Exhibit 10.1
ASSIGNMENT AND ASSUMPTION AGREEMENT
BANK ONE ISSUANCE TRUST
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of October 1,
2004 (this "Agreement"), by CHASE MANAHATTAN BANK USA, NATIONAL ASSOCIATION, a
national banking association (the "Successor"), in favor of and for the benefit
of XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as
Indenture Trustee (in such capacity, the "Indenture Trustee") and Collateral
Agent of the Bank One Issuance Trust, a Delaware statutory trust, as Issuer
(the "Issuer").
PRELIMINARY STATEMENTS
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WHEREAS, Bank One, Delaware, National Association, a national
banking association (the "Bank"), the Issuer and the Indenture Trustee are
parties to the Transfer and Servicing Agreement, dated as of May 1, 2002 (as
amended, the "Transfer and Servicing Agreement");
WHEREAS, in connection with the merger of the Bank and the
Successor on the date hereof, the Successor will be the surviving entity;
WHEREAS, Section 6.02 of the Transfer and Servicing Agreement
permits the Bank to merge with and into another Person if, among other
conditions, such Person expressly assumes the performance of every covenant and
obligation of the Transferor under the Transfer and Servicing Agreement;
WHEREAS, the Successor desires to assume the performance of
every covenant and obligation of the Transferor under the Transfer and
Servicing Agreement;
WHEREAS, Section 7.02 of the Transfer and Servicing Agreement
permits the Bank to merge with and into another Person if, among other
conditions, such Person is an Eligible Servicer and expressly assumes the
performance of every covenant and obligation of the Servicer under the Transfer
and Servicing Agreement; and
WHEREAS, the Successor is an Eligible Servicer and desires to
assume the performance of every covenant and obligation of the Servicer under
the Transfer and Servicing Agreement;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, in consideration of the terms and conditions hereof and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the undersigned do hereby agree as follows:
Section 1. Definitions. All terms used in this Agreement
(including in the preliminary statements to this Agreement) that are defined in
the Transfer and Servicing Agreement have the meanings assigned to them
therein, except to the extent such terms are amended or modified in this
Agreement.
Section 2. Assumption of Transferor Obligations. The
Successor hereby assumes and agrees to perform every covenant and obligation of
the Transferor and the Administrator under the Transfer and Servicing
Agreement. The Successor agrees that it shall be liable to the Noteholders, the
Issuer, the Indenture Trustee and each Supplemental Credit Enhancement Provider
for the performance of all such covenants and obligations in accordance with
the terms of the Transfer and Servicing Agreement, whether such covenants or
obligations arose prior to (or relate to actions taken or omitted prior to) the
date of this Agreement or arise on or after (or relate to actions taken or
omitted on or after) the date of this Agreement.
Section 3. Assumption of Servicer Obligations. The Successor
hereby assumes and agrees to perform every covenant and obligation of the
Servicer under the Transfer and Servicing Agreement. The Successor agrees that
it shall be liable to the Noteholders, the Issuer, the Indenture Trustee and
each Supplemental Credit Enhancement Provider for the performance of all such
covenants and obligations in accordance with the terms of the Transfer and
Servicing Agreement, whether such covenants or obligations arose prior to (or
relate to actions taken or omitted prior to) the date of this Agreement or
arise on or after (or relate to actions taken or omitted on or after) the date
of this Agreement. On and after the date of this Agreement, the Bank shall be
released from all of its covenants and obligations as Servicer under the
Transfer and Servicing Agreement.
Section 4. Representations and Warranties of the Successor.
The Successor hereby represents and warrants to the Issuer and the Indenture
Trustee that:
(a) Organization and Good Standing. The Successor is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States, and has full power, authority and
legal right to own its properties and conduct its business as such properties
are presently owned and such business is presently conducted and to execute,
deliver and perform its obligations under this Agreement.
(b) Due Qualification. The Successor is duly qualified
to do business, is in good standing (or is exempt from such requirements) and
has obtained all necessary licenses and approvals required to conduct business
in each jurisdiction in which failure to so qualify or to obtain such licenses
and approvals would have a material adverse effect on its ability to perform
its obligations under the Transfer and Servicing Agreement.
(c) Due Authorization. The execution, delivery and
performance of this Agreement by the Successor and the consummation by the
Successor of the transactions provided for in this Agreement have been duly
authorized by the Successor by all necessary action on the part of the
Successor.
(d) No Violation. The execution and delivery of this
Agreement by the Successor, the performance by the Successor of the
transactions contemplated by this Agreement and the fulfillment by the
Successor of the terms of this Agreement will not conflict with, violate or
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 Successor or any material indenture,
contract, agreement, mortgage, deed of trust or other instrument to which the
Successor is a party or by which it or any of its properties is bound.
(e) Eligible Servicer. The Successor is an Eligible
Servicer.
Section 5. Effectiveness. This Agreement shall become
effective at the time of the merger of the Bank into the Succesor.
Section 6. 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 7. Amendment. This Agreement may not be amended,
supplemented or otherwise modified, and the terms of this Agreement may not be
waived, except by a written instrument signed by all parties hereto.
Section 8. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
sent by facsimile transmission to, sent by courier to or mailed by registered
mail, return receipt requested, to (i) in the case of the Successor, Xxxxx Xxxx
Xxxxxx Xxxxxxxx 000, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, telephone number (302)
000-0000, (ii) in the case of the Issuer or the Owner Trustee, the Corporate
Trust Office of the Owner Trustee, and (iii) in the case of the Indenture
Trustee, the Corporate Trust Office of the Indenture Trustee, or, as to each
party, such other address as shall be designated by such party in a written
notice to each other party.
Any notice so addressed and mailed by registered or certified
mail shall be deemed to be given when received and any notice delivered by hand
or transmitted by telecommunications device shall be deemed to be given when so
delivered or transmitted as applicable. Each party agrees that all notices or
other communications permitted or required to be given to the Bank under the
Transaction Documents shall be given to the Successor at the address set forth
above or at such other address as the Successor may have furnished in writing
to the appropriate party.
Section 9. Successors and Assigns. The obligations assumed
pursuant to this Agreement may be assigned only in accordance with the Transfer
and Servicing Agreement. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto.
Section 10. Counterparts. This Agreement may be executed and
delivered in counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
instrument.
Section 11. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
By its execution hereof, Chase Manhattan Bank USA, National
Association, as Successor, hereby authorizes the Indenture Trustee and
Collateral Agent to execute the acknowledgement to this Agreement on behalf of
Bank One Issuance Trust.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Successor
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: President
Acknowledged:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Indenture Trustee and Collateral Agent
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Assistant Vice President
