EXHIBIT 4.2
================================================================================
THE CHASE MANHATTAN BANK (USA),
Transferor on and after June 1, 1996,
CHEMICAL BANK,
Transferor prior to June 1, 1996 and Servicer
and
THE BANK OF NEW YORK,
Trustee
on behalf of the Certificateholders
of Chemical Master Credit Card Trust I
_________________________________
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1996
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS....................... 1
Section 1.1 Definitions................................................ 1
Section 1.2 Other Definitional Provisions.............................. 22
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES.................. 23
Section 2.1 Conveyance of Receivables.................................. 23
Section 2.2 Acceptance by Trustee...................................... 24
Section 2.3 Representations and Warranties of
the Transferor............................................. 25
Section 2.4 Representations and Warranties of
the Transferor Relating to the
Agreement and the Receivables.............................. 27
Section 2.5 Covenants of the Transferor................................ 33
Section 2.6 Addition of Accounts....................................... 36
Section 2.7 Removal of Accounts........................................ 39
Section 2.8 Discount Option............................................ 40
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES........................ 42
Section 3.1 Acceptance of Appointment and Other
Matters Relating to the Servicer.......................... 44
Section 3.2 Servicing Compensation.................................... 44
Section 3.3 Representations and Warranties
of the Servicer........................................... 45
Section 3.4 Reports and Records for the Trustee....................... 46
Section 3.5 Annual Servicer's Certificate............................. 47
Section 3.6 Annual Independent Accountants'
Servicing Report.......................................... 47
Section 3.7 Tax Treatment............................................. 48
Section 3.8 Notices to the Transferor................................. 49
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS................ 50
-i-
Section 4.1 Rights of Certificateholders............................... 50
Section 4.2 Establishment of Accounts.................................. 50
Section 4.3 Collections and Allocations................................ 53
Section 4.4 Allocations During Funding Period.......................... 55
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL
BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES].................... 56
ARTICLE VI
THE CERTIFICATES..................... 57
Section 6.1 The Certificates........................................... 57
Section 6.2 Authentication of Certificates............................. 57
Section 6.3 Registration of Transfer and Exchange
of Certificates............................................ 58
Section 6.4 Mutilated, Destroyed, Lost or Stolen
Certificates .............................................. 61
Section 6.5 Persons Deemed Owners...................................... 61
Section 6.6 Appointment of Paying Agent................................ 62
Section 6.7 Access to List of Certificateholders'
Names and Addresses........................................ 63
Section 6.8 Authenticating Agent....................................... 64
Section 6.9 Tender of Transferor Certificate........................... 65
Section 6.10 Book-Entry Certificates.................................... 68
Section 6.11 Notices to Clearing Agency................................. 69
Section 6.12 Definitive Certificates.................................... 69
Section 6.13 Global Certificate......................................... 70
Section 6.14 Meetings of Certificateholders............................. 70
ARTICLE VII
OTHER MATTERS RELATING
TO THE TRANSFEROR..................... 71
Section 7.1 Liability of the Transferor................................ 71
Section 7.2 Merger or Consolidation of, or Assumption
of the Obligations of, the Transferor...................... 71
Section 7.3 Limitation of Liability.................................... 72
Section 7.4 Liabilities................................................ 72
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER........................ 74
-ii-
Section 8.1 Liability of the Servicer.................................. 74
Section 8.2 Merger or Consolidation of, or
Assumption of the Obligations of,
the Servicer............................................... 74
Section 8.3 Limitation of Liability of the Servicer
and Others................................................. 74
Section 8.4 Servicer Indemnification of the Trust
and the Trustee............................................ 75
Section 8.5 The Servicer Not to Resign................................. 76
Section 8.6 Access to Certain Documentation and
Information Regarding the Receivables...................... 76
Section 8.7 Delegation of Duties....................................... 77
Section 8.8 Examination of Records..................................... 77
ARTICLE IX
PAY OUT EVENTS........................ 78
Section 9.1 Pay Out Events............................................. 78
Section 9.2 Additional Rights Upon the Occurrence
of Certain Events.......................................... 79
ARTICLE X
SERVICER DEFAULTS..................... 81
Section 10.1 Servicer Defaults.......................................... 81
Section 10.2 Trustee to Act; Appointment of Successor................... 83
Section 10.3 Notification to Certificateholders......................... 85
Section 10.4 Waiver of Past Defaults.................................... 85
ARTICLE XI
THE TRUSTEE........................ 87
Section 11.1 Duties of Trustee.......................................... 87
Section 11.2 Certain Matters Affecting the Trustee...................... 89
Section 11.3 Trustee Not Liable for Recitals in
Certificates............................................... 90
Section 11.4 Trustee May Own Certificates............................... 90
Section 11.5 The Servicer to Pay Trustee's Fees
and Expenses............................................... 91
Section 11.6 Eligibility Requirements for Trustee....................... 91
Section 11.7 Resignation or Removal of Trustee.......................... 92
Section 11.8 Successor Trustee.......................................... 92
Section 11.9 Merger or Consolidation of Trustee......................... 93
Section 11.10 Appointment of Co-Trustee or Separate
Trustee.................................................... 93
Section 11.11 Tax Returns................................................ 94
-iii-
Section 11.12 Trustee may Enforce Claims Without
Possession of Certificates................................. 95
Section 11.13 Suits for Enforcement...................................... 95
Section 11.14 Rights of Certificateholders to
Direct Trustee............................................. 95
Section 11.15 Representations and Warranties of Trustee.................. 96
Section 11.16 Maintenance of Office or Agency............................ 96
ARTICLE XII
TERMINATION..................................... 97
Section 12.1 Termination of Trust...................................... 97
Section 12.2 Optional Purchase......................................... 98
Section 12.3 Final Payment with Respect to any Series 98
Section 12.4 Termination Rights of Holder of
Certificate............................................... 100
Section 12.5 Defeasance................................................ 100
ARTICLE XIII
MISCELLANEOUS PROVISIONS 102
Section 13.1 Amendment.................................................. 102
Section 13.2 Protection of Right, Title and
Interest to Trust.......................................... 103
Section 13.3 Limitation on Rights of Certificate........................ 104
Section 13.4 Governing Law.............................................. 105
Section 13.5 Notices.................................................... 106
Section 13.6 Severability of Provisions................................. 106
Section 13.7 Assignment................................................. 106
Section 13.8 Certificates Non-Assessable and Fully Paid................. 107
Section 13.9 Further Assurances......................................... 107
Section 13.10 No Waiver; Cumulative Remedies............................. 107
Section 13.11 Counterparts............................................... 107
Section 13.12 Third-Party Beneficiaries.................................. 107
Section 13.13 Actions by Certificateholders.............................. 107
Section 13.14 Rule 144A Information...................................... 108
Section 13.15 Merger and Integration..................................... 108
Section 13.16 Headings................................................... 108
-iv-
EXHIBITS
Exhibit A Form of Transferor Certificate
Exhibit B Form of Assignment of Receivables in Additional Accounts
Exhibit C Form of Monthly Servicer's Certificate
Exhibit D Form of Annual Servicer's Certificate
Exhibit E Form of Opinion of Counsel Regarding Additional Accounts
Exhibit F Form of Annual Opinion of Counsel
Exhibit G Form of Reassignment of Receivables
Exhibit H Form of Reconveyance of Receivables
SCHEDULES
Schedule 1 List of Accounts [Deemed Incorporated]
-v-
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT, dated as of June
1, 1996 by and among THE CHASE MANHATTAN BANK (USA), a banking corporation
organized and existing under the laws of the State of Delaware, as Transferor on
and after June 1, 1996, CHEMICAL BANK, a banking corporation organized and
existing under the laws of the State of New York, as Transferor prior to June 1,
1996 and as Servicer, and THE BANK OF NEW YORK, a New York banking corporation,
as Trustee.
WHEREAS, Chemical Bank as Transferor and Servicer, and the Trustee are
parties to a Pooling and Servicing Agreement, dated as of October 19, 1995 (the
"Original Pooling and Servicing Agreement");
WHEREAS, Chemical Bank as Transferor and Servicer under the Original
Pooling and Servicing Agreement desires to amend and restate the Original
Pooling and Servicing Agreement to read in its entirety as set forth below and
to, among other things, provide for the assumption of the obligations of the
Transferor the date hereof by The Chase Manhattan Bank (USA) ("Chase USA")
concurrently with the transfer of the Transferor Certificate and the Accounts to
Chase USA; and
WHEREAS, Chase USA has entered into the Receivables Asset Purchase
Agreement, dated as of June 1, 1996, between Chemical Bank and Chase USA,
pursuant to which Chemical has transferred to Chase USA and Chase USA has
expressly assumed, among other things, the obligations and duties of Chemical as
Transferor;
NOW, THEREFORE, pursuant to Section 13.1(b) of the Original Pooling
and Servicing Agreement, the parties hereto hereby agree that effective on and
as of the date hereof, the Original Pooling and Servicing Agreement is hereby
amended to read in its entirety as follows:
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other parties and the
Certificateholders:
ARTICLE
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, the
-----------
following words and phrases shall have the following meanings:
"Account Information" shall have the meaning specified in subsection
-------------------
2.2(b).
"Account" shall mean each VISA(R) and MasterCard(R)* credit card account
-------
established pursuant to a Credit Card Agreement between the Transferor and any
Person identified by account number and by the Receivable balance as of the Cut-
Off Date and as of each Addition Date in each computer file or microfiche list
delivered to the Trustee by the Transferor pursuant to Section 2.1 or 2.6. The
definition of Account shall include each Transferred Account. The term
"Account" shall be deemed to refer to an Additional Account only from and after
the Addition Date with respect thereto, and the term "Account" shall be deemed
to refer to any Removed Account only prior to the Removal Date with respect
thereto.
"Accumulation Period" shall mean, with respect to any Series, or any Class
-------------------
within a Series, a period following the Revolving Period during which
Collections of Principal Receivables are accumulated in an account for the
benefit of the Investor Certificateholders of a Series, or a Class within such
Series, which shall be the controlled accumulation period, the rapid
accumulation period or other accumulation period, in each case as defined with
respect to such Series in the related Supplement.
"Addition Date" shall mean each date as of which Additional Accounts will
-------------
be included as Accounts pursuant to Section 2.6.
"Additional Accounts" shall have the meaning specified in subsection
-------------------
2.6(a).
"Affiliate" of any Person shall mean any other Person controlling,
---------
controlled by or under common control with such Person.
"Aggregate Investor Default Amount" shall have, with respect to any Series
---------------------------------
of Certificates, the meaning stated in the related Supplement.
"Aggregate Investor Interest" shall mean, as of any date of determination,
---------------------------
the sum of the Investor Interests of all Series of Certificates issued and
outstanding on such date of determination.
"Aggregate Investor Percentage" with respect to Principal Receivables,
-----------------------------
Finance Charge Receivables and Receivables in Defaulted Accounts, as the case
may be, shall mean, as of any date of determination, the sum of such Investor
Percentages of all Series of Certificates issued and outstanding on such date of
- -----------------------
* VISA (R) and MasterCard(R) are registered trademarks of VISA USA, Inc.
and of MasterCard International Incorporated, respectively.
2
determination; provided, however, that the Aggregate Investor Percentage shall
-------- -------
not exceed 100%.
"Agreement" shall mean this Pooling and Servicing Agreement and all
---------
amendments hereof and supplements hereto, including any Supplement.
"Amortization Period" shall mean, with respect to any Series, or any Class
-------------------
within a Series, a period following the Revolving Period during which principal
is distributed to Investor Certificateholders, which shall be the controlled
amortization period, the principal amortization period, the rapid amortization
period, or other amortization period, in each case as defined with respect to
such Series in the related Supplement.
"Annual Membership Fee" shall have the meaning specified in the Credit Card
---------------------
Agreement applicable to each Account for annual membership fees or similar
terms.
"Applicants" shall have the meaning specified in Section 6.7.
----------
"Appointment Day" shall have the meaning specified in subsection 9.2(a).
---------------
"Assignment" shall have the meaning specified in subsection 2.6(c)(ii).
----------
"Authorized Newspaper" shall mean a newspaper of general circulation in the
--------------------
Borough of Manhattan, The City of New York printed in the English language and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"Average Principal Receivables" shall mean, for any period, an amount equal
-----------------------------
to (a) the sum of the aggregate amount of Principal Receivables at the end of
each day during such period divided by (b) the number of days in such period.
------- --
"Bank Portfolio" shall mean the MasterCard and VISA accounts owned by the
--------------
Transferor.
"Bankruptcy Code" shall mean the United States federal Bankruptcy Code,
---------------
Title 11 of the United States Code, as amended.
"Base Rate" shall have the meaning, with respect to any Series, specified
---------
in the related Supplement.
"Bearer Certificates" shall have the meaning specified in Section 6.1.
-------------------
3
"Bearer Rules" shall mean the provisions of the Internal Revenue Code, in
------------
effect from time to time, governing the treatment of bearer obligations,
including sections 163(f), 871, 881, 1441, 1442 and 4701, and any regulations
thereunder including, to the extent applicable to any Series, Proposed or
Temporary Regulations.
"BIF" shall mean the Bank Insurance Fund administered by the FDIC.
---
"Book-Entry Certificates" shall mean certificates evidencing a beneficial
-----------------------
interest in the Investor Certificates, ownership and transfers of which shall be
made through book entries by a Clearing Agency as described in Section 6.10;
provided, however that after the occurrence of a condition whereupon book-entry
- -------- -------
registration and transfer are no longer authorized and Definitive Certificates
are to be issued to the Certificate Owners, such certificates shall no longer be
"Book-Entry Certificates."
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
------------
on which banking institutions in New York, New York (or, with respect to any
Series, any additional city specified in the related Supplement) are authorized
or obligated by law or executive order to be closed.
"Cash Advance Fees" shall have the meaning specified in the Credit Card
-----------------
Agreement applicable to each Account for cash advance fees or similar terms.
"Cedel" shall mean Cedel Bank, societe anonyme.
-----
"Certificate" shall mean any one of the Investor Certificates of any Series
-----------
or the Transferor Certificate.
"Certificateholder" or "Holder" shall mean the Person in whose name a
----------------- ------
Certificate is registered in the Certificate Register and, if applicable, the
holder of any Bearer Certificate or Coupon, as the case may be.
"Certificate Interest" shall mean interest payable in respect of the
--------------------
Investor Certificates of any Series pursuant to Article IV of the Supplement for
such Series.
"Certificate Owner" shall mean, with respect to a Book-Entry Certificate,
-----------------
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
4
"Certificate Principal" shall mean principal payable in respect of the
---------------------
Investor Certificates of any Series pursuant to Article IV of this Agreement.
"Certificate Rate" shall mean, with respect to any Series of Certificates
----------------
(or, for any Series with more than one Class, for each Class of such Series),
the percentage (or formula on the basis of which such rate shall be determined)
stated in the related Supplement.
"Certificate Register" shall mean the register maintained pursuant to
--------------------
Section 6.3, providing for the registration of the Certificates and transfers
and exchanges thereof.
"Chase USA" shall mean The Chase Manhattan Bank (USA), a banking
---------
corporation organized and existing under the laws of the State of Delaware.
"Chemical Bank" shall mean Chemical Bank, a banking corporation organized
-------------
and existing under the laws of the State of New York.
"Chemical Corporate Trust Office" shall mean the principal office of
-------------------------------
Chemical Bank at which at any particular time its corporate trust business shall
be administered, which office at the date of the execution of this Agreement is
located at 270 Park Avenue, New York, New York 10017.
"Class" shall mean, with respect to any Series, any one of the classes of
-----
Certificates of that Series as specified in the related Supplement.
"Clearing Agency" shall mean an organization registered as a "clearing
---------------
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time a Clearing
Agency or Foreign Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency or Foreign Clearing Agency.
"Closing Date" shall mean, with respect to any Series, the date of issuance
------------
of such Series of Certificates, as specified in the related Supplement.
"Collateral Interest" shall have the meaning, with respect to any Series,
-------------------
specified in the related Supplement.
"Collection Account" shall have the meaning specified in subsection 4.2(a).
------------------
5
"Collections" shall mean all payments (including Insurance Proceeds)
-----------
received by the Servicer in respect of the Receivables, in the form of cash,
checks, wire transfers, ATM transfers or other form of payment in accordance
with the Credit Card Agreement in effect from time to time. A Collection
processed on an Account in excess of the aggregate amount of Receivables in such
Account as of the Date of Processing of such Collection shall be deemed to be a
payment in respect of Principal Receivables to the extent of such excess.
Collections with respect to any Monthly Period shall include the amount of
Interchange (if any) and the amount of Recoveries (if any) allocable to the
Trust with respect to such Monthly Period, to be applied as if such amounts were
Collections of Finance Charge Receivables for all purposes. Collections with
respect to any Monthly Period shall also include the amount deposited by the
Transferor into the Finance Charge Account (or Series Account if provided in any
supplement) pursuant to Section 2.8.
"Companion Series" shall mean (i) each Series which has been paired with
----------------
another series (which Series may be prefunded in whole or in part), such that
the reduction of the Investor Interest of such Series results in the increase of
the Investor Interest of such other Series, as described in the related
Supplements, and (ii) such other Series, as described in the related
Supplements.
"Controlled Distribution Amount," with respect to any Series, shall have
------------------------------
the meaning specified in the related Supplement.
"Corporate Trust Office" shall mean the principal office of the Trustee at
----------------------
which at any particular time its corporate trust business shall be administered,
which office at the date of the execution of this Agreement is located at 101
Barclay Street, 21 West, New York, New York 10286.
"Coupon" shall have the meaning specified in Section 6.1.
------
"Credit Adjustment" shall have the meaning specified in subsection 4.3(c).
-----------------
"Credit Card Agreement" shall mean the agreement and Federal Truth in
---------------------
Lending Statement for MasterCard and VISA credit card accounts between any
Obligor and the Transferor, as such agreement may be amended, modified or
otherwise changed from time to time.
"Credit Card Guidelines" shall mean the Transferor's policies and
----------------------
procedures relating to the operation of its credit card business, including,
without limitation, the policies and procedures for determining the
creditworthiness of credit card customers, the extension of credit to credit
card customers, and
6
relating to the maintenance of credit card accounts and collection of credit
card receivables, as such policies and procedures may be amended from time to
time.
"Credit Enhancement" shall mean, with respect to any Series, the
------------------
subordination, the cash collateral guaranty or account, collateral interest,
letter of credit, surety bond, insurance policy, spread account, reserve
account, cross-support feature or any other contract or agreement for the
benefit of the Certificateholders of such Series (or Certificateholders of a
Class within such Series) as designated in the applicable Supplement.
"Credit Enhancement Provider" shall mean, with respect to any Series, the
---------------------------
Person, if any, designated as such in the related Supplement.
"Cut-Off Date" shall mean September 26, 1995.
------------
"Date of Processing" shall mean, with respect to any transaction, the date
------------------
on which such transaction is first recorded on the Servicer's computer master
file of VISA and MasterCard accounts (without regard to the effective date of
such recordation).
"Default Amount" shall mean, with respect to any Defaulted Account, the
--------------
amount of Principal Receivables (other than Ineligible Receivables) in such
Defaulted Account on the day such Account became a Defaulted Account.
"Defaulted Account" shall mean each Account with respect to which, in
-----------------
accordance with the Credit Card Guidelines or the Servicer's customary and usual
servicing procedures for servicing credit card receivables comparable to the
Receivables, the Servicer has charged off the Receivables in such Account as
uncollectible. An Account shall become a Defaulted Account on the day on which
such Receivables are recorded as charged off as uncollectible on the Servicer's
computer master file of VISA and MasterCard accounts. Notwithstanding any other
provision hereof, any Receivables in a Defaulted Account that are Ineligible
Receivables shall be treated as Ineligible Receivables rather than Receivables
in Defaulted Accounts.
"Definitive Certificate" shall have the meaning specified in Section 6.10.
----------------------
"Depository" shall have the meaning specified in Section 6.10.
----------
"Depository Agreement" shall mean, with respect to a Series having Book-
--------------------
Entry Certificates, the agreement among the Transferor, the Trustee and the
Clearing Agency, or as otherwise provided in the related Supplement.
7
"Determination Date" shall mean, unless otherwise specified in the related
------------------
Series Supplement, the tenth calendar day of each month, or if such day is not a
Business Day, the next preceding Business Day.
"Discount Percentage" shall have the meaning specified in Section 2.8.
-------------------
"Discount Option Receivables" shall mean, on any date on and after the date
---------------------------
on which the Transferor's exercise of its discount option pursuant to Section
2.8 takes effect, the sum of (a) the aggregate Discount Option Receivables at
the end of the prior day (which amount, prior to the date on which the
Transferor's exercise of its discount option takes effect and with respect to
Receivables generated prior to such date, shall be zero) plus (b) any New
----
Discount Option Receivables created on such day minus (c) any Discount Option
-----
Receivables Collections received on such Date of Processing.
"Discount Option Receivables Collections" shall mean on any Date of
---------------------------------------
Processing on and after the date on which the Transferor's exercise of its
discount option pursuant to Section 2.8 takes effect, the product of (a) a
fraction the numerator of which is the amount of the Discount Option Receivables
and the denominator of which is the sum of the Principal Receivables plus the
amount of Discount Option Receivables in each case (for both numerator and
denominator) at the end of the prior Monthly Period and (b) Collections of
Principal Receivables, prior to any reduction for Finance Charge Receivables
which are Discount Option Receivables, received on such Date of Processing.
"Distribution Account" shall have the meaning specified in subsection
--------------------
4.2(c).
"Distribution Date" shall mean, with respect to each Series, the dates
-----------------
specified in the related Supplement.
"Dollars", "$" or "U.S. $" shall mean United States dollars.
------- - ------
"Eligible Account" shall mean, as of the Cut-Off Date (or, with respect to
----------------
Additional Accounts as of the relevant Addition Date), each Account owned by the
Transferor:
(a) which is in existence and maintained with the Transferor;
(b) which is payable in Dollars;
(c) the Obligor on which has provided, as its most recent billing
address, an address which is located in the United States or its
territories or possessions;
8
(d) which the Transferor has not classified on its electronic records
as counterfeit, deleted, fraudulent, stolen or lost;
(e) which the Transferor has not charged off in its customary and
usual manner for charging off such Accounts as of the Cut-Off Date (or,
with respect to Additional Accounts, as of the relevant Addition Date); and
(f) the Obligor of which has not been identified by the Transferor on
its electronic records as being involved in a voluntary or involuntary
bankruptcy proceeding.
"Eligible Deposit Account" shall mean either (a) a segregated account with
------------------------
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States or any one of the states thereof, including the District of
Columbia (or any domestic branch of a foreign bank), and acting as a trustee for
funds deposited in such account, so long as any of the securities of such
depository institution shall have a credit rating from each Rating Agency in one
of its generic credit rating categories which signifies investment grade.
"Eligible Institution" shall mean (a), the Servicer, (b) a depository
--------------------
institution (which may be the Trustee or an affiliate) organized under the laws
of the United States or any one of the states thereof which at all times (i) has
either (x) a long-term unsecured debt rating of "A2" or better by Moody's or (y)
a certificate of deposit rating of "P-1" by Moody's, (ii) has either (x) a long-
term unsecured debt rating of "AAA" by Standard & Poor's or (y) a certificate of
deposit rating of "A-l+" by Standard & Poor's and (iii) is a member of the FDIC
or (c) any other institution that is acceptable to the Rating Agencies.
"Eligible Receivable" shall mean each Receivable:
-------------------
(a) which has arisen under an Eligible Account (in the case of
Accounts conveyed to the Trust on the Initial Closing Date and in the case
of Additional Accounts conveyed to the Trust on the relevant Addition
Date);
(b) which was created in compliance, in all material respects, with
all Requirements of Law applicable to the Transferor and pursuant to a
Credit Card Agreement which complies, in all material respects, with all
Requirements of Law applicable to the Transferor;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by the Transferor in
connection
9
with the creation of such Receivable or the execution, delivery and
performance by the Transferor of the Credit Card Agreement pursuant to
which such Receivable was created, have been duly obtained, effected or
given and are in full force and effect as of such date of creation;
(d) as to which, as of the Closing Date, or in the case of Receivables
in Additional Accounts as of the relevant Addition Date, the Transferor or
the Trust had good title thereto, free and clear of all Liens arising under
or through the Transferor or any of its Affiliates (other than Liens
permitted pursuant to subsection 2.5(b));
(e) which is the legal, valid and binding payment obligation of the
Obligor thereon, enforceable against such Obligor in accordance with its
terms, except as affected by bankruptcy, insolvency, reorganization,
moratorium and other similar laws, now or hereafter in effect, relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a suit in equity or at law) and an implied covenant
of good faith and fair dealing; and
(f) which constitutes an "account" or "general intangible" under and
as defined in Article 9 of the UCC.
"Enhancement Invested Amount" shall have the meaning, with respect to any
---------------------------
Series, specified in the related Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Euroclear Operator" shall mean Morgan Guaranty Trust Company of New York,
------------------
Brussels, Belgium office, as operator of the Euroclear System.
"Excess Funding Account" shall have the meaning specified in subsection
----------------------
4.2(d).
"Excess Funding Amount" shall mean, as of any date of determination, the
---------------------
principal amount on deposit in the Excess Funding Account.
"Exchange" shall mean either of the procedures described under Section 6.9.
--------
"Exchange Date" shall have the meaning, with respect to any Series issued
-------------
pursuant to an Exchange, specified in Section 6.9.
"Exchange Notice" shall have the meaning, with respect to any Series issued
---------------
pursuant to an Exchange, specified in Section 6.9.
10
"Extended Trust Termination Date" shall have the meaning specified in
-------------------------------
subsection 12.1(a).
"FDIC" shall mean the Federal Deposit Insurance Corporation.
----
"FDR" shall have the meaning specified in Section 8.7.
---
"Finance Charge Account" shall have the meaning specified in subsection
----------------------
4.2(b).
"Finance Charge Receivables" shall mean Receivables created in respect of
--------------------------
the Periodic Finance Charges, Cash Advance Fees and Late Fees and similar fees
and charges, Annual Membership Fees and Special Fees to the extent such Special
Fees are categorized as Finance Charge Receivables. Finance Charge Receivables
with respect to any Monthly Period shall include the amount of Interchange (if
any), Recoveries (if any), Discount Option Receivables (if any), Insurance
Proceeds and investment earnings from any of the Trust Accounts, and other
amounts allocable to any Series of Certificates pursuant to any Supplement with
respect to such Monthly Period that are to be treated as Finance Charge
Receivables but shall exclude charges for credit insurance.
"Foreign Clearing Agency" shall mean Cedel and the Euroclear Operator.
-----------------------
"Funding Period" shall have the meaning specified in Section 4.4.
--------------
"Global Certificate" shall have the meaning specified in Section 6.13.
------------------
"Governmental Authority" shall mean the United States of America, any state
----------------------
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Group" shall mean, with respect to any Series, the group of Series in
-----
which the related Supplement specifies that such Series shall be included.
"Ineligible Receivable" shall have the meaning specified in subsection
---------------------
2.4(d)(iii).
"Initial Closing Date" shall mean October 19, 1995.
--------------------
"Initial Investor Interest" shall mean, with respect to any Series of
-------------------------
Certificates, the amount stated in the related Supplement.
"Insolvency Event" shall have the meaning specified in subsection 9.2(a).
----------------
11
"Insurance Proceeds" shall mean any amounts recovered by the Servicer
------------------
pursuant to any credit insurance policies covering any Obligor with respect to
Receivables under such Obligor's Account.
"Interchange" shall mean, with respect to any Monthly Period, the product
-----------
of amounts recorded by the Transferor as interchange for such Monthly Period and
the Trust Percentage.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
---------------------
amended from time to time.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
----------------------
amended from time to time.
"Investor Account" shall mean each of the Finance Charge Account, the
----------------
Principal Account, the Excess Funding Account and the Distribution Account.
"Investor Certificate" shall mean any one of the certificates (including,
--------------------
without limitation, the Bearer Certificates, the Registered Certificates or the
Global Certificates) issued by the Trust, executed by the Transferor and
authenticated by the Trustee substantially in the form (or forms in the case of
a Series with multiple Classes) of the investor certificate attached to the
related Supplement.
"Investor Certificateholder" shall mean each holder of record of an
--------------------------
Investor Certificate.
"Investor Charge-Off" shall have, with respect to each Series, the meaning
-------------------
specified in the applicable Supplement.
"Investor Default Amount" shall have, with respect to any Series of
-----------------------
Certificates, the meaning stated in the related Supplement.
"Investor Exchange" shall have the meaning specified in subsection 6.9(b).
-----------------
"Investor Interest" shall have, with respect to any Series of Certificates,
-----------------
the meaning stated in the related Supplement.
"Investor Percentage" shall have, with respect to Principal Receivables,
-------------------
Finance Charge Receivables and Receivables in Defaulted Accounts, and any Series
of Certificates, the meaning stated in the related Supplement.
"Investor Servicing Fee" shall have, with respect to each Series, the
----------------------
meaning specified in Section 3.2.
12
"Late Fees" shall have the meaning specified in the Credit Card Agreement
---------
applicable to each Account for late fees or similar terms.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
----
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever, including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing or comparable law
of any jurisdiction to evidence any of the foregoing; provided, however, that
-------- -------
any assignment pursuant to Section 7.2 shall not be deemed to constitute a Lien.
"Minimum Aggregate Principal Receivables" shall mean, as of any date of
---------------------------------------
determination, the sum of the numerators used on such date to calculate the
Investor Percentage with respect to Principal Receivables for all Series
outstanding on such date, less the amount on deposit in the Excess Funding
Account as of such date of determination.
"Minimum Transferor Interest" shall mean, with respect to any Monthly
---------------------------
Period, an amount equal to the product of the Minimum Transferor Interest
Percentage and the sum of (i) the Average Principal Receivables for such Monthly
Period, (ii) the Excess Funding Amount and (iii) any amounts on deposit in any
Principal Funding Account and any other Series Account (if so specified in the
applicable Supplement).
"Minimum Transferor Interest Percentage" shall mean the highest percentage
--------------------------------------
specified as the "Minimum Transferor Interest Percentage" in any Supplement;
provided, however, that the Transferor may reduce the Minimum Transferor
- -------- -------
Interest Percentage upon (w) 30 days' prior notice to the Trustee, each Rating
Agency and any Credit Enhancement Provider entitled to receive such notice
pursuant to the relevant Supplement, (x) written confirmation from each Rating
Agency that such action will satisfy the Rating Agency Condition, (y) delivery
to the Trustee and each such Credit Enhancement Provider of an Officer's
Certificate stating that the Transferor reasonably believes that such reduction
will not, based on the facts known to such officer at the time of such
certification, then or thereafter cause a Pay Out Event to occur with respect to
any Series and (z) delivery to the Trustee of a Tax Opinion; provided further
-------- -------
that the Minimum Transferor Interest Percentage shall not at any time be less
than 2%.
"Monthly Period" shall mean, unless otherwise defined in any Supplement,
--------------
the period from and including the first day of a calendar month to and including
the last day of a calendar month.
"Moody's" shall mean Moody's Investors Service, Inc.
-------
13
"New Discount Option Receivables" shall mean, as of any date of
-------------------------------
determination, the product of the Discount Percentage and the amount of
Principal Receivables (before subtracting out Finance Charge Receivables which
are Discount Option Receivables) arising on such date of determination.
"Notice Date" shall have the meaning specified in subsection 2.6(c)(i).
-----------
"Obligor" shall mean, with respect to any Account, the Person or Persons
-------
obligated to make payments with respect to such Account, including any guarantor
thereof.
"Officer's Certificate" shall mean a certificate signed by any Vice
---------------------
President or more senior officer of the Transferor or Servicer and delivered to
the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who may be
------------------
counsel for or an employee of the Person providing the opinion, and who shall be
reasonably acceptable to the Trustee.
"Participation" shall have the meaning specified in subsection 2.6(a)(ii).
-------------
"Paying Agent" shall mean any paying agent appointed pursuant to Section
------------
6.6 and shall initially be Chemical Bank.
"Pay Out Commencement Date" shall mean, (a) with respect to each Series,
-------------------------
the date on which a Trust Pay Out Event is deemed to occur pursuant to Section
9.1 or (b) with respect to any Series, a Series Pay Out Event is deemed to occur
pursuant to the Supplement for such Series.
"Pay Out Event" shall mean, with respect to each Series, a Trust Pay Out
-------------
Event or a Series Pay Out Event.
"Periodic Finance Charges" shall have the meaning specified in the Credit
------------------------
Card Agreement applicable to each Account for finance charges (due to periodic
rate) or any similar term.
"Permitted Investments" shall mean, unless otherwise provided in the
---------------------
Supplement with respect to any Series
(a) book-entry securities or negotiable instruments or securities
represented by instruments in bearer or registered form which evidence (i)
obligations of or fully guaranteed by the United States of America; (ii)
demand deposits, time deposits or certificates of deposit of any depositary
institution or trust company incorporated under the laws of the United
States of America or any state thereof (or domestic branches of foreign
banks) and subject to
14
supervision and examination by federal or state banking or depositary
institution authorities; provided, however, that at the time of the Trust's
-------- -------
investment or contractual commitment to invest therein, the certificates of
deposit or short-term deposits of such depositary institution or trust
company shall have a credit rating from Moody's and Standard & Poor's of
"P-1" and "A-1+", respectively; (iii) commercial paper having, at the time
of the Trust's investment or contractual commitment to invest therein, a
rating from Moody's and Standard & Poor's of "P-1" and "A-l+", respectively
and (iv) bankers' acceptances issued by any depository institution or trust
company described in clause (a)(ii) above;
(b) demand deposits in the name of the Trust or the Trustee in any
depositary institution or trust company referred to in clause (a)(ii)
above;
(c) repurchase agreements transacted with either
(i) an entity subject to the United States federal bankruptcy
code, provided that (A) the repurchase agreement matures prior to the
next Distribution Date or is due on demand, (B) the Trustee or a third
party acting solely as agent for the Trustee has possession of the
collateral, (C) the Trustee on behalf of the Trust has a security
interest in the collateral, (D) the market value of the collateral is
maintained at the requisite collateral percentage of the obligation in
accordance with standards of the Rating Agencies, (E) the failure to
maintain the requisite collateral level will obligate the Trustee to
liquidate the collateral immediately, (F) the securities subject to
the repurchase agreement are either obligations of, or fully
guaranteed as to principal and interest by, the United States of
America or any instrumentality or agency thereof, certificates of
deposit or bankers acceptances and (G) the securities subject to the
repurchase agreement are free and clear of any third party lien or
claim; or
(ii) a financial institution insured by the FDIC, or any broker-
dealer with "retail customers" that is under the jurisdiction of the
Securities Investors Protection Corp. ("SIPC"), provided that (A) the
market value of the collateral is maintained at the requisite
collateral percentage of the obligation in accordance with the
standards of the Rating Agencies, (B) the Trustee or a third party
(with a short-term debt rating of P-1 or higher by Moody's) acting
solely as agent for the Trustee has possession of the collateral, (C)
the
15
Trustee on behalf of the Trust has a security interest in the
collateral, (D) the collateral is free and clear of third party liens
and, in the case of an SIPC broker, was not acquired pursuant to a
repurchase or reverse repurchase agreement and (E) the failure to
maintain the requisite collateral percentage will obligate the Trustee
to liquidate the collateral; provided, however, that at the time of
-------- -------
the Trust's investment or contractual commitment to invest in any
repurchase agreement, the short-term deposits or commercial paper
rating of such entity or institution in subsections (i) and (ii) shall
have a credit rating of "P-1" from Moody's and "A-1+" from Standard &
Poor's; and
(d) any other investment that by its terms converts to cash within a
finite time period if the Rating Agency Condition is satisfied with respect
thereto.
"Person" shall mean any legal person, including any individual,
------
corporation, limited liability company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, governmental entity or
other entity of similar nature.
"Pool Factor" shall mean, except with respect to any Series issued in more
-----------
than one Class, a number carried out to seven decimals representing the ratio of
the applicable Investor Interest as of such Record Date (determined after taking
into account any reduction in the Investor Interest which will occur on the
following Distribution Date) to the applicable Initial Investor Interest, and
with respect to a Series having more than one Class, as specified in the
Supplement relating to such Series.
"Portfolio Yield" shall have the meaning, with respect to any Series,
---------------
specified in the related Supplement.
"Pre-Funding Account" shall have the meaning specified in Section 4.4.
-------------------
"Principal Account" shall have the meaning specified in subsection 4.2(b).
-----------------
"Principal Receivable" shall mean each Receivable other than (i) Finance
--------------------
Charge Receivables, and (ii) Receivables in Defaulted Accounts. A Receivable
shall be deemed to have been created at the end of the day on the Date of
Processing of such Receivable. In calculating the aggregate amount of Principal
Receivables on any day, the amount of Principal Receivables shall be reduced by
the aggregate amount of credit balances in the Accounts on such day. Any
Receivables which the Transferor is unable to transfer
16
as provided in subsection 2.5(e) shall not be included in calculating the
aggregate amount of Principal Receivables.
"Principal Sharing Series" shall mean a Series, that, pursuant to the
------------------------
related Supplement, is entitled to Shared Principal Collections.
"Principal Shortfalls" shall mean, with respect to a Transfer Date, the
--------------------
aggregate amount for all outstanding Series that the related Supplements specify
are "Principal Shortfalls" for such Transfer Date.
"Principal Terms" shall have the meaning, with respect to any Series issued
---------------
pursuant to an Exchange, specified in subsection 6.9(c).
"Rating Agency" shall mean, with respect to each Series, the rating agency
-------------
or agencies, if any, specified in the related Supplement.
"Rating Agency Condition" shall mean, at any time with respect to a Series,
-----------------------
the written confirmation of the Rating Agency that a specified event or
modification of the terms of such Series will not result in the withdrawal or
downgrade of the rating of the Certificates of any Series then in effect.
"Reassignment" shall have the meaning specified in subsection 2.7(b)(ii).
------------
"Reassignment Date" shall have the meaning specified in subsection 2.4(e).
-----------------
"Receivable" shall mean any amount owing by any Obligor including, without
----------
limitation, amounts owing for the payment of goods and services, cash advances,
access checks, Annual Membership Fees, Cash Advance Fees, Periodic Finance
Charges, Late Fees and Special Fees, if any but excluding credit insurance
premiums.
"Record Date" shall mean, with respect to any Distribution Date, the last
-----------
Business Day of the preceding Monthly Period.
"Recoveries" shall mean, with respect to any Monthly Period, the product of
----------
all amounts recorded as recoveries on the Bank Portfolio by the Servicer during
such Monthly Period and the Trust Percentage.
"Registered Certificates" shall have the meaning specified in Section 6.1.
-----------------------
"Removal Date" shall mean the date on which Receivables in certain
------------
designated Removed Accounts will be reassigned by the Trustee to the Transferor.
17
"Removal Notice Date" shall mean the day no later than the fifth Business
-------------------
Day prior to a Removal Date.
"Removed Accounts" shall have the meaning specified in subsection 2.7(a).
----------------
"Requirements of Law" for any Person shall mean the certificate of
-------------------
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local (including, without limitation, usury laws, the
federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
"Responsible Officer" shall mean any officer within the Corporate Trust
-------------------
Office (or any successor group of the Trustee), including any Vice President,
any Assistant Secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any person who at the time
shall be an above-designated officer and also, with any particular officer to
whom any corporate trust matter is referred because of such Officer's knowledge
of and familiarity with the particular subject.
"Revolving Period" shall have, with respect to each Series, the meaning
----------------
specified in the related Supplement.
"SAIF" shall mean the Savings Association Insurance Fund administered by
----
the FDIC.
"Securities Act" shall mean the Securities Act of 1933, as amended.
--------------
"Series" shall mean any Series of Investor Certificates, which may include
------
within any such Series a Class or Classes of Investor Certificates subordinate
to another such Class or Classes of Investor Certificates.
"Series Account" shall mean any account or accounts established pursuant to
--------------
a Supplement for the benefit of such Series.
"Series Pay Out Event" shall have, with respect to any Series, the meaning
--------------------
specified pursuant to the Supplement for the related Series.
"Series Servicing Fee Percentage" shall mean, with respect to any Series,
-------------------------------
the amount specified in the related Supplement.
18
"Series Termination Date" shall mean, with respect to any Series of
-----------------------
Certificates, the date stated in the related Supplement.
"Servicer" shall mean initially Chemical Bank, and its permitted successors
--------
and assigns and thereafter any Person appointed as successor as herein provided
to service the Receivables.
"Servicer Default" shall have the meaning specified in Section 10.1.
----------------
"Servicing Fee" shall have the meaning specified in Section 3.2.
-------------
"Servicing Officer" shall mean any officer of the Servicer involved in, or
-----------------
responsible for, the administration and servicing of the Receivables whose name
appears on a list of servicing officers furnished to the Trustee by the
Servicer, as such list may from time to time be amended.
"Shared Excess Finance Charge Collections" shall mean, with respect to any
----------------------------------------
Transfer Date, the aggregate amount for all outstanding Series that the related
supplements specify are to be treated as "Shared Excess Finance Charge
Collections" for such Transfer Date.
"Shared Principal Collections" shall mean, with respect to any Transfer
----------------------------
Date, the aggregate amount for all outstanding Series that the related
Supplements specify are to be treated as "Shared Principal Collections" for such
Transfer Date.
"Special Fees" shall mean any fees which are not now but from time to time
------------
may be assessed on the Accounts. On or after the date on which any of such
Special Fees begin to be assessed on the Accounts, the Transferor may designate
in an Officer's Certificate whether such Special Fees shall be treated as
Principal Receivables or Finance Charge Receivables.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
-----------------
Division of The McGraw-Hill Companies, Inc.
"Successor Servicer" shall have the meaning specified in subsection
------------------
10.2(a).
"Supplement" or "Series Supplement" shall mean, with respect to any Series,
---------- -----------------
a supplement to this Agreement complying with the terms of Section 6.9 of this
Agreement, executed in conjunction with any issuance of any Series of
Certificates (or, in the case of the issuance of Certificates on the Initial
Closing Date, the supplement executed in connection with the issuance of such
Certificates).
19
"Tax Opinion" shall mean with respect to any action, an Opinion of Counsel
-----------
delivered to the Trust and the Trustee to the effect that, for U.S. federal
income tax purposes, (a) such action will not adversely affect the tax
characterization as debt of Investor Certificates of any outstanding Series or
Class that were characterized as debt at the time of their issuance, (b)
following such action the Trust will not be deemed to be an association (or a
"publicly traded partnership" within the meaning of Section 7704(b) of the Code)
taxable as a corporation and (c) such action will not cause or constitute a
taxable event in which gain or loss would be recognized by any Investor
Certificateholder or the Trust.
"Termination Notice" shall have, with respect to any Series, the meaning
------------------
specified in subsection 10.1(d).
"Transfer Agent and Registrar" shall have the meaning specified in Section
----------------------------
6.3 and shall initially be the Chemical Corporate Trust Office.
"Transfer Date" shall mean, unless otherwise specified in the related
-------------
Supplement, with respect to any Series, the Business Day immediately prior to
each Distribution Date.
"Transferor" shall mean (i) with respect to the time period prior to June
----------
1, 1996, Chemical Bank and (ii) with respect to the time period beginning on
June 1, 1996, Chase USA and its successors in interest and permitted assigns.
"Transferor Certificate" shall mean the certificate executed by the
----------------------
Transferor and authenticated by the Trustee, substantially in the form of
Exhibit A and exchangeable as provided in Section 6.9; provided, however, that
-------- -------
at any time there shall be only one Transferor Certificate.
"Transferor Exchange" shall have the meaning specified in subsection
-------------------
6.9(b).
"Transferor Interest" shall mean, on any date of determination, the
-------------------
aggregate amount of Principal Receivables and the principal amounts on deposit
in the Excess Funding Account, any Principal Funding Account and any other
Series Account (if so provided in the applicable Supplement) at the end of the
day immediately prior to such date of determination, minus the Aggregate
-----
Investor Interest at the end of such day, minus the aggregate Enhancement
-----
Invested Amounts (if such amounts are not included in the Investor Interest in
the applicable Supplement), if any, for each Series outstanding at the end of
such day.
"Transferor Percentage" shall mean, on any date of determination, when used
---------------------
with respect to Principal Receivables, Finance Charge Receivables and
Receivables in Defaulted Accounts, a
20
percentage equal to 100% minus the Aggregate Investor Percentage with respect to
-----
such categories of Receivables.
"Transferor Servicing Fee" shall have the meaning specified in Section 3.2.
------------------------
"Transferred Account" shall mean (a) an Account with respect to which a new
-------------------
credit account number has been issued by the Servicer or the Transferor under
circumstances resulting from a lost or stolen credit card or from the transfer
from one affinity group to another affinity group and not requiring standard
application and credit evaluation procedures under the Credit Card Guidelines or
(b) an Eligible Account resulting from the conversion of an Account that was a
standard account to a premium account or from a premium account to a standard
account, and which in either case can be traced or identified by reference to or
by way of the computer files or microfiche lists delivered to the Trustee
pursuant to Section 2.1 or 2.6 as an account into which an Account has been
transferred.
"Trust" shall mean the trust created by this Agreement, the corpus of which
-----
shall consist of the Receivables now existing or hereafter created and arising
in connection with the Accounts, all monies due or to become due with respect to
the Receivables, all proceeds (as defined in Section 9-306 of the UCC) of the
Receivables and Insurance Proceeds relating to the Receivables, the right to
receive certain amounts paid or payable as Interchange and Recoveries, such
funds as from time to time are deposited in the Collection Account, the Finance
Charge Account, the Principal Account, the Distribution Account, the Excess
Funding Account and any Series Account and the rights to any Credit Enhancement
with respect to any Series. The name of such Trust shall be "The Chemical
Master Credit Card Trust I" or any other name at the option of the Transferor;
provided, however, that at least 5 Business Days prior to any change in the name
- -------- -------
of Trust, the Transferor shall give written notice of such change to the
Servicer, the Trustee, each Rating Agency, any Credit Enhancement Provider and
all Certificateholders.
"Trust Accounts" shall mean the Collection Account, the Principal Account,
--------------
the Finance Charge Account, the Distribution Account and the Excess Funding
Account.
"Trust Extension" shall have the meaning specified in subsection 12.1(a).
---------------
"Trust Pay Out Event" shall have, with respect to each Series, the meaning
-------------------
specified in Section 9.1.
"Trust Percentage" shall mean, with respect to any Monthly Period, a
----------------
fraction expressed as a percentage, the numerator of which is the aggregate
principal amount of Principal Receivables
21
(prior to giving effect to any reduction thereof for Finance Charge Receivables
which are Discount Option Receivables) as of the close of business on the last
day of the prior Monthly Period and the denominator of which is the aggregate
principal balance of the Bank Portfolio as of the close of business on the last
day of the prior Monthly Period.
"Trust Termination Date" shall mean (i) if a Trust Extension shall not have
----------------------
occurred, the earlier to occur of (a) the first Business Day after the
Distribution Date following the date on which funds shall have been deposited in
the Distribution Account or the applicable Series Account for the payment of
Investor Certificateholders of each Series then issued and outstanding
sufficient to pay in full such certificates, (b) the date specified in
subsection 9.2(b) and (c) August 31, 2016, and (ii) if a Trust Extension shall
have occurred, the Extended Trust Termination Date.
"Trustee" shall mean The Bank of New York, a New York banking corporation,
-------
and its successors and any corporation resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from time to time,
---
as in effect in either the State of New York or the State of Delaware, as
applicable.
"Undivided Interest" shall mean the undivided interest in the Trust
------------------
evidenced by an Investor Certificate.
Section 1.2 Other Definitional Provisions.
-----------------------------
(a) All terms defined in any Supplement or this Agreement shall have
the defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1, and accounting terms partially defined in Section 1.1 to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles or regulatory accounting procedures applicable to
the Transferor, as applicable. To the extent that the definitions of accounting
terms herein are inconsistent with the meanings of such terms under generally
accepted accounting principles or such regulatory accounting procedures, the
definitions contained herein shall control.
(c) The agreements, representations and warranties of Chemical Bank in
this Agreement and in any Supplement in each of
22
its capacities as Transferor and Servicer shall be deemed to be the agreements,
representations and warranties of Chemical Bank solely in each such capacity for
the time periods during which Chemical Bank acts in the respective capacity
under this Agreement and the agreements, representations and warranties of Chase
USA in this Agreement and in any Supplement in its capacity as Transferor shall
be deemed to be the agreements, representations and warranties of Chase USA
solely in such capacity for the time periods and for so long as Chase USA acts
in such capacity under this Agreement.
(d) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to any Supplement or this
Agreement as a whole and not to any particular provision of this Agreement or
any Supplement; and Section, subsection, Schedule and Exhibit references
contained in this Agreement or any Supplement are references to Sections,
subsections, Schedules and Exhibits in or to this Agreement or any Supplement
unless otherwise specified. The Monthly Servicer Report, the form of which is
attached as Exhibit C, shall be in substantially the form of Exhibit C, with
such changes as the Servicer may determine to be necessary or desirable;
provided, however, that no such change shall serve to exclude information
- -------- -------
required by the Agreement or any Supplement. The Servicer shall, upon making
such determination, deliver to the Trustee and each Rating Agency an Officer's
Certificate to which shall be annexed the form of the related Exhibit, as so
changed. Upon the delivery of such Officer's Certificate to the Trustee, the
related Exhibit, as so changed, shall for all purposes of this Agreement
constitute such Exhibit. The Trustee may conclusively rely upon such Officer's
Certificate in determining whether the related Exhibit, as changed, conforms to
the requirements of this Agreement.
[End of Article I]
23
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.1 Conveyance of Receivables. Each of Chemical Bank and
-------------------------
Chase USA does hereby transfer, assign, set over, and otherwise convey to the
Trust for the benefit of the Certificateholders, without recourse, all of its
right, title and interest in and to (i) the Receivables existing as of the Cut-
Off Date and thereafter created and arising in connection with the Accounts
(other than Additional Accounts), (ii) all monies due or to become due with
respect to such Receivables, (iii) all proceeds of such Receivables, (iv)
Insurance Proceeds relating to such Receivables, (v) Recoveries and (vi)
Interchange.
In connection with such transfer, assignment, set-over and conveyance,
each of Chemical Bank and Chase USA agrees to file, at its own expense, a
financing statement (including any continuation statements with respect to such
financing statement when applicable) with respect to the Receivables now
existing and hereafter created for the perfection of a security interest (as
defined in the UCC) in accounts and general intangibles (as defined in Section
9-106 of the UCC) meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect such security
interest in favor of the Trust, and to deliver a file-stamped copy of such
financing statement or continuation statement or other evidence at such filing
(which may, for purposes of this Section 2.1, consist of telephone confirmation
of such filing) to the Trustee on or prior to the date of issuance of the
Certificates, and in the case of any continuation statements filed pursuant to
this Section 2.1, as soon as practicable after receipt thereof by the
Transferor. It is understood and agreed that the description of collateral set
forth in such financing statements will include all credit card accounts of the
Transferor. Upon receipt of written request from the Transferor to release the
receivables in such credit card accounts as are specified in such request, the
Trustee is hereby authorized and hereby agrees to execute promptly, UCC-3
amendments or releases, releasing such credit card accounts; provided, however,
-------- -------
that except as permitted pursuant to Section 2.7, no such release shall apply to
the Accounts, including any Additional Accounts. In addition, the Trustee is
hereby authorized to execute such intercreditor or other agreements as may be
requested in writing by the Transferor in connection with the foregoing;
provided, however, that except as permitted pursuant to Section 2.7, no such
- -------- -------
intercreditor agreements shall apply to the Accounts, including any Additional
Accounts, or any Receivables in such Accounts or Additional Accounts. The
foregoing transfer, assignment, set-over and conveyance to the Trust shall be
made to the Trustee, on behalf of the Trust, and each refer-
24
ence in this Agreement to such transfer, assignment, set-over and conveyance
shall be construed accordingly.
In connection with such transfer, the Transferor agrees, at its own
expense, on or prior to the Initial Closing Date (i) to indicate in its computer
files that Receivables created in connection with the Accounts have been
transferred to the Trust pursuant to this Agreement for the benefit of the
Certificateholders and (ii) to deliver to the Trustee a computer file or
microfiche list containing a true and complete list of all such Accounts,
identified by account number and setting forth the Receivable balance as of the
Cut-Off Date. Such file or list shall be marked as Schedule 1 to this
Agreement, delivered to the Trustee as confidential and proprietary, and is
hereby incorporated into and made a part of this Agreement. The Transferor
further agrees not to remove such indication in the file referenced in clause
(i) of this paragraph with respect to any Account during the term of this
Agreement unless and until such Account becomes a Removed Account or a Defaulted
Account.
The Transferor hereby grants to the Trustee a security interest in all
of the Transferor's right, title and interest in, to and under the Receivables
existing as of the Cut-Off Date and thereafter created and arising in connection
with the Accounts (other than Additional Accounts), all moneys due or to become
due with respect to such Receivables, all proceeds of such Receivables and all
Insurance Proceeds relating to such Receivables, all Recoveries and Interchange
and all proceeds thereof to secure a loan in an amount equal to the unpaid
principal amount of the Investor Certificates issued hereunder or to be issued
pursuant to this Agreement and the interest accrued at the related Certificate
Rate, and this Agreement shall constitute a security agreement under applicable
law.
Pursuant to the request of the Transferor, the Trustee shall cause
Certificates in authorized denominations evidencing the entire interest in the
Trust to be duly authenticated and delivered to or upon the order of the
Transferor pursuant to Section 6.2.
Notwithstanding anything else in this Agreement to the contrary, it is
understood and agreed that the ownership interest or lien conveyed or granted by
Chemical Bank, as Transferor, to the Trustee in Receivables and other property
under the Original Pooling and Servicing Agreement shall remain in full force
and effect and shall in no way be affected by the amendment and restatement of
such Original Pooling and Servicing Agreement by this Amended and Restated
Pooling and Servicing Agreement.
25
Section 2.2 Acceptance by Trustee.
---------------------
(a) The Trustee hereby acknowledges its acceptance, on behalf of the
Trust, of all right, title and interest previously held by the Transferor in and
to the Receivables existing as of the Cut-Off Date and thereafter created and
arising in connection with the Accounts, all monies due or to become due with
respect thereto (including all Finance Charge Receivables), all proceeds of such
Receivables, Insurance Proceeds relating to such Receivables, all Recoveries and
Interchange and the proceeds thereof, and declares that it shall maintain such
right, title and interest, upon the Trust herein set forth, for the benefit of
all Certificateholders. The Trustee further acknowledges that, prior to or
simultaneously with the execution and delivery of this Agreement, the Transferor
delivered to the Trustee the computer file or microfiche list described in the
third paragraph of Section 2.1.
(b) The Trustee hereby agrees not to disclose to any Person any of the
account numbers or other information contained in the computer files or
microfiche lists delivered to the Trustee by the Transferor pursuant to Sections
2.1, 2.6 and 2.7 ("Account Information") except as required in connection with
the performance of its duties hereunder or in enforcing the rights of the
Certificateholders or to a Successor Servicer appointed pursuant to Section
10.2, or as mandated pursuant to any Requirement of Law applicable to the
Trustee or as requested by any Person in connection with financing statements
filed with the Trust. The Trustee agrees to take such measures as shall be
reasonably requested by the Transferor to protect and maintain the security and
confidentiality of such information, and, in connection therewith, shall allow
the Transferor to inspect the Trustee's security and confidentiality
arrangements from time to time during normal business hours. In the event that
the Trustee is required by law to disclose any Account Information, the Trustee
shall provide the Transferor with prompt written notice, unless such notice is
prohibited by law, of any such request or requirement so that the Transferor may
request a protective order or other appropriate remedy. The Trustee shall use
its best efforts to provide the Transferor with written notice no later than
five Business Days prior to any disclosure pursuant to this subsection 2.2(b).
(c) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
Section 2.3 Representations and Warranties of the Transferor. The
------------------------------------------------
Transferor hereby represents and warrants to the Trust as of the Initial Closing
Date:
26
(a) Organization and Good Standing. The Transferor is a banking
------------------------------
corporation duly organized and validly existing in good standing under the
laws of the state of its organization and has full corporate power,
authority and legal right to execute, deliver and perform its obligations
under this Agreement and to execute and deliver to the Trustee the
Certificates pursuant hereto, and, in all material respects, to own its
properties and conduct its business as such properties are presently owned
and such business is presently conducted.
(b) Due Qualification. The Transferor is duly qualified to do
-----------------
business and is in good standing (or is exempt from such requirement) and
has obtained all necessary licenses and approvals with respect to the
Transferor in each jurisdiction in which failure to so qualify or to obtain
such licenses and approvals would render any Credit Card Agreement relating
to an Account or any Receivable unenforceable by the Transferor or the
Trust or would have a material adverse effect on the Certificateholders;
provided, however, that no representation or warranty is made with respect
-------- -------
to any qualifications, licenses or approvals which the Trustee would have
to obtain to do business in any state in which the Trustee seeks to enforce
any Account or Receivable.
(c) Due Authorization. The execution and delivery of this Agreement
-----------------
and the execution and delivery to the Trustee of the Certificates by the
Transferor and the consummation of the transactions provided for in this
Agreement have been duly authorized by the Transferor by all necessary
corporate action on its part and this Agreement will remain, from the time
of its execution, an official record of the Transferor.
(d) No Conflict. The execution and delivery of this Agreement and the
-----------
Certificates, the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of trust,
or other instrument to which the Transferor is a party or by which it or
any of its properties are bound, except to the extent that the same could
not reasonably be expected to have a material adverse effect on the
Certificateholders.
(e) No Violation. The execution and delivery of this Agreement, any
------------
Supplement and the Certificates, the performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof will
not conflict with or violate any Requirements of Law applicable to the
Trans-
27
feror, except to the extent that the same could not reasonably be expected
to have a material adverse effect on the Certificateholders.
(f) No Proceedings. There are no proceedings or investigations
--------------
pending or, to the best knowledge of the Transferor, threatened against the
Transferor before any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality (i) asserting the invalidity
of this Agreement or the Certificates, (ii) seeking to prevent the issuance
of the Certificates or the consummation of any of the transactions
contemplated by this Agreement or the Certificates, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Transferor,
would materially and adversely affect the performance by the Transferor of
its obligations under this Agreement, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement or the Certificates or (v) seeking to
affect adversely the income tax attributes of the Trust.
(g) Eligibility of Accounts. As of the Cut-Off Date, each Account was
-----------------------
an Eligible Account and no selection procedures adverse to the Investor
Certificateholders have been employed by the Transferor in selecting the
Accounts from among the Eligible Accounts in the Bank Portfolio.
(h) All Consents Required. All approvals, authorizations, consents,
---------------------
orders or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery of this
Agreement and the Certificates, the performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof,
have been obtained, except where the failure to obtain such approvals,
authorizations, consents, orders or other actions could not reasonably be
expected to have a material adverse effect on the Certificateholders.
For the purposes of the representations and warranties contained in
this Section 2.3 and made by the Transferor on the Initial Closing Date,
"Certificates" shall mean the Certificates issued on the Initial Closing Date.
The representations and warranties set forth in this Section 2.3 shall survive
the transfer and assignment of the respective Receivables to the Trust, and
termination of the rights and obligations of the Servicer pursuant to Section
10.1. The Transferor hereby represents and warrants to the Trust, with respect
to any Series of Certificates, as of its Closing Date, unless otherwise stated
in such Supplement, that the representations and warranties of the Transferor
set forth in Section 2.3 are true and correct as of such date (for the purposes
of such representations and warran-
28
ties, "Certificates" shall mean the Certificates issued on the related Closing
Date). Upon discovery by the Transferor, the Servicer or the Trustee of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the others.
Section 2.4 Representations and Warranties of the Transferor Relating
---------------------------------------------------------
to the Agreement and the Receivables.
- ------------------------------------
(a) Binding Obligation; Valid Transfer and Assignment. The Transferor
-------------------------------------------------
hereby represents and warrants to the Trust that, as of the Initial Closing
Date:
(i) This Agreement constitutes a valid and legally binding
obligation of the Transferor, enforceable against the Transferor in
accordance with its terms, except (A) as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and the rights of creditors of banking
corporations organized under the laws of the state of its organization, and
(B) as may be limited by general equitable principles (whether considered
in a proceeding in equity or at law) and an implied covenant of good faith
and fair dealing.
(ii) This Agreement constitutes either (A) a valid transfer,
assignment, set-over and conveyance to the Trust of all right, title and
interest of the Transferor in and to the Receivables now existing and
hereafter created and arising in connection with the Accounts (other than
Receivables in Additional Accounts), all proceeds of such Receivables and
Insurance Proceeds relating thereto, and such Receivables and all proceeds
thereof and Insurance Proceeds relating thereto will be held by the Trust
free and clear of any Lien of any Person claiming through or under the
Transferor or any of its Affiliates except for (x) Liens permitted under
subsection 2.5(b), (y) the interest of the Transferor as Holder of the
Transferor Certificate and (z) the Transferor's right, if any, to interest
accruing on, and investment earnings, if any, in respect of the Finance
Charge Account, the Principal Account or any Series Account, as provided in
this Agreement or the related Supplement, or (B) a grant of a security
interest (as defined in the UCC) in such property to the Trust, which is
enforceable with respect to the existing Receivables, the proceeds thereof
and Insurance Proceeds relating thereto upon execution and delivery of this
Agreement, and which will be enforceable with respect to such Receivables
hereafter created, the proceeds thereof and Insurance Proceeds relating
thereto, upon such creation. If this Agreement constitutes the grant of a
security interest to the Trust in such property, upon
29
the filing of the financing statement described in Section 2.1 and in the
case of the Receivables hereafter created and proceeds thereof and
Insurance Proceeds relating thereto, upon such creation, the Trust shall
have a first priority perfected security interest in the Transferor's
rights in such property (subject to Section 9-306 of the UCC), except for
Liens permitted under subsection 2.5(b). Neither the Transferor nor any
Person claiming through or under the Transferor shall have any claim to or
interest in the Principal Account, the Finance Charge Account, the
Distribution Account or any Series Account, except for the Transferor's
rights to receive interest accruing on, and investment earnings in respect
of, the Finance Charge Account and Principal Account as provided in this
Agreement (or, if applicable, any Series Account as provided in any
Supplement) and, if this Agreement constitutes the grant of a security
interest in such property, except for the interest of the Transferor in
such property as a debtor for purposes of the UCC.
(b) Eligibility of Receivables. The Transferor hereby represents and
--------------------------
warrants to the Trust as of the Initial Closing Date and as of each Addition
Date, as the case may be, that:
(i) Each Receivable is an Eligible Receivable as of the Cut-Off
Date or the Addition Date, as applicable.
(ii) Each Receivable then existing has been transferred to the
Trust free and clear of any Lien of any Person claiming through or under
the Transferor or any of its Affiliates (other than Liens permitted under
subsection 2.5(b)) and in compliance, in all material respects, with all
Requirements of Law applicable to the Transferor.
(iii) With respect to each Receivable then existing, all
consents, licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be obtained,
effected or given by the Transferor in connection with the conveyance of
such Receivable to the Trust have been duly obtained, effected or given and
are in full force and effect.
(iv) On each day on which any new Receivable is created, the
Transferor shall be deemed to represent and warrant to the Trust that (A)
each Receivable created on such day is an Eligible Receivable, (B) each
Receivable created on such day has been conveyed to the Trust in
compliance, in all material respects, with all Requirements of Law
applicable to the Transferor, (C) with respect to each such Receivable, all
consents, licenses, approvals or authorizations of or registrations or
declarations with, any Governmental Authority required to be obtained,
effected or
30
given by the Transferor in connection with the conveyance of such
Receivable to the Trust have been duly obtained, effected or given and are
in full force and effect and (D) the representations and warranties set
forth in subsection 2.4(a) are true and correct with respect to each
Receivable created on such day as if made on such day.
(v) As of the Initial Closing Date, Schedule 1 to this Agreement,
and as of the applicable Addition Date with respect to Additional Accounts
designated pursuant to Sections 2.6(a) and (b), the related computer file
or microfiche list referred to in Section 2.6, is an accurate and complete
listing in all material respects of all the Accounts as of the Cut-Off
Date, or with respect to Additional Accounts, as of the applicable Addition
Date and the information contained therein with respect to the identity of
such Accounts and the Receivables existing thereunder is true and correct
in all material respects as of the Cut-Off Date or such applicable Addition
Date. As of September 28, 1995, the aggregate amount of Receivables in all
the Accounts was $5,118,124,136.02 of which $5,016,343,299.38 were
Principal Receivables.
(c) Notice of Breach. The representations and warranties set forth in
----------------
this Section 2.4 shall survive the transfer and assignment of the respective
Receivables to the Trust. Upon discovery by the Transferor, the Servicer or the
Trustee of a breach of any of the representations and warranties set forth in
this Section 2.4, the party discovering such breach shall give prompt written
notice to the other parties mentioned above. The Transferor agrees to cooperate
with the Servicer and the Trustee in attempting to cure any such breach.
(d) Transfer of Ineligible Receivables.
----------------------------------
(i) Automatic Removal. In the event of a breach with respect to
-----------------
a Receivable of any representations and warranties set forth in subsection
2.4(b)(ii), or in the event that a Receivable is not an Eligible Receivable
as a result of the failure to satisfy the conditions set forth in clause
(d) of the definition of Eligible Receivable, and any of the following
three conditions is met: (A) as a result of such breach or event such
Receivable is charged off as uncollectible or the Trust's rights in, to or
under such Receivable or its proceeds are impaired or the proceeds of such
Receivable are not available for any reason to the Trust free and clear of
any Lien; (B) the Lien upon the subject Receivable (1) arises in favor of
the United States of America or any State or any agency or instrumentality
thereof and involves taxes or liens arising under Title IV of ERISA or (2)
has been consented to by the Transferor; or (C) the unsecured short-term
debt rating of the Transferor
31
is not at least "P-1" by Moody's and "A-1" by Standard & Poor's and the
Lien upon the subject Receivable ranks prior to the Lien created pursuant
to this Agreement; then, upon the earlier to occur of the discovery of such
breach or event by the Transferor or the Servicer or receipt by the
Transferor of written notice of such breach or event given by the Trustee,
each such Receivable shall be automatically removed from the Trust on the
terms and conditions set forth in subsection 2.4(d)(iii).
(ii) Removal After Cure Period. In the event of a breach of any
-------------------------
of the representations and warranties set forth in subsection 2.4(b) other
than a breach or event as set forth in clause (d)(i) above, and as a result
of such breach the related Account becomes a Defaulted Account or the
Trust's rights in, to or under the Receivable or its proceeds are impaired
or the proceeds of such Receivable are not available for any reason to the
Trust free and clear of any Lien, then, upon the expiration of 60 days (or
such longer period as may be agreed to by the Trustee in its sole
discretion, but in no event later than 120 days) from the earlier to occur
of the discovery of any such event by either the Transferor or the
Servicer, or receipt by the Transferor of written notice of any such event
given by the Trustee, each such Receivable shall be removed from the Trust
on the terms and conditions set forth in subsection 2.4(d)(iii); provided,
--------
however, that no such removal shall be required to be made if, on any day
-------
within such applicable period, such representations and warranties with
respect to such Receivable shall then be true and correct in all material
respects as if such Receivable had been created on such day.
(iii) Procedures for Removal. When the provisions of subsection
----------------------
2.4(d)(i) or (ii) above require removal of a Receivable, the Transferor
shall accept reassignment of such Receivable (an "Ineligible Receivable")
by directing the Servicer to deduct the principal balance of each such
Ineligible Receivable from the Principal Receivables in the Trust and to
decrease the Transferor Interest by such amount. On and after the date of
such removal, each Ineligible Receivable shall be deducted from the
aggregate amount of Principal Receivables used in the calculation of any
Investor Percentage, the Transferor Percentage or the Transferor Interest.
In the event that the exclusion of an Ineligible Receivable from the
calculation of the Transferor Interest would cause the Transferor Interest
to be reduced below the Minimum Transferor Interest, the Transferor shall
immediately, but in no event later than 10 Business Days after such event,
make a deposit in the Excess Funding Account in immediately available funds
in an amount equal to the amount by which the Transferor Interest would be
reduced
32
below the Minimum Transferor Interest. The portion of such deposit
allocated to the Investor Certificates of each Series shall be distributed
to the Investor Certificateholders of each Series in the manner specified
in Article IV, if applicable, on the Distribution Date relating to the
Monthly Period in which such deposit is made. Upon the reassignment to the
Transferor of an Ineligible Receivable, the Trust shall automatically and
without further action be deemed to transfer, assign, set-over and
otherwise convey to the Transferor, without recourse, representation or
warranty, all the right, title and interest of the Trust in and to such
Ineligible Receivable, all monies due or to become due with respect to such
Ineligible Receivable and all proceeds of such Ineligible Receivable and
Insurance Proceeds relating to such Ineligible Receivable allocated to such
Ineligible Receivable pursuant to any Supplement. Such reassigned
Ineligible Receivable shall be treated by the Trust as collected in full as
of the date on which it was transferred. The Trustee shall execute such
documents and instruments of transfer or assignment and take other actions
as shall reasonably be requested by the Transferor to evidence the
conveyance of such Ineligible Receivable pursuant to this subsection
2.4(d)(iii). The obligation of the Transferor set forth in this subsection
2.4(d)(iii), or the automatic removal of such Receivable from the Trust, as
the case may be, shall constitute the sole remedy respecting any breach of
the representations and warranties set forth in the above-referenced
subsections with respect to such Receivable available to Certificateholders
or the Trustee on behalf of Certificateholders.
(iv) Proceeds Held by Servicer. For the purposes of subsections
-------------------------
2.4(d)(i) and (ii) above, proceeds of a Receivable shall not be deemed to
be impaired hereunder solely because such proceeds are held by the Servicer
(if the Servicer is the Transferor) for more than the applicable period
under Section 9-306(3) of the UCC.
(e) Reassignment of Trust Portfolio. In the event of a breach of any
-------------------------------
of the representations and warranties set forth in subsection 2.4(a), either the
Trustee or the Holders of Investor Certificates evidencing Undivided Interests
aggregating more than 50% of the Aggregate Investor Interest, by notice then
given in writing to the Transferor (and to the Trustee and the Servicer, if
given by the Investor Certificateholders), may direct the Transferor to accept
reassignment of an amount of Principal Receivables (as specified below) within
60 days of such notice (or within such longer period as may be specified in such
notice), and the Transferor shall be obligated to accept reassignment of such
Principal Receivables on a Distribution Date specified by the Transferor (such
Distribution Date, the "Reassignment Date") occurring within such applicable
period on the
33
terms and conditions set forth below; provided, however, that no such
-------- -------
reassignment shall be required to be made if, at any time during such applicable
period, the representations and warranties contained in subsection 2.4(a) shall
then be true and correct in all material respects. The Transferor shall deposit
on the Transfer Date (in New York Clearing House, next day funds) preceding the
Reassignment Date an amount equal to the reassignment deposit amount for such
Receivables in the Distribution Account or Series Account, as provided in the
related Supplement, for distribution to the Investor Certificateholders pursuant
to Article XII. The reassignment deposit amount with respect to each Series for
such reassignment, unless otherwise stated in the related Supplement, shall be
equal to (i) the Investor Interest of such Series at the end of the day on the
last day of the Monthly Period preceding the Reassignment Date, less the amount,
if any, previously allocated for payment of principal to such Certificateholders
on the related Distribution Date in the Monthly Period in which the Reassignment
Date occurs, plus (ii) an amount equal to all interest accrued but unpaid on the
Investor Certificates of such Series at the applicable Certificate Rate through
the Reassignment Date, less the amount, if any, previously allocated for payment
of interest to the Certificateholders of such Series on the related Distribution
Date in the Monthly Period in which the Reassignment Date occurs. Payment of
the reassignment deposit amount with respect to each Series, and all other
amounts in the Distribution Account or the applicable Series Account in respect
of the preceding Monthly Period, shall be considered a prepayment in full of the
Receivables represented by the Investor Certificates on the Distribution Date
following the Transfer Date on which such amount has been deposited in full into
the Distribution Account or the applicable Series Account, the Receivables and
all monies due or to become due with respect to such Receivables and all
proceeds of the Receivables and Insurance Proceeds relating to such Receivables
and Interchange (if any) and Recoveries (if any) allocable to the Series shall
be released to the Transferor after payment of all amounts otherwise due
hereunder on or prior to such dates and the Trustee shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be prepared by and as are reasonably
requested by the Transferor to vest in the Transferor, or its designee or
assignee, all right, title and interest of the Trust in and to the Receivables,
all monies due or to become due with respect to such Receivables and all
proceeds of the Receivables and Insurance Proceeds relating to such Receivables
and Interchange (if any) and Recoveries (if any) allocable to the Series. If
the Trustee or the Investor Certificateholders give notice directing the
Transferor to accept reassignment as provided above, the obligation of the
Transferor to accept reassignment of the Receivables and pay the reassignment
deposit amount pursuant to this subsection 2.4(e) shall constitute the sole
remedy respecting a breach of the representations and warranties contained in
subsection
34
2.4(a) available to the Investor Certificateholders or the Trustee on behalf of
the Investor Certificateholders.
Section 2.5 Covenants of the Transferor. The Transferor hereby
---------------------------
covenants that:
(a) Receivables to be Accounts or General Intangibles. Except in
-------------------------------------------------
connection with the enforcement thereof, the Transferor will take no action to
cause any Receivable to be evidenced by any instrument (as defined in the UCC).
Each Receivable shall be payable pursuant to a contract which does not create a
Lien on any goods purchased thereunder. The Transferor will take no action to
cause any Receivable to be anything other than an "account" or "general
intangible" (as defined in the UCC).
(b) Security Interests. Except for the conveyances hereunder, the
------------------
Transferor will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on any Receivable,
whether now existing or hereafter created, or any interest therein; the
Transferor will immediately notify the Trustee of the existence of any Lien on
any Receivable, and the Transferor shall defend the right, title and interest of
the Trust in, to and under the Receivables, whether now existing or hereafter
created, against all claims of third parties claiming through or under the
Transferor; provided, however, that nothing in this subsection 2.5(b) shall
-------- -------
prevent or be deemed to prohibit the Transferor from suffering to exist upon any
of the Receivables any Liens for municipal or other local taxes if such taxes
shall not at the time be due and payable or if the Transferor shall currently be
contesting the validity thereof in good faith by appropriate proceedings and
shall have set aside on its books adequate reserves with respect thereto.
(c) Finance Charges and Other Fees. The Transferor, except as
------------------------------
otherwise required by any Requirement of Law, or as is deemed by the Transferor
to be necessary in order for the Transferor to maintain its credit card
business, based upon a good faith assessment by the Transferor, in its sole
discretion, of the nature of the competition in the credit card business, shall
not at any time reduce the Periodic Finance Charges assessed on any Receivable
or other fees on any Account if, as a result of such reduction, the Transferor's
reasonable expectation of the Portfolio Yield as of such date (after giving
effect to any concurrent exercise of a discount option) would be less than the
Base Rate.
(d) Credit Card Agreements and Account Guidelines. The Transferor
---------------------------------------------
shall comply with and perform its obligations under the Credit Card Agreements
relating to the Accounts and the Credit Card Guidelines and all applicable rules
and regulations of VISA U.S.A., Inc. and MasterCard International Inc., except
insofar as any failure to comply or perform would not materially
35
and adversely affect the rights of the Trust or the Certificateholders hereunder
or under the Certificates. The Transferor may change the terms and provisions
of the Credit Card Agreements or the Credit Card Guidelines in any respect
(including, without limitation, the reduction of the required minimum monthly
payment, the calculation of the amount, or the timing, of charge offs and the
Periodic Finance Charges and other fees to be assessed thereon) only if such
change (i) would not, in the reasonable belief of the Transferor, cause a Pay
Out Event to occur, and (ii) is made applicable to the comparable segment of the
revolving credit card accounts owned and serviced by the Transferor which have
characteristics the same as, or substantially similar to, the Accounts that are
the subject of such change, except as otherwise restricted by an endorsement,
sponsorship, or other agreement between the Transferor and an unrelated third
party or by the terms of the Credit Card Agreements.
(e) Account Allocations.
-------------------
(i) in the event that the Transferor is unable for any reason to
transfer Receivables to the Trust in accordance with the provisions of this
Agreement (including, without limitation, by reason of the application of
the provisions of Section 9.2 or an order by any federal governmental
agency having regulatory authority over the Transferor or any court of
competent jurisdiction that the Transferor not transfer any additional
Principal Receivables to the Trust) then, in any such event, (A) the
Transferor agrees to allocate and pay to the Trust, after the date of such
inability, all Collections with respect to Principal Receivables, and all
amounts which would have constituted Collections with respect to Principal
Receivables but for the Transferor's inability to transfer such Receivables
(up to an aggregate amount equal to the amount of Principal Receivables in
the Trust on such date); (B) the Transferor agrees to have such amounts
applied as Collections in accordance with Article IV; and (C) for only so
long as all Collections and all amounts which would have constituted
Collections are allocated and applied in accordance with clauses (A) and
(B) above, Principal Receivables (and all amounts which would have
constituted Principal Receivables but for the Transferor's inability to
transfer Receivables to the Trust) that are written off as uncollectible in
accordance with this Agreement shall continue to be allocated in accordance
with Article IV, and all amounts that would have constituted Principal
Receivables but for the Transferor's inability to transfer Receivables to
the Trust shall be deemed to be Principal Receivables for the purpose of
calculating (i) the applicable Investor Percentage with respect to any
Series and (ii) the Aggregate Investor Percentage thereunder. If the
Transferor is unable pursuant to any Requirement of Law to allocate
Collections as described above, the Transferor
36
agrees that it shall in any such event allocate, after the occurrence of
such event, payments on each Account with respect to the principal balance
of such Account first to the oldest principal balance of such Account and
to have such payments applied as Collections in accordance with Article IV.
The parties hereto agree that Finance Charge Receivables, whenever created,
accrued in respect of Principal Receivables that have been conveyed to the
Trust, or that would have been conveyed to the Trust but for the above
described inability to transfer such Receivables, shall continue to be a
part of the Trust notwithstanding any cessation of the transfer of
additional Principal Receivables to the Trust and that Collections with
respect thereto shall continue to be allocated and paid in accordance with
Article IV.
(ii) In the event that, pursuant to subsection 2.4(d), the
Transferor accepts reassignment of an Ineligible Receivable as a result of
a breach of the representations and warranties in subsection 2.4(b)
relating to such Receivable, then, in any such event, the Transferor agrees
to account for payments received with respect to such Ineligible Receivable
separately from its accounting for Collections on Principal Receivables
retained by the Trust. If payments received from or on behalf of an
Obligor are not specifically applicable either to an Ineligible Receivable
of such Obligor reassigned to the Transferor or to the Receivables of such
Obligor retained in the Trust, then the Transferor agrees to allocate
payments proportionately based on the total amount of Principal Receivables
of such Obligor retained in the Trust and the total amount owing by such
Obligor on any Ineligible Receivables reassigned to the Transferor, and the
portion allocable to any Principal Receivables retained in the Trust shall
be treated as Collections and deposited in accordance with the provisions
of Article IV.
(f) Conveyance of Accounts. The Transferor may transfer Accounts (i)
----------------------
directly to any Affiliate that executes an agreement assuming with respect to
such Accounts the obligations and duties of the Transferor or indirectly to any
Affiliate in one or more substantially simultaneous transactions among the
Transferor, such Affiliate and any other Affiliates of the Transferor or (ii) to
any other Person, provided that such other Person executes such an agreement and
the Rating Agency Condition is satisfied; provided, however, that the Transferor
-------- -------
shall not be prohibited hereby from conveying, assigning, exchanging or
otherwise transferring the Accounts in connection with a transaction complying
with the provisions of Section 7.2.
37
Section 2.6 Addition of Accounts.
--------------------
(a) (i) If, (A) as of the end of any Monthly Period, the Transferor
Interest is less than the Minimum Transferor Interest for that period the
Transferor shall designate additional eligible MasterCard or VISA accounts
from the Bank Portfolio ("Additional Accounts") to be included as Accounts
in a sufficient amount such that the Transferor Interest after giving
effect to such addition will be at least equal to the Minimum Transferor
Interest, or (B) as of the end of any Monthly Period, the sum of the
aggregate amount of Principal Receivables is less than the Minimum
Aggregate Principal Receivables (as adjusted for any Series having a
Companion Series as described in the Supplement for such Series), the
Transferor shall designate Additional Accounts to be included as Accounts
in a sufficient amount such that the aggregate amount of Principal
Receivables will be equal to or greater than the Minimum Aggregate
Principal Receivables. Receivables from such Additional Accounts shall be
transferred to the Trust on or before the tenth Business Day following the
end of such Monthly Period.
(ii) In lieu of, or in addition to, designating Additional
Accounts pursuant to clause (i) above, the Transferor may, subject to the
conditions specified in paragraph (c) below, convey to the Trust
participations representing undivided interests in a pool of assets
primarily consisting of receivables arising under revolving credit card
accounts or other revolving credit accounts owned by the Transferor or any
Affiliate of any Transferor and collections thereon ("Participations").
--------------
The addition of Participations in the Trust pursuant to this paragraph (a)
or paragraph (b) below shall be effected by an amendment hereto, dated the
applicable Addition Date, pursuant to Section 13.1(a).
(b) In addition to its obligation under subsection 2.6(a), the
Transferor may, but shall not be obligated to, designate from time to time
Additional Accounts of the Transferor to be included as Accounts or
Participations to be included as Trust Assets, in either case as of the
applicable Addition Date.
(c) The Transferor agrees that any such transfer of Receivables from
Additional Accounts, under subsection 2.6(a) or (b) shall satisfy the following
conditions (to the extent provided below):
(i) On or before the fifth Business Day prior to the Addition
Date with respect to additions pursuant to subsection 2.6(a) and on or
before the tenth Business Day prior to the Addition Date with respect to
additions pursuant to subsection 2.6(b) (the "Notice Date"), the Transferor
-----------
shall give the Trustee, each Rating Agency and the Servicer
38
written notice that such Additional Accounts or Participations will be
included, which notice shall specify the approximate aggregate amount of
the Receivables to be transferred.
(ii) On or before the Addition Date, the Transferor shall have
delivered to the Trustee a written assignment (including an acceptance by
the Trustee on behalf of the Trust for the benefit of the Investor
Certificateholders) in substantially the form of Exhibit B (the
"Assignment") and the Transferor shall have indicated in its computer files
----------
that the Receivables created in connection with the Additional Accounts
have been transferred to the Trust and, within five Business Days
thereafter, or as otherwise agreed upon between the Transferor and the
Trustee, the Transferor shall have delivered to the Trustee a computer file
or microfiche list containing a true and complete list of all Additional
Accounts, adequately identified by billing cycle and/or account number and
the aggregate amount of the Receivables in such Additional Accounts, as of
the Addition Date, which computer file or microfiche list shall be as of
the date of such Assignment incorporated into and made a part of such
Assignment and this Agreement.
(iii) The Transferor shall represent and warrant that (x) each
Additional Account is, as of the Addition Date, an Eligible Account, and
each Receivable in such Additional Account is, as of the Addition Date, an
Eligible Receivable, (y) no selection procedures believed by the Transferor
to be materially adverse to the interests of the Investor
Certificateholders were utilized in selecting the Additional Accounts from
the available Eligible Accounts from the Bank Portfolio, and (z) as of the
Addition Date, the Transferor is not insolvent.
(iv) The Transferor shall represent and warrant that, as of the
Addition Date, the Assignment constitutes either (x) a valid transfer and
assignment to the Trust of all right, title and interest of the Transferor
in and to the Receivables then existing and thereafter created in the
Additional Accounts, and all proceeds (as defined in the UCC) of such
Receivables and Insurance Proceeds relating thereto and such Receivables
and all proceeds thereof and Insurance Proceeds relating thereto will be
held by the Trust free and clear of any Lien of any Person claiming through
or under the Transferor or any of its Affiliates, except for (i) Liens
permitted under subsection 2.5(b), (ii) the interest of the Transferor as
Holder of the Transferor Certificate and (iii) the Transferor's right to
receive interest accruing on, and investment earnings in respect of, the
Finance Charge Account and the Principal Account, or any Series Account as
provided in this Agreement and any related
39
Supplement or (y) a grant of a security interest (as defined in the UCC),
in such property to the Trust, which is enforceable with respect to then
existing Receivables of the Additional Accounts, the proceeds (as defined
in the UCC), thereof and Insurance Proceeds relating thereto upon the
conveyance of such Receivables to the Trust, and which will be enforceable
with respect to the Receivables thereafter created in respect of Additional
Accounts conveyed on such Addition Date, the proceeds (as defined in the
UCC), thereof and Insurance Proceeds relating thereto upon such creation;
and (z) if the Assignment constitutes the grant of a security interest to
the Trust in such property, upon the filing of a financing statement as
described in Section 2.1 with respect to such Additional Accounts and in
the case of the Receivables thereafter created in such Additional Accounts
and the proceeds (as defined in the UCC), thereof, and Insurance Proceeds
relating thereto, upon such creation, the Trust shall have a first priority
perfected security interest in such property (subject to Section 9-306 of
the UCC), except for Liens permitted under subsection 2.5(b).
(v) The Transferor shall deliver an Officer's Certificate
substantially in the form of Schedule 2 to Exhibit B to the Trustee
confirming the items set forth in paragraph (iii) above.
(vi) The Transferor shall deliver an Opinion of Counsel with
respect to the Receivables in the Additional Accounts to the Trustee
substantially in the form of Exhibit E.
(vii) the Rating Agency Condition shall have been satisfied with
respect to the inclusion of such accounts as Additional Accounts pursuant
to subsection 2.6(b).
(viii) With respect to a Participation included as Trust Assets
pursuant to subsection 2.6(b), the Transferor shall deliver a Tax Opinion.
Section 2.7 Removal of Accounts.
-------------------
(a) Subject to the conditions set forth below, the Transferor may, but
shall not be obligated to, designate Receivables from Accounts for deletion and
removal ("Removed Accounts") from the Trust; provided, however, that the
---------------- -------- -------
Transferor shall not make more than one such designation in any Monthly Period.
On or before the fifth Business Day (the "Removal Notice Date") prior to the
-------------------
date on which the designated Removed Accounts will be reassigned by the Trustee
to the Transferor (the "Removal Date"), the Transferor shall give the Trustee
------------
and the Servicer written notice that the Receivables from such Removed Accounts
are to be reassigned to the Transferor.
40
(b) The Transferor shall be permitted to designate and require
reassignment to it of the Receivables from Removed Accounts only upon
satisfaction of the following conditions:
(i) The removal of any Receivables of any Removed Accounts on any
Removal Date shall not, in the reasonable belief of the Transferor, (a)
cause a Pay Out Event to occur; provided, however, that for the purposes of
-------- -------
this subsection 2.7(b)(i), the Receivables of each Removed Account shall be
considered to have been removed as of the Removal Date, (b) cause the
Transferor Interest to be less than the Minimum Transferor Interest on such
Removal Date, (c) cause the sum of the aggregate amount of Principal
Receivables and the Excess Funding Amount to be less than the Minimum
Aggregate Principal Receivables, or (d) result in the failure to make any
payment specified in the related Supplement with respect to any Series.
(ii) On or prior to the Removal Date, the Transferor shall have
delivered to the Trustee for execution a written assignment in
substantially the form of Exhibit G (the "Reassignment") and, within five
------------
Business Days thereafter, or as otherwise agreed upon between the
Transferor and the Trustee, the Transferor shall have delivered to the
Trustee a computer file or microfiche list containing a true and complete
list of all Removed Accounts identified by account number and the aggregate
amount of the Receivables in such Removed Accounts as of the Removal Date,
which computer file or microfiche list shall as of the Removal Date modify
and amend and be made a part of this Agreement.
(iii) The Transferor shall represent and warrant that no
selection procedures believed by the Transferor to be materially adverse to
the interests of the Certificateholders were utilized in selecting the
Removed Accounts to be removed from the Trust.
(iv) As of the Removal Notice Date, either (a) the Receivables
are not more than 15% delinquent by estimated principal amount and the
weighted averaged delinquency of such Receivables is not more than 60 days,
or (b) the Receivables are not more than 7% delinquent by estimated
principal amount and the weighted average delinquency of such Receivables
does not exceed 90 days.
(v) On or before the tenth Business Day prior to the Removal
Date, each Rating Agency shall have received notice of such proposed
removal of the Receivables of such Accounts and the Transferor shall have
received written confirmation from each Rating Agency that such removal
will satisfy the Rating Agency Condition; and
41
(vi) The Transferor shall have delivered to the Trustee an
Officer's Certificate confirming the items set forth in clauses (i) through
(v) above. The Trustee may conclusively rely on such Officer's
Certificate, shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying.
Upon satisfaction of the above conditions, the Trustee shall execute
and deliver the Reassignment to the Transferor, and the Receivables from the
Removed Accounts shall no longer constitute a part of the Trust.
Section 2.8 Discount Option. The Transferor shall have the option
---------------
to designate at any time a fixed or floating percentage (the "Discount
Percentage"), of the amount of Receivables arising in the Accounts on or after
the date such designation becomes effective that would otherwise constitute
Principal Receivables (prior to subtracting from Principal Receivables, Finance
Charge Receivables that are Discount Option Receivables) to be treated as
Finance Charge Receivables. The Transferor may from time to time increase
(subject to the limitations described below), reduce or eliminate the Discount
Percentage for Discount Option Receivables arising in the Accounts on and after
the date of such change. The Transferor must provide 30 days' prior written
notice to the Servicer, the Trustee, each Credit Enhancement Provider and each
Rating Agency of any such exercise of the discount option or increase, reduction
or elimination of the Discount Percentage, and such exercise of the discount
option or increase, reduction or elimination of the Discount Percentage shall
become effective on the date specified therein only if (i) the Transferor has
delivered to the Trustee an Officer's Certificate to the effect that, based on
the facts known to such officer at the time, the Transferor reasonably believes
that such increase, reduction or elimination shall not at the time of its
occurrence cause a Pay Out Event, or an event which with notice or the lapse of
time would constitute a Pay Out Event, to occur with respect to any Series and
(ii) the Transferor, the Servicer and the Trustee shall have received written
confirmation from each Rating Agency that the Rating Agency Condition is
satisfied.
(a) On each Date of Processing after the date on which the
Transferor's exercise of its discount option takes effect, the Transferor shall
treat Discount Option Receivables Collections as Collections of Finance Charge
Receivables.
[End of Article II]
42
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other Matters Relating to
-------------------------------------------------------
the Servicer.
- ------------
(a) Chemical Bank agrees to act as the Servicer under this Agreement.
The Investor Certificateholders of each Series by their acceptance of the
related Certificates consent to Chemical Bank acting as Servicer.
(b) The Servicer shall service and administer the Receivables and
shall collect payments due under the Receivables in accordance with its
customary and usual servicing procedures for servicing credit card receivables
comparable to the Receivables and in accordance with the Credit Card Guidelines
and shall have full power and authority, acting alone or through any party
properly designated by it hereunder, to do any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing and subject to Section 10.1,
the Servicer is hereby authorized and empowered (i) to make withdrawals from the
Collection Account as set forth in this Agreement, (ii) unless such power and
authority is revoked by the Trustee on account of the occurrence of a Servicer
Default pursuant to Section 10.1, to instruct the Trustee to make withdrawals
and payments, from the Finance Charge Account, the Principal Account, the Excess
Funding Account and any Series Account, in accordance with such instructions as
set forth in this Agreement, (iii) unless such power and authority is revoked by
the Trustee on account of the occurrence of a Servicer Default pursuant to
Section 10.1, to instruct the Trustee in writing, as set forth in this
Agreement, (iv) to execute and deliver, on behalf of the Trust for the benefit
of the Certificateholders, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivables and (v) to make any filings,
reports, notices, applications, registrations with, and to seek any consents or
authorizations from the Securities and Exchange Commission and any state
securities authority on behalf of the Trust as may be necessary or advisable to
comply with any federal or state securities or reporting requirements. The
Trustee agrees that it shall promptly follow the instructions of the Servicer to
withdraw funds from the Principal Account, the Finance Charge Account, the
Excess Funding Account, or any Series Account and to take any action required
under any Credit Enhancement at such time as required under this Agreement. The
Trustee shall execute
43
at the Servicer's written request such documents prepared by the Transferor and
acceptable to the Trustee as may be necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties hereunder.
(c) In the event that the Transferor is unable for any reason to
transfer Receivables to the Trust in accordance with the provisions of this
Agreement (including, without limitation, by reason of the application of the
provisions of Section 9.2 or the order of any federal governmental agency having
regulatory authority over the Transferor or any court of competent jurisdiction
that the Transferor not transfer any additional Principal Receivables to the
Trust) then, in any such event, (A) the Servicer agrees to allocate, after such
date, all collections with respect to Principal Receivables, and all amounts
which would have constituted Collections with respect to Principal Receivables
but for the Transferor's inability to transfer such Receivables (up to an
aggregate amount equal to the aggregate amount of Principal Receivables in the
Trust as of such date) in accordance with subsection 2.5(e); (B) the Servicer
agrees to apply such amounts as Collections in accordance with Article IV, and
(C) for only so long as all Collections and all amounts which would have
constituted Collections are allocated and applied in accordance with clauses (A)
and (B) above, Principal Receivables and all amounts which would have
constituted Principal Receivables but for the Transferor's inability to transfer
Receivables to the Trust that are written off as uncollectible in accordance
with this Agreement shall continue to be allocated in accordance with Article IV
and all amounts which would have constituted Principal Receivables but for the
Transferor's inability to transfer Receivables to the Trust shall be deemed to
be Principal Receivables for the purpose of calculating the applicable Investor
Percentage thereunder. If the Servicer is unable pursuant to any Requirement of
Law to allocate payments on the Accounts as described above, the Servicer agrees
that it shall in any such event allocate, after the occurrence of such event,
payments on each Account with respect to the principal balance of such Account
first to the oldest principal balance of such Account and to have such payments
applied as Collections in accordance with Article IV. The parties hereto agree
that Finance Charge Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Trust, or which would have
been conveyed to the Trust but for the above described inability to transfer
such Receivables, shall continue to be a part of the Trust notwithstanding any
cessation of the transfer of additional Principal Receivables to the Trust and
that Collections with respect thereto shall continue to be allocated and paid in
accordance with Article IV.
(d) In the event that pursuant to subsection 2.4(d), the Transferor
accepts reassignment of an Ineligible Receivable as a result of a breach of the
representations and warranties in
44
subsection 2.4(b) relating to such Receivable, then, in any such event, the
Servicer agrees to account for payments received with respect to such Ineligible
Receivable separately from its accounting for Collections on Principal
Receivables retained by the Trust. If payments received from or on behalf of an
Obligor are not specifically applicable either to an Ineligible Receivable of
such Obligor reassigned to the Transferor or to Receivables of such Obligor
retained in the Trust, then the Servicer agrees to allocate payments
proportionately based on the total amount of Principal Receivables of such
Obligor retained in the Trust and the total amount owing by such Obligor on any
Ineligible Receivables purchased by the Transferor, and the portion allocable to
any Principal Receivables retained in the Trust shall be treated as Collections
and deposited in accordance with the provisions of Article IV.
(e) The Servicer shall not be obligated to use separate servicing
procedures, offices, employees or accounts for servicing the Receivables from
the procedures, offices, employees and accounts used by the Servicer in
connection with servicing other credit card receivables.
(f) The Servicer shall maintain fidelity bond coverage insuring
against losses through wrongdoing of its officers and employees who are involved
in the servicing of credit card receivables covering such actions and in such
amounts as the Servicer believes to be reasonable from time to time.
Section 3.2 Servicing Compensation. As compensation for its
----------------------
servicing activities hereunder and reimbursement for its expenses as set forth
in the immediately following paragraph, the Servicer shall be entitled to
receive a servicing fee prior to the termination of the Trust pursuant to
Section 12.1. The Servicing Fee shall be payable, with respect to each Series,
at the times and in the amounts set forth in the related Supplement. The
Servicing Fee shall be allocated between the Investor Certificates (the
"Investor Servicing Fee") and the Holder of the Transferor Certificate (the
- -----------------------
"Transferor Servicing Fee").
- -------------------------
The Servicer's expenses include the amounts due to the Trustee
pursuant to Section 11.5 and the reasonable fees and disbursements of
independent public accountants and all other expenses incurred by the Servicer
in connection with its activities hereunder; provided, however that the Servicer
-------- -------
shall not be liable for any liabilities, costs or expenses of the Trust, the
Investor Certificateholders or the Certificate Owners arising under any tax law,
including without limitation any federal, state or local income or franchise
taxes or any other tax imposed on or measured by income (or any interest or
penalties with respect thereto or arising from a failure to comply therewith).
The Servicer shall be required to pay such expenses for its own
45
account and shall not be entitled to any payment therefor other than the
servicing fee specified herein.
Section 3.3 Representations and Warranties of the Servicer. Chemical
----------------------------------------------
Bank, as initial Servicer, hereby makes, and any successor Servicer by its
appointment hereunder shall make the following representations and warranties on
which the Trustee has relied in accepting the Receivables in Trust and in
authenticating the Certificates issued on the Initial Closing Date:
(a) Organization and Good Standing. The Servicer is a banking
------------------------------
corporation duly organized, validly existing and in good standing under the
laws of the state of its organization and has full corporate power,
authority and legal right to own its properties and conduct its credit card
business as such properties are presently owned and as such business is
presently conducted, and to execute, deliver and perform its obligations
under this Agreement.
(b) Due Qualification. The Servicer is duly qualified to do business
-----------------
and is in good standing (or is exempt from such requirement) and has
obtained all necessary licenses and approvals, except to the extent that
the failure so to qualify or register would not have a material adverse
effect on the Servicer's ability to perform its obligations hereunder.
(c) Due Authorization. The execution, delivery, and performance of
-----------------
this Agreement have been duly authorized by the Servicer by all necessary
corporate action on the part of the Servicer.
(d) Binding Obligation. This Agreement constitutes a legal, valid and
------------------
binding obligation of the Servicer, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereinafter in effect, affecting the enforcement of creditors' rights in
general or the rights of creditors of banking corporations organized under
the laws of the State of New York.
(e) No Violation. The execution and delivery of this Agreement by the
------------
Servicer, and the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof applicable to the
Servicer, will not conflict with, violate, result in any breach of any of
the material terms and provisions of, or constitute (with or without notice
or lapse of time or both) a default under, any Requirement of Law
applicable to the Servicer or any indenture, contract, agreement, mortgage,
deed of trust or other instrument to which the Servicer is a party or by
46
which it is bound except to the extent that the same could not reasonably
be expected to have a material adverse effect on the Certificateholders or
any Credit Enhancement Provider.
(f) No Proceedings. There are no proceedings or investigations
--------------
pending or, to the best knowledge of the Servicer, threatened against the
Servicer before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement, seeking any determination or ruling that,
in the reasonable judgment of the Servicer, would materially and adversely
affect the performance by the Servicer of its obligations under this
Agreement, or seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement.
(g) Compliance with Requirements of Law. The Servicer shall duly
-----------------------------------
satisfy all obligations on its part to be fulfilled under or in connection
with each Receivable and the related Account, will maintain in effect all
qualifications required under Requirements of Law in order to service
properly each Receivable and the related Account and will comply in all
material respects with all other Requirements of Law in connection with
servicing each Receivable and the related Account the failure to comply
with which would have a material adverse effect on the Certificateholders
or any Credit Enhancement Provider.
Section 3.4 Reports and Records for the Trustee.
-----------------------------------
(a) Daily Reports. On each Business Day during any period during
-------------
which the Servicer is required to make daily deposits to the Collection Account
pursuant to Section 4.3(a), the Servicer shall prepare and make available at the
office of the Servicer for inspection by the Trustee a record setting forth (i)
the aggregate amount of Collections processed by the Servicer on the preceding
Business Day and (ii) the aggregate amount of Receivables as of the close of
business on the preceding Business Day.
(b) Monthly Servicer's Certificate. Unless otherwise stated in the
------------------------------
related Supplement with respect to any Series, on each Determination Date the
Servicer shall forward, as provided in Section 13.5, to the Trustee, the Paying
Agent, any Credit Enhancement Provider and each Rating Agency, a certificate of
a Servicing Officer in the form of Exhibit C (which includes the Schedule
thereto specified as such in each Supplement) setting forth (i) the aggregate
amount of Collections processed during the preceding Monthly Period, (ii) the
aggregate amount of the
47
applicable Investor Percentage of Collections of Principal Receivables processed
by the Servicer pursuant to Article IV during the preceding Monthly Period with
respect to each Series then outstanding, (iii) the aggregate amount of the
applicable Investor Percentage of Collections of Finance Charge Receivables
processed by the Servicer pursuant to Article IV during the preceding Monthly
Period with respect to each Series then outstanding, (iv) the aggregate amount
of Receivables processed as of the end of the last day of the preceding Monthly
Period, (v) the balance on deposit in the Finance Charge Account, the Principal
Account or any Series Account applicable to any Series then outstanding on such
Determination Date with respect to Collections processed by the Servicer during
the preceding Monthly Period, (vi) the aggregate amount, if any, of withdrawals,
drawings or payments under any Credit Enhancement, if any, for each Series then
outstanding required to be made with respect to the previous Monthly Period in
the manner provided in the related Supplement, (vii) the sum of all amounts
payable to the Investor Certificateholders of each Series (or for a Series of
more than one Class, each such Class) on the succeeding Distribution Date in
respect of Certificate Principal and Certificate Interest with respect to such
preceding monthly Period and (viii) such other matters as are set forth in
Exhibit C.
Section 3.5 Annual Servicer's Certificate. On or before March 31 of
-----------------------------
each calendar year, beginning with March 31, 1997, the Servicer will deliver, as
provided in Section 13.5, to the Trustee, any Credit Enhancement Provider and
the Rating Agency, an Officer's Certificate substantially in the form of Exhibit
D stating that (a) a review of the activities of the Servicer during the twelve-
month period ending on December 31 of the preceding calendar year, or for the
initial period, from the Closing Date until December 31, 1996, and of its
performance under this Agreement was made under the supervision of the officer
signing such certificate and (b) to the best of such Officer's knowledge, based
on such review, the Servicer has fully performed all its obligations under this
Agreement throughout such period, or, if there has been a default in the
performance of any such obligation, specifying each such default known to such
officer and the nature and status thereof. A copy of such certificate may be
obtained by any Investor Certificateholder by a request in writing to the
Trustee addressed to the Corporate Trust office.
Section 3.6 Annual Independent Accountants' Servicing Report.
------------------------------------------------
(a) On or before March 31 of each calendar year, beginning with March
31, 1997, the Servicer shall cause a firm of nationally recognized independent
certified public accountants (who may also render other services to the Servicer
or the Transferor) to furnish, as provided in Section 13.5, a report
48
addressed to the Trustee, any Credit Enhancement Provider and the Transferor, to
the effect that such firm has examined management's assertion that, as of the
date of such report, the system of internal control over servicing of
securitized credit card receivables met the criteria for effective internal
control described in the report entitled "Internal Control - Integrated
Framework" issued by the Committee of Sponsoring Organizations of the Treadway
Commission ("COSO") and that in their opinion, management's assertion is fairly
stated, in all material respects. A copy of such report shall be distributed by
the Trustee to the Rating Agency and will be available for distribution to
Certificateholders upon written request therefor addressed to the Trustee at the
Corporate Trust Office.
(b) On or before March 31 of each calendar year, beginning with March
31, 1997, the Servicer shall cause a firm of nationally recognized independent
certified public accountants (who may also render other services to the Servicer
or the Transferor) to furnish, as provided in Section 13.5, a report, prepared
using generally accepted attestation standards, addressed to the Trustee, any
Credit Enhancement Provider and the Transferor, to the effect that they have
compared the amounts set forth in the monthly certificates forwarded by the
Servicer pursuant to subsection 3.4(c) during the period covered by such report
(which shall be the twelve-month period ending on December 31 of the preceding
calendar year, or for the initial period, from the Closing Date until December
31, 1996) with the Servicer's computer reports which were the source of such
amounts and found them to be in agreement or shall disclose any exceptions
noted. Additionally, such firm shall recalculate the mathematical accuracy of
amounts derived in the monthly certificates. A copy of such report shall be
distributed by the Trustee to the Rating Agency and will be available for
distribution to Certificateholders upon written request therefor addressed to
the Trustee at the Corporate Trust Office.
Section 3.7 Tax Treatment. The Transferor has structured this
-------------
Agreement and the Investor Certificates with the intention that the Investor
Certificates will qualify under applicable federal, state, local and foreign tax
law as indebtedness. The Transferor, the Servicer, the Holder of the Transferor
Certificate, each Investor Certificateholder, and each Certificate Owner, agree
to treat and to take no action inconsistent with the treatment of the Investor
Certificates (or beneficial interest therein) as indebtedness for purposes of
federal, state, local and foreign income or franchise taxes and any other tax
imposed on or measured by income. Each Investor Certificateholder and the
Holder of the Transferor Certificate, by acceptance of its Certificate and each
Certificate Owner, by acquisition of a beneficial interest in a Certificate,
agree to be bound by the provisions of this section 3.7. Each Certificateholder
agrees that it will cause any Certificate Owner acquiring an interest in
49
a Certificate through it to comply with this Agreement as to treatment as
indebtedness under applicable tax law, as described in this Section 3.7.
Section 3.8 Notices to the Transferor. In the event that the
-------------------------
Transferor is no longer acting as Servicer, any Successor Servicer appointed
pursuant to Section 10.2 shall deliver or make available to the Transferor each
certificate and report required to be prepared, forwarded or delivered
thereafter pursuant to Sections 3.4, 3.5 and 3.6.
[End of Article III]
50
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders. Each Series of Investor
----------------------------
Certificates shall represent Undivided Interests in the Trust, including the
benefits of any Credit Enhancement issued with respect to such Series and the
right to receive the Collections and other amounts at the times and in the
amounts specified in this Article IV to be deposited in the Investor Accounts
and any other Series Account (if so specified in the related Supplement) or to
be paid to the Investor Certificateholders of such Series; provided, however,
-------- -------
that the aggregate interest represented by such Certificates at any time in the
Principal Receivables shall not exceed an amount equal to the Investor Interest
at such time. The Transferor Certificate shall represent the remaining
undivided interest in the Trust, including the right to receive the Collections
and other amounts at the times and in the amounts specified in this Article IV
to be paid to the Holder of the Transferor Certificate; provided, however, that
-------- -------
the aggregate interest represented by such Transferor Certificate at any time in
the Principal Receivables shall not exceed the Transferor Interest at such time
and such Certificate shall not represent any interest in the Investor Accounts,
except as provided in this Agreement, or the benefits of any Credit Enhancement
issued with respect to any Series.
Section 4.2 Establishment of Accounts.
-------------------------
(a) The Collection Account. The Servicer, for the benefit of the
----------------------
Certificateholders, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account bearing a designation clearly
indicating that the funds deposited therein are held in trust for the benefit of
the Certificateholders (the "Collection Account"). Pursuant to authority
------------------
granted to it pursuant to subsection 3.1(b), the Servicer shall have the
revocable power to withdraw funds from the Collection Account for the purposes
of carrying out its duties hereunder.
(b) The Finance Charge and Principal Accounts. The Trustee, for the
-----------------------------------------
benefit of the Investor Certificateholders, shall establish and maintain in the
State of New York with the Paying Agent in the name of the Trust two Eligible
Deposit Accounts (the "Finance Charge Account" and the "Principal Account",
---------------------- -----------------
respectively), bearing a designation clearly indicating that the funds therein
are held for the benefit of the Investor Certificateholders; provided, however,
-------- -------
that each of such accounts may be established as sub-accounts of the Collection
Account. The Trustee shall possess all right, title and interest in all funds
on deposit from time to time in the Finance Charge Account and
51
the Principal Account and in all proceeds thereof. The Finance Charge Account
and the Principal Account shall be under the sole dominion and control of the
Trustee for the benefit of the Investor Certificateholders. Pursuant to
authority granted to it hereunder, the Servicer shall have the revocable power
to instruct the Trustee to withdraw funds from the Finance Charge Account and
Principal Account for the purpose of carrying out the Servicer's duties
hereunder. The Trustee at all times shall maintain accurate records reflecting
each transaction in the Principal Account and the Finance Charge Account and
that funds held therein shall at all times be held in trust for the benefit of
the Investor Certificateholders.
(c) The Distribution Account. The Trustee, for the benefit of the
------------------------
Investor Certificateholders, shall cause to be established and maintained in the
name of the Trust, an Eligible Deposit Account bearing a designation clearly
indicating that the funds deposited therein are held in trust for the benefit of
the Investor Certificateholders (the "Distribution Account"). The Trustee shall
--------------------
possess all right, title and interest in all funds on deposit from time to time
in the Distribution Account and in all proceeds thereof. The Distribution
Account shall be under the sole dominion and control of the Trustee for the
benefit of the Investor Certificateholders.
(d) The Excess Funding Account. The Trustee, for the benefit of the
--------------------------
Investor Certificateholders, shall establish and maintain an Eligible Deposit
Account bearing a designation clearly indicating that the funds therein are held
for the benefit of the Investor Certificateholders (the "Excess Funding
Account"). The Trustee shall possess all right, title and interest in all funds
on deposit from time to time in the Excess Funding Account and in all proceeds
thereof. The Excess Funding Account shall be under the sole dominion and
control of the Trustee for the benefit of the Investor Certificateholders. If,
at any time, the Excess Funding Account ceases to be an Eligible Deposit
Account, the Trustee shall notify the Rating Agency and within 10 Business Days
establish a new Eligible Deposit Account which shall be designated as the new
Excess Funding Account and shall transfer any cash or any investments to such
new Excess Funding Account. From the date such new Excess Funding Account is
established, it shall be the "Excess Funding Account." Pursuant to authority
granted to it hereunder, the Servicer shall have the revocable power to instruct
the Trustee to withdraw funds from the Excess Funding Account for the purpose of
carrying out the Servicer's duties hereunder. The Trustee at all times shall
maintain accurate records reflecting each transaction in the Excess Funding
Account and that funds held therein shall at all times be held in trust for the
benefit of the Investor Certificateholders.
52
(e) Series Accounts. If so provided in the related Supplement, the
---------------
Trustee, for the benefit of the Investor Certificateholders, shall cause to be
established and maintained in the name of the Trust, one or more Series
Accounts. Each such Series Account shall bear a designation clearly indicating
that the funds deposited therein are held for the benefit of the Investor
Certificateholders of such Series. Each such Series Account will be an Eligible
Deposit Account, if so provided in the related Supplement and will have the
other features and be applied as set forth in the related Supplement.
(f) Administration of the Finance Charge, Principal Accounts and
------------------------------------------------------------
Excess Funding Account. Funds on deposit in the Principal Account, the Finance
- ----------------------
Charge Account and the Excess Funding Account shall at all times be invested in
Permitted Investments. Any such investment shall mature and such funds shall be
available for withdrawal on or prior to the Transfer Date related to the Monthly
Period in which such funds were processed for collection, or if so specified in
the related Supplement, immediately preceding a Distribution Date. The Trustee
shall maintain for the benefit of the Investor Certificateholders possession of
the negotiable instruments or securities evidencing the Permitted Investments
described in clause (a) of the definition thereof from the time of purchase
thereof until the time of sale or maturity; provided, however that no such
-------- -------
investment shall be disposed of prior to its maturity date. At the end of each
month, all interest and earnings (net of losses and investment expenses) on
funds on deposit in the Principal Account and the Finance Charge Account shall
be deposited by the Trustee in an Eligible Deposit Account in the name of the
Transferor, or a Person designated in writing by the Servicer, which shall not
constitute a part of the Trust, or shall otherwise be turned over by the Trustee
to the Transferor not less frequently than monthly, and all interest and
earnings (net of losses and investment expenses) on funds on deposit in the
Excess Funding Account shall be deposited by the Trustee in the Finance Charge
Account for application as Collections of Finance Charge Receivables. Subject
to the restrictions set forth above, the Servicer, or a Person designated in
writing by the Servicer, of which the Trustee shall have received written
notification thereof, shall instruct the Trustee with respect to the investment
of funds on deposit in the Principal Account and the Finance Charge Account.
For purposes of determining the availability of funds or the balances in the
Finance Charge Account, the Principal Account and, except as provided in the
second preceding sentence, the Excess Funding Account, for any reason under this
Agreement, all investment earnings on such funds shall be deemed not to be
available or on deposit.
53
Section 4.3 Collections and Allocations.
---------------------------
(a) Collections. Except as provided below, the Servicer shall deposit
-----------
all Collections in the Collection Account as promptly as possible after the Date
of Processing of such Collections, but in no event later than the second
Business Day following such Date of Processing. In the event of the insolvency
of the Servicer, then, immediately upon the occurrence of such event and
thereafter, the Servicer shall deposit all Collections into the Collection
Account, and in no such event shall the Servicer deposit any Collections
thereafter into any account established, held or maintained with the Servicer.
The Servicer shall allocate such amounts to each Series of Investor
Certificates and to the Holder of the Transferor Certificate in accordance with
this Article IV and shall withdraw the required amounts from the Collection
Account or pay such amounts to the Holder of the Transferor Certificate in
accordance with this Article IV, in both cases as modified by any Supplement.
The Servicer shall make such deposits or payments on the date indicated therein
in immediately available funds or as otherwise provided in the Supplement for
any Series of Certificates with respect to such Series.
Notwithstanding anything in this Agreement to the contrary, for so
long as, and only so long as, the Transferor shall remain the Servicer
hereunder, and (a)(i) the Servicer provides to the Trustee a letter of credit
covering risk collection of the Servicer, and (ii) the Transferor shall not have
received a notice from any Rating Agency that such a letter of credit would
result in the lowering of such Rating Agency's then-existing rating of the
Investor Certificates, or (b) the Servicer shall have and maintain a certificate
of deposit or short-term deposit rating of "P-1" by Moody's and of "A-1" by
Standard & Poor's, the Servicer need not deposit Collections into the Collection
Account, the Principal Account, the Finance Charge Account, the Excess Funding
Account or any Series Account, as provided in any Supplement, or make payments
to the Holder of the Transferor Certificate as provided in Article IV, but may
make such deposits, payments and withdrawals on each Transfer Date in an amount
equal to the net amount of such deposits, payments and withdrawals which would
have been made but for the provisions of this paragraph.
Notwithstanding anything else in this Agreement to the contrary, with
respect to any Monthly Period, whether the Servicer is required to make monthly
or daily deposits from the Collection Account into the Finance Charge Account,
the Principal Account, the Excess Funding Account or any Series Account, as
provided in any Supplement, (i) the Servicer will only be required to deposit
Collections from the Collection Account into the Finance Charge Account, the
Principal Account, the Excess
54
Funding Account or any Series Account in an amount equal to the lesser of (x)
the amount required to be deposited into any such deposit account pursuant to
the terms of this Agreement or any Supplement and (y) the amount required to be
distributed on or prior to the related Distribution Date to Investor
Certificateholders or to any Credit Enhancement Provider pursuant to the terms
of any Supplement or agreement relating to such Credit Enhancement and (ii) if
at any time prior to such Distribution Date the amount of Collections deposited
in the Collection Account exceeds the amount required to be deposited pursuant
to clause (i) above, the Servicer will be permitted to withdraw the excess from
the Collection Account.
(b) Allocations for the Transferor Certificate. Throughout the
------------------------------------------
existence of the Trust, unless otherwise stated in any Supplement, the Servicer
shall allocate to the Holder of the Transferor Certificate an amount equal to
the product of (A) the Transferor Percentage and (B) the aggregate amount of
such Collections allocated to Principal Receivables and Finance Charge
Receivables, respectively, in respect of each Monthly Period. Notwithstanding
anything in this Agreement to the contrary, unless otherwise stated in any
Supplement, the Servicer need not deposit this amount or any other amounts so
allocated to the Transferor Certificate pursuant to any Supplement into the
Collection Account and shall pay, or be deemed to pay, such amounts as collected
to the Holder of the Transferor Certificate.
(c) Adjustments for Miscellaneous Credits and Fraudulent Charges. The
------------------------------------------------------------
Servicer shall be obligated to reduce on a net basis in each Monthly Period the
aggregate amount of Principal Receivables used to calculate the Transferor
Interest as provided in this subsection 4.3(c) (a "Credit Adjustment") with
-----------------
respect to any Principal Receivable (i) which was created in respect of
merchandise refused or returned by the Obligor thereunder or as to which the
Obligor thereunder has asserted a counterclaim or defense, (ii) which is reduced
by the Servicer by any rebate, refund, charge-back or adjustment (including
Servicer errors) or (iii) which was created as a result of a fraudulent or
counterfeit charge.
In the event that the inclusion of the amount of a Credit Adjustment
in the calculation of the Transferor Interest would cause the Transferor
Interest to be an amount less than the Minimum Transferor Interest, the
Transferor shall make a deposit, no later than the Business Day following the
Date of Processing of such Credit Adjustment, in the Excess Funding Account in
immediately available funds in an amount equal to the amount by which such
Credit Adjustment would cause the Transferor Interest to be less than the
Minimum Transferor Interest on such Date of Processing.
55
(d) Transfer of Defaulted Accounts. Unless otherwise provided in any
------------------------------
Supplement, on the date on which an Account becomes a Defaulted Account, the
Trust shall automatically and without further action or consideration be deemed
to transfer, set over, and otherwise convey to the Transferor, without recourse,
representation or warranty, all the right, title and interest of the Trust in
and to Receivables in such Defaulted Account, all monies due or to become due
with respect to such Receivables, all proceeds of such Receivables and Insurance
Proceeds relating to such Receivables allocable to the Trust with respect to
such Receivables. Notwithstanding any such transfer of accounts, amounts
recovered with respect to such defaulted accounts may still be allocated to the
Trust to the extent provided for in the definition of Recoveries.
(e) Operation of Excess Funding Account. On each Determination Date
-----------------------------------
on which one or more Series is in its Amortization Period or Accumulation
Period, the Servicer shall determine the aggregate amount of Principal
Shortfalls, if any, with respect to each such Series that is a Principal Sharing
Series, and the Servicer shall instruct the Trustee to withdraw such amount (up
to the Excess Funding Amount) from the Excess Funding Account on the next
succeeding Transfer Date and deposit such amount in the Distribution Account for
allocation among each such Series as Shared Principal Collections as specified
in each related Supplement. On any Business Day on which the Transferor
Interest exceeds the Minimum Transferor Interest, the Servicer shall instruct
the Trustee to withdraw the amount of such excess (up to the Excess Funding
Amount) from the Excess Funding Account on such day and pay such amount to the
Holder of the Transferor Certificate.
Section 4.4 Allocations During Funding Period. To the extent that
---------------------------------
the Servicer establishes an Eligible Deposit Account as a pre-funding account
(the "Pre-Funding Account") with respect to any Series, bearing a designation
indicating that the funds deposited therein are for the benefit of such Series,
during the period (the "Funding Period"), as set forth in the related
Supplement, that the Pre-Funding Account maintains a balance, the date upon
which an increase in the Invested Amount of such Series in accordance with the
terms of such related Supplement occurs shall be treated as an Addition Date
solely for the purpose of calculating the applicable Investor Percentages. Such
Addition Date shall be deemed to occur on the date of each such increase and the
applicable Investor Percentages shall be calculated accordingly.
[THE REMAINDER OF ARTICLE IV IS RESERVED AND SHALL BE SPECIFIED IN ANY
SUPPLEMENT WITH RESPECT TO ANY SERIES]
[End of Article IV]
56
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL
BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]
[End of Article V]
57
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates. Subject to Sections 6.10 and 6.13, the
----------------
Investor Certificates of each Series and any Class thereof may be issued in
bearer form (the "Bearer Certificates") with attached interest coupons and a
-------------------
special coupon (collectively, the "Coupons") or in fully registered form (the
-------
"Registered Certificates"), and shall be substantially in the form of the
- ------------------------
exhibits with respect thereto attached to the related Supplement. The
Transferor Certificate shall be substantially in the form of Exhibit A. The
Investor Certificates and the Transferor Certificate shall, upon issue pursuant
hereto or to Section 6.9 or Section 6.10, be executed and delivered by the
Transferor to the Trustee for authentication and redelivery as provided in
Sections 2.1 and 6.2. Any Investor Certificate shall be issuable in a minimum
denomination of $1,000 Undivided Interest and integral multiples thereof, unless
otherwise specified in any Supplement. The Transferor Certificate shall be
issued as a single certificate. Each Certificate shall be executed by manual or
facsimile signature on behalf of the Transferor by its President or any Vice
President. Certificates bearing the manual or facsimile signature of the
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of the Transferor or the Trustee shall not be rendered invalid,
notwithstanding that such individual has ceased to be so authorized prior to the
authentication and delivery of such Certificates or does not hold such office at
the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by or on behalf of the Trustee by the manual signature of a
duly authorized signatory, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication except Bearer Certificates which shall be dated the
applicable Issuance Date as provided in the related Supplement.
Section 6.2 Authentication of Certificates. Contemporaneously with
------------------------------
the initial assignment and transfer of the Receivables, whether now existing or
hereafter created (other than Receivables in Additional Accounts) and the other
components to the Trust, the Trustee shall authenticate and deliver the initial
Series of Investor Certificates, upon the written order of the Transferor, to
the underwriters for the sale of the Book-Entry Certificates evidenced by such
Investor Certificates, and against payment to the Transferor of the Initial
Investor Interest (net of any purchase or underwriting discount). Upon the
receipt of such payment and the issuance of the Investor Certificates, such
58
Investor Certificates shall be fully paid and non-assessable. The Trustee shall
authenticate and deliver the Transferor Certificate to the Transferor
simultaneously with its delivery to the Transferor of the initial Series of
Investor Certificates. Upon an Exchange as provided in Section 6.9 and the
satisfaction of certain other conditions specified therein, the Trustee shall
authenticate and deliver the Investor Certificates of additional Series (with
the designation provided in the related Supplement), upon the order of the
Transferor, to the Persons designated in such Supplement. Upon the order of the
Transferor, the Certificates of any Series shall be duly authenticated by or on
behalf of the Trustee, in authorized denominations. If specified in the related
Supplement for any Series, the Trustee shall authenticate and deliver outside
the United States the Global Certificate that is issued upon original issuance
thereof, upon the written order of the Transferor, to the Depository against
payment of the purchase price therefor. If specified in the related Supplement
for any Series, the Trustee shall authenticate Book-Entry Certificates that are
issued upon original issuance thereof, upon the written order of the Transferor,
to a Clearing Agency or is nominee as provided in Section 6.10 against payment
of the purchase price thereof.
Section 6.3 Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
(a) The Trustee shall cause to be kept at the office or agency to be
maintained by a transfer agent and registrar (the "Transfer Agent and
------------------
Registrar"), in accordance with the provisions of Section 11.16, a register (the
"Certificate Register") in which, subject to such reasonable regulations as it
--------------------
may prescribe, the Transfer Agent and Registrar shall provide for the
registration of the Investor Certificates of each Series (unless otherwise
provided in the related Supplement) and of transfers and exchanges of the
Investor Certificates as herein provided. Chemical Bank is hereby initially
appointed Transfer Agent and Registrar for the purposes of registering the
Investor Certificates and transfers and exchanges of the Investor Certificates
as herein provided. If any form of Investor Certificate is issued as a Global
Certificate, the Trustee may, or if and so long as any Series of Investor
Certificates are listed an the Luxembourg Stock Exchange and such exchange shall
so require, the Trustee shall appoint a co-transfer agent and co-registrar in
Luxembourg or another European city. Any reference in this Agreement to the
Transfer Agent and Registrar shall include any co-transfer agent and co-
registrar unless the context otherwise requires. Chemical Bank shall be
permitted to resign as Transfer Agent and Registrar upon 30 days' written notice
to the Servicer. In the event that Chemical Bank shall no longer be the
Transfer Agent and Registrar, the Trustee shall appoint a successor Transfer
Agent and Registrar.
59
Upon surrender for registration of transfer of any Certificate at any
office or agency of the Transfer Agent and Registrar, the Transferor shall
execute, subject to the provisions of subsection 6.3(c), and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of like
aggregate Undivided Interests; provided, however that the provisions of this
-------- -------
paragraph shall not apply to Bearer Certificates.
At the option of an Investor Certificateholder, Investor Certificates
may be exchanged for other Investor Certificates of the same Series in
authorized denominations of like aggregate Undivided Interests, upon surrender
of the Investor Certificates to be exchanged at any such office or agency. At
the option of any Holder of Registered Certificates, Registered Certificates may
be exchanged for other Registered Certificates of the same Series in authorized
denominations of like aggregate Undivided Interests in the Trust, upon surrender
of the Registered Certificates to be exchanged at any office or agency of the
Transfer Agent and Registrar maintained for such purpose. At the option of a
Bearer Certificateholder, subject to applicable laws and regulations (including
without limitation, the Bearer Rules), Bearer Certificates may be exchanged for
other Bearer Certificates or Registered Certificates of the same Series in
authorized denominations of like aggregate Undivided Interests in the Trust, in
the manner specified in the Supplement for such Series, upon surrender of the
Bearer Certificates to be exchanged at an office or agency of the Transfer Agent
and Registrar located outside the United States. Each Bearer Certificate
surrendered pursuant to this Section 6.3 shall have attached thereto (or be
accompanied by) all unmatured Coupons, provided that any Bearer Certificate so
surrendered after the close of business on the Record Date preceding the
relevant Distribution Date after the related Series Termination Date need not
have attached the coupons relating to such Distribution Date.
Whenever any Investor Certificates of any Series are so surrendered
for exchange, the Transferor shall execute, and the Trustee shall authenticate
and (unless the Transfer Agent and Registrar is different than the Trustee, in
which case the Transfer Agent and Registrar shall) deliver, the Investor
Certificates of such Series which the Certificateholder making the exchange is
entitled to receive. Every Investor Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in a form satisfactory to the Trustee and the Transfer
Agent and Registrar duly executed by the Certificate holder thereof or his
attorney-in-fact duly authorized in writing.
The preceding provisions of this Section 6.3 notwithstanding, the
Trustee or the Transfer Agent and Registrar, as the
60
case may be, shall not be required to register the transfer of or exchange any
Investor Certificate of any Series for a period of 15 days preceding the due
date for any payment with respect to the Investor Certificates of such Series.
Unless otherwise provided in the related Supplement, no service charge
shall be made for any registration of transfer or exchange of Certificates, but
the Transfer Agent and Registrar may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
All Investor Certificates (together with any Coupons attached to
Bearer Certificates) surrendered for registration of transfer and exchange shall
be canceled by the Transfer Agent and Registrar and disposed of in a manner
satisfactory to the Trustee. The Trustee shall cancel and destroy any Global
Certificates upon its exchange in full for Definitive Certificates and shall
deliver a certificate of destruction to the Transferor. Such certificate shall
also state that a certificate or certificates of each Foreign Clearing Agency to
the effect referred to in Section 6.13 was received with respect to each portion
of such Global Certificate exchanged for Definitive Certificates.
The Transferor shall execute and deliver to the Trustee or the
Transfer Agent and Registrar, as applicable, Bearer Certificates and Registered
Certificates in such amounts and at such times as are necessary to enable the
Trustee to fulfill its responsibilities under this Agreement and the
Certificates.
(b) Except as provided in Section 6.9 or 7.2 or in any Supplement, in
no event shall the Transferor Certificate or any interest therein be transferred
hereunder, in whole or in part, unless the Trustee shall have consented in
writing to such transfer; provided, however, that the Trustee may not withhold
-------- -------
such consent if it shall have received (1) written confirmation from each Rating
Agency that such transfer will satisfy the Rating Agency Condition and (2) a Tax
Opinion with respect to such transfer.
(c) Unless otherwise provided in the related Supplement, registration
of transfer of Registered Certificates containing a legend relating to the
restrictions on transfer of such Registered Certificates (which legend shall be
set forth in the Supplement relating to such Investor Certificates) shall be
effected only if the conditions set forth in such related Supplement are
satisfied.
Whenever a Registered Certificate containing the legend sat forth in
the related Supplement is presented to the Transfer Agent and Registrar for
registration of transfer, the Transfer Agent and Registrar shall promptly seek
instructions from the
61
Servicer regarding such transfer. The Transfer Agent and Registrar and the
Trustee shall be entitled to receive written instructions signed by a Servicing
Officer prior to registering any such transfer or authenticating new Registered
Certificates, as the case may be. The Servicer hereby agrees to indemnify the
Transfer Agent and Registrar and the Trustee and to hold each of them harmless
against any loss, liability or expense incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
them in reliance on any such written instructions furnished pursuant to this
subsection 6.3(c).
(d) The Transfer Agent and Registrar will maintain at its expense in
the Borough of Manhattan, the City of New York (and subject to this Section 6.3,
if specified in the related Supplement for any Series, any other city designated
in such Supplement) an office or offices or an agency or agencies where Investor
Certificates of such Series may be surrendered for registration of transfer or
exchange.
Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates. If
-------------------------------------------------
(a) any mutilated Certificate (together, in the case of Bearer Certificates,
with all unmatured Coupons, if any, appertaining thereto) is surrendered to the
Transfer Agent and Registrar, or the Transfer Agent and Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Transfer Agent and Registrar and
the Trustee such security or indemnity as may be reasonably required by them to
save each of them harmless, then, in the absence of notice to the Trustee that
such Certificate has been acquired by a bona fide purchaser, the Transferor
shall execute and the Trustee shall authenticate and (unless the Transfer Agent
and Registrar is different from the Trustee, in which case the Transfer Agent
and Registrar shall) deliver (in compliance with applicable law), in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of like tenor and aggregate Undivided Interest. In connection
with the issuance of any new Certificate under this Section 6.4, the Trustee or
the Transfer Agent and Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Transfer Agent and Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 6.4 shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed certificate shall be found at any
time.
Section 6.5 Persons Deemed Owners. Prior to due presentation of a
---------------------
Certificate for registration of transfer, the Trustee, the Paying Agent, the
Transfer Agent and Registrar and
62
any agent of any of them may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Article V (as described in any Supplement) and for all
other purposes whatsoever, and neither the Trustee, the Paying Agent, the
Transfer Agent and Registrar nor any agent of any of them shall be affected by
any notice to the contrary; provided, however, that in determining whether the
-------- -------
holders of Investor Certificates evidencing the requisite Undivided Interests
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, unless otherwise expressly specified herein or in the related
Supplement, Investor Certificates owned by the Transferor, the Servicer or any
Affiliate thereof shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Investor Certificates which a Responsible Officer in the Corporate Trust Office
of the Trustee knows to be so owned shall be so disregarded. Investor
Certificates so owned that have been pledged in good faith shall not be
disregarded as outstanding, if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Investor
Certificates and that the pledgee is not the Transferor, the Servicer or an
Affiliate thereof.
In the case of a Bearer Certificate, the Trustee, the Paying Agent,
the Transfer Agent and Registrar and any agent of any of them may treat the
holder of a Bearer Certificate or Coupon as the owner of such Bearer Certificate
or Coupon for the purpose of receiving distributions pursuant to Article IV and
Article XII and for all other purposes whatsoever, and neither the Trustee, the
Paying Agent, the Transfer Agent and Registrar nor any agent of any of them
shall be affected by any notice to the contrary. Certificates so owned which
have been pledged in good faith shall not be disregarded and may be regarded as
outstanding, if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Investor Certificates and that
the pledgee is not the Transferor, the Servicer or an Affiliate thereof.
Section 6.6 Appointment of Paying Agent.
---------------------------
(a) The Paying Agent shall make distributions to Investor
Certificateholders from the appropriate account or accounts maintained for the
benefit of Certificateholders as specified in this Agreement or the related
Supplement for any Series pursuant to Articles IV and V hereof. Any Paying
Agent shall have the revocable power to withdraw funds from such appropriate
account or accounts for the purpose of making distributions referred to above.
The Trustee (or the Servicer if the Trustee is the Paying Agent) may revoke such
power and remove the Paying Agent, if the Trustee (or the Servicer if the
Trustee is
63
the Paying Agent) determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect or for other good cause. The Trustee (or the Servicer if the Trustee is
the Paying Agent) shall notify the Rating Agency of the removal of any Paying
Agent. The Paying Agent, unless the Supplement with respect to any Series
states otherwise, shall initially be Chemical Bank. If any form of Investor
Certificate is issued as a Global Certificate, or if and so long as any Series
of Investor Certificates are listed on the Luxembourg Stock Exchange and such
exchange shall so require, the Trustee shall appoint a co-paying agent in
Luxembourg or another European city. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Servicer. In the
event that any Paying Agent shall no longer be the Paying Agent, the Trustee
shall appoint a successor to act as Paying Agent (which shall be a bank or trust
company). The provisions of Sections 11.1, 11.2 and 11.3 shall apply to the
Trustee also in the capacity of Paying Agent, for so long as the Trustee shall
act as Paying Agent. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
If specified in the related Supplement for any Series, so long as the
Investor Certificates of such Series are outstanding, the Transferor shall
maintain a co-paying agent in New York City (for Registered Certificates only)
or any other city designated in such Supplement which, if and so long as any
Series of Investor Certificates is listed on the Luxembourg Stock Exchange or
other stock exchange and such exchange so requires, shall be in Luxembourg or
the location required by such other stock exchange.
(b) The Trustee shall cause the Paying Agent (other than itself) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent will hold all sums, if any,
held by it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall agree, and if the Trustee is the Paying Agent it
hereby agrees, that it shall comply with all requirements of the Internal
Revenue Code regarding the withholding by the Trustee of payments in respect of
federal income taxes due from Certificate Owners.
Section 6.7 Access to List of Certificateholders' Names and
-----------------------------------------------
Addresses. The Trustee will furnish or cause to be furnished by the Transfer
Agent and Registrar to the Servicer or the Paying Agent, within five Business
Days after receipt by the Trustee of a request therefor from the Servicer or the
Paying Agent, respectively, in writing, a list in such form as the Servicer or
the Paying Agent may reasonably require, of the names and addresses of the
Investor Certificateholders as of the most
64
recent Record Date for payment of distributions to Investor Certificateholders.
Unless otherwise provided in the related Supplement, holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 10% of the
Investor Interest of the Investor Certificates of any Series (the "Applicants")
----------
may apply in writing to the Trustee, and if such application states that the
Applicants desire to communicate with other Investor Certificateholders of any
Series with respect to their rights under this Agreement or under the Investor
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee, after having been adequately
indemnified by such Applicants for its costs and expenses, shall afford or shall
cause the Transfer Agent and Registrar to afford such Applicants access during
normal business hours to the most recent list of Certificateholders held by the
Trustee and shall give the Servicer notice that such request has been made,
within five Business Days after the receipt of such application. Such list
shall be as of a date no more than 45 days prior to the date of receipt of such
Applicants' request. Every Certificateholder, by receiving and holding a
Certificate, agrees with the Trustee that neither the Trustee, the Transfer
Agent and Registrar, nor any of their respective agents shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders hereunder, regardless of the source from
which such information was obtained.
Section 6.8 Authenticating Agent.
--------------------
(a) The Trustee may appoint one or more authenticating agents with
respect to the Certificates which shall be authorized to act on behalf of the
Trustee in authenticating the Certificates in connection with the issuance,
delivery, registration of transfer, exchange or repayment of the Certificates.
Whenever reference is made in this Agreement to the authentication of
Certificates by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication on behalf of the Trustee by
an authenticating agent and a certificate of authentication executed on behalf
of the Trustee by an authenticating agent. Each authenticating agent must be
acceptable to the Transferor.
(b) Any institution succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
(c) An authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Transferor. The Trustee may at
any time terminate the agency of an authenticating agent by giving notice of
termination to such
65
authenticating agent and to the Transferor. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time an authenticating
agent shall cease to be acceptable to the Trustee or the Transferor, the Trustee
promptly may appoint a successor authenticating agent. Any successor
authenticating agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like affect as if originally named as an authenticating agent. No successor
authenticating agent shall be appointed unless acceptable to the Trustee and the
Transferor.
(d) The Trustee agrees to pay each authenticating agent from time to
time reasonable compensation for its services under this Section 6.8, and the
Trustee shall be entitled to be reimbursed and the Servicer shall reimburse the
Trustee for such reasonable payments actually made, subject to the provisions of
Section 11.5.
(e) The provisions of Sections 11.1, 11.2 and 11.3 shall be applicable
to any authenticating agent.
(f) Pursuant to an appointment made under this Section 6.8, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the certificates described in the Pooling and Servicing
Agreement.
______________________________
as Authenticating Agent
for the Trustee,
By:___________________________
Authorized signatory
Section 6.9 Tender of Transferor Certificate.
--------------------------------
(a) Upon any Exchange, the Trustee shall issue to the Holder of the
Transferor Certificate under Section 6.1, for execution and redelivery to the
Trustee for authentication under Section 6.2, one or more new Series of Investor
Certificates. Any such Series of Investor Certificates shall be substantially
in the form specified in the related Supplement and shall bear, upon its face,
the designation for such Series to which it belongs, as selected by the
Transferor. Except as specified in any Supplement for a related Series, all
Investor Certificates of any Series shall rank pari passu and be equally and
---- -----
ratably entitled as provided herein to the benefits hereof (except that the
Credit Enhancement provided for any Series shall not be available for any other
Series) without preference, priority or
66
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Agreement and
the related Supplement.
(b) The Holder of the Transferor Certificate may tender the Transferor
Certificate to the Trustee in exchange for (i) one or more newly issued Series
of Investor Certificates or in connection with a Companion Series, interests in
such Series and (ii) a reissued Transferor Certificate (any such tender, a
"Transferor Exchange"). In addition, to the extent permitted for any Series of
- --------------------
Investor Certificates as specified in the related Supplement, the Investor
Certificateholders of such Series may tender their Investor Certificates and the
Holder of the Transferor Certificate may tender the Transferor Certificate to
the Trustee pursuant to the terms and conditions set forth in such Supplement in
exchange for (i) one or more newly issued Series of Investor Certificates and
(ii) a reissued Transferor Certificate (an "Investor Exchange"). The Transferor
-----------------
Exchange and Investor Exchange are referred to collectively herein as an
"Exchange." The Holder of the Transferor Certificate may perform an Exchange by
- ---------
notifying the Trustee, in writing at least three days in advance (an "Exchange
--------
Notice") of the date upon which the Exchange is to occur (an "Exchange Date").
- ------
Any Exchange Notice shall state the designation of any Series (and Class
thereof, if applicable) to be issued on the Exchange Date and, with respect to
each such Series: (a) its Initial Investor Interest (or the method for
calculating such Initial Investor Interest) (b) its Certificate Rate (or the
method for allocating interest payments or other cash flows to such Series), if
any, and (c) the Credit Enhancement Provider, if any, with respect to such
Series. On the Exchange Date, the Trustee shall authenticate and deliver any
such Series of Investor Certificates only upon delivery to it of the following:
(a) a Supplement satisfying the criteria set forth in subsection 6.9(c) executed
by the Transferor and specifying the Principal Terms of such Series, (b) the
applicable Credit Enhancement, if any, (c) the agreement, if any, pursuant to
which the Credit Enhancement Provider agrees to provide the Credit Enhancement,
if any, (d) an Opinion of Counsel to the effect that, unless otherwise stated in
the related Supplement, the newly issued Series or Class of Investor
Certificates will be treated as debt secured by the Receivables for United
States federal income and Delaware and New York state income and corporate
franchise tax purposes, (e) a Tax Opinion, (f) written confirmation from each
Rating Agency that the Exchange will satisfy the Rating Agency Condition, (g) an
Officer's Certificate signed by a Vice President (or any more senior officer) of
the Transferor, that on the Exchange Date (i) the Transferor, after giving
effect to the Exchange, would not be required to add Additional Accounts
pursuant to subsection 2.6(a), and (ii) after giving effect to such Exchange,
the Transferor Interest would be at least equal to the Minimum Transferor
Interest and (h) the existing Transferor Certificate or applicable Investor
Certifi-
67
cates, as the case may be. Upon satisfaction of such conditions, the Trustee
shall cancel the existing Transferor Certificate or applicable Investor
Certificates, as the case may be, and issue, as provided above, such Series of
Investor Certificates and a new Transferor Certificate, dated the Exchange Date.
There is no limit to the number of Exchanges that may be performed under the
Agreement.
(c) In conjunction with an Exchange, the parties hereto shall execute
a Supplement, which shall specify the relevant terms with respect to any newly
issued Series of Investor Certificates, which may include without limitation:
(i) its name or designation, (ii) an Initial Investor Interest or the method of
calculating the Initial Investor Interest, (iii) the method of determining any
adjusted Investor Interest, if applicable, (iv) the Certificate Rate (or formula
for the determination thereof), (v) the Closing Date, (vi) each Rating Agency
rating such Series, (vi) the name of the Clearing Agency, if any, (vii) the
rights of the Holder of the Transferor Certificate that have been transferred to
the Holders of such Series pursuant to such Exchange (including any rights to
allocations of Collections of Finance Charge Receivables and Principal
Receivables), (ix) the interest payment date or dates and the date or dates from
which interest shall accrue, (x) the periods during which or dates on which
principal will be paid or accrued, (xi) the method of allocating Collections
with respect to Principal Receivables for such Series and, if applicable, with
respect to other Series and the method by which the principal amount of Investor
Certificates of such Series shall amortize or accrete and the method for
allocating Collections with respect to Finance Charge Receivables and
Receivables in Defaulted Accounts, (xii) any other Collections with respect to
Receivables or other amounts available to be paid with respect to such Series,
(xii) the names of any accounts to be used by such Series and the terms
governing the operation of any such accounts and use of moneys therein, (xiv)
the Series Servicing Fee and the Series Servicing Fee Percentage, (xv) the
Minimum Transferor Interest and the Series Termination Date, (xvi) the terms of
any Credit Enhancement with respect to such Series, and the Credit Enhancement
Provider, if applicable, (xvii) the base rate applicable to such Series, (xviii)
the terms on which the Certificates of such Series may be repurchased or
remarketed to other investors, (xix) any deposit into any account provided for
such Series, (xx) the number of Classes of such Series, and if more than one
Class, the rights and priorities of each such Class, (xxi) whether Interchange
or other fees will be included in the funds available to be paid for such
Series, (xxii) the priority of any Series with respect to any other Series,
(xxiii) the rights, if any, of the holders of the Transferor Certificate that
have been transferred to the holders of such Series, (xxiv) the Pool Factor,
(xxv) the Minimum Aggregate Principal Receivables, (xxvi) whether such Series
will be part of a Group, (xxvii) whether such Series will or may be a Companion
68
Series and the Series with which it will be paired, if applicable and (xxviii)
any other relevant terms of such Series (including whether or not such Series
will be pledged as collateral for an issuance of any other securities, including
commercial paper) (all such terms, the "Principal Terms" of such Series). The
---------------
terms of such Supplement may modify or amend the terms of this Agreement solely
as applied to such new Series. If on the date of the issuance of such Series
there is issued and outstanding one or more Series of Investor Certificates and
no Series of Investor Certificates is currently rated by a Rating Agency, then
as a condition to such Exchange a nationally recognized investment banking firm
or commercial bank shall also deliver to the Trustee an Officer's certificate
stating, in substance, that the Exchange will not have an adverse effect on the
timing or distribution of payments to such other Series of Investor Certificates
then issued and outstanding.
Section 6.10 Book-Entry Certificates. Unless otherwise provided in
-----------------------
any related Supplement, the Investor Certificates, upon original issuance, shall
be issued in the form of typewritten Certificates representing the Book-Entry
Certificates, to be delivered to the depository specified in such Supplement
(the "Depository") which shall be the Clearing Agency or Foreign Clearing
----------
Agency, by or on behalf of such Series. The Investor Certificates of each
Series shall, unless otherwise provided in the related Supplement, initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency or Foreign Clearing Agency. No Certificate Owner will receive a
definitive certificate representing such Certificate Owner's interest in the
related Series of Investor Certificates, except as provided in Section 6.12.
Unless and until definitive, fully registered Investor Certificates of any
Series ("Definitive Certificates") have been issued to Certificate Owners
-----------------------
pursuant to Section 6.12;
(i) the provisions of this Section 6.10 shall be in full force
and effect with respect to each such Series;
(ii) the Transferor, the Servicer, the Paying Agent, the Transfer
Agent and Registrar and the Trustee may deal with the Clearing Agency and
the Clearing Agency Participants for all purposes (including the making of
distributions on the Investor Certificates of each such Series) as the
authorized representatives of the Certificate Owners;
(iii) to the extent that the provisions of this Section 6.10
conflict with any other provisions of this Agreement, the provisions of
this Section 6.10 shall control with respect to each such Series; and
69
(iv) the rights of Certificate Owners of each such Series shall
be exercised only through the Clearing Agency or Foreign Clearing Agency
and the applicable Clearing Agency Participants and shall be limited to
those established by law and agreements between such Certificate Owners and
the Clearing Agency or Foreign Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Depository Agreement applicable to a Series,
unless and until Definitive Certificates of such Series are issued pursuant
to Section 6.12, the initial Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Investor Certificates to
such Clearing Agency Participants.
Section 6.11 Notices to Clearing Agency. Whenever notice or other
--------------------------
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 6.12, the Trustee shall give all such notices and
communications specified herein to be given to Holders of the Investor
Certificates to the Clearing Agency or Foreign Clearing Agency for distribution
to Holders of Investor Certificates.
Section 6.12 Definitive Certificates. If (i) (A) the Transferor
-----------------------
advises the Trustee in writing that the Clearing Agency or Foreign Clearing
Agency is no longer willing or able to discharge properly its responsibilities
under the applicable Depository Agreement, and (B) the Trustee or the Transferor
is unable to locate a qualified successor, (ii) the Transferor, at its option,
advises the Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency or Foreign Clearing Agency with respect to any
Series of Certificates or (iii) after the occurrence of a Servicer Default,
Certificate Owners of a Series representing beneficial interests aggregating not
less than 50% of the Investor Interest of such Series advise the Trustee and the
applicable Clearing Agency or Foreign Clearing Agency through the applicable
Clearing Agency Participants in writing that the continuation of a book-entry
system through the applicable Clearing Agency or Foreign Clearing Agency is no
longer in the best interests of the Certificate Owners, the Trustee shall notify
all Certificate Owners of such Series, through the applicable Clearing Agency
Participants, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners of such Series requesting the
same. Upon surrender to the Trustee of the Investor Certificates of such Series
by the applicable Clearing Agency or Foreign Clearing Agency, accompanied by
registration instructions from the applicable Clearing Agency or Foreign
Clearing Agency for registration, the Trustee shall issue the Definitive
Certificates of such Series. Neither the Transferor nor the Trustee shall be
liable for any delay in delivery of such
70
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates of such Series
all references herein to obligations imposed upon or to be performed by the
applicable Clearing Agency or Foreign Clearing Agency shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with respect
to such Definitive Certificates, and the Trustee shall recognize the Holders of
the Definitive Certificates of such Series as Certificateholders of such Series
hereunder.
Section 6.13 Global Certificate. If specified in the related
------------------
Supplement for any Series, the Investor Certificates may be initially issued in
the form of a single temporary Global Certificate (the "Global Certificate") in
------------------
bearer form, without interest coupons, in the denomination of the Initial
Investor Interest and substantially in the form attached to the related
Supplement. Unless otherwise specified in the related Supplement, the
provisions of this Section 6.13 shall apply to such Global Certificate. The
Global Certificate will be authenticated by the Trustee upon the same
conditions, in substantially the same manner and with the same effect as the
Definitive Certificates. The Global Certificate may be exchanged in the manner
described in the related Supplement for Registered or Bearer Certificates in
definitive form.
Section 6.14 Meetings of Certificateholders. To the extent provided
------------------------------
by the Supplement for any Series issued in whole or in part in Bearer
Certificates, the Servicer or the Trustee may at any time call a meeting of the
Certificateholders of such Series, to be held at such time and at such place as
the Servicer or the Trustee, as the case may be, shall determine, for the
purpose of approving a modification of or amendment to, or obtaining a waiver
of, any covenant or condition set forth in this Agreement with respect to such
Series or in the Certificates of such Series, subject to Section 13.1 of the
Agreement.
[End of Article VI]
71
ARTICLE VII
OTHER MATTERS RELATING
TO THE TRANSFEROR
Section 7.1 Liability of the Transferor. The Transferor shall be
---------------------------
liable in accordance herewith to the extent of the obligations specifically
undertaken by the Transferor.
Section 7.2 Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, the Transferor.
- ------------------------------
(a) The Transferor shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) (A) the Transferor is the surviving entity or (B) if the
Transferor is not the surviving entity, the corporation formed by such
consolidation or into which the Transferor is merged or the Person which
acquires by conveyance or transfer the properties and assets of the
Transferor substantially as an entirety shall be organized and existing
under the laws of the United States of America or any State or the District
of Columbia, and shall be a national banking association, state banking
corporation or other entity which is not subject to the bankruptcy laws of
the United States of America and shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the performance of every covenant and
obligation of the Transferor, as applicable hereunder and shall benefit
from all the rights granted to the Transferor, as applicable hereunder. To
the extent that any right, covenant or obligation of the Transferor, as
applicable hereunder, is inapplicable to the successor entity, such
successor entity shall be subject to such covenant or obligation, or
benefit from such right, as would apply, to the extent practicable, to such
successor entity. In furtherance hereof, in applying this Section 7.2 to a
successor entity, Section 9.2 hereof shall be applied by reference to
events of involuntary liquidation, receivership or conservatorship
applicable to such successor entity as shall be set forth in the Officer's
Certificate described in subsection 7.2(a)(ii);
(ii) the Transferor shall have delivered to the Trustee an
Officer's Certificate signed by a Vice President (or any more senior
officer) of the Transferor stating that such consolidation, merger,
conveyance or transfer and such supplemental agreement comply with this
Section 7.2 and that all conditions precedent herein provided for relating
to such transaction have been complied with and an Opinion of
72
Counsel that such supplemental agreement is legal, valid and binding; and
(iii) the Transferor shall have delivered notice to the Rating
Agency of such consolidation, merger, conveyance or transfer.
(b) The obligations of the Transferor hereunder shall not be
assignable nor shall any Person succeed to the obligations of the Transferor
hereunder (i) except for mergers, consolidations, assumptions or transfers in
accordance with the provisions of the foregoing paragraph or (ii) unless the
assignee with respect to such obligations shall be organized and existing under
the laws of the United States of America or any State or the District of
Columbia, and shall be a national banking association, state banking corporation
or other entity which is not subject to the bankruptcy laws of the United States
of America and shall expressly assume, by an agreement supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
performance of every covenant and obligation of the Transferor, as applicable
hereunder and shall benefit from all the rights granted to the Transferor, as
applicable hereunder. To the extent that any right, covenant or obligation of
the Transferor, as applicable hereunder, is inapplicable to the assignee, such
assignee shall be subject to such covenant or obligation, or benefit from such
right, as would apply, to the extent practicable, to such assignee.
Section 7.3 Limitation of Liability. The directors, officers,
-----------------------
employees or agents of the Transferor shall not be under any liability to the
Trust, the Trustee, the Certificateholders, any Credit Enhancement Provider or
any other Person hereunder or pursuant to any document delivered hereunder, it
being expressly understood that all such liability is expressly waived and
released as a condition of, and as consideration for, the execution of this
Agreement and any Supplement and the issuance of the Certificates; provided,
--------
however, that this provision shall not protect the officers, directors,
- -------
employees, or agents of the Transferor against any liability which would
otherwise be imposed by reason of willful misfeasance or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. Except as provided in Section 7.4, the Transferor shall not
be under any liability to the Trust, the Trustee, the Certificateholders, any
Credit Enhancement Provider or any other Person for any action taken or for
refraining from the taking of any action in its capacity as Transferor pursuant
to this Agreement or any Supplement whether arising from express or implied
duties under this Agreement or any Supplement; provided, however, that this
-------- -------
provision shall not protect the Transferor against any liability which would
otherwise be imposed by reason of willful misfeasance or gross negligence in the
performance of duties or by reason of reckless
73
disregard of obligations and duties hereunder. The Transferor and any director,
officer, employee or agent may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any matters
- ----- -----
arising hereunder.
Section 7.4 Liabilities. Notwithstanding Section 7.3 (and
-----------
notwithstanding Sections 3.2, 8.3, 8.4 and 11.11), or any other provision
herein, the Transferor by entering into this Agreement, and any holder of an
interest in the Transferor Certificate by its acceptance thereof, agree to be
liable, directly to any creditor or claimant for the entire amount of any
liabilities, including without limitation, any taxes imposed on the Trust,
losses, claims or damages (other than those that would be incurred by an
Investor Certificateholder or a Credit Enhancement Provider, if any, if the
Investor Certificates or Collateral Interest, as the case may be, were notes
secured by the Receivables, for example, as a result of the performance of the
Receivables, market fluctuations, a shortfall or failure to make payment under
any Credit Enhancement or other similar market or investment risks associated
with ownership of the Investor Certificates) arising out of or based on the
arrangement created by this Agreement (to the extent that, if the Trust assets
at the time the claim is made were used to pay in full all outstanding
Certificates of all Series, the Trust assets that would remain after the
Investor Certificateholders and Credit Enhancement Providers, if any, were paid
in full would be insufficient to pay any such losses, claims, damages or
liabilities) as though this Agreement created a partnership under the New York
Revised Limited Partnership Act in which the Transferor and such holder of an
interest in the Transferor Certificate were the general partners of such
partnership. The rights created by this Section 7.4 shall run directly to and
be enforceable by the injured party subject to the limitations hereof. To the
extent provided in Section 8.4, the Servicer will (from its own assets and not
from the assets of the Trust) indemnify and hold harmless the Transferor and
each holder of an interest in the Transferor Certificate against and from
certain losses, claims, damages and liabilities of the Transferor as described
in this Section arising from the actions or omissions of the Servicer.
[End Of Article VII]
74
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
Section 8.1 Liability of the Servicer. The Servicer shall be liable
-------------------------
in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer in such capacity herein.
Section 8.2 Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, the Servicer. The Servicer shall not consolidate with or merge
- ----------------------------
into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) (A) the Servicer is the surviving entity or (B) if the
Servicer is not the surviving entity, the corporation formed by such
consolidation or into which the Servicer is merged or the Person which
acquires by conveyance or transfer the properties and assets of the
Servicer substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America or any State or the
District of Columbia, and shall be a state or national banking association
or other entity which is not subject to the bankruptcy laws of the United
States of America and shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Trustee in form satisfactory to the
Trustee, the performance of every covenant and obligation of the Servicer
hereunder (to the extent that any right, covenant or obligation of the
Servicer, as applicable hereunder, is inapplicable to the successor entity,
such successor entity shall be subject to such covenant or obligation, or
benefit from such right, as would apply, to the extent practicable, to such
successor entity);
(ii) the Servicer shall have delivered to the Trustee an
Officer's Certificate that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this Section 8.2 and
that all conditions precedent herein provided for relating to such
transaction have been complied with and an Opinion of Counsel that such
supplemental agreement is legal, valid and binding with respect to the
Servicer; and
(iii) the Servicer shall have delivered notice to the Rating
Agency of such consolidation, merger, conveyance or transfer.
Section 8.3 Limitation of Liability of the Servicer and Others. The
--------------------------------------------------
directors, officers, employees or agents of the
75
Servicer shall not be under any liability to the Trust, the Trustee, the
Certificateholders, any Credit Enhancement Provider or any other Person
hereunder or pursuant to any document delivered hereunder, it being expressly
understood that all such liability is expressly waived and released as a
condition of, and as consideration for, the execution of this Agreement and any
Supplement and the issuance of the Certificates; provided, however, that this
-------- -------
provision shall not protect the directors, officers, employees and agents of the
Servicer against any liability which would otherwise be imposed by reason of
willful misfeasance or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder. Except as
provided in Section 8.4 with respect to the Trust and the Trustee, its officers,
directors, employees and agents, the Servicer shall not be under any liability
to the Trust, the Trustee, its officers, directors, employees and agents, the
Certificateholders or any other Person for any action taken or for refraining
from the taking of any action in its capacity as Servicer pursuant to this
Agreement or any Supplement; provided, however, that this provision shall not
-------- -------
protect the Servicer against any liability which would otherwise be imposed by
reason of willful misfeasance or gross negligence in the performance of duties
or by reason of its reckless disregard of its obligations and duties hereunder
or under any Supplement. The Servicer may rely in good faith on any document of
any kind prima facie properly executed and submitted by any Person respecting
----- -----
any matters arising hereunder. The Servicer shall not be under any obligation
to appear in, prosecute or defend any legal action which is not incidental to
its duties to service the Receivables in accordance with this Agreement which in
its reasonable opinion may cause it to incur any expense or liability.
Section 8.4 Servicer Indemnification of the Trust and the Trustee.
-----------------------------------------------------
The Servicer shall indemnify and hold harmless the Trust and the Trustee, its
officers, directors, employees and agents, from and against any reasonable loss,
liability, expense, damage or injury suffered or sustained by reason of any acts
or omissions or alleged acts or omissions of the Servicer with respect to
activities of the Trust or the Trustee pursuant to this Agreement or any
Supplement, including, but not limited to any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
provided, however, that the Servicer shall not indemnify the Trustee if such
- -------- -------
acts, omissions or alleged acts or omissions constitute or are caused by fraud,
negligence, bad faith or willful misconduct by the Trustee; provided, further,
-------- -------
that the Servicer shall not indemnify the Trust, the Investor Certificateholders
or the Certificate Owners for any liabilities, costs or expenses of the Trust
with respect to any action taken by the Trustee at the request of the Investor
Certificateholders; provided, further, that the Servicer shall not indemnify the
-------- -------
Trust, the Investor
76
Certificateholders or the Certificate owners as to any losses, claims or damages
incurred by any of them in their capacities as investors, including without
limitation losses incurred as a result of Defaulted Accounts or Receivables
which are written off as uncollectible; and provided, further, that the Servicer
-------- -------
shall not indemnify the Trust, the Investor Certificateholders or the
Certificate Owners for any liabilities, costs or expenses of the Trust, the
Investor Certificateholders or the Certificate Owners arising under any tax law,
including without limitation, any federal, state, local or foreign income or
franchise taxes or any other tax imposed on or measured by income (or any
interest or penalties with respect thereto or arising from a failure to comply
therewith) required to be paid by the Trust, the Investor Certificateholders or
the Certificate Owners in connection herewith to any taxing authority. Any such
indemnification shall not be payable from the assets of the Trust. The
provisions of this indemnity shall run directly to and be enforceable by an
injured party subject to the limitations hereof. The provisions of this Section
8.4 shall survive termination of this Agreement and the resignation or removal
of the Trustee.
Section 8.5 The Servicer Not to Resign. The Servicer shall not
--------------------------
resign from the obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action which
the Servicer could take to make the performance of its duties hereunder
permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced as to clause (i) above by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
shall become effective until the Trustee or a Successor Servicer shall have
assumed the responsibilities and obligations of the Servicer in accordance with
Section 10.2 hereof. If the Trustee is unable within 120 days of the date of
such determination to appoint a Successor Servicer, the Trustee shall serve as
Successor Servicer hereunder.
Section 8.6 Access to Certain Documentation and Information Regarding
---------------------------------------------------------
the Receivables. The Servicer shall provide to the Trustee access to the
- ---------------
documentation regarding the Accounts and the Receivables in such cases where the
Trustee is required in connection with the enforcement of the rights of the
Investor Certificateholders, or by applicable statutes or regulations to review
such documentation, such access being afforded without charge but only (i) upon
reasonable request, (ii) during normal business hours, (iii) subject to the
Servicer's normal security and confidentiality procedures and (iv) at offices
designated by the Servicer. Nothing in this Section 8.6 shall derogate from the
obligation of the Transferor, the Trustee or the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors and
the failure of the Servicer to provide access as provided in this Section 8.6 as
a
77
result of such obligations shall not constitute a breach of this Section 8.6.
Section 8.7 Delegation of Duties. It is understood and agreed by the
--------------------
parties hereto that the Servicer may delegate certain of its duties hereunder to
First Data Resources, Inc. ("FDR"), a credit card processor located in Omaha,
---
Nebraska. In the ordinary course of business, the Servicer may at any time
delegate any duties hereunder to any Person who agrees to conduct such duties in
accordance with the Credit Card Guidelines. Any such delegations shall not
relieve the Servicer of its liability and responsibility with respect to such
duties, and shall not constitute a resignation within the meaning of Section 8.5
hereof. If any such delegation is to a party other than FDR notification
thereof shall be given to each Rating Agency.
Section 8.8 Examination of Records. The Servicer shall clearly and
----------------------
unambiguously identify each Account (including any Additional Account designated
pursuant to Section 2.6) in its computer or other records to reflect that the
Receivables arising in such Account have been conveyed to the Trust pursuant to
this Agreement. The Servicer shall, prior to the sale or transfer to a third
party of any receivable held in its custody, examine its computer and other
records to determine that such receivable is not a Receivable.
[End of Article VIII]
78
ARTICLE IX
PAY OUT EVENTS
Section 9.1 Pay Out Events. If any one of the following events
--------------
(each, a "Trust Pay Out Event") shall occur:
-------------------
(a) (i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Transferor in an involuntary
case under the Bankruptcy Code or any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, which decree or order is not
stayed, or any other similar relief shall be granted under any applicable
federal or state law, (ii) an involuntary case is commenced against the
Transferor under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect which remains undismissed, undischarged or
unbonded for a period of 60 days or (iii) the Transferor shall have a
decree or an order for relief entered with respect to it or commence a
voluntary case under the Bankruptcy Code or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect;
(b) the Transferor shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating
to all or substantially all of its property, or a decree or order of a
court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Transferor; or the Transferor
shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency
or reorganization statute, make an assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations; or the
Transferor shall become unable for any reason to transfer Receivables to
the Trust in accordance with the provisions of this Agreement; or
(c) the Trust shall become subject to regulation by the Securities and
Exchange Commission as an "investment company" within the meaning of the
Investment Company Act;
then a Pay Out Event with respect to all Series of Certificates shall occur
without any notice or other action on the part of the Trustee or the Investor
Certificateholders immediately upon the occurrence of such event.
79
Section 9.2 Additional Rights Upon the Occurrence of Certain Events.
-------------------------------------------------------
(a) If any event set forth in Section 9.1(a) or (b) shall occur (any
such event, an "Insolvency Event"), the Transferor shall on the day of such
----------------
Insolvency Event (the "Appointment Day") immediately cease to transfer Principal
---------------
Receivables to the Trust and shall promptly give notice to the Trustee of such
Insolvency Event and the arrangement among the parties created hereby shall be
deemed to have been dissolved, subject to the liquidation and winding up
procedures described below. Notwithstanding any cessation of the transfer to
the Trust of additional Principal Receivables, Finance Charge Receivables,
whenever created, accrued in respect of Principal Receivables which have been
transferred to the Trust shall continue to be a part of the Trust, and
Collections with respect thereto shall continue to be allocated and paid in
accordance with Article IV. Within 15 days of the Appointment Day, the Trustee
shall (i) publish a notice in an Authorized Newspaper that an Insolvency Event
has occurred and that the Trustee intends to sell, dispose of or otherwise
liquidate the Receivables in a commercially reasonable manner and (ii) send
written notice to the Investor Certificateholders describing the provisions of
this Section 9.2 and requesting instructions from such Holders. Unless within
75 days from the day notice pursuant to clause (i) above is first published, the
Trustee shall have received written instructions of Holders of Investor
Certificates evidencing more than 50% of the Investor Interest of each Series
issued and outstanding (or, if any such Series has two or more Classes, each
Class) to the effect that such Certificateholders disapprove of the liquidation
of the Receivables. If such vote disapproving of liquidation of the Receivables
has not been obtained, the Trustee shall use its best efforts to sell, dispose
of or otherwise liquidate the Receivables in a commercially reasonable manner
and on commercially reasonable terms, which shall include the solicitation of
competitive bids. The Trustee may obtain a prior determination from any such
conservator, receiver or liquidator that the terms and manner of any proposed
sale, disposition or liquidation are commercially reasonable. The provisions of
Sections 9.1 and 9.2 shall not be deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of the
Receivables pursuant to subsection (a) above shall be treated as Collections on
the Receivables and shall be allocated and deposited in accordance with the
provisions of Article IV; provided, that the Trustee shall determine
--------
conclusively in its sole discretion the amount of such proceeds which are
allocable to Finance Charge Receivables and the amount of such proceeds which
are allocable to Principal Receivables. On the day following the last
Distribution Date in the Monthly Period during which such proceeds are
distributed to the Investor Certificateholders of each Series, the Trust shall
terminate.
80
(c) The Trustee may appoint an agent or agents to assist with its
responsibilities pursuant to this Article IX with respect to competitive bids.
[End of Article IX]
81
ARTICLE X
SERVICER DEFAULTS
Section 10.1 Servicer Defaults. If any one of the following events
-----------------
(a "Servicer Default") shall occur and be continuing:
----------------
(a) any failure by the Servicer to make any payment, transfer or
deposit or to give instructions or notice to the Trustee pursuant to
Article IV or to instruct the Trustee to make any required drawing,
withdrawal, or payment under any Credit Enhancement on or before the date
occurring ten Business Days after the date such payment, transfer, deposit
withdrawal or drawing or such instruction or notice is required to be made
or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in
any respect any other covenants or agreements of the Servicer set forth in
this Agreement, which has a material adverse effect on the Investor
Certificateholders of any Series and which continues unremedied for a
period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
the Trustee, or to the Servicer and the Trustee by the Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 50%
of the Investor Interest of any Series adversely affected thereby and
continues to materially adversely affect such Investor Certificateholders
for such period; or the Servicer shall delegate its duties under this
Agreement, except as permitted by Section 8.7;
(c) any representation, warranty or certification made by the Servicer
in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has a
material adverse effect an the Investor Certificateholders of any Series
and which continues to be incorrect in any material respect for a period of
60 days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the
Trustee, or to the Servicer and the Trustee by the Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 50%
of the Investor Interest of any Series adversely affected thereby and
continues to materially adversely affect such Investor Certificateholders
for such period; or
(d) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities
82
or similar proceedings of or relating to the Servicer or of or relating to
all or substantially all of its property, or a decree or order of a court
or agency or supervisory authority having jurisdiction in the premises for
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Servicer, and such decree or order
shall have remained in force undischarged or unstayed for a period of 60
days; or the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make any assignment for
the benefit of its creditors or voluntarily suspend payment of its
obligations; then, so long as such Servicer Default shall not have been
remedied, either the Trustee, or the Holders of Investor Certificates
evidencing Undivided Interests aggregating more than 50% of the Aggregate
Investor Interest, by notice then given in writing to the Servicer (and to
the Trustee if given by the Investor Certificateholders) (a "Termination
-----------
Notice"), may terminate all of the rights and obligations of the Servicer
------
as Servicer under this Agreement. After receipt by the Servicer of such
Termination Notice, and on the date that a Successor Servicer shall have
been appointed by the Trustee pursuant to Section 10.2, all authority and
power of the Servicer under this Agreement shall pass to and be vested in a
Successor Servicer; and, without limitation, the Trustee is hereby
authorized and empowered (upon the failure of the Servicer to cooperate) to
execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, all documents and other instruments upon the failure of the
Servicer to execute or deliver such documents or instruments, and to do and
accomplish all other acts or things necessary or appropriate to effect the
purposes of such transfer of servicing rights and obligations. The
Servicer agrees to cooperate with the Trustee and such Successor Servicer
in effecting the termination of the responsibilities and rights of the
Servicer to conduct servicing hereunder including, without limitation, the
transfer to such Successor Servicer of all authority of the Servicer to
service the Receivables provided for under this Agreement, including,
without limitation, all authority over all Collections which shall on the
date of transfer be held by the Servicer for deposit, or which have been
deposited by the Servicer, in the Collection Account, the Finance Charge
Account, the Principal Account, the Excess Funding Account and any Series
Account, or which shall thereafter be received with respect to the
Receivables, and in assisting the Successor Servicer and in enforcing all
rights to Insurance Proceeds and Interchange (if any) applicable to the
Trust. The Servicer shall promptly transfer its electronic records
83
or electronic copies thereof relating to the Receivables to the Successor
Servicer in such electronic form as the Successor Servicer may reasonably
request and shall promptly transfer to the Successor Servicer all other
records, correspondence and documents necessary for the continued servicing
of the Receivables in the manner and at such times as the Successor
Servicer shall reasonably request. To the extent that compliance with this
Section 10.1 shall require the Servicer to disclose to the Successor
Servicer information of any kind which the Servicer reasonably deems to be
confidential, the Successor Servicer shall be required to enter into each
customary licensing and confidentiality agreements as the Servicer shall
deem necessary to protect its interests. The Servicer shall, on the date
of any servicing transfer, transfer all of its rights and obligations under
the Credit Enhancement with respect to any Series to the Successor
Servicer.
Notwithstanding the foregoing, a delay in or failure of performance
referred to in subsection 10.1(a) for a period of 10 Business Days or in
subsection 10.1(b) or (c) for a period of 60 Business Days, shall not constitute
a Servicer Default if such delay or failure could not be prevented by the
exercise of reasonable diligence by the Servicer and such delay or failure was
caused by an act of God or the public enemy, acts of declared or undeclared war,
public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning,
fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns,
floods, power outages or similar causes. The preceding sentence shall not
relieve the Servicer from using its best efforts to perform its obligations in a
timely manner in accordance with the terms of this Agreement and the Servicer
shall provide the Trustee, any Credit Enhancement Provider, the Transferor and
the Holders of Investor Certificates with an Officer's Certificate giving prompt
notice of such failure or delay by it, together with a description of the cause
of such failure or delay and its efforts so to perform its obligations.
Section 10.2 Trustee to Act; Appointment of Successor.
----------------------------------------
(a) On and after the receipt by the Servicer of a Termination Notice
pursuant to Section 10.1, the Servicer shall continue to perform all servicing
functions under this Agreement until the date specified in the Termination
Notice or otherwise specified by the Trustee in writing or, if no such date is
specified in such Termination Notice, or otherwise specified by the Trustee,
until a date mutually agreed upon by the Servicer and Trustee. The Trustee
shall notify each Rating Agency of such removal of the Servicer. The Trustee
shall, as promptly as possible after the giving of a Termination Notice appoint
a successor Servicer (the "Successor Servicer"), and such Successor Servicer
------------------
shall accept its appointment by a written assumption in
84
a form acceptable to the Trustee. The Trustee may obtain bids from any
potential successor Servicer. If the Trustee is unable to obtain any bids from
any potential successor Servicer and the Servicer delivers an Officer's
Certificate to the effect that the Servicer cannot in good faith cure the
Servicer Default which gave rise to a transfer of servicing, and if the Trustee
is legally unable to act as Successor Servicer, then the Trustee shall notify
each Credit Enhancement Provider of the proposed sale of the Receivables and
shall provide each such Credit Enhancement Provider an opportunity to bid on the
Receivables and shall offer the Transferor the right of first refusal to
purchase the Receivables on terms equivalent to the best purchase offer as
determined by the Trustee, but in no event less than an amount equal to the
Aggregate Investor Interest on the date of such purchase plus all interest
----
accrued but unpaid on all of the outstanding Investor Certificates at the
applicable Certificate Rate through the date of such purchase. The proceeds of
such sale shall be deposited in the Distribution Account or any Series Account,
as provided in the related Supplement, for distribution to the Investor
Certificateholders of each outstanding Series pursuant to Section 12.3 of the
Agreement. In the event that a Successor Servicer has not been appointed and
has not accepted its appointment at the time when the Servicer ceases to act as
Servicer, the Trustee without further action shall automatically be appointed
the Successor Servicer. Notwithstanding the above, the Trustee shall, if it is
legally unable so to act, petition a court of competent jurisdiction to appoint
any established financial institution having, in the case of an entity that is
subject to risk-based capital adequacy requirements, risk-based capital of at
least $50,000,000 or, in the case of an entity that is not subject to risk-based
capital requirements, having a net worth of not less than $50,000,000 and whose
regular business includes the servicing of VISA or MasterCard credit card
receivables as the Successor Servicer hereunder.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof, and all references in this Agreement to the Servicer shall be
deemed to refer to the Successor Servicer. Any Successor Servicer, by its
acceptance of its appointment, will automatically agree to be bound by the terms
and provisions of each Credit Enhancement.
(c) In connection with such appointment and assumption, the Trustee
shall be entitled to such compensation, or may make such arrangements for the
compensation of the Successor Servicer out of Collections, as it and such
Successor Servicer shall agree; provided, however, that no such compensation
-------- -------
shall be in excess of the Servicing Fee permitted to be paid to the Servicer
pursuant to Section 3.2. The Transferor agrees that if
85
the Servicer is terminated hereunder, it will agree to deposit a portion of the
Collections in respect of Finance Charge Receivables that it is entitled to
receive pursuant to Article IV to pay its share of the compensation of the
Successor Servicer.
(d) All authority and power granted to the Successor Servicer under
this Agreement shall automatically cease and terminate upon termination of the
Trust pursuant to Section 12.1 and shall pass to and be vested in the Transferor
and, without limitation, the Transferor is hereby authorized and empowered to
execute and deliver, on behalf of the Successor Servicer, as attorney-in-fact or
otherwise, all documents and other instruments, and to do and accomplish all
other acts or things necessary or appropriate to effect the purposes of such
transfer of servicing rights. The Successor Servicer agrees to cooperate with
the Transferor in effecting the termination of the responsibilities and rights
of the Successor Servicer to conduct servicing on the Receivables. The
Successor Servicer shall transfer its electronic records relating to the
Receivables to the Transferor in such electronic form as the Transferor may
reasonably request and shall transfer all other records, correspondence and
documents to the Transferor in the manner and at such times as the Transferor
shall reasonably request. To the extent that compliance with this Section 10.2
shall require the Successor Servicer to disclose to the Transferor information
of any kind which the Successor Servicer deems to be confidential, the
Transferor shall be required to enter into such customary licensing and
confidentiality agreements as the Successor Servicer shall deem necessary to
protect its interests.
Section 10.3 Notification to Certificateholders. Within two Business
----------------------------------
Days after the Servicer becomes aware of any Servicer Default, the Servicer
shall give written notice thereof to the Trustee and any Credit Enhancement
Provider and the Trustee shall give notice to the Investor Certificateholders at
their respective addresses appearing in the Certificate Register. Upon any
termination or appointment of a Successor Servicer pursuant to this Article X,
the Trustee shall give prompt written notice thereof to Investor
Certificateholders at their respective addresses appearing in the Certificate
Register.
Section 10.4 Waiver of Past Defaults. The Holders of Investor
-----------------------
Certificates evidencing Undivided Interests aggregating not less than 66-2/3% of
the Investor Interest of each Series adversely affected by any default by the
Services or Transferor may, on behalf of all Certificateholders of such Series,
waive any default by the Servicer or Transferor in the performance of its
obligations hereunder and its consequences, except a default in the failure to
make any required deposits or payments of interest or principal relating to such
Series pursuant to Article IV which default does not result from the failure of
the Paying Agent to perform its obligations to make any required deposits or
86
payments of interest and principal in accordance with Article IV. Upon any such
waiver of a past default, such default shall cease to exist, and any default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
[End of Article X]
87
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee.
-----------------
(a) The Trustee, prior to the occurrence of any Servicer Default and
after the curing of all Servicer Defaults which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. If a Responsible Officer has received written notice that a Servicer
Default has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
substantially conform to the requirements of this Agreement.
(c) Subject to subsection 11.1(a), no provision of this Agreement
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own misconduct; provided,
--------
however, that:
- -------
(i) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Investor Certificates
evidencing Undivided Interests aggregating more than 50% of the Investor
Interest of any Series relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee in relation to such Series, under
this Agreement; and
(iii) the Trustee shall not be charged with knowledge of any
failure by the Servicer referred to in clauses (a) and (b) of Section 10.1
unless a Responsible Officer of the Trustee obtains actual knowledge of
such failure or the Trustee receives written notice of such
88
failure from the Servicer or any Holders of Investor Certificates
evidencing Undivided Interests aggregating not less than 10% of the
Investor Interest of any Series adversely affected thereby.
(d) The Trustee shall not be required to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of the Servicer under this Agreement except during such time,
if any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
this Agreement.
(e) Except for actions expressly authorized by this Agreement, the
Trustee shall take no action reasonably likely to impair the interests of the
Trust in any Receivable now existing or hereafter created or to impair the value
of any Receivable now existing or hereafter created.
(f) Except as provided in this subsection 11.1(f), the Trustee shall
have no power to vary the corpus of the Trust including, without limitation, the
power to (i) accept any substitute obligation for a Receivable initially
assigned to the Trust under Section 2.1 or 2.6 hereof, (ii) add any other
investment, obligation or security to the Trust, except for an addition
permitted under Section 2.6 or (iii) withdraw from the Trust any Receivables,
except for a withdrawal permitted under Sections 2.7, 9.2, 10.2, 12.1 or 12.2 or
subsections 2.4(d), 2.4(e) or Article IV.
(g) In the event that the Paying Agent or the Transfer Agent and
Registrar shall fail to perform any obligation, duty or agreement in the manner
or on the day required to be performed by the Paying Agent or the Transfer Agent
and Registrar, as the case may be, under this Agreement, the Trustee shall be
obligated promptly to perform such obligation, duty or agreement in the manner
so required.
(h) If the Transferor has agreed to transfer any of its credit card
receivables (other than the Receivables) to another Person, upon the written
request of the Transferor, the Trustee will enter into such intercreditor
agreements with the transferee of such receivables as are customary and
necessary to identify separately the rights, if any, of the Trust and such other
Person in the Transferor's credit card receivables; provided, however that the
-------- -------
Trustee shall not be required to enter into
89
any intercreditor agreement which could adversely affect the interests of the
Certificateholders and, upon the request of the Trustee, the Transferor will
deliver an Opinion of Counsel on any matters relating to such intercreditor
agreement, reasonably requested by the Trustee.
Section 11.2 Certain Matters Affecting the Trustee. Except as
-------------------------------------
otherwise provided in Section 11.1:
(a) the Trustee may rely on and shall be protected in acting on, or in
refraining from acting in accord with, any assignment of Receivables in
Additional Accounts, the initial report, the monthly Servicer's
certificate, the annual Servicer's certificate, the monthly payment
instructions and notification to the Trustee, the monthly
Certificateholder's statement, any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented to it pursuant to this Agreement by the proper party or
parties;
(b) the Trustee may consult with counsel of its selection, and any
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement or any Credit Enhancement,
or to institute, conduct or defend any litigation hereunder or in relation
hereto, at the request, order or direction of any of the Certificateholders
or any Credit Enhancement Provider, pursuant to the provisions of this
Agreement, unless such Certificateholders or Credit Enhancement Provider
shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee of
the obligations, upon the occurrence of any Servicer Default (which has not
been cured), to exercise such of the rights and powers vested in it by this
Agreement and any Credit Enhancement, and to use the same degree of care
and skill in its exercise as a prudent person would exercise or use under
the circumstances in the conduct of his own affairs;
(d) the Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or
90
rights or powers conferred upon it by this Agreement except to the extent
of the Trustee's negligence;
(e) the Trustee shall not be bound to make any investigation into the
facts of matters stated in any assignment of Receivables in Additional
Accounts, the initial report, the monthly Servicer's certificate, the
annual Servicer's certificate, the monthly payment instructions and
notification to the Trustee, the monthly Certificateholder's statement, any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Investor Certificates
evidencing Undivided Interests aggregating more than 50% of the Investor
Interest of any Series which could be adversely affected if the Trustee
does not perform such acts;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly by or through agents or
attorneys or a custodian appointed with due care by it hereunder; and
(g) except as may be required by subsection 11.1(a), or otherwise
expressly required herein or in any Supplement the Trustee shall not be
required to make any initial or periodic examination of any documents or
records related to the Receivables or the Accounts for the purpose of
establishing the presence or absence of defects, the compliance by the
Transferor with its representations and warranties or for any other
purpose.
Section 11.3 Trustee Not Liable for Recitals in Certificates. The
-----------------------------------------------
Trustee assumes no responsibility for the correctness of the recitals contained
herein and in the Certificates (other than the certificate of authentication on
the Certificates). Except as set forth in Section 11.15, the Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the Certificates)
or of any Receivable or related document. The Trustee shall not be accountable
for the use or application by the Transferor of any of the Certificates or of
the proceeds of such Certificates, or for the use or application of any funds
paid to the Transferor in respect of the Receivables or deposited in or
withdrawn from the Collection Account, the Principal Account or the Finance
Charge Account, or any Series Account by the Servicer.
Section 11.4 Trustee May Own Certificates. The Trustee in its
----------------------------
individual or any other capacity may become the owner or pledgee of Investor
Certificates with the same rights as it would have if it were not the Trustee.
91
Section 11.5 The Servicer to Pay Trustee's Fees and Expenses. The
-----------------------------------------------
Servicer covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to receive such reasonable compensation as shall be
agreed upon from time to time between the Servicer and the Trustee (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution of
the Trust hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee, and, subject to Section 8.4, the
Servicer will pay or reimburse the Trustee (without reimbursement from any
Investor Account, any Series Account or otherwise) upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement except any such
expense, disbursement or advance as may arise from its own negligence, bad faith
or wilful misfeasance and except as provided in the following sentence. If the
Trustee is appointed Successor Servicer pursuant to section 10.2, the provisions
of this Section 11.5 shall not apply to expenses, disbursements and advances
made or incurred by the Trustee in its capacity as Successor Servicer.
The obligations of the Servicer under this Section 11.5 shall survive
the termination of the Trust and the resignation or removal of the Trustee.
Section 11.6 Eligibility Requirements for Trustee. The Trustee
------------------------------------
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States of America or any state thereof authorized under
such laws to exercise corporate trust powers, having a long-term unsecured debt
rating of at least "Baa3" by Moody's and "BBB-" by Standard & Poor's having, in
the case of an entity that is subject to risk-based capital adequacy
requirements, risk-based capital of at least $50,000,000 or, in the case of an
entity that is not subject to risk-based capital adequacy requirements, having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section 11.6, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in the most recent
report of condition so published. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 11.6, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 11.7.
92
Section 11.7 Resignation or Removal of Trustee.
---------------------------------
(a) The Trustee may at any time resign and be discharged from the
Trust hereby created by giving written notice thereof to the Servicer. Upon
receiving such notice of resignation, the Servicer shall promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and
have accepted within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.6 hereof and shall fail to resign
after written request therefor by the Transferor, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Transferor may, but shall not be required to, remove the Trustee and promptly
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee.
(c) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 11.7 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 11.8 hereof and any liability of the Trustee arising
hereunder shall survive such appointment of a successor trustee.
Section 11.8 Successor Trustee.
-----------------
(a) Any successor trustee appointed as provided in Section 11.7 hereof
shall execute, acknowledge and deliver to the Transferor and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee
herein. The predecessor Trustee shall deliver to the successor trustee all
documents and statements held by it hereunder, and the Transferor and the
predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the
93
successor trustee all such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section 11.8 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 11.6 hereof.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section 11.8, such successor trustee shall mail notice of such
succession hereunder to all Certificateholders at their addresses as shown in
the Certificate Register.
Section 11.9 Merger or Consolidation of Trustee. Any Person into
----------------------------------
which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 11.6 hereof, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
Section 11.10 Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust may at the time be located, the Trustee shall have
the power and may execute and deliver all instruments to appoint one or more
Persons to act as a co-trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person or
Persons, in such capacity and for the benefit of the Certificateholders, such
title to the trust, or any part thereof, and, subject to the other provisions of
this Section 11.10, such powers, duties, obligations, rights and trusts as the
Trustee may consider necessary or desirable. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 11.6 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 11.8 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or
94
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any laws of
any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article XI. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer.
(d) Any separate trustee or co-trustee may at any time constitute the
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect to this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 11.11 Tax Returns. In the event the Trust shall be required
-----------
to file tax returns, the Trustee, as soon as practicable after it is made aware
of such requirement, shall prepare or cause to be prepared any tax returns
required to be filed by the Trust and, to the extent possible, shall file such
95
returns at least five days before such returns are due to be filed. The Trustee
is hereby authorized to sign any such return on behalf of the Trust, in the
event that the Trustee is determined to be the person required by law to sign
such return. The Servicer shall prepare or shall cause to be prepared all tax
information required by law to be distributed to Certificateholders and shall
deliver such information to the Trustee at least five days prior to the date it
is required by law to be distributed to Certificateholders. The Servicer, upon
request, in the event that the Trustee is determined to be the person required
by law to sign such return, will furnish the Trustee with all such information
known to the Servicer as may be reasonably required in connection with the
preparation of all tax returns of the Trust. In no event shall the Trustee or
the Servicer be liable for any liabilities, costs or expenses of the Trust, the
Investor Certificateholders or the Certificate Owners arising under any tax law,
including without limitation federal, state, local or foreign income or excise
taxes or any other tax imposed on or measured by income (or any interest or
penalty with respect thereto or arising from a failure to comply therewith).
Section 11.12 Trustee may Enforce Claims Without Possession of
------------------------------------------------
Certificates. All rights of action and claims under this Agreement or any
- ------------
Series of Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders any Series of Certificates, as their interests
may appear, in respect of which such judgment has been obtained.
Section 11.13 Suits for Enforcement. If a Servicer Default shall
---------------------
occur and be continuing, the Trustee, in its discretion may, subject to the
provisions of Section 10.1, proceed to protect and enforce its rights and the
rights of the Holders of any Series of Certificates under this Agreement by a
suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy as the Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee or the Holders of any Series of Certificates.
Section 11.14 Rights of Certificateholders to Direct Trustee.
----------------------------------------------
Holders of Investor Certificates evidencing Undivided Interests aggregating more
than 50% of the Aggregate Investor Interest (or, with respect to any remedy,
trust or power that
96
does not relate to all Series, 50% of the Aggregate Investor Interest of the
Investor Certificates of all Series to which such remedy, trust or power
relates) shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided, however, that, subject to
-------- -------
Section 11.1, the Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that the action so
directed may not lawfully be taken, or if the Trustee in good faith shall, by a
Responsible Officer or Responsible Officers of the Trustee, determine that the
proceedings so directed would be illegal or subject it to personal liability or
be unduly prejudicial to the rights of Certificateholders not parties to such
direction; and provided further that nothing in this Agreement shall impair the
-------- -------
right of the Trustee to take any action deemed proper by the Trustee and which
is not inconsistent with such direction of such Holders of Investor
Certificates.
Section 11.15 Representations and Warranties of Trustee. The Trustee
-----------------------------------------
represents and warrants that:
(i) the Trustee is a banking corporation organized, existing and
authorized to engage in the business of banking under the laws of the State
of New York;
(ii) the Trustee has full power, authority and right to execute,
deliver and perform this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement;
and
(iii) this Agreement has been duly executed and delivered by the
Trustee.
Section 11.16 Maintenance of Office or Agency. The Trustee will
-------------------------------
maintain at its expense in the Borough of Manhattan, the City of New York an
office or offices, or agency or agencies, where notices and demands to or upon
the Trustee in respect of the Certificates and this Agreement may be served.
The Trustee initially designates its Corporate Trust Office as its office for
such purposes in New York. The Trustee will give prompt written notice to the
Servicer and to Certificateholders (or in the case of Holders of Bearer
Certificates, in the manner provided for in the related Supplement) of any
change in the location of the Certificate Register or any such office or agency.
[End of Article XI]
97
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust.
--------------------
(a) The respective obligations and responsibilities of the Transferor,
the Servicer and the Trustee created hereby (other than the obligation of the
Trustee to make payments to Certificateholders as hereinafter set forth) shall
terminate, except with respect to the duties described in Sections 8.4 and 11.5
and subsections 2.4(c) and 12.3(b), on the Trust Termination Date; provided,
--------
however, that the Trust shall not terminate on the date specified in clause (i)
- -------
of the definition of "Trust Termination Date" if each of the Servicer and the
Holder of the Transferor Certificate notify the Trustee in writing, not later
than five Business Days preceding such date, that they desire that the Trust not
terminate on such date, which notice (such notice, a "Trust Extension") shall
---------------
specify the date on which the Trust shall terminate (such date, the "Extended
--------
Trust Termination Date"); provided, however, that the Extended Trust Termination
- ---------------------- -------- -------
Date shall be not later than the day prior to the expiration of 21 years after
the death of the last survivor of the descendants living on the date of this
Agreement of Joseph P. Kennedy, the late ambassador of the United States of
America to the Court of St. James's. The Servicer and the Holder of the
Transferor Certificate may, on any date following the Trust Extension, so long
as no Series of Certificates is outstanding, deliver a notice in writing to the
Trustee changing the Extended Trust Termination Date.
(b) All principal or interest with respect to any Series of Investor
Certificates shall be due and payable no later than the Series Termination Date
with respect to such Series. Unless otherwise provided in a Supplement, in the
event that the Investor Interest of any Series of Certificates is greater than
zero on its Series Termination Date (after giving effect to all transfers,
withdrawals, deposits and drawings to occur on such date and the payment of
principal to be made on such Series on such date), the Trustee will sell or
cause to be sold, and pay the proceeds first, to all Certificateholders of such
-----
Series pro rata in final payment of all principal of and accrued interest on
such Series of Certificates, and second, as provided in the related Supplement,
------
an amount of Principal Receivables and the related Finance Charge Receivables
(or interests therein) up to 110% of the sum of the Investor Interest of such
Series plus the Enhancement Invested Amount or the Collateral Interest (if not
included in the Investor Interest) of such Series, if any, at the close of
business on such date (but not more than an amount of Principal Receivables and
the related Finance Charge Receivables equal to the sum of (1) the product of
(A) the Transferor Percentage, (B) the aggregate amount of Principal Receivables
in the
98
Trust and (C) a fraction the numerator of which is the applicable Investor
Percentage with respect to Finance Charge Receivables and the denominator of
which is the sum of all Investor Percentages with respect to Finance Charge
Receivables of all Series and (2) the Investor Interest of such Series plus the
Enhancement Invested Amount or the Collateral Interest (if not included in the
Investor Interest) of such Series). The Trustee shall notify each Credit
Enhancement Provider of the proposed sale of such Receivables and shall provide
each Credit Enhancement Provider an opportunity to bid on such Receivables. The
Transferor shall be permitted to purchase such Receivables in such case and
shall have a right of first refusal with respect thereto. Any proceeds of such
sale in excess of such principal and interest paid shall be paid to the Holder
of the Transferor Certificate. Upon such Series Termination Date with respect
to the applicable Series of Certificates, final payment of all amounts allocable
to any Investor Certificates of such Series shall be made in the manner provided
in Section 12.3.
Section 12.2 Optional Purchase. (a) If so provided in any
-----------------
Supplement, the Transferor may, but shall not be obligated to, cause a final
distribution to be made in respect of the related Series of Certificates on a
Distribution Date specified in such Supplement by depositing into the
Distribution Account or the applicable Series Account, not later than the
Transfer Date preceding such Distribution Date, for application in accordance
with Section 12.3, the amount specified in such Supplement.
(b) The amount deposited pursuant to subsection 12.2(a) shall be paid
to the Investor Certificateholders of the related Series pursuant to Section
12.3 on the related Distribution Date following the date of such deposit. All
Certificates of a Series which are purchased by the Transferor pursuant to
subsection 12.2(a) shall be delivered by the Transferor upon such purchase to,
and be canceled by, the Transfer Agent and Registrar and be disposed of in a
manner satisfactory to the Trustee and the Transferor. The Investor Interest of
each Series which is purchased by the Transferor pursuant to subsection 12.2(a)
shall, for the purposes of the definition of "Transferor Interest," be deemed to
be equal to zero on the Distribution Date following the making of the deposit,
and the Transferor Interest shall thereupon be deemed to have been increased by
the Investor Interest of such Series.
Section 12.3 Final Payment with Respect to any Series.
----------------------------------------
(a) Written notice of any termination, specifying the Distribution
Date upon which the Investor Certificateholders of any Series may surrender
their Certificates for payment of the final distribution with respect to such
Series and cancellation, shall be given by the Trustee to Investor
Certificateholders of such Series mailed not later than the fifth day of the
month of
99
such final distribution (subject to at least two Business Days' prior notice
from the Servicer to the Trustee) (or in the manner provided by the Supplement
relating to such Series) specifying (i) the Distribution Date (which shall be
the Distribution Date in the month (x) in which the deposit is made pursuant to
subsection 2.4(e), 9.2(a), 10.2(a) or 12.2(a) of the Agreement or such other
section as may be specified in the related Supplement, or (y) in which the
related Series Termination Date occurs) upon which final payment of such
Investor Certificates will be made upon presentation and surrender of such
Investor Certificates at the office or offices therein designated (which, in the
case of Bearer Certificates, shall be outside the United States), (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Investor Certificates at the office or
offices therein specified. The Servicer's notice to the Trustee in accordance
with the preceding sentence shall be accompanied by an Officers' Certificate
setting forth the information specified in Article V of this Agreement covering
the period during the then current calendar year through the date of such notice
and setting forth the date of such final distribution. The Trustee shall give
such notice to the Transfer Agent and Registrar and the Paying Agent at the time
such notice is given to such Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to
subsection 12.1(a) or the occurrence of the Series Termination Date with respect
to any Series, all funds then on deposit in the Finance Charge Account, the
Principal Account, the Excess Funding Account, the Distribution Account or any
Series Account applicable to the related Series shall continue to be held in
trust for the benefit of the Certificateholders of the related Series and the
Paying Agent or the Trustee shall pay such funds to the Certificateholders of
the related Series upon surrender of their Certificates (which surrenders and
payments, in the case of Bearer Certificates, shall be made only outside the
United States). In the event that all of the Investor Certificateholders of any
Series shall not surrender their Certificates for cancellation within six months
after the date specified in the above-mentioned written notice, the Trustee
shall give a second written notice (or, in the case of Bearer Certificates,
publication notice) to the remaining Investor Certificateholders of such Series
upon receipt of the appropriate records from the Transfer Agent and Registrar to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within one and one-half years after the second notice
with respect to a Series, all the Investor Certificates of such Series shall not
have been surrendered for cancellation, the Trustee may take appropriate steps
or may appoint an agent to take appropriate steps, to contact the remaining
Investor Certificateholders of such Series concerning surrender of
100
their Certificates, and the cost thereof shall be paid out of the funds in the
Distribution Account or any Series Account held for the benefit of such Investor
Certificateholders. The Trustee and the Paying Agent shall pay to the
Transferor upon request any monies held by them for the payment of principal or
interest which remains unclaimed for two years. After payment to the
Transferor, Investor Certificateholders entitled to the money must look to the
Transferor for payment as general creditors unless an applicable abandoned
property law designates another Person.
(c) All Certificates surrendered for payment of the final distribution
with respect to such Certificates and cancellation shall be canceled by the
Transfer Agent and Registrar and be disposed of in a manner satisfactory to the
Trustee and the Transferor.
Section 12.4 Termination Rights of Holder of Transferor Certificate.
------------------------------------------------------
Upon the termination of the Trust pursuant to Section 12.1, and after payment of
all amounts due hereunder on or prior to such termination and the surrender of
the Transferor Certificate, the Trustee shall execute a written reconveyance
substantially in the form of Exhibit H pursuant to which it shall reconvey to
the Holder of the Transferor Certificate, without recourse, representation or
warranty, all right, title and interest of the Trust in the Receivables, whether
then existing or thereafter created, all moneys due or to become due with
respect to such Receivables (including all accrued interest theretofore posted
as Finance Charge Receivables) and all proceeds of such Receivables and
Insurance Proceeds relating to such Receivables and Interchange (if any)
allocable to the Trust, except for amounts held by the Trustee pursuant to
subsection 12.3(b). The Trustee shall execute and deliver such instruments of
transfer and assignment, in each case without recourse, as shall be reasonably
requested by the Holder of the Transferor Certificate to vest in such Holder all
right, title and interest which the Trust had in the Receivables.
Section 12.5 Defeasance. Notwithstanding anything to the contrary in
----------
this Agreement or any Supplement:
(a) The Transferor may at its option be discharged from its
obligations with respect to all of the Investor Certificates issued by the
Trust or any specified Series thereof on the date the applicable conditions
set forth in Section 12.5(c) are satisfied ("Defeasance"); provided
---------- --------
however, that the following rights, obligations, powers, duties and
-------
immunities shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Investor Certificates of the Trust
or any specified Series thereof to receive, solely from the trust fund
provided for in Section 12.5(c), payments in respect of principal of and
101
interest on such Investor Certificates when such payments are due; (B) the
Transferor's obligations with respect to such Series of Certificates under
Sections 6.3, 6.4 and 12.3; (C) the rights, powers, trusts, duties and
immunities of the Trustee, the Paying Agent and the Transfer Agent and
Registrar hereunder; and (D) this Section 12.5.
(b) Subject to Section 12.5(c), the Transferor at its option may use
Collections to purchase Permitted Investments rather than additional
Receivables for transfer to the Trust until such time as no Receivables
remain in the Trust.
(c) The following shall be the conditions to Defeasance under Section
12.5(a): (1) the Transferor irrevocably shall have deposited or caused to
be deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds
in trust for making the payments described below: (A) Dollars in an
amount, or (B) Permitted Investments which through the scheduled payment of
principal and interest in respect thereof will provide, not later than the
due date of payment thereon, money in an amount, or (C) a combination
thereof, in each case sufficient to pay and discharge, and, which shall be
applied by the Trustee to pay and discharge, all remaining scheduled
interest and principal payments on all outstanding Investor Certificates of
the Trust or any specified Series thereof on the dates scheduled for such
payments in this Agreement and the applicable Supplements and all amounts
owed to the Credit Enhancement Provider for any Series if so provided in
the related Supplements or agreements with such Credit Enhancement
Provider; (2) prior to each exercise of its right to substitute money or
Permitted Investments for Receivables, the Transferor shall deliver to the
Trustee a Tax Opinion with respect to such substitution and an Opinion of
Counsel to the effect that the Trust will not be required to register as an
"investment company" within the meaning of the Investment Company Act of
1940, as amended; and (3) such deposit and termination of obligations will
not result in a Pay Out Event for any Series.
[End of Article XII]
102
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment.
---------
(a) This Agreement (including any Supplement) may be amended from time
to time by the Bank, the Servicer and the Trustee, without the consent of any of
the Certificateholders, (i) to cure any ambiguity, to revise any exhibits or
schedules (other than Schedule 1), to correct or supplement any provisions
herein or thereon or (ii) to add any other provisions with respect to matters or
questions raised under this Agreement which shall not be inconsistent with the
provisions of this Agreement; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any of the Certificateholders unless such Certificateholders have
consented thereto.
(b) This Agreement (including any Supplement) and any schedule or
exhibit thereto may also be amended from time to time by the Transferor, the
Servicer and the Trustee, without the consent of any of the Certificateholders,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement, or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that (i)
-------- -------
the Servicer shall have provided an Officer's Certificate to the Trustee to the
effect that such amendment will not materially and adversely affect the
interests of any Certificateholder, (ii) the Servicer shall have provided a Tax
Opinion with respect to such amendment and (iii) the Servicer shall have
provided at least ten Business Days' prior written notice to each Rating Agency
of such amendment and shall have received written confirmation from each Rating
Agency that such action will satisfy the Rating Agency Condition; provided,
--------
further, that such amendment shall not, without the consent of each
- -------
Certificateholder of each Series affected thereby, (i) reduce in any manner the
amount of, or delay the timing of, distributions which are required to be made
on any Certificate of such Series, (ii) alter the requirements for changing the
Minimum Transferor Interest Percentage for such Series, (iii) change the
definition of or the manner of calculating the interest of any Certificateholder
of such Series, (iv) change the manner in which the Transferor Interest is
determined or (v) reduce the percentage pursuant to Subsection 13.1(c) required
to consent to any such amendment.
(c) This Agreement and any Supplement may also be amended from time to
time by the Transferor, the Servicer and the Trustee with the consent of
Certificateholders evidencing undivided interests aggregating more than 50% of
the Investor Interest of each and every Series adversely affected, for the
purpose of adding any provisions to or changing in any manner or elimi-
103
nating any of the provisions of this Agreement or of modifying in any manner the
rights of the Certificateholders of any Series then issued and outstanding;
provided, however, that no such amendment under this subsection shall (i) reduce
- -------- -------
in any manner the amount of, or delay the timing of, distributions which are
required to be made on any Certificate of such Series without the consent of all
of the related Certificateholders; (ii) change the definition of or the manner
of calculating the Investor Interest, the Investor Percentage or the Investor
Default Amount of such Series without the consent of the related
Certificateholders or (iii) reduce the aforesaid percentage required to consent
to any such amendment, in each case without the consent of each
Certificateholder of all Series affected.
(d) It shall not be necessary to obtain the consent of
Certificateholders under this Section 13.1 to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Trustee may prescribe.
(e) Promptly after the execution of any amendment pursuant to
subsections 13.1(a) or 13.1(c) above, the Trustee shall furnish notification of
the substance of such amendment to each Rating Agency providing a rating for any
Series.
(f) Any Supplement executed and delivered pursuant to Section 6.9 and
any amendments regarding the addition to or removal of Receivables from the
Trust as provided in Sections 2.6 or 2.7, executed in accordance with the
provisions hereof, shall not be considered amendments to this Agreement for the
purpose of Section 13.1.
(g) In connection with any amendment, the Trustee may request, in
addition to the Opinion of Counsel required by subsection 13.2(d), an Opinion of
Counsel from the Transferor or the Servicer to the effect that the amendment
complies with all requirements of this Agreement. The Trustee may, but shall
not be obligated to, enter into any amendment which affects the Trustee's
rights, duties or immunities under this Agreement or otherwise.
Section 13.2 Protection of Right, Title and Interest to Trust.
------------------------------------------------
(a) The Servicer shall cause this Agreement, all amendments hereto
and/or all financing statements and continuation statements and any other
necessary documents covering the Certificateholders and the Trustee's right,
title and interest to the Trust to be promptly recorded, registered and filed,
and at all times to be kept recorded, registered and filed, all in such
104
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Certificateholders or the Trustee,
as the case may be, hereunder to all property comprising the Trust. The
Servicer shall deliver to the Trustee file-stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided above, promptly
after the same become available following such recording, registration of
filing. The Transferor shall cooperate fully with the Servicer in connection
with the obligations set forth above and will execute any and all documents
reasonably required to fulfill the intent of this subsection 13.2(a).
(b) Within 30 days after the Transferor makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-402(7) of the UCC, the Transferor
shall give the Trustee notice of any such change and shall file such financing
statements or amendments as may be necessary to continue the perfection of the
Trust's security interest in the Receivables and the proceeds thereof.
(c) Each of the Transferor and the Servicer will give the Trustee
prompt written notice of any relocation of any office from which it services
Receivables or keeps records concerning the Receivables or of its principal
executive office and whether, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to continue the perfection of the Trust's security interest in the
Receivables and the proceeds thereof. Each of the Transferor and the Servicer
will at all times maintain each office from which it services Receivables and
its principal executive office within the United States of America.
(d) The Servicer will deliver to the Trustee: (i) upon each date that
any Additional Accounts are to be included in the Accounts pursuant to Section
2.6(a) or (b), an Opinion of Counsel substantially in the form of Exhibit E; and
(ii) on or before March 31 of each year, beginning with March 31, 1996, an
Opinion of Counsel, substantially in the form of Exhibit F.
Section 13.3 Limitation on Rights of Certificateholders.
------------------------------------------
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust, nor shall such death or incapacity
entitle such Certificateholder's legal representatives or heirs to claim an
accounting or to take any action or commence any proceeding in any court for a
parti-
105
tion or winding up of the Trust, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except with
respect to the Investor Certificateholders as provided in Section 13.1 hereof)
or in any manner otherwise control the operation and management of the Trust, or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Certificateholder previously shall have given written notice to the Trustee, and
unless the Holders of Certificates evidencing Undivided Interests aggregating
more than 50% of the Investor Interest of any Series which may be adversely
affected but for the institution of such suit, action or proceeding, shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Certificateholders shall have the right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Agreement
to affect, disturb or prejudice the rights of the Certificateholders of any
other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Certificateholder, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 13.3, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, AND WITHOUT,
LIMITING THE GENERALITY OF THE FOREGOING, THE IMMUNITY AND STANDARD OF
106
CARE OF THE TRUSTEE IN THE ADMINISTRATION OF THE TRUST HEREUNDER SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 13.5 Notices. All demands, notices and communications
-------
hereunder shall be in writing and shall be deemed to have been duly given (i)
when personally delivered at, sent by facsimile to, (ii) two Business Days after
being sent by courier at or (iii) five Business Days after being mailed by
registered mail, return receipt requested, to (a) in the case of the Transferor,
to Chase USA, 802 Delaware Avenue, Wilmington, Delaware 19801, Attention:
Corporate Secretary, (b) in the case of the Servicer, to Chemical Bank, 270 Park
Avenue, New York, New York 10017, Attention: Chief Corporate Finance officer,
(c) in the case of the Trustee, to the Corporate Trust Office, (d) in the case
of the Credit Enhancement Provider for a particular Series, the address, if any,
specified in the Supplement relating to such Series and (e) in the case of the
Rating Agency for a particular Series, the address, if any, specified in the
Supplement relating to such Series; or, as to each party, at such other address
as shall be designated by such party in a written notice to each other party.
Unless otherwise provided with respect to any Series in the related Supplement
any notice required or permitted to be mailed to a Certificateholder shall be
given by first class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register, or with respect to any
notice required or permitted to be made to the Holders of Bearer Certificates,
by publication in the manner provided in the related Supplement. If and so long
as any Series or Class is listed on the Luxembourg Stock Exchange and such
Exchange shall so require, any Notice to Investor Certificateholders shall be
published in an authorized newspaper of general circulation in Luxembourg within
the time period prescribed in this Agreement. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 13.6 Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity of
enforceability of the other provisions of this Agreement or of the Certificates
or rights of the Certificateholders thereof.
Section 13.7 Assignment. Notwithstanding anything to the contrary
----------
contained herein, except as provided in Section 8.2, this Agreement may not be
assigned by the Servicer without the prior consent of Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 66 2/3% of
the Investor Interest of each Series on a Series by Series basis.
107
Section 13.8 Certificates Non-Assessable and Fully Paid. It is the
------------------------------------------
intention of the parties to this Agreement that the Certificateholders shall not
be personally liable for obligations of the Trust, that the Undivided Interests
represented by the Certificates shall be non-assessable for any losses or
expenses of the Trust or for any reason whatsoever, and that Certificates upon
authentication thereof by the Trustee pursuant to Sections 2.1 and 6.2 are and
shall be deemed fully paid.
Section 13.9 Further Assurances. The Transferor and the Servicer
------------------
agree to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by the Trustee more
fully to effect the purposes of this Agreement, including, without limitation,
the execution of any financing statements or continuation statements relating to
the Receivables for filing under the provisions of the Uniform Commercial Code
of any applicable jurisdiction.
Section 13.10 No Waiver; Cumulative Remedies. No failure to exercise
------------------------------
and no delay in exercising, on the part of the Trustee, any Credit Enhancement
Provider or the Investor Certificateholders, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
Section 13.11 Counterparts. This Agreement may be executed in two or
------------
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
Section 13.12 Third-Party Beneficiaries. This Agreement will inure
-------------------------
to the benefit of and be binding upon the parties hereto, the Certificateholders
and, to the extent provided in the related Supplement, to the Credit Enhancement
Provider named therein, and their respective successors and permitted assigns.
Except as otherwise provided in this Article XIII, no other Person will have any
right or obligation hereunder.
Section 13.13 Actions by Certificateholders.
-----------------------------
(a) Wherever in this Agreement a provision is made that an action may
be taken or a notice, demand or instruction given by Investor
Certificateholders, such action, notice or instruction may be taken or given by
any Investor Certificateholder, unless such provision requires a specific
percentage of Investor Certificateholders.
108
(b) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder shall bind such Certificateholder and
every subsequent holder of such Certificate issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or omitted to be done by the Trustee or the Servicer in reliance
thereon, whether or not notation of such action is made upon such Certificate.
Section 13.14 Rule 144A Information. For so long as any of the
---------------------
Investor Certificates of any Series or any Class are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, each of the
Transferor, the Servicer, the Trustee and the Enhancement Provider for such
Series agree to cooperate with each other to provide to any Investor
Certificateholders of such Series or Class and to any prospective purchaser of
Certificates designated by such an Investor Certificateholder upon the request
of such Investor Certificateholder or prospective purchaser, any information
required to be provided to such holder or prospective purchaser to satisfy the
condition set forth in Rule 144A(d)(4) under the Securities Act.
Section 13.15 Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 13.16 Headings. The headings herein are for purposes of
--------
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
[End of Article XIII]
109
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
THE CHASE MANHATTAN BANK (USA),
Transferor on and after
June 1, 1996
By: /s/ Keith Schuck
-------------------------------------
Name: Keith Schuck
Title: VP
CHEMICAL BANK,
Transferor prior to
June 1, 1996 and Servicer
By: /s/ Richard L. Craig
------------------------------------
Name: Richard L. Craig
Title: Managing Director
THE BANK OF NEW YORK,
Trustee
By: /s/ Joseph G. Ernst
------------------------------------
Name: Joseph G. Ernst
Title: Assistant Vice President
EXHIBIT A
---------
TRANSFEROR CERTIFICATE
----------------------
No. 1 One Unit
CHEMICAL MASTER CREDIT CARD TRUST I
ASSET BACKED CERTIFICATE
THIS CERTIFICATE WAS ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT), AND MAY BE SOLD ONLY PURSUANT
TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE ACT OR AN EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE ACT. IN ADDITION, THE TRANSFER OF THIS
CERTIFICATE IS SUBJECT TO RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. A COPY OF THE POOLING AND SERVICING AGREEMENT
WILL BE FURNISHED TO THE HOLDER OF THIS CERTIFICATE BY THE TRUSTEE UPON WRITTEN
REQUEST.
This Certificate represents an
------------------------------
Undivided Interest in the
-------------------------
Chemical Master Credit Card Trust I
-----------------------------------
Evidencing an Undivided Interest in a trust, the corpus of which consists of a
portfolio of MasterCard and VISA* credit card receivables generated or
acquired by The Chase Manhattan Bank (USA) and other assets and interests
constituting the Trust under the Pooling and Servicing Agreement described
below.
(Not an interest in or an obligation of Chemical Bank or The Chase Manhattan
Bank (USA) or any Affiliate thereof.)
This certifies that The Chase Manhattan Bank (USA) (the "Holder") is
the registered owner of an undivided interest in a trust (the "Trust"), the
corpus of which consists of a portfolio of receivables (the "Receivables") now
existing or hereafter created under selected MasterCard and VISA credit card
accounts (the
- --------------
* MasterCard and VISA are registered trademarks of MasterCard International
Inc. and of VISA U.S.A., Inc., respectively.
"Accounts") of The Chase Manhattan Bank (USA) (the "Transferor"), a banking
corporation organized and existing under the laws of the State of Delaware, all
monies due or to become due in payment of the Receivables (including all Finance
Charge Receivables), all proceeds of such Receivables and Insurance Proceeds
relating to the Receivables, the other assets and interests constituting the
Trust and the proceeds thereof pursuant to an Amended and Restated Pooling and
Servicing Agreement dated as of June 1, 1996, as supplemented by any Supplement
relating to a Series of Investor Certificates (the "Pooling and Servicing
Agreement"), by and between Chemical Bank, as Transferor prior to June 1, 1996
and Servicer, The Chase Manhattan Bank (USA), as Transferor on and after June 1,
1996, and The Bank of New York, as Trustee (the "Trustee"), a summary of certain
of the pertinent provisions of which is set forth herein.
To the extent not defined herein, the capitalized terms used herein
have the meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Holder by virtue of the
acceptance hereof assents and by which the Holder is bound.
This Certificate has not been registered or qualified under the
Securities Act of 1933, as amended, or any state securities law. No sale,
transfer or other disposition of this Certificate shall be permitted other than
in accordance with the provisions of Section 6.3, 6.9 or 7.2 of the Pooling and
Servicing Agreement.
The Receivables consist of Principal Receivables which arise generally
from the purchase of goods and services and of amounts advanced to cardholders
as cash advances, and of Finance Charge Receivables which arise generally from
Periodic Finance Charges and other fees and charges, as more fully specified in
the Pooling and Servicing Agreement.
This Certificate is the Transferor Certificate (the "Certificate"),
which represents an Undivided Interest in the Trust, including the right to
receive the Collections and other amounts at the times and in the amounts
specified in the Pooling and Servicing Agreement
A-2
to be paid to the Holder of the Transferor Certificate. The aggregate interest
represented by this Certificate in the Principal Receivables in the Trust shall
not at any time exceed the Transferor Interest at such time. In addition to
this Certificate, Series of Investor Certificates will be issued to investors
pursuant to the Pooling and Servicing Agreement, each of which will represent an
Undivided Interest in the Trust. This Certificate shall not represent any
interest in the Investor Accounts, any Series Accounts or any Credit
Enhancement, except to the extent provided in the Pooling and Servicing
Agreement. The Transferor Interest on any date of determination will be an
amount equal to the aggregate amount of Principal Receivables and the principal
amounts on deposit in the Excess Funding Account, any Principal Funding Account
and any other Series Account (if so provided in the applicable Supplement) at
the end of the day immediately prior to such date of determination minus the
-----
Aggregate Investor Interest at the end of such day, minus the aggregate
-----
Enhancement Invested Amounts (if such amounts are not included in the Investor
Interest in the applicable Supplement), if any, for each Series outstanding at
the end of such day.
The Servicer shall deposit all Collections in the Collection Account
as promptly as possible after the Date of Processing of such Collections, but in
no event later than the second Business Day following such Date of Processing
(except as provided below and except as provided in any Supplement to the
Pooling and Servicing Agreement). Unless otherwise stated in any Supplement,
throughout the existence of the Trust, the Servicer shall allocate to the Holder
of the Certificate an amount equal to the product of (A) the Transferor
Percentage and (B) the aggregate amount of such Collections allocated to
Principal Receivables and Finance Charge Receivables, respectively, in respect
of each Monthly Period. Notwithstanding the first sentence of this paragraph,
the Servicer need not deposit this amount or any other amounts so allocated to
the Certificate pursuant to the Pooling and Servicing Agreement into the
Collection Account and shall pay, or be deemed to pay, such amounts as collected
to the Holder of the Certificate.
Chemical Bank, as Servicer, is entitled to receive as servicing
compensation a monthly servicing fee. The portion of the servicing fee which
will be
A-3
allocable to the Holder of the Certificate pursuant to the Pooling and Servicing
Agreement will be payable by the Holder of the Certificate and neither the Trust
nor the Trustee or the Investor Certificateholders will have any obligations to
pay such portion of the servicing fee.
This Certificate does not represent an obligation of, or any interest
in, the Transferor or the Servicer, and neither the Certificates nor the
Accounts or Receivables are insured or guaranteed by the Federal Deposit
Insurance Corporation or any other governmental agency. This Certificate is
limited in right of payment to certain Collections respecting the Receivables,
all as more specifically set forth hereinabove and in the Pooling and Servicing
Agreement.
Upon the termination of the Trust pursuant to Section 12.1 of the
Pooling and Servicing Agreement, the Trustee shall assign and convey to the
Holder of the Certificate (without recourse, representation or warranty) all
right, title and interest of the Trust in the Receivables, whether then existing
or thereafter created, all monies due or to become due with respect thereto
(including all accrued interest theretofore posted as Finance Charge
Receivables) and all proceeds thereof and Insurance Proceeds relating thereto
and Interchange allocable to the Trust pursuant to any Supplement, except for
amounts held by the Trustee pursuant to Section 12.3(b) of the Pooling and
Servicing Agreement. The Trustee shall execute and deliver such instruments of
transfer and assignment, in each case without recourse, as shall be reasonably
requested by the Holder of the Certificate to vest in such Holder all right,
title and interest which the Trustee had in the Receivables.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement, or be valid
for any purpose.
A-4
IN WITNESS WHEREOF, The Chase Manhattan Bank(USA) has caused this
Certificate to be duly executed under its official seal.
THE CHASE MANHATTAN BANK (USA)
By:_______________________
Authorized Officer
Date:
A-5
Trustee's Certificate of Authentication
---------------------------------------
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is the Transferor Certificate referred to in
the within-mentioned Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:______________________
Authorized Officer
A-6
EXHIBIT B
---------
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
- --------------------------------------------------------
ASSIGNMENT No. _____ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, dated as
___________ __, by and between The Chase Manhattan Bank (USA), a banking
corporation organized and existing under the laws of the State of Delaware
("Chase USA"), to The Bank of New York, a banking corporation organized and
existing under the laws of the State of New York (the "Trustee") pursuant to the
Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Chase USA, Chemical Bank and the Trustee are parties to the
Amended and Restated Pooling and Servicing Agreement, dated as of June 1, 1996
(hereinafter as such agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, Chase USA
wishes to designate Additional Accounts of Chase USA to be included as Accounts
and to convey the Receivables of such Additional Accounts, whether now existing
or hereafter created, to the Trust as part of the corpus of the Trust (as each
such term is defined in the Pooling and Servicing Agreement); and
WHEREAS, the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, Chase USA and the Trustee hereby agree as follows:
1. Defined Terms. All terms defined in the Pooling and
-------------
Servicing Agreement and used herein shall have such defined meanings when
used herein, unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional
-------------
Accounts designated hereby, ___________, ____.
B-1
"Notice Date" shall mean, with respect to the Additional Accounts
-----------
designated hereby, __________, ____ (which shall be a date on or prior to
the fifth Business Day prior to the Addition Date with respect to additions
pursuant to subsection 2.6(a) of the Pooling and Servicing Agreement and
the tenth Business Day prior to the Addition Date with respect to additions
pursuant to subsection 2.6(b) of the Pooling and Servicing Agreement).
2. Designation of Additional Accounts. Chase USA shall deliver
----------------------------------
to the Trustee not later than five Business Days after the Addition Date, a
computer file or microfiche list containing a true and complete list of
each MasterCard and VISA account which as of the Addition Date shall be
deemed to be an Additional Account, such accounts being identified by
account number and by the amount of Receivables in such accounts as of the
close of business on the Addition Date. Such list shall be delivered five
Business Days after the date of this Agreement and shall be marked as
Schedule 1 to this Assignment and, as of the Addition Date, shall be
incorporated into and made a part of this Assignment.
3. Conveyance of Receivables.
-------------------------
(a) Chase USA does hereby transfer, assign, set-over and
otherwise convey to the Trust for the benefit of the Certificateholders,
without recourse on and after the Addition Date, all right, title and
interest of Chase USA in and to the Receivables now existing and hereafter
created in the Additional Accounts designated hereby, all monies due or to
become due with respect thereto (including all Finance Charge Receivables)
and all proceeds of such Receivables, Insurance Proceeds relating to such
Receivables and the proceeds thereof.
(b) In connection with such transfer, Chase USA agrees to record
and file, at its own expense, a financing statement with respect to the
Receivables now existing and hereafter created in the Additional Accounts
designated hereby (which may be a single financing statement with respect
to all such Receivables) for the transfer of accounts as defined in Section
9-106 of the UCC as in effect in the State of New York meeting
B-2
the requirements of applicable state law in such manner and such
jurisdictions as are necessary to perfect the assignment of such
Receivables to the Trust, and to deliver a file-stamped copy of such
financing statement or other evidence of such filing (which may, for
purposes of this Section 3, consist of telephone confirmation of such
filing) to the Trustee on or prior to the date of this Agreement.
(c) In connection with such transfer, Chase USA further agrees,
at its own expense, on or prior to the date of this Assignment to indicate
in its computer files that Receivables created in connection with the
Additional Accounts designated hereby have been transferred to the Trust
pursuant to this Assignment for the benefit of the Certificateholders.
4. Acceptance by Trustee. The Trustee hereby acknowledges its
---------------------
acceptance on behalf of the Trust for the benefit of the Certificateholders
of all right, title and interest previously held by Chase USA in and to the
Receivables now existing and hereafter created, and declares that it shall
maintain such right, title and interest, upon the Trust herein set forth,
for the benefit of all Certificateholders.
5. Representations and Warranties of Chase USA. Chase USA
-------------------------------------------
hereby represents and warrants to the Trust as of the Addition Date:
(a) Legal, Valid and Binding Obligation. This Assignment
-----------------------------------
constitutes a legal, valid and binding obligation of Chase USA
enforceable against Chase USA in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
general and the rights of creditors of [banking associations] and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity).
B-3
(b) Eligibility of Accounts and Receivables. Each Additional
---------------------------------------
Account designated hereby is an Eligible Account and each Receivable
in such Additional Account is an Eligible Receivable.
(c) Selection Procedures. No selection procedures believed by
--------------------
Chase USA to be materially adverse to the interests of the Investor
Certificateholders were utilized in selecting the Additional Accounts
designated hereby from the available Eligible Accounts in the Bank
Portfolio.
(d) Insolvency. Chase USA is not insolvent and, after giving
----------
effect to the conveyance set forth in Section 3 of this Assignment,
will not be insolvent.
(e) Security Interest. This Assignment constitutes either: (i)
-----------------
a valid transfer and assignment to the Trust of all right, title and
interest of Chase USA in and to Receivables now existing and hereafter
created in the Additional Accounts designated hereby, and all proceeds
(as defined in the UCC as in effect in the State of New York) of such
Receivables and Insurance Proceeds relating thereto, and such
Receivables and any proceeds thereof and Insurance Proceeds relating
thereto will be held by the Trust free and clear of any Lien of any
Person claiming through or under Chase USA or any of its Affiliates
except for (x) Liens permitted under subsection 2.5(b) of the Pooling
and Servicing Agreement, (y) the interest of the holder of the
Transferor Certificate and (z) Chase USA's right to receive interest
accruing on, and investment earnings in respect of, the Finance Charge
Account and the Principal Account as provided in the Pooling and
Servicing Agreement; or (ii) a grant of a security interest (as
defined in the UCC as in effect in the State of New York) in such
property to the Trust, which is enforceable with respect to existing
Receivables of the Additional Accounts, the proceeds (as defined in
the UCC as in effect in the State of New York) thereof and Insurance
Proceeds relating thereto, upon the conveyance of such Receivables to
the Trust, and which will be enforceable with respect to the
Receivables thereafter created in respect of Addi-
B-4
tional Accounts designated hereby, the proceeds (as defined in the UCC
as in effect in the State of New York) thereof and Insurance Proceeds
relating thereto, upon such creation; and (iii) if this Assignment
constitutes the grant of a security interest to the Trust in such
property, upon the filing of a financing statement described in
Section 3 of this Assignment with respect to the Additional Accounts
designated hereby and in the case of the Receivables of such
Additional Accounts thereafter created and the proceeds (as defined in
the UCC as in effect in the State of New York) thereof, and Insurance
Proceeds relating to such Receivables, upon such creation, the Trust
shall have a first priority perfected security interest in such
property (subject to Section 9-306 of the UCC as in effect in the
State of New York), except for Liens permitted under subsection 2.5(b)
of the Pooling and Servicing Agreement.
6. Conditions Precedent. The acceptance by the Trustee set
--------------------
forth in Section 4 and the amendment of the Pooling and Servicing Agreement
set forth in Section 7 are subject to the satisfaction, on or prior to the
Addition Date, of the following conditions precedent:
(a) Officer's Certificate. Chase USA shall have delivered
---------------------
to the Trustee a certificate of a Vice President or more senior
officer substantially in the form of Schedule 2 hereto, certifying
that (i) all requirements set forth in Section 2.6 of the Pooling and
Servicing Agreement for designating Additional Accounts and conveying
the Principal Receivables of such Account, whether now existing or
hereafter created, have been satisfied and (ii) each of the
representations and warranties made by Chase USA in Section 5 is true
and correct as of the Addition Date. The Trustee may conclusively
rely on such Officer's Certificate, shall have no duty to make
inquiries with regard to the matters set forth therein, and shall
incur no liability in so relying.
(b) Opinion of Counsel. Chase USA shall have delivered to
------------------
the Trustee an Opinion of Counsel with respect to the Additional
Accounts
B-5
designated hereby substantially in the form of Exhibit E to the
Pooling and Servicing Agreement.
(c) Additional Information. Chase USA shall have delivered
----------------------
to the Trustee such information as was reasonably requested by the
Trustee to satisfy itself as to the accuracy of the representation and
warranty set forth in subsection 5(d) to this Agreement.
7. Amendment of the Pooling and Servicing Agreement. The
------------------------------------------------
Pooling and Servicing Agreement is hereby amended to provide that all
references therein to the "Pooling and Servicing Agreement," to "this
Agreement" and "herein" shall be deemed from and after the Addition Date to
be a dual reference to the Pooling and Servicing Agreement as supplemented
by this Assignment. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions to the Pooling
and Servicing Agreement shall remain unamended and shall continue to be,
and shall remain, in full force and effect in accordance with its terms and
except as expressly provided herein shall not constitute or be deemed to
constitute a waiver of compliance with or a consent to noncompliance with
any term or provisions of the Pooling and Servicing Agreement.
8. Counterparts. This Assignment may be executed in two or more
------------
counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one
and the same instrument.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, AND
WITHOUT, LIMITING THE GENERALITY OF THE FOREGOING, THE IMMUNITY AND
STANDARD OF CARE OF THE TRUSTEE IN THE ADMINISTRATION OF THE TRUST
HEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
B-6
IN WITNESS WHEREOF, the undersigned have caused this Assignment of
Receivables in Additional Accounts to be duly executed and delivered by their
respective duly authorized officers on the day and year first above written.
THE CHASE MANHATTAN BANK (USA)
By:________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:________________________
Name:
Title:
B-7
Schedule 1
to Assignment of
Receivables in
Additional Accounts
-------------------
ADDITIONAL ACCOUNTS
-------------------
B-8
Schedule 2
to Assignment of
Receivables in
Additional Accounts
-------------------
The Chase Manhattan Bank (USA)
Chemical Master Credit Card Trust I
Officer's Certificate
__________________________, a duly authorized officer of The Chase
Manhattan Bank (USA), a banking corporation organized and existing under the
laws of the State of Delaware, ("Chase USA"), hereby certifies and acknowledges
on behalf of Chase USA that to the best of his knowledge the following
statements are true on ____________, ____, (the "Addition Date"), and
acknowledges on behalf of Chase USA that this Officer's Certificate will be
relied upon by The Bank of New York, as Trustee (the "Trustee") of the Chemical
Master Credit Card Trust I in connection with the Trustee entering into
Assignment No. ______ of Receivables in Additional Accounts, dated as of the
Addition Date (the "Assignment"), by and between Chase USA and the Trustee, in
connection with the Amended and Restated Pooling and Servicing Agreement, dated
as of June 1, 1996, as heretofore supplemented and amended (the "Pooling and
Servicing Agreement") pursuant to which Chemical, as Transferor prior to June 1,
1996 and Servicer, Chase USA as Transferor on and after June 1, 1996 and the
Trustee are parties. The undersigned hereby certifies and acknowledges on
behalf of Chase USA that:
(a) on or prior to the Addition Date, Chase USA has delivered to the
Trustee the Assignment (including an acceptance by the Trustee on behalf of the
Trust for the benefit of the Investor Certificateholders) and Chase USA has
indicated in its computer files that the Receivables created in connection with
the Additional Accounts have been transferred to the Trust and within five
Business Days after the Addition Date Chase USA shall deliver to the Trustee a
computer file or microfiche list containing a true and complete list of all
Additional Accounts identified by account number and the aggregate amount of the
Receivables in such Additional Accounts as of the Addition Date, which computer
file or microfiche list shall be as of the date of such Assignment, incorporated
into and made a part of such Assignment and the Pooling and Servicing Agreement.
B-9
(b) Legal, Valid and Binding Obligation. The Assignment constitutes
-----------------------------------
a legal, valid and binding obligation of Chase USA, enforceable against Chase
USA in accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of creditors'
rights in general and the rights of creditors of (banking associations) and
except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(c) Eligibility Of Accounts. Each Additional Account designated
-----------------------
pursuant to the Assignment is an Eligible Account and each Receivable in such
Additional Account is an Eligible Receivable.
(d) Selection Procedures. No selection procedures believed by Chase
--------------------
USA to be materially adverse to the interests of the Investor Certificateholders
were utilized in selecting the Additional Accounts designated hereby from the
available Eligible Accounts in the Bank Portfolio.
(e) Insolvency. Chase USA is not insolvent and, after giving effect
----------
to the conveyance set forth in Section 3 of the Assignment, will not be
insolvent.
(f) Security Interest. The Assignment constitutes either: (i) a
-----------------
valid transfer and assignment to the Trust of all right, title and interest of
Chase USA in and to Receivables now existing and hereafter created in the
Additional Accounts designated pursuant to the Assignment, and all proceeds (as
defined in the UCC as in effect in the State of New York) of such Receivables
and Insurance Proceeds relating thereto, and such Receivables and any proceeds
thereof and Insurance Proceeds relating thereto will be held by the Trust free
and clear of any Lien of any Person claiming through or under the Transferor or
any of its Affiliates except for (x) Liens permitted under subsection 2.5(b) of
the Pooling and Servicing Agreement, (y) the interest of Chase USA as holder of
the Transferor Certificate and (z) Chase USA's right to receive interest
accruing on, and investment earnings in respect of, the Finance Charge Account
and the Principal Account as provided in the Pooling and Servicing Agreement and
any Supplement; or (ii) a grant of a security interest (as defined in the UCC as
in effect in the State of New York) in such property to the
B-10
Trust, which is enforceable with respect to the existing Receivables of the
Additional Accounts designated pursuant to the Assignment, the proceeds (as
defined in the UCC as in effect in the State of New York) thereof and Insurance
Proceeds relating thereto upon the conveyance of such Receivables to the Trust,
and which will be enforceable with respect to the Receivables thereafter created
in respect of Additional Accounts designated pursuant to the Assignment, the
proceeds (as defined in the UCC as in effect in the State of New York) thereof
and Insurance Proceeds relating thereto, upon such creation; and (iii) if the
Assignment constitutes the grant of a security interest to the Trust in such
property, upon the filing of a financing statement described in Section 3 of the
Assignment with respect to the Additional Accounts designated pursuant to the
Assignment and in the case of the Receivables of such Additional Accounts
thereafter created and the proceeds (as defined in the UCC as in effect in the
State of New York) thereof, and Insurance Proceeds relating to such Receivables,
upon such creation, the Trust shall have a first priority perfected security
interest in such property (subject to Section 9-306 of the UCC as in effect in
the State of New York), except for Liens permitted under subsection 2.5(b) of
the Pooling and Servicing Agreement.
(g) Requirements of Pooling and Servicing Agreement. All
-----------------------------------------------
requirements set forth in Section 2.6 of the Pooling and Servicing Agreement for
designating Additional Accounts and conveying the Principal Receivables of such
Accounts, whether now existing or hereafter created, have been satisfied.
B-11
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day
of___________, ____.
THE CHASE MANHATTAN BANK
(USA)
By:________________________
Name:
Title:
B-12
EXHIBIT C
---------
FORM OF MONTHLY SERVICER'S CERTIFICATE
--------------------------------------
Chemical Bank
________________________________________
CHEMICAL MASTER CREDIT CARD TRUST I
________________________________________
1. Capitalized terms used in this Certificate have their respective
meanings set forth in the Pooling and Servicing Agreement; provided, that the
--------
"preceding Monthly Period" shall mean the Monthly Period immediately preceding
the calendar month in which this Certificate is delivered. This Certificate is
delivered pursuant to subsection 3.4(b) of the Pooling and Servicing Agreement.
References herein to certain sections and subsections are references to the
respective sections and subsections of the Pooling and Servicing Agreement.
2. Chemical is Servicer under the Pooling and Servicing Agreement.
3. The undersigned is a Servicing Officer.
4. The date of this Certificate is a Determination Date under the
Pooling and Servicing.
5. The aggregate amount of
Collections processed
during the preceding
Monthly Period was equal
to (excluding Annual $_________
Membership Fees and
Interchange)...............
6. The Aggregate Investor
Percentage of Receivables
processed by the Servicer
during the preceding
Monthly Period was equal to $_________
7. The Aggregate Investor
Percentage of Collections
of Finance Charge
Receivables processed by
the Servicer during the
preceding Monthly Period
was equal to (excluding
Annual Membership Fees and
Interchange)............... $_________
8. The aggregate amount of
Receivables processed by
the Servicer as of the end
of the last day of the
preceding Monthly Period... $_________
9. Of the balance on deposit in
the Finance Charge Account, the
amount attributable to the
Aggregate Investor Percentage of
Collections processed by the
Servicer during the preceding
Monthly Period...............$_________
10. Of the balance on deposit in
the Principal Account, the amount
attributable to the Aggregate
Investor Percentage of
Collections processed by the
Servicer during the preceding
Monthly Period.............. $_________
11. The aggregate amount, if any,
of withdrawals, drawings or
payments under any Credit
Enhancement, if any, required to
be made with respect to any
Series outstanding for the
preceding Monthly Period..... $_________
12. The Aggregate Investor
Percentage of Collections
of Principal Receivables
processed by the Servicer
during the current month
is equal to................ $_________
C-2
13. The amount equal to the
Aggregate Investor Percentage of
Annual Membership Fees deposited
to the Finance Charge Account or
any Series Account on or before
the Transfer Date during the
current month is equal to..... $_________
14. The aggregate amount
of Interchange to be
deposited in the Finance
Charge Account on the
Transfer Date of the
current month is equal to.. $_________
15. The aggregate amount
of all sums payable to the
Investor Certificateholder
of each Series on the
succeeding Distribution
Date with respect to
Certificate Principal...... $_________
16. The aggregate amount
of all sums payable to the
Investor Certificateholder
of each Series on the
succeeding Distribution
Date with respect to
Certificate Interest....... $_________
17. To the knowledge of the undersigned, there are no Liens on any
Receivables in the Trust except as described below:
[If applicable, insert "None."]
C-3
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this certificate this ____ day of __________, ____.
CHEMICAL BANK,
Servicer
By:________________________
Name:
Title:
C-4
Schedule to Monthly
Servicer's Certificate*
----------------------
Chemical Bank
________________________________________
CHEMICAL MASTER CREDIT CARD TRUST I
________________________________________
* A separate schedule is to be attached for each Series, with appropriate
changes and additions to reflect the specifics of the related Series
Supplement.
C-5
EXHIBIT D
---------
FORM OF ANNUAL SERVICER'S CERTIFICATE
-------------------------------------
Chemical Bank
-------------------------------------
CHEMICAL MASTER CREDIT CARD TRUST I
-------------------------------------
The undersigned, a duly authorized representative of CHEMICAL BANK, a
banking corporation organized and existing under the laws of the State of New
York ("Chemical"), as Servicer pursuant to the Amended and Restated Pooling and
Servicing Agreement dated as of June 1, 1996 (the "Pooling and Servicing
Agreement") by and among Chemical, The Chase Manhattan Bank (USA) and The Bank
of New York, as trustee (the "Trustee") does hereby certify that:
1. Chemical is Servicer under the Pooling and Servicing
Agreement.
2. The undersigned is duly authorized pursuant to the Pooling
and Servicing Agreement to execute and deliver this Certificate to the
Trustee.
3. This Certificate is delivered pursuant to Section 3.5 of the
Pooling and Servicing Agreement.
4. A review of the activities of the Servicer during [the period
from the Closing date until December 31, 1996] or [the twelve-month period
ended December 31, ___] was conducted under the supervision of the
undersigned.
5. Based on such review, the Servicer has, to the best of the
knowledge of the undersigned, fully performed all its obligations under the
Pooling and Servicing Agreement throughout such period and no default in
the performance of such obligations has occurred or is continuing except as
set forth in paragraph 6 below.
6. The following is a description of each default in the
performance of the Servicer's obliga-
tions under the provisions of the Pooling and Servicing Agreement,
including any Supplement, known to the undersigned to have been made during
such period which sets forth in detail (i) the nature of each such default,
(ii) the action taken by the Servicer, if any, to remedy each such default
and (iii) the current status of each such default:
[If applicable, insert "None."]
IN WITNESS WHEREOF, the undersigned has duly executed this certificate
this ____ day of ____________, ____.
By: ____________________________
Name:
Title: Vice President
D-2
EXHIBIT E
---------
FORM OF OPINION OF COUNSEL REGARDING ADDITIONAL ACCOUNTS
--------------------------------------------------------
PROVISIONS TO BE INCLUDED IN OPINION OF COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 2.6(c)(vi)
OF THE POOLING AND SERVICING AGREEMENT
--------------------------------------
The opinions set forth below may be subject to certain qualifications,
assumptions, limitations and exceptions taken or made in the opinion of
Transferor's counsel with respect to similar matters delivered on the Closing
Date.
The Assignment has been duly authorized, executed and delivered by the
Transferor and constitutes the legal, valid and binding agreement of the
Transferor, enforceable against the Transferor in accordance with its terms
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, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
If the transfer of the Receivables in the Additional Accounts
designated in the Assignment to the Trust pursuant to the Pooling and Servicing
Agreement constitutes a true sale of such Receivables to the Trust:
With respect to such Receivables in existence on the date
hereof, such sale transfers all of the right, title and interest of
the Transferor in and to such Receivables and the proceeds thereof to
the Trust, free and clear of any liens now existing (other than
existing liens as to which a filing under the Code is not required to
perfect such liens) or hereafter created but subject to the rights of
the Transferor as holder of the Transferor Certificate.
With respect to such Receivables which come into existence
after the date hereof, upon the creation of such Receivables, such
sale will
transfer all of the right, title and interest of the Transferor in and
to such Receivables and the proceeds thereof to the Trust free and
clear of any liens other than liens which are in existence on the date
of such transfer ("Intervening Liens") but subject to the rights of
the Transferor as holder of the Transferor Certificate. Any such
Intervening Liens would be subject to the prior perfected security
interest in favor of the Trustee as set forth in paragraph 3 below.
In either case, no further action will thereafter be required under New
York or federal law to protect the Trust's ownership interest in such
Receivables against creditors of, or subsequent purchasers from, the
Transferor. We note, however, that unless the obligor in respect of a
Receivable has received notice of such assignment, bona fide payments made
by such obligor to a second assignee of such Receivable will discharge such
obligor's obligations to the extent of such payment, and such payment will
be recoverable only from such second assignee.
If the transfer of the Receivables to the Trust pursuant to the
Pooling and Servicing Agreement as supplemented by the Assignment does not
constitute a true sale of such Receivables to the Trust, then the Pooling and
Servicing Agreement creates a valid security interest in favor of the Trustee,
for the benefit of the Investor Certificateholders in the Transferor's right,
title and interest in and to such Receivables and the proceeds thereof. If the
transfer of such Receivables to the Trust constitutes a true sale of such
Receivables to the Trust but such sale is not effective as of such date to
convey Receivables not existing on such date, the Pooling and Servicing
Agreement as supplemented by the Assignment creates a valid security interest in
favor of the Trustee, for the benefit of the Investor Certificateholders, in the
Transferor's interest in such Receivables and the proceeds thereof to the extent
such interest is not so conveyed to the Trust. In either event, such security
interest constitutes a perfected security interest in such Receivables subject
to no prior or equal liens, enforceable as such against creditors of, and
purchasers from, the Transferor and the FDIC as conservator or receiver for the
Transferor, except:
(i) as enforceability may be subject to (A) the
E-2
right of the FDIC, as receiver for the Transferor, to enforce the
Pooling and Servicing Agreement, notwithstanding any provision thereof
providing for termination, default, acceleration, or exercise of
rights upon, or solely by reason of, insolvency or the appointment of
a conservator or receiver, (B) the FDIC's authority, as receiver for
the Transferor, to transfer any asset or liability of the Transferor
to another depository institution, (C) the statutory prohibition on
any attachment or execution being issued by any court upon assets in
the possession of the FDIC as receiver for the Transferor, (D) the
right of the FDIC to obtain a stay, for a period not to exceed 90
days, in any judicial action or proceeding to which the Transferor is
a party and (E) the right of the FDIC, as receiver for the Transferor,
to require a secured party to establish its right to payments by
submitting to and completing the claims procedure established by the
Financial Institutions Reform, Recovery and Enforcement Act of 1989;
(ii) as perfection may be limited (A) with respect to any such
Receivables which are evidenced by instruments (as defined in Section
9-105(l)(i) of the Code) which are not in the possession of the
Trustee; and (B) in the case of proceeds, by Section 9-306 of the
Code; and
(iii) as priority may be subject to (A) any liens, claims or other
interests that arise by operation of law and do not require any filing
or similar action in order to take priority over a perfected security
interest; (B) any claim or lien in favor of the United States, any
state or any agency or instrumentality thereof (including, without
limitation, liens arising under the federal, state or local tax laws
or under the Employee Retirement Income Security Act of 1974, as
amended); (C) the security interest of any Person claiming any portion
of the collateral as proceeds (other than Receivables in which the
Trustee has a prior lien) of such Person's security interest or (D)
the security interest of any Person previously perfected without
filing or the taking of possession pursuant to Section 9-304(4) of the
UCC; (E) liens
E-3
under Section 4-208 of the Code (relating to the security interest of
a collecting bank); (F) with respect to any Receivables represented by
chattel paper (and proceeds thereof), the interest of a purchaser of
such chattel paper under Section 9-308 of the Code; and (G) a claim by
the FDIC or any other receiver or conservator of the Transferor for
administrative expenses. Such perfection and priority of the security
interest of the Trustee for the benefit of the Investor
Certificateholders would not be affected by an increase or a decrease
in the relative interests in the Receivables of the Transferor as
holder of the Transferor Certificate and the Investor
Certificateholders.
In addition, in connection with the opinions set forth in paragraph 2
and this paragraph 3, no opinion is expressed herein with respect to Receivables
or the proceeds thereof other than the Receivables in the Additional Accounts
designated by the Assignment and the proceeds thereof. No opinion is expressed
herein with respect to the perfection, priority or enforceability of the Trust's
interest in proceeds of the Receivables except to the extent such proceeds
consist of either (1) identifiable cash proceeds held in the Collection Account
maintained by a Eligible Institution in the name of the Trust in accordance with
the terms of the Pooling and Servicing Agreement and the Supplements or (2)
Permitted Investments held by or on behalf of the Trustee in accordance with the
terms of the Pooling and Servicing Agreement and the Supplements. We do not
express any opinion herein: (i) as to the creation, validity or enforceability
of any interest of the Transferor in the Receivables or the proceeds thereof,
(ii) as to the Transferor's title to any of the Receivables or the proceeds
thereof, (iii) as to whether the transfer of the Receivables constitutes a true
sale or a grant of a security interest, (iv) as to whether the purported sale of
all Receivables now existing and hereafter created is effective to convey as a
true sale to the Trust, as of the purported date of sale, Receivables which do
not exist as of such date of sale, or as to whether Receivables hereafter
created in an Account are deemed to exist as of the date hereof or (v) as to
whether a court may temporarily restrain the exercise of the Trust's rights to
the Receivables and the proceeds thereof. Further, we point out that delays in
the exercise of the rights and interests of the Trust may occur with respect to
E-4
the Receivables and their proceeds in the possession of a receiver or
conservator, regardless of whether the transaction constitutes a true sale or a
secured transaction, by actions unilaterally taken by such receiver or
conservator.
With respect to the opinions expressed in paragraphs 2 and 3, we note
that pursuant to Section 2.1 of the Pooling and Servicing Agreement, the
Transferor has filed the Financing Statements with the Office of the Secretary
of State of the State of New York and the City Register in the County of New
York. In expressing the opinions set forth herein, we have assumed that in the
event that a change in the Transferor's name, identity or corporate structure
makes the Financing Statements seriously misleading within the meaning of
Section 9-402(7) of the New York Uniform Commercial Code (the "Code"), or the
Transferor moves the location of its executive office outside the State of New
York, the Transferor will file such financing statements or amendments as may be
necessary to continue the perfection of the Trust's interest in the Receivables
and the proceeds thereof as required by Section 13.2 of the Pooling and
Servicing Agreement within the time specified in Section 9-402(7) of the Code or
Section 9-103(3)(e) of the Code, as the case may be.
In expressing the opinions set forth herein, we have relied, without
independent investigation, upon reports received from the Office of the
Secretary of State of the State of New York and the City Register in the County
of New York with respect to financing statements and related filings and with
respect to certain notices of federal government liens, New York State
government tax liens, certain attachment liens and judgment liens with respect
to the Transferor on file with such offices. The effective dates of the latest
of such reports are set forth in Schedule A attached hereto (the "UCC Report
Schedule"). [In addition, with respect to the items identified on Schedule B
attached hereto, we have relied without independent investigation, on a
certificate of an officer of the Transferor attached hereto to the effect that
such items do not represent a lien or security interest on the Receivables.]
[We have assumed that no such filings or notices were made with respect to the
Transferor between the effective time of such reports and the time of the filing
of the Financing Statements. We note that the Transferor has delivered to us a
certificate to the effect of the preceding sentence.] In the Pooling and
Servicing Agreement, the Transferor represents and
E-5
warrants that it has good and marketable title to the Receivables free and clear
of all Liens, and we note that the Transferor has delivered to us a certificate
to such effect.
In addition, we call to your attention the fact that if the FDIC were
appointed receiver for the Transferor, the FDIC could repudiate any contract it
determined to be burdensome and the repudiation of which it determined would
promote the orderly administration of the Transferor's affairs. 12 U.S.C. (S)
1821(e)(1), (2). However, Section 1821 provides that the FDIC's power as
receiver to repudiate contracts is not to be construed to permit the avoidance
of a properly perfected security interest except where such an interest is taken
in contemplation of insolvency or with the intent to hinder, delay, or defraud
the institution or the creditors of the institution. 12 U.S.C. (S) 1821(e)(11).
We have relied, without independent verification, upon on a certificate of an
officer of the Transferor (attached hereto as Annex I), to the effect that (i)
the Transferor was not as of the date of transfer of the Receivables, insolvent
or on the verge of insolvency and was not rendered insolvent or on the verge of
insolvency by reason thereof, (ii) the transfer was not made in contemplation of
insolvency and (iii) the transfer was made in good faith and without the intent
to hinder, delay or defraud any of the Transferor's creditors. In reliance upon
the certificate of the Transferor referred to above, we are of the opinion that
the transfer of, or the grant of a security interest in, the Receivables to the
Trust would not be subject to repudiation by the FDIC.
E-6
EXHIBIT F
---------
FORM OF ANNUAL OPINION OF COUNSEL
---------------------------------
The opinions set forth below, which are to be delivered pursuant to
subsection 13.2(d)(ii) of the Pooling and Servicing Agreement, may be subject to
certain qualifications, assumptions, limitations and exceptions taken or made in
the opinion of counsel to the Transferor with respect to similar matters
delivered on the Closing Date.
1. If the transfer of the Receivables to the Trust pursuant to the
Pooling and Servicing Agreement constitutes a true sale of such Receivables to
the Trust:
a. With respect to such Receivables in existence on the date
hereof, such sale transfers all of the right, title and interest of
the Transferor in and to such Receivables and the proceeds thereof to
the Trust, free and clear of any liens now existing (other than
existing liens as to which a filing under the Code is not required to
perfect such liens) or hereafter created but subject to the rights of
the Transferor as holder of the Transferor Certificate.
b. With respect to such Receivables which come into existence
after the date hereof, upon the creation of such Receivables, such
sale will transfer all of the right, title and interest of the
Transferor in and to such Receivables and the proceeds thereof to the
Trust free and clear of any liens other than liens which are in
existence on the date of such transfer ("Intervening Liens") but
subject to the rights of the Transferor as holder of the Transferor
Certificate. Any such Intervening Liens would be subject to the prior
perfected security interest in favor of the Trustee as set forth in
paragraph 3 below.
In either case, no further action will thereafter be required under New
York or federal law to protect the Trust's ownership interest in such
Receivables against creditors of, or subsequent purchasers from, the
Transferor. We note, however, that unless the obligor in
respect of a Receivable has received notice of such assignment, bona fide
payments made by such obligor to a second assignee of such Receivable will
discharge such obligor's obligations to the extent of such payment, and
such payment will be recoverable only from such second assignee.
2. If the transfer of the Receivables to the Trust pursuant to the
Pooling and Servicing Agreement does not constitute a true sale of such
Receivables to the Trust, then the Pooling and Servicing Agreement creates a
valid security interest in favor of the Trustee, for the benefit of the Investor
Certificateholders in the Transferor's right, title and interest in and to such
Receivables and the proceeds thereof. If the transfer of such Receivables to
the Trust constitutes a true sale of such Receivables to the Trust but such sale
is not effective as of such date to convey Receivables not existing on such
date, the Pooling and Servicing Agreement creates a valid security interest in
favor of the Trustee, for the benefit of the Investor Certificateholders, in the
Transferor's interest in such Receivables and the proceeds thereof to the extent
such interest is not so conveyed to the Trust. In either event, such security
interest constitutes a perfected security interest in such Receivables subject
to no prior or equal liens, enforceable as such against creditors of, and
purchasers from, the Transferor and the FDIC as conservator or receiver for the
Transferor, except:
(i) as enforceability may be subject to (A) the right of the FDIC, as
receiver for the Transferor, to enforce the Pooling and Servicing
Agreement, notwithstanding any provision thereof providing for
termination, default, acceleration, or exercise of rights upon, or
solely by reason of, insolvency or the appointment of a conservator or
receiver, (B) the FDIC's authority, as receiver for the Transferor, to
transfer any asset or liability of the Transferor to another
depository institution, (C) the statutory prohibition on any
attachment or execution being issued by any court upon assets in the
possession of the FDIC as receiver for the Transferor, (D) the right
of the FDIC to obtain a stay, for a period not to exceed 90 days, in
any judicial action or proceeding to which the Transferor is a party
and (E) the right of the FDIC, as receiver for the Transferor, to
F-2
require a secured party to establish its right to payments by
submitting to and completing the claims procedure established by the
Financial Institutions Reform, Recovery and Enforcement Act of 1989;
(ii) as perfection may be limited (A) with respect to any such
Receivables which are evidenced by instruments (as defined in Section
9-105(l)(i) of the Code) which are not in the possession of the
Trustee; and (B) in the case of proceeds, by Section 9-306 of the
Code; and
(iii) as priority may be subject to (A) any liens, claims or other
interests that arise by operation of law and do not require any filing
or similar action in order to take priority over a perfected security
interest; (B) any claim or lien in favor of the United States, any
state or any agency or instrumentality thereof (including, without
limitation, liens arising under the federal, state or local tax laws
or under the Employee Retirement Income Security Act of 1974, as
amended); (C) the security interest of any Person claiming any portion
of the collateral as proceeds (other than Receivables in which the
Trustee has a prior lien) of such Person's security interest or (D)
the security interest of any Person previously perfected without
filing or the taking of possession pursuant to Section 9-304(4) of the
UCC; (E) liens under Section 4-208 of the Code (relating to the
security interest of a collecting bank); (F) with respect to any
Receivables represented by chattel paper (and proceeds thereof), the
interest of a purchaser of such chattel paper under Section 9-308 of
the Code; and (G) a claim by the FDIC or any other receiver or
conservator of the Transferor for administrative expenses. Such
perfection and priority of the security interest of the Trustee for
the benefit of the Investor Certificateholders would not be affected
by an increase or a decrease in the relative interests in the
Receivables of the Transferor as holder of the Transferor Certificate
and the Investor Certificateholders.
In addition, in connection with the opinions set
F-3
forth in paragraph 1 and this paragraph 2, no opinion is expressed herein with
respect to Receivables or the proceeds thereof other than the Receivables in the
Additional Accounts designated by the Assignment and the proceeds thereof. No
opinion is expressed herein with respect to the perfection, priority or
enforceability of the Trust's interest in proceeds of the Receivables except to
the extent such proceeds consist of either (1) identifiable cash proceeds held
in the Collection Account maintained by a Eligible Institution in the name of
the Trust in accordance with the terms of the Pooling and Servicing Agreement
and the Supplements or (2) Permitted Investments held by or on behalf of the
Trustee in accordance with the terms of the Pooling and Servicing Agreement and
the Supplements. We do not express any opinion herein: (i) as to the creation,
validity or enforceability of any interest of the Transferor in the Receivables
or the proceeds thereof, (ii) as to the Transferor's title to any of the
Receivables or the proceeds thereof, (iii) as to whether the transfer of the
Receivables constitutes a true sale or a grant of a security interest, (iv) as
to whether the purported sale of all Receivables now existing and hereafter
created is effective to convey as a true sale to the Trust, as of the purported
date of sale, Receivables which do not exist as of such date of sale, or as to
whether Receivables hereafter created in an Account are deemed to exist as of
the date hereof or (v) as to whether a court may temporarily restrain the
exercise of the Trust's rights to the Receivables and the proceeds thereof.
Further, we point out that delays in the exercise of the rights and interests of
the Trust may occur with respect to the Receivables and their proceeds in the
possession of a receiver or conservator, regardless of whether the transaction
constitutes a true sale or a secured transaction, by actions unilaterally taken
by such receiver or conservator.
With respect to the opinions expressed in paragraphs 1 and 2, we note
that pursuant to Section 2.1 of the Pooling and Servicing Agreement, the
Transferor has filed the Financing Statements with the Office of the Secretary
of State of the State of New York and the City Register in the County of New
York. In expressing the opinions set forth herein, we have assumed that in the
event that a change in the Transferor's name, identity or corporate structure
makes the Financing Statements seriously misleading within the meaning of
Section 9-402(7) of the New York Uniform Commercial Code (the "Code"), or the
Transferor moves the location of its executive office outside the State of New
York, the
F-4
Transferor will file such financing statements or amendments as may be necessary
to continue the perfection of the Trust's interest in the Receivables and the
proceeds thereof as required by Section 13.2 of the Pooling and Servicing
Agreement within the time specified in Section 9-402(7) of the Code or Section
9-103(3)(e) of the Code, as the case may be.
In expressing the opinions set forth herein, we have relied, without
independent investigation, upon reports received from the Office of the
Secretary of State of the State of New York and the City Register in the County
of New York with respect to financing statements and related filings and with
respect to certain notices of federal government liens, New York State
government tax liens, certain attachment liens and judgment liens with respect
to the Transferor on file with such offices. The effective dates of the latest
of such reports are set forth in Schedule A attached hereto (the "UCC Report
Schedule"). [In addition, with respect to the items identified on Schedule B
attached hereto, we have relied without independent investigation, on a
certificate of an officer of the Transferor attached hereto to the effect that
such items do not represent a lien or security interest on the Receivables.]
[We have assumed that no such filings or notices were made with respect to the
Transferor between the effective time of such reports and the time of the filing
of the Financing Statements. We note that the Transferor has delivered to us a
certificate to the effect of the preceding sentence.] In the Pooling and
Servicing Agreement, the Transferor represents and warrants that it has good and
marketable title to the Receivables free and clear of all Liens, and we note
that the Transferor has delivered to us a certificate to such effect.
In addition, we call to your attention the fact that if the FDIC were
appointed receiver for the Transferor, the FDIC could repudiate any contract it
determined to be burdensome and the repudiation of which it determined would
promote the orderly administration of the Transferor's affairs. 12 U.S.C. (S)
1821(e)(1), (2). However, Section 1821 provides that the FDIC's power as
receiver to repudiate contracts is not to be construed to permit the avoidance
of a properly perfected security interest except where such an interest is taken
in contemplation of insolvency or with the intent to hinder, delay, or defraud
the institution or the creditors of the institution. 12 U.S.C. (S) 1821(e)(11).
We have relied, without independent verification, upon on a
F-5
certificate of an officer of the Transferor (attached hereto as Annex I), to the
effect that (i) the Transferor was not as of the date of transfer of the
Receivables, insolvent or on the verge of insolvency and was not rendered
insolvent or on the verge of insolvency by reason thereof, (ii) the transfer was
not made in contemplation of insolvency and (iii) the transfer was made in good
faith and without the intent to hinder, delay or defraud any of the Transferor's
creditors. In reliance upon the certificate of the Transferor referred to
above, we are of the opinion that the transfer of, or the grant of a security
interest in, the Receivables to the Trust would not be subject to repudiation by
the FDIC.
F-6
EXHIBIT G
---------
FORM OF REASSIGNMENT OF RECEIVABLES
-----------------------------------
REASSIGNMENT NO. ____ OF RECEIVABLES, dated as of __________ ___,
____, by and between The Chase Manhattan Bank (USA), a banking corporation
organized and existing under the laws of the State of Delaware (the "Bank"), and
The Bank of New York, a banking corporation organized under the laws of the
State of New York (the "Trustee") pursuant to the Pooling and Servicing
Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Bank, Chemcial Bank and the Trustee are parties to the
Amended and Restated Pooling and Servicing Agreement, dated as of June 1, 1996
(hereinafter as such agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the Bank
wishes to remove all Receivables from certain designated Accounts of the Bank
(the "Removed Accounts") and to cause the Trustee to reconvey the Receivables of
such Removed Accounts, whether now existing or hereafter created, from the Trust
to the Bank (as each such term is defined in the Pooling and Servicing
Agreement); and
WHEREAS, the Trustee is willing to accept such designation and to
reconvey the Receivables in the Removed Accounts subject to the terms and
conditions hereof;
NOW, THEREFORE, the Bank and the Trustee hereby agree as follows:
1. Defined Terms. All terms defined in the Pooling and
-------------
Servicing Agreement and used herein shall have such defined meanings when
used herein, unless otherwise defined herein.
"Removal Date" shall mean, with respect to the Removed Accounts
------------
designated hereby, ___________, _____.
"Removal Notice Date" shall mean, with respect to the Removed
-------------------
Accounts designated hereby, ___________, _____ (which shall be a date on
or prior to the fifth Business Day prior to the Removal Date).
2. Designation of Removed Accounts. The Bank shall deliver to
-------------------------------
the Trustee, not later than five Business Days after the Removal Date, a
computer file or microfiche list containing a true and complete list of
each MasterCard and VISA account which as of the Removal Date shall be
deemed to be a Removed Account, such accounts being identified by account
number and by the aggregate amount of Receivables in such accounts as of
the close of business on the Removal Date. Such list shall be marked as
Schedule 1 to this Reassignment and shall be incorporated into and made a
part of this Reassignment as of the Removal Date.
3. Conveyance of Receivables.
-------------------------
(a) The Bank does hereby reconvey to the Bank, without recourse
on and after the Removal Date, all right, title and interest of the Trust
in and to the Receivables now existing and hereafter created in the Removed
Accounts designated hereby, all monies due or to become due with respect
thereto (including all Finance Charge Receivables), all proceeds (as
defined in Section 9-306 of the UCC as in effect in the State of New York)
of such Receivables, Insurance Proceeds relating to such Receivables and
the proceeds thereof.
(b) In connection with such transfer, the Trustee agrees to
execute and deliver to the Bank on or prior to the date of this
Reassignment, a termination statement with respect to the Receivables now
existing and hereafter created in the Removed Accounts designated hereby
(which may be a single termination statement with respect to all such
Receivables) evidencing the release by the Trust of its Lien on the
Receivables in the Removed Accounts, and meeting the requirements of
applicable state law, in such manner and such jurisdictions as are
necessary to remove such Lien.
G-2
4. Representations and Warranties of the Bank. The Bank hereby
------------------------------------------
represents and warrants to the Trust as of the Removal Date:
(a) Legal Valid and Binding Obligation. This Reassignment
----------------------------------
constitutes a legal, valid and binding obligation of the Bank
enforceable against the Bank in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
general and the rights of creditors of banking associations and except
as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(b) Selection Procedures. No selection procedures believed
--------------------
by the Bank to be materially adverse to the interests of the Investor
Certificateholders were utilized in selecting the Removed Accounts
designated hereby.
5. Conditions Precedent. The amendment of the Pooling and
--------------------
Servicing Agreement set forth in Section 6 hereof is subject to the
satisfaction, on or prior to the Removal Date, of the following condition
precedent:
The Bank shall have delivered to the Trustee an Officer's
Certificate certifying that (i) as of the Removal Date, all
requirements set forth in Section 2.7 of the Pooling and Servicing
Agreement for designating Removed Accounts and reconveying the
Receivables of such Removed Accounts, whether now existing or
hereafter created, have been satisfied, and (ii) each of the
representations and warranties made by the Bank in Section 4 hereof is
true and correct as of the Removal Date. The Trustee may conclusively
rely on such Officer's Certificate, shall have no duty to make
inquiries with regard to the matters set forth therein, and shall
incur no liability in so relying.
6. Amendment of the Pooling and Servicing
--------------------------------------
G-3
Agreement. The Pooling and Servicing Agreement is hereby amended to
---------
provide that all references therein to the "Pooling and Servicing
Agreement," to "this Agreement" and "herein" shall be deemed from and after
the Removal Date to be a dual reference to the Pooling and Servicing
Agreement as supplemented by this Reassignment. Except as expressly
amended hereby, all of the representations, warranties, terms, covenants
and conditions to the Pooling and Servicing Agreement shall remain
unamended and shall continue to be, and shall remain, in full force and
effect in accordance with its terms and except as expressly provided herein
shall not constitute or be deemed to constitute a waiver of compliance with
or a consent to non-compliance with any term or provision of the Pooling
and Servicing Agreement.
7. Counterparts. This Reassignment may be executed in two or
------------
more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute
one and the same instrument.
8. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, AND
WITHOUT, LIMITING THE GENERALITY OF THE FOREGOING, THE IMMUNITY AND
STANDARD OF CARE OF THE TRUSTEE IN THE ADMINISTRATION OF THE TRUST
HEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
G-4
IN WITNESS WHEREOF, the undersigned have caused this Reassignment of
Receivables to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
THE CHASE MANHATTAN BANK (USA)
By: ____________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: ____________________________
Name:
Title:
G-5
Schedule I
to Reassignment
of Receivables
--------------
REMOVED ACCOUNTS
----------------
G-6
EXHIBIT H
---------
FORM OF RECONVEYANCE OF RECEIVABLES
-----------------------------------
RECONVEYANCE OF RECEIVABLES, dated as of ____________ ___, ____, by
and between The Chase Manhattan Bank (USA), a banking corporation organized and
existing under the laws of the State of Delaware (the "Transferor"), and The
Bank of New York, a banking corporation organized and existing under the laws of
New York (the "Trustee") pursuant to the Pooling and Servicing Agreement
referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Transferor, Chemical Bank and the Trustee are parties to
the Amended and Restated Pooling and Servicing Agreement dated as of June 1,
1996 (hereinafter as such agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the
Transferor wishes to cause the Trustee to reconvey all of the Receivables and
proceeds thereof, whether now existing or hereafter created, from the Trust to
the Transferor pursuant to the terms of Section 12.4 of the Pooling and
Servicing Agreement upon termination of the Trust pursuant to subsection 12.1(a)
of the Pooling and Servicing Agreement (as each such term is defined in the
Pooling and Servicing Agreement);
WHEREAS, the Trustee is willing to reconvey Receivables subject to the
terms and conditions hereof;
NOW, THEREFORE, the Transferor and the Trustee hereby agree as
follows:
1. Defined Terms. All terms defined in the Pooling and Servicing
-------------
Agreement and used herein shall have such defined meanings when used herein,
unless otherwise defined herein.
"Reconveyance Date" shall mean ______________, ____.
-----------------
2. Return of Lists of Accounts. The Trustee shall deliver to the
---------------------------
Transferor, not later than three Business Days after the Reconveyance Date, each
and every computer file or microfiche list of Accounts delivered to the Trustee
pursuant to the terms of the Pooling and Servicing Agreement.
3. Conveyance of Receivables. (a) The Trustee does hereby reconvey
-------------------------
to the Transferor, without recourse, on and after the Reconveyance Date, all
right, title and interest of the Trust in and to each and every Receivable now
existing and hereafter created in the Accounts, all monies due or to become due
with respect thereto (including all Finance Charge Receivables), all proceeds
(as defined in Section 9-306 of the UCC as in effect in the State of New York)
of such Receivables and Insurance Proceeds relating to such Receivables and any
Interchange, except for amounts, if any, held by the Trustee pursuant to
subsection 12.3(b) of the Pooling and Servicing Agreement.
(b) In connection with such transfer, the Trustee agrees to execute
and deliver to the Transferor on or prior to the date of this Reconveyance, such
UCC termination statements as the Transferor may reasonably request, evidencing
the release by the Trust of its lien on the Receivables.
4. Counterparts. This Reconveyance may be executed in two or more
------------
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
5. GOVERNING LAW. THIS RECONVEYANCE SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, AND WITHOUT,
LIMITING THE GENERALITY OF THE FOREGOING, THE IMMUNITY AND STANDARD OF CARE OF
THE TRUSTEE IN THE ADMINISTRATION OF THE TRUST HEREUNDER SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
H-2
IN WITNESS WHEREOF, the undersigned have caused this Reconveyance of
Receivables to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
THE CHASE MANHATTAN BANK (USA)
By: ____________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: ____________________________
Name:
Title:
H-3
SCHEDULE I
----------
LIST OF ACCOUNTS
----------------
Delivered to Trustee only
[Deemed Incorporated]