase USA, as applicable hereunder and shall benefit from all
the rights granted to Chase USA, as applicable hereunder. To the extent that
any right, covenant or obligation of Chase USA, 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. Chase USA shall deliver notice to the Rating
Agency of such assignment.
Section 9.07. Transfer of Accounts. The Purchaser shall permit the
transfer of Accounts (i) directly to any Affiliate of Chase USA that executes
an agreement assuming with respect to such Accounts the obligations and duties
of Chase USA hereunder or indirectly to any Affiliate in one or more
substantially simultaneous transactions among Chase USA, such Affiliate and
any other Affiliates of Chase USA 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 foregoing provisions shall not
prohibit Chase USA from conveying, assigning, exchanging or otherwise
transferring the Accounts in connection with a transaction complying with the
relevant provisions of this Agreement.
29
Section 9.08. Indemnification.
(a) Chase USA shall indemnify and hold harmless the Purchaser and any
Persons claiming by, through or under the Purchaser, and their respective
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 Chase USA hereunder or
as a result of the failure of a Receivable to be originated in compliance with
all Requirements of Law and for any breach of any of Chase USA's
representations and warranties with respect thereto contained herein,
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,
that Chase USA shall under no circumstances indemnify any of the foregoing
Persons from and against any losses, claims or damages incurred by any of them
in their capacities as owners of, or direct or indirect investors in, the
Purchased Assets, including without limitation losses incurred as a result of
Defaulted Accounts or Receivables which are written off as uncollectible.
(b) In consideration of the assumption by the Purchaser of the
obligations of Chase USA as Transferor under the Pooling and Servicing
Agreement on the Substitution Date, Chase USA shall indemnify and hold
harmless the Purchaser and any Persons claiming by, through or under the
Purchaser, and their respective 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 Chase USA in its capacity as Transferor (or any Predecessor
Seller) under the Pooling and Servicing Agreement prior to the Substitution
Date, 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.
Section 9.09. Acknowledgement and Agreement of Chase USA. Chase USA
acknowledges that the Purchaser shall from time to time, sell, pledge, assign
or transfer all of its right, title and interest in the Purchased Assets and
its rights hereunder to the Trustee pursuant to the Pooling and Servicing
Agreement. Chase USA consents to such assignment and agrees that the Trustee,
to the extent provided in the Pooling and Servicing Agreement, shall be
entitled to enforce the terms of this Agreement and the rights (including,
without limitation, the right to grant or withhold any consent or waiver) of
the Purchaser directly against Chase USA. In each case, Chase USA further
agrees that, in respect of its obligations hereunder, it will act at the
direction of and in accordance with all requests and instructions from the
Trustee delivered pursuant to the Pooling and Servicing Agreement until the
satisfaction of all obligations thereunder. Except as otherwise contemplated
by the Pooling and Servicing Agreement, the Trustee shall have the rights of
third-party beneficiary under this Agreement. Chase USA shall deliver copies
of all notices, requests, demands and other documents to be delivered by it to
the Purchaser pursuant to the terms hereof to the Trustee. Additionally, Chase
USA agrees that any amounts payable by Chase USA to Purchaser hereunder which
are to be paid by Purchaser to the Trustee or the Servicer shall be paid by
Chase USA directly to the Trustee or the Servicer, as assignee of Purchaser.
Section 9.10. Further Assurances. Purchaser and Chase USA agree to do and
perform, from time to time, any and all acts and to execute any and all
further instruments
30
required or reasonably requested by the other party or the Trustee more fully
to effect the purposes of this Agreement, including, without limitation, the
execution or authorization of any financing statements or continuation
statements or amendments to financing statements or equivalent documents
relating to the Receivables and the related Purchased Assets for filing under
the provisions of the UCC or other law of any applicable jurisdiction.
Section 9.11. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of Purchaser or Chase USA, 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 9.12. 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 9.13. Binding; Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. The Trust and the Trustee shall
be considered third-party beneficiaries of this Agreement.
Section 9.14. 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 9.15. Headings. The headings are for purposes of reference only
and shall not affect the meaning or interpretation of any provision hereof.
Section 9.16. Schedules and Exhibits. The schedules and exhibits attached
hereto and referred to herein shall constitute a part of this Agreement and
are incorporated into this Agreement for all purposes.
Section 9.17. Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Agreement or
contained in any Supplemental Conveyance shall remain operative and in full
force and effect and shall survive conveyance of the Receivables and the
related Purchased Assets by Purchaser to the Trustee pursuant to the Pooling
and Servicing Agreement.
Section 9.18. Nonpetition Covenant. Notwithstanding any prior termination
of this Agreement, Chase USA shall not, prior to the date which is one year
and one day after the later of the termination of this Agreement and the
termination of the Trust, acquiesce, petition or otherwise invoke or cause
Purchaser or the Trust to invoke the process of any Governmental Authority for
the purpose of commencing or sustaining a case against Purchaser or the Trust
under any Debtor Relief Law or appointing a receiver, conservator, liquidator,
assignee, trustee,
31
custodian, sequestrator or other similar official of Purchaser or the Trust or
any substantial part of its property or ordering the winding-up or liquidation
of the affairs of Purchaser or the Trust.
[END OF ARTICLE IX]
32
IN WITNESS WHEREOF, Purchaser and Chase USA have caused this Receivables
Purchase Agreement to be duly executed by their respective officers as of the
date first above written.
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
CARD ACQUISITION FUNDING LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
SUPPLEMENTAL CONVEYANCE No. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS
("Supplemental Conveyance"), dated as of ______, 200_ by CHASE MANAHATTAN BANK
USA, NATIONAL ASSOCIATION, a banking corporation organized and existing under
the laws of the United States (together with its permitted successors and
assigns, ("Chase USA") to CARD ACQUISITION FUNDING LLC, a Delaware limited
liability company ("LLC") pursuant to the Receivables Purchase Agreement
referred to below.
W I T N E S S E T H :
WHEREAS, LLC and Chase USA are parties to the Receivables Purchase
Agreement dated as of February 5, 2002 (as amended and supplemented, the
"Agreement");
WHEREAS, pursuant to the Agreement, Chase USA wishes to designate
Additional Accounts to be included as Accounts and to convey the Receivables
of such Additional Accounts (as each such term is defined in the Agreement),
whether now existing or hereafter created, to the LLC; and
WHEREAS, LLC is willing to accept such designation and conveyance subject
to the terms and conditions hereof.
NOW, THEREFORE, LLC and Chase USA hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein
shall have such defined meanings when used herein, unless otherwise
defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, _________, 200_.
"Additional Cut-Off Date" shall mean, with respect to the Additional
Accounts designated hereby, _________, 200_.
2. Designation of Additional Accounts. Chase USA will deliver to the
LLC a computer file or microfiche list containing a true and complete
schedule identifying all such Additional Accounts specifying for each
such Account, as of the Additional Cut-Off Date, its account number, the
aggregate amount outstanding in such Account and the aggregate amount of
Principal Receivables outstanding in such Account, which computer file or
microfiche list shall supplement Schedule I to the Agreement.
A-1
3. Conveyance of Receivables.
(a) Chase USA does hereby transfer, assign, set-over and otherwise convey
to LLC, without recourse on and after the Addition Date, all its right, title
and interest of Chase USA in, to and under the Receivables of such Additional
Account existing at the close of business on the Additional Cut-Off Date and
thereafter created from time to time until the termination of the Agreement or
until the cessation of sales of Receivables in accordance with Section 7.03 of
the Agreement, all monies due or to become due with respect thereto and all
proceeds (including "proceeds" as defined in the UCC) thereof.
(b) In connection with such sale, Chase USA further agrees, at its own
expense, on or prior to the date of this Supplemental Conveyance, to indicate
in the appropriate computer files that Receivables created in connection with
the Additional Accounts owned by Chase USA and designated hereby have been
conveyed to the LLC pursuant to the Agreement and this Supplemental
Conveyance.
(c) The parties hereto intend that each transfer of Receivables and other
property pursuant to this Supplemental Conveyance constitutes a sale, and not
a secured borrowing, for all purposes.
4. Acceptance by the LLC. The LLC hereby acknowledges its acceptance of
all right, title and interest to the property, now existing and hereafter
created, conveyed to the LLC pursuant to Section 3(a) of this Supplemental
Conveyance.
5. Representations and Warranties of Chase USA. Chase USA hereby
represents and warrants to the LLC as of the Addition Date that the
representations and warranties of Chase USA set forth in Article IV of the
Agreement that are to be made as of the Addition Date with respect to this
Supplemental Conveyance and the Additional Accounts and related Receivables
are true and correct as of such date.
6. Ratification of Agreement. As supplemented by this Supplemental
Conveyance, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Supplemental Conveyance shall be read,
taken and construed as one and the same instrument.
7. Counterparts. This Supplemental Conveyance 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 SUPPLEMENTAL CONVEYANCE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
A-2
IN WITNESS WHEREOF, the undersigned have caused this Supplemental
Conveyance 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:
------------------------------------------------
Name:
Title:
CARD ACQUISITION FUNDING LLC
By: ------------------------------------------------
Name:
Title:
A-3
Schedule 1
to Supplemental Conveyance of
Receivables in
Additional Accounts
ADDITIONAL ACCOUNTS
A-4
Schedule 2
to Supplemental Conveyance of
Receivables in
Additional Accounts
Chase Manhattan Bank USA, National Association
Card Acquisition Funding LLC
Officer's Certificate
In connection with the LLC entering into Assignment No.__ of Supplemental
Conveyance of Receivables in Additional Accounts, dated as of the date hereof
(the "Supplemental Conveyance") pursuant to the Receivables Purchase Agreement
dated as of February 5, 2002 (as amended and supplemented, the "Agreement"),
by and between Chase USA and the LLC, the undersigned, ___________, a duly
authorized officer of Chase Manhattan Bank USA, National Association, a
banking corporation organized and existing under the laws of the United States
("Chase USA"), hereby certifies and acknowledges on behalf of Chase USA that
to the best of [her/his] knowledge the following statements are true on
__________, 200_ (the "Addition Date"):
(i) Legal, Valid and Binding Obligation. The Agreement and, in the case
of Additional Accounts, the related Supplemental Conveyance executed on such
Addition Date, each 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 Debtor Relief Laws and except as
such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(ii) Identity of Accounts. As of the related Addition Date with respect
to Additional Accounts, Schedule 1 to this Agreement, as supplemented to each
Addition Date, is an accurate and complete listing in all material respects of
all the Accounts as of such Additional Cut-Off Date, and the information
contained therein with respect to the identity of such Accounts and the
Receivables existing in such Accounts is true and correct in all material
respects as of such Additional Cut-Off Date.
(iii) No Conflict. Each Receivable conveyed to LLC as of the related
Addition Date has been conveyed to LLC free and clear of any Lien of any
Person claiming through or under Chase USA or any of its Affiliates and in
compliance, in all material respects, with all Requirements of Law applicable
to Chase USA;
(iv) All Consents. All authorizations, consents, orders or approvals of
or registrations or declarations with any Governmental Authority required to
be obtained, effected or given by Chase USA in connection with the Conveyance
by Chase USA of Receivables to LLC have been duly obtained, effected or given
and are in full force and effect.
A-5
(v) True Sale. The transfer of the Receivables pursuant to the Agreement
and this Supplemental Conveyance, constitutes a valid sale, transfer and
assignment to LLC of all right, title and interest of Chase USA in the
Receivables and the related Purchased Assets Conveyed hereunder and such sale
is perfected under the UCC.
(vi) Eligible Accounts. With respect to Additional Accounts, on the
applicable Addition Date, each related Additional Account is an Eligible
Account.
(vii) Eligibility of Accounts. On the applicable Addition Date, each
Receivable contained in any related Additional Accounts is an Eligible
Receivable.
(viii) Eligibility of Receivables. As of the date of the creation of any
new Receivable in an Account, such Receivable is an Eligible Receivable.
Selection Procedure. On the Addition Date, no selection procedure has
been utilized by Chase USA which Chase USA reasonably believes would result in
a selection of Additional Accounts (from among the available Eligible Accounts
owned by Chase USA on the applicable Additional Cut-Off Date) that would be
materially adverse to the interests of LLC.
Capitalized terms used herein and not otherwise defined are used as
defined in the Supplemental Conveyance or the Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day
of _____, 200_.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By:_________________________________
Name:
Title:
A-6
EXHIBIT B
FORM OF OPINION OF COUNSEL ON DESIGNATION OF ADDITIONAL
ACCOUNTS
Provisions to be included in the
Opinion of Counsel to be delivered pursuant to Section 2.02(b)(iv)(1)
The opinions may be subject to all the qualifications, assumptions,
limitations and exceptions taken or made in the opinion of counsel delivered
on any applicable Closing Date or substitution date and shall address:
(a) the due authorization, execution and delivery of the Assignment by
the parties as described in Section 2.01
(b) The Perfection Issues as described in the opinions rendered on the
Substitution Date.
The opinions are subject to the effects of bankruptcy, insolvency,
liquidation, receivership, conservatorship, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally or of creditors of depository institutions, the
accounts of which are insured by the FDIC, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
---------------
(1) The opinion or any portion thereof may be set forth by various law firms
in whole or in part as designated by the parties.
B-1
EXHIBIT C
FORM OF SELLER NOTE
$_______________ New York, New York
__________ __, 200_
FOR VALUE RECEIVED, the undersigned, Card Acquisition Funding LLC, a Delaware
limited liability company (the "Borrower"), hereby unconditionally promises to
pay to the order of Chase Manhattan Bank USA, National Association (the
"Lender") at its office, located at ▇▇▇▇▇ ▇▇▇▇ Center, Building 200, Route 273
Newark, Delaware 19711, in lawful money of the United States of America and in
immediately available funds, the principal amount owing from time to time in
accordance with Section 3.01 of the Receivables Purchase Agreement and under
the Contribution and Sale Agreement. The Borrower further agrees to pay
interest in like money at such office on the unpaid principal amount hereof
from time to time outstanding at a rate calculated per annum (calculated on
the basis of actual days elapsed and a 360 day year) equal to, for each
Interest Period, one month LIBOR determined for such Interest Period plus
0.35% per annum. Such interest shall be payable to the extent, and on the
dates, set forth in Section 3.01 of the Receivables Purchase Agreement.
Interest Period means each period commencing on and including a Distribution
Date and ending on and excluding the following Distribution Date; provided
that the Initial Interest Period shall commence on the date hereof. The Lender
shall determine one Month LIBOR in a manner consistent with the Pooling and
Servicing Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, amount of each advance made
pursuant to Section 3.01 of the Receivables Purchase Agreement and the
Contribution and Sale Agreement and the date and amount of each payment or
prepayment of principal thereof. The failure to make any such endorsement with
respect to an advance shall not affect the obligations of the Borrower in
respect of such advance.
This Note is the Seller Note referred to in the Receivables Purchase
Agreement dated as of ________ __, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Receivables Purchase Agreement"), among the
Borrower and the Lender, and the Contribution and Sale Agreement, dated as of
__________, 2002 made by the Lender to the Borrower (the "Contribution and
Sale Agreement"), is subject to the provisions of the Receivables Purchase
Agreement and is subject to prepayment in whole or in part as provided in the
Receivables Purchase Agreement.
To the extent not prohibited by law, all parties now and hereafter liable
with respect to this Note, whether maker, principal, surety, guarantor,
endorser or otherwise, hereby waive presentment, demand, protest and all other
notices of any kind.
Each holder of this Note agrees, by its acceptance hereof, that it shall
not, prior to the date which is one year and one day after the later of the
termination of the Receivables Purchase Agreement and the termination of the
Trust, acquiesce, petition or otherwise invoke or
C-1
cause the Borrower to invoke the process of any Governmental Authority for the
purpose of commencing or sustaining a case against the Borrower under any
Debtor Relief Law or appointing a receiver, conservator, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Borrower or
any substantial part of its property or ordering the winding-up or liquidation
of the affairs of Borrower.
Unless otherwise defined herein, terms defined in the Receivables
Purchase Agreement and used herein shall have the meanings given to them in
the Receivables Purchase Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
CARD ACQUISITION FUNDING LLC
By: ----------------------------------------------
Name
Title
C-2
Schedule A
To Seller Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
Amount of principal Unpaid Principal Balance
Date Amount of Loans of Loans Repaid of Loans Notation Made By
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions..........................................1
Section 1.02. Other Definitional Provisions........................9
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase............................................10
Section 2.02. Addition of Accounts................................11
Section 2.03. [Reserved]..........................................12
Section 2.04. Allocated Interchange...............................12
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price......................................14
Section 3.02. Adjustments to Purchase Price.......................14
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of Chase
USA Relating to Chase USA..........................16
Section 4.02. Representations and Warranties of Chase USA
Relating to the Agreement, the Supplemental
Conveyances and the Receivables....................17
Section 4.03. Representations and Warranties of Purchaser........19
ARTICLE V
COVENANTS
Section 5.01. Covenants of Chase USA.............................21
Section 5.02. Account Allocations................................22
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables.............23
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TABLE OF CONTENTS
Section 6.02. Reassignment of Other Receivables..................23
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to Purchaser's Obligations on the
Initial Purchase Date.............................25
Section 7.02. Conditions to Chase USA's Obligations on the
Initial Purchase Date.............................25
Section 7.03. Condition Precedent to all Purchases of
Receivables.......................................26
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01. Term..............................................27
Section 8.02. Purchase Termination..............................27
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment........................................28
Section 9.02. Governing Law....................................28
Section 9.03. Notices..........................................28
Section 9.04. Severability of Provisions.......................28
Section 9.05. Assignment; Merger or Consolidation of, or
Assumption of the Obligations of Chase USA.......28
Section 9.06. Assignments......................................29
Section 9.07. Transfer of Accounts.............................29
Section 9.08. Indemnification..................................30
Section 9.09. Acknowledgement and Agreement of Chase USA.......30
Section 9.10. Further Assurances...............................30
Section 9.11. No Waiver; Cumulative Remedies...................31
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TABLE OF CONTENTS
continued
Section 9.12. Counterparts.....................................31
Section 9.13. Binding; Third-Party Beneficiaries...............31
Section 9.14. Merger and Integration...........................31
Section 9.15. Headings.........................................31
Section 9.16. Schedules and Exhibits...........................31
Section 9.17. Survival of Representations and Warranties.......31
Section 9.18. Nonpetition Covenant.............................31
EXHIBIT A FORM OF SUPPLEMENTAL CONVEYANCE
SCHEDULE 1 LIST OF ADDITIONAL ACCOUNTS
SCHEDULE 2 FORM OF OFFICER'S CERTIFICATE
EXHIBIT B FORM OF OPINION OF COUNSEL ON DESIGNATION
OF ADDITIONAL ACCOUNTS
EXHIBIT C FORM OF SELLER NOTE
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