CHASE ISSUANCE TRUST as Issuing Entity and WELLS FARGO BANK, NATIONAL ASSOCIATION as Indenture Trustee and Collateral Agent SECOND AMENDED AND RESTATED ASSET POOL ONE SUPPLEMENT dated as of December 19, 2007 to THIRD AMENDED AND RESTATED INDENTURE...
Exhibit
10.5
Execution
Copy
CHASE
ISSUANCE TRUST
as
Issuing Entity
and
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
as
Indenture Trustee and Collateral Agent
____________________
SECOND
AMENDED AND RESTATED
ASSET
POOL ONE SUPPLEMENT
dated
as of December 19, 2007
to
THIRD
AMENDED AND RESTATED
INDENTURE
dated
as of December 19, 2007
TABLE
OF CONTENTS
Page
ARTICLE
I
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
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||
Section
1.1
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Definitions
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3
|
Section
1.2
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Effect
of Headings and Table of Contents
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12
|
Section
1.3
|
Successors
and Assigns
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12
|
Section
1.4
|
Separability
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12
|
Section
1.5
|
Governing
Law
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12
|
Section
1.6
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Counterparts
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12
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ARTICLE
II
COLLATERAL
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||
Section
2.1
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Initial
Collateral
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13
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Section
2.2
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[Reserved]
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13
|
Section
2.3
|
Increases
in the Invested Amount of an Existing Asset Pool One Collateral
Certificate.
|
13
|
Section
2.4
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Addition
of Collateral.
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14
|
Section
2.5
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Removal
of Accounts.
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17
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Section
2.6
|
Account
Allocations
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19
|
Section
2.7
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Discount
Receivables.
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20
|
Section
2.8
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Recording,
Etc.
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20
|
Section
2.9
|
Trust
Indenture Act Requirements
|
22
|
Section
2.10
|
Suits
To Protect the Collateral
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22
|
Section
2.11
|
Purchaser
Protected
|
22
|
Section
2.12
|
Powers
Exercisable by Receiver or Collateral Agent
|
22
|
Section
2.13
|
Determinations
Relating to Collateral
|
23
|
Section
2.14
|
Release
of all Collateral.
|
23
|
Section
2.15
|
Certain
Actions by Collateral Agent
|
24
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Section
2.16
|
Opinions
as to Collateral.
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24
|
Section
2.17
|
Delegation
of Duties
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24
|
Section
2.18
|
Issuing
Entity’s Representations and Warranties
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25
|
i
ARTICLE
III
COLLECTIONS,
ALLOCATIONS, DEPOSITS AND PAYMENTS
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||
Section
3.1
|
Collections
and Allocations
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27
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Section
3.2
|
Allocations
of Finance Charge Collections and Default Amounts.
|
28
|
Section
3.3
|
Allocations
of Principal Collections
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28
|
Section
3.4
|
Allocations
of the Asset Pool One Servicing Fee.
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28
|
Section
3.5
|
Allocations
of Amounts to the Excess Funding Account and Allocations of Amounts
on
Deposit in the Excess Funding Account
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29
|
Section
3.6
|
Final
Payment
|
29
|
Section
3.7
|
Payments
within a Series, Class or Tranche
|
30
|
Section
3.8
|
Allocations
of Finance Charge Collections, Default Amounts, Servicing Fees and
Principal Collections Allocable to the Transferor
Interest.
|
30
|
Section
3.9
|
Transfer
of Defaulted Accounts
|
31
|
Section
3.10
|
Adjustments
for Miscellaneous Credits and Fraudulent Charges.
|
31
|
Section
3.11
|
Recoveries
and Interchange.
|
32
|
Section
3.12
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[Reserved]
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32
|
Section
3.13
|
Designation
of Remaining Principal Shortfalls
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32
|
Section
3.14
|
Monthly
Servicer’s Certificate
|
33
|
ARTICLE
IV
THE
COLLATERAL AGENT
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||
Section
4.1
|
Certain
Duties and Responsibilities.
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34
|
Section
4.2
|
Certain
Rights of the Collateral Agent
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35
|
Section
4.3
|
Not
Responsible for Recitals or Issuance of Notes
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36
|
Section
4.4
|
May
Hold Notes
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36
|
Section
4.5
|
Money
Held in Trust
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36
|
Section
4.6
|
Compensation
and Reimbursement; Limit on Compensation, Reimbursement and
Indemnity.
|
36
|
Section
4.7
|
Disqualification;
Conflicting Interests
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37
|
Section
4.8
|
Corporate
Collateral Agent Required; Eligibility
|
37
|
Section
4.9
|
Resignation
and Removal; Appointment of Successor.
|
38
|
Section
4.10
|
Acceptance
of Appointment by Successor
|
39
|
Section
4.11
|
Merger,
Conversion, Consolidation or Succession to Business
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39
|
ii
Section
4.12
|
Preferential
Collection of Claims Against Issuing Entity
|
40
|
Section
4.13
|
Representations
and Covenants of the Collateral Agent
|
40
|
Section
4.14
|
Custody
of Asset Pool One Collateral Certificates and Other
Collateral
|
40
|
Section
4.15
|
Collateral
Agent’s Application for Instructions from the Issuing
Entity
|
40
|
Section
4.16
|
Events
of Default and Remedies; Reports of Indenture Trustee; Reports to
Issuing
Entity.
|
41
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ARTICLE
V
BANK
ACCOUNTS AND INVESTMENTS
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||
Section
5.1
|
Bank
Accounts.
|
42
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Section
5.2
|
Investment
of Funds in the Bank Accounts.
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43
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ARTICLE
VI
MISCELLANEOUS
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||
Section
6.1
|
No
Petition
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45
|
Section
6.2
|
Actions
by the Issuing Entity
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45
|
Section
6.3
|
Limitations
on Liability.
|
45
|
Section
6.4
|
Termination
of Issuing Entity
|
46
|
Section
6.5
|
Termination
Distributions
|
46
|
Section
6.6
|
Derivative
Counterparty, Supplemental Credit Enhancement Provider and Supplemental
Liquidity Provider as Third-Party Beneficiary
|
46
|
Section
6.7
|
Amendments
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46
|
iii
EXHIBITS
EXHIBIT
A
|
Form
of Transferor Certificate
|
EXHIBIT
B
|
Form
of Assignment of Receivables in Additional Accounts Included
in Asset Pool One
|
EXHIBIT
C
|
Form
of Assignment of Additional Collateral Certificate Included
in Asset Pool One
|
EXHIBIT
D
|
Form
of Reassignment of Receivables in Removed Accounts Included
in Asset Pool One
|
EXHIBIT
E-1
|
Form
of Monthly Payment Instructions and Notification to the First
USA Credit Card Master Trust
Trustee
|
EXHIBIT
E-2
|
Form
of Monthly Payment Instructions and Notification to the Chase
Credit Card Master Trust
Trustee
|
EXHIBIT
F
|
Form
of Asset Pool One Monthly Servicer’s
Certificate
|
SCHEDULES
SCHEDULE
1
List of Asset Pool One Accounts [Deemed Incorporated]
iv
This
SECOND AMENDED AND RESTATED ASSET POOL ONE SUPPLEMENT between CHASE ISSUANCE
TRUST, a statutory business trust organized under the laws of the State of
Delaware (the “Issuing Entity” or the “Trust”), having its principal office at
c/o Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Administration, and XXXXX FARGO BANK,
NATIONAL ASSOCIATION, a national banking association, as Indenture Trustee
(as
defined in the Indenture described herein) and as collateral agent (in such
capacity, the “Collateral Agent”) for the benefit of the parties listed in the
Granting Clause of this Asset Pool One Supplement, is made and entered into
as
of December 19, 2007.
All
things necessary to make this Second Amended and Restated Asset Pool One
Supplement a valid agreement of the Issuing Entity, in accordance with its
terms, have been done.
RECITALS
WHEREAS,
the parties hereto have heretofore executed and delivered an Asset Pool One
Supplement, dated as of May 1, 2002 (as amended, supplemented or otherwise
modified, the “Original Asset Pool One Supplement”);
WHEREAS,
the parties hereto have executed and delivered an Amended and Restated Asset
Pool One Supplement, dated as of October 15, 2004 (as amended, supplemented
or
otherwise modified, the “Amended and Restated Asset Pool One Supplement”), by
and between the Issuing Entity and the Collateral Agent, as amended by the
First
Amendment thereto, dated as of May 10, 2005, the Second Amendment thereto,
dated
as of February 1, 2006 and the Third Amendment thereto, dated as of September
27, 2007, each by and among the Issuing Entity and Indenture Trustee and the
Collateral Agent;
WHEREAS,
the parties hereto desire to amend and restate the Amended and Restated Asset
Pool One Supplement to read in its entirety as set forth below; and
WHEREAS,
all conditions precedent to the execution of this Second Amended and Restated
Asset Pool One Supplement have been complied with;
NOW,
THEREFORE, the parties hereto hereby agree that effective on and as of the
date
hereof, the Amended and Restated Asset Pool One Supplement is hereby amended
and
restated in its entirety as follows:
GRANTING
CLAUSE
The
Issuing Entity hereby grants to the Collateral Agent (the “Secured Party”) for
the benefit and security of the following: (a) the Asset Pool One
Noteholders, (b) the Indenture Trustee, in its individual capacity and (c)
the
Collateral Agent, in its individual capacity, a security interest in all of
its
right, title and interest, whether now owned or hereafter acquired, in and
to
the following:
(i) each
Asset Pool One Collateral Certificate;
1
(ii) all
Asset Pool One Receivables;
(iii) the
Excess Funding Account established for Asset Pool One;
(iv) the
Collection Account established for Asset Pool One;
(v) each
Supplemental Bank Account (including all Sub-Accounts thereof) established
from
time to time for Asset Pool One;
(vi) all
Permitted Investments and all investment property, money and other property
held
in or through the Collection Account, the Excess Funding Account or any
Supplemental Bank Account and including any Sub-Accounts therein;
(vii) all
rights, benefits and powers under any Derivative Agreement;
(viii) all
rights, benefits and powers under any Supplemental Credit Enhancement Agreement
or Supplemental Liquidity Agreement;
(ix) all
rights, benefits and powers under the Transfer and Servicing Agreement with
respect to the Asset Pool One Collateral Certificates and the Asset Pool One
Receivables;
(x) all
present and future claims, demands, causes of and choses in action in respect
of
any of the foregoing and all interest, principal, payments and distributions
of
any nature or type on any of the foregoing;
(xi) all
accounts, general intangibles, chattel paper, instruments, documents, goods,
money, investment property, deposit accounts, certificates of deposit, letters
of credit, letter-of-credit rights and advices of credit consisting of, arising
from, or relating to any of the foregoing; and
(xii) all
proceeds of the foregoing.
Items
(i) through (xii) above are collectively referred to as the
“Collateral.” The Security Interest in the Collateral is granted to
secure the Asset Pool One Notes (and the obligations under the Indenture and
this Asset Pool One Supplement), equally and ratably without prejudice, priority
or distinction between any Asset Pool One Note by reason of difference in time
of issuance or otherwise, except as otherwise expressly provided in the
Indenture, or in the Indenture Supplement which establishes any Series, Class
or
Tranche of Notes, and to secure (x) the payment of all amounts due on such
Asset
Pool One Notes in accordance with their respective terms, (y) the payment of
all
other sums payable by the Issuing Entity under the Indenture, any Indenture
Supplement and this Asset Pool One Supplement relating to the Asset Pool One
Notes and (z) compliance by the Issuing Entity with the provisions of the
Indenture, any Indenture Supplement or this Asset Pool One Supplement relating
to the Asset Pool One Notes. This Asset Pool One Supplement is a
security agreement within the meaning of the UCC.
2
The
Collateral Agent acknowledges the grant of such Security Interest, and accepts
the Collateral in trust hereunder in accordance with the provisions hereof
and
agrees to perform the duties herein to the end that the interests of the Asset
Pool One Noteholders may be adequately and effectively protected.
The
Asset Pool One Notes, Derivative Agreements, Supplemental Credit Enhancement
Agreements, Supplemental Liquidity Agreements and other obligations under the
Indenture, this Asset Pool One Supplement and any Indenture Supplement relating
to the Asset Pool One Notes will benefit from the Security Interest to the
extent (and only to the extent) proceeds of and distributions on the Collateral
are allocated for their benefit pursuant to the Indenture, this Asset Pool
One
Supplement and the applicable Indenture Supplement.
ARTICLE
I
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
1.1 Definitions. For
all purposes of this Asset Pool One Supplement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in this
Article, and, along with any other term defined in any Section of this Asset
Pool One Supplement, include the plural as well as the singular;
(b) all
other terms used herein which are defined in the Indenture, the applicable
Indenture Supplement or the Transfer and Servicing Agreement, either directly
or
by reference therein, have the meanings assigned to them therein;
(c) as
used in this Asset Pool One Supplement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined
in
this Asset Pool One Supplement or in any such certificate or other document,
and
accounting terms partly defined in this Asset Pool One Supplement or in any
such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under GAAP. To the extent that the
definitions of accounting terms in this Asset Pool One Supplement or in any
such
certificate or other document are inconsistent with the meanings of such terms
under GAAP, the definitions contained in this Asset Pool One Supplement or
in
any such certificate or other document shall control;
(d) the
words “hereof,” “herein,” “hereunder” and words of similar import when used in
this Asset Pool One Supplement shall refer to this Asset Pool One Supplement
as
a whole and not to any particular provision of this Asset Pool One Supplement;
references to any subsection, Section, clause, Schedule or Exhibit are
references to subsections, Sections, clauses, Schedules and Exhibits in or
to
this Asset Pool One Supplement unless otherwise specified; the term “including”
means “including without limitation”; references to any law or regulation refer
to that law or regulation as amended from time to time and include any successor
law or regulation; references to any Person include that Person’s successors and
assigns; and references to any agreement refer to such agreement, as amended,
supplemented or otherwise modified from time to time;
3
(e) in
the event that any term or provision contained herein shall conflict with or
be
inconsistent with any term or provision contained in the Indenture, the
applicable Indenture Supplement or the Transfer and Servicing Agreement, the
terms and provisions of this Asset Pool One Supplement shall be
controlling;
(f) each
capitalized term defined herein shall relate only to the Asset Pool One Notes
and no other notes issued by the Issuing Entity; and
(g) whenever
used in this Asset Pool One Supplement, the following words and phrases shall
have the following meanings, and the definitions of such terms and phrases
are
applicable to the singular as well as the plural forms of such terms and to
the
masculine as well as to the feminine and the neuter genders of such
terms:
“Account
Assignment” has the meaning specified in subsection 2.4(c)(v).
“Additional
Asset Pool One Account” has the meaning specified in subsection
2.4(a).
“Additional
Asset Pool One Collateral Certificate” has the meaning specified in
subsection 2.4(a).
“Addition
Cut-Off Date” means, with respect to any Additional Asset Pool One Account,
the date as of which the applicable Additional Accounts shall have been selected
by the Issuing Entity for inclusion in Asset Pool One pursuant to Section
2.4.
“Addition
Date” has the meaning specified in subsection 2.4(a)(i).
“Adjustment
Payment” has the meaning specified in subsection 3.10(a).
“Administrator”
means Chase Bank USA, National Association in its capacity as Administrator
of
the Trust.
“Aggregate
Addition Limit” means, with respect to Asset Pool One, the
aggregate number of Additional Asset Pool One Accounts that may be designated
for inclusion in Asset Pool One without prior satisfaction of the Note Rating
Agency Condition, equal to the aggregate number of Additional Asset Pool One
Accounts which would either (x) with respect to any consecutive three-month
period, equal 15% of the aggregate number of Asset Pool One Accounts as of
the
first day of such three-month period or (y) with respect to any twelve-month
period, equal 20% of the aggregate number of Asset Pool One Accounts as of
the
first day of such twelve-month period.
“Amortization
Period” has, with respect to any Series, Class or Tranche of Asset Pool One
Notes, the meaning specified in the applicable Indenture Supplement with respect
to such Series, Class or Tranche of Asset Pool One Notes.
“Asset
Pool One” means the Collateral granted to the Collateral Agent pursuant to
this Asset Pool One Supplement.
4
“Asset
Pool One Accounts” means the Initial Asset Pool One Accounts and the
Accounts that have been designated by the Issuing Entity, pursuant to Section
2.4, to have their Receivables included in Asset Pool One; provided,
however, that Removed Asset Pool One Accounts shall not be Asset Pool
One
Accounts on or after the related Removal Date.
“Asset
Pool One Average Principal Balance” means, with respect to Asset Pool One,
(a) for any Monthly Period in which no Addition Date, Removal Date or Discount
Option Date occurs, the Asset Pool One Principal Receivables as of the close
of
business on the last day of the prior Monthly Period and (b) for any Monthly
Period in which one or more Addition Dates, Removal Dates or Discount Option
Dates occurs, the sum of:
(i) the
product of (x) the Asset Pool One Principal Receivables as of the close of
business on the last day of the prior Monthly Period and (y) a fraction, (A)
the
numerator of which is the number of days from and including the first day of
such Monthly Period to but excluding the initial Addition Date, Removal Date
or
Discount Option Date, as the case may be, in such Monthly Period and (B) the
denominator of which is the number of days in such Monthly Period;
and
(ii) the
product of (x) the Asset Pool One Principal Receivables as of the close of
business on the initial Addition Date, Removal Date or Discount Option Date
in
such Monthly Period, after giving effect to such addition, removal or discount,
as the case may be, and (y) a fraction, (A) the numerator of which is the number
of days from and including the initial Addition Date, Removal Date or Discount
Option Date, as the case may be, in such Monthly Period to but excluding the
next subsequent Addition Date, Removal Date or Discount Option Date in such
Monthly Period or, if no such next subsequent date occurs in such Monthly
Period, to and including the last day of such Monthly Period and (B) the
denominator of which is the number of days in such Monthly Period;
and
(iii) for
each subsequent Addition Date, Removal Date or Discount Option Date in such
Monthly Period, the product of (x) the Asset Pool One Principal Receivables
at
the close of business on such Addition Date, Removal Date or Discount Option
Date, after giving effect to such addition, removal or discount, as the case
may
be, and (y) a fraction, (A) the numerator of which is the number of days from
and including such Addition Date, Removal Date or Discount Option Date, as
the
case may be, in such Monthly Period to but excluding the next subsequent
Addition Date, Removal Date or Discount Option Date or, if no such next
subsequent date occurs in such Monthly Period, to and including the last day
of
such Monthly Period and (B) the denominator of which is the number of days
in
such Monthly Period.
“Asset
Pool One Collateral Certificate” means each Collateral Certificate that has
been designated by the Issuing Entity for inclusion in Asset Pool One pursuant
to Sections 2.1 and 2.4.
“Asset
Pool One Collateral Certificate Principal Shortfall Payments” means, for any
Monthly Period, amounts received on Asset Pool One Collateral Certificates
in
respect of Principal Shortfalls.
5
“Asset
Pool One Default Amount” means, for any Monthly Period, the Default Amount
for Asset Pool One for such Monthly Period.
“Asset
Pool One Defaulted Account” means any Asset Pool One Account that becomes a
Defaulted Account.
“Asset
Pool One Finance Charge Collections” means, for any Monthly Period, the
amount of Finance Charge Collections for all Asset Pool One Receivables and
Asset Pool One Collateral Certificates for such Monthly Period.
“Asset
Pool One Minimum Pool Balance” means, for any Monthly Period, an amount
equal to the sum of (i) for all Asset Pool One Notes in their Revolving Period,
the sum of the Nominal Liquidation Amounts of such Asset Pool One Notes as
of
the close of business on the last day of such Monthly Period and (ii) for all
Asset Pool One Notes in their Amortization Period, the sum of the Nominal
Liquidation Amounts of such Asset Pool One Notes as of the close of business
as
of the last day of the most recent Revolving Period (exclusive of (x) any Asset
Pool One Notes which will be paid in full on the applicable Payment Date in
the
following Monthly Period and (y) any Asset Pool One Notes which will have a
Nominal Liquidation Amount of zero on the applicable Payment Date in the
following Monthly Period).
“Asset
Pool One Nominal Liquidation Amount Deficit” means, for any Monthly Period,
the aggregate Nominal Liquidation Amount Deficit of all Asset Pool One Notes
for
such Monthly Period.
“Asset
Pool One Notes” means the Notes designated in an Indenture Supplement as
being secured by the Collateral of Asset Pool One.
“Asset
Pool One Noteholder” means any person in whose name an Asset Pool One Note
is registered.
“Asset
Pool One Pool Balance” means, for any Monthly Period, the sum of (1) the sum
of the Invested Amounts of the Asset Pool One Collateral Certificates on the
close of business on the last day of such Monthly Period plus (2) the Asset
Pool
One Principal Receivables as of the close of business as of the last day of
such
Monthly Period plus (3) the Excess Funding Amount as of the close of business
on
the last day of such Monthly Period.
“Asset
Pool One Principal Collections” means, for any Monthly Period, the amount of
Principal Collections for all Asset Pool One Receivables and Asset Pool One
Collateral Certificates for such Monthly Period minus Asset Pool One Collateral
Certificate Principal Shortfall Payments for such Monthly Period.
“Asset
Pool One Principal Receivables” means, with respect to any date of
determination, the aggregate outstanding dollar amount of Asset Pool One
Receivables that are Principal Receivables.
“Asset
Pool One Receivables” means Receivables arising in Asset Pool One
Accounts.
6
“Asset
Pool One Receivables Servicing Fee” means, with respect to any Monthly
Period, one-twelfth of the product of (a) the Asset Pool One Receivables
Servicing Fee Percentage for such Monthly Period and (b) the Asset Pool One
Average Principal Balance for such Monthly Period.
“Asset
Pool One Receivables Servicing Fee Percentage” means, 1.50% for so long as
Chase Bank USA, National Association is the Servicer or 2.00% if Chase Bank
USA,
National Association is no longer the Servicer.
“Asset
Pool One Required Transferor Amount” means, for any Monthly Period, the
product of (1) the Asset Pool One Principal Receivables as of the close of
business on the last day of such Monthly Period and (2) the Asset Pool One
Required Transferor Amount Percentage.
“Asset
Pool One Required Transferor Amount Percentage” means 4% or such other
percentage as shall be designated from time to time by the Servicer; provided,
however, that prior to designating any lesser percentage the Servicer shall
have
provided to the Indenture Trustee and the Collateral Agent an Issuing Entity
Tax
Opinion and written confirmation from each Note Rating Agency that such
designation shall not have a Ratings Effect.
“Asset
Pool One Servicing Fee” has the meaning specified in subsection
3.4(a).
“Asset
Pool One Supplement” means this Second Amended and Restated Asset Pool
Supplement as originally executed and as amended, supplemented, restated or
otherwise modified from time to time.
“Asset
Pool One Transferor Amount” means, for any Monthly Period, an amount equal
to (i) the Asset Pool One Pool Balance for such Monthly Period minus (ii) the
aggregate Nominal Liquidation Amount of all Asset Pool One Notes as of the
close
of business on the last day of such Monthly Period.
“Asset
Pool One Transferor Percentage” means, with respect to any Monthly Period,
100% minus, the sum of the Noteholder Percentages for all Series of Asset Pool
One Notes with respect to Asset Pool One Principal Collections, Asset Pool
One
Finance Charge Collections, the Asset Pool One Servicing Fee or the Asset Pool
One Default Amount, as applicable.
“Bank
Accounts” means, collectively, the Excess Funding Account, the Collection
Account and any Supplemental Bank Account, including any Sub-Accounts
therein.
“Certificate
Assignment” has the meaning specified in subsection 2.4(c)(vi).
“Collateral”
has the meaning specified in the Granting Clause of this Asset Pool One
Supplement.
“Collateral
Agent” means the Person named as the Collateral Agent in the first paragraph
of this Asset Pool One Supplement until a successor Collateral Agent shall
have
become such pursuant to the applicable provisions of this Asset Pool One
Supplement, and
7
thereafter
“Collateral Agent” means and includes each Person who is then a Collateral Agent
hereunder. If at any time there is more than one such Person,
“Collateral Agent” as used with respect to the Asset Pool One Notes of any
Series, Class or Tranche means the Collateral Agent with respect to Asset Pool
One Notes of that Series, Class or Tranche.
“Collateral
Agent Authorized Officer” when used with respect to the Collateral Agent,
means any vice president, any assistant vice president, the treasurer, any
assistant treasurer, any senior trust officer or trust officer, or any other
officer of the Collateral Agent customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
“Collection
Account” has the meaning specified in subsection 5.1(a)(i).
“Corporate
Trust Office” means, with respect to the Collateral Agent, the principal
corporate trust office of the Collateral Agent located at Xxxxx Fargo Bank,
National Association, Sixth Street & Marquette Avenue, MAC: N9311-161,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - Asset Backed
Administration; or such other address as the Collateral Agent may designate
by
notice to the Transferor, or the principal corporate trust office of any
successor Collateral Agent (the address of which the successor Collateral Agent
will notify the Indenture Trustee and the Transferor).
“Credit
Adjustment” has the meaning specified in subsection 3.10(a).
“Cut-Off
Date” means, with respect to an Initial Asset Pool One Account, the
“Addition Cut-Off Date” specified in the related Initial Asset Pool One Account
Assignment and, with respect to an Additional Asset Pool One Account, the
Addition Cut-Off Date for such Additional Asset Pool One Account.
“Determination
Date” means the Business Day before the First Note Transfer Date for a
Series in a Monthly Period.
“Effective
Date” means the date on which this Asset Pool One Supplement is executed and
delivered by the parties hereto.
“Excess
Funding Account” has the meaning specified in subsection
5.1(a)(ii).
“Excess
Funding Amount” means at any time the aggregate amount on deposit in the
Excess Funding Account.
“First
Note Transfer Date” means, with respect to any Monthly Period, the initial
Note Transfer Date for any Series, Class or Tranche of Asset Pool One Notes
in
such Monthly Period.
“Increase
Date” has the meaning specified in subsection 2.4(a)(i).
8
“Indenture”
means the Third Amended and Restated Indenture, dated as of December 19, 2007,
between the Issuing Entity and the Indenture Trustee.
“Initial
Asset Pool One Accounts” means the Accounts designated pursuant to the
Initial Asset Pool One Account Assignments.
“Initial
Asset Pool One Account Assignments” means, collectively, Assignment No. 1 of
Receivables in Additional Asset Pool One Accounts, dated as of November 29,
2002, Assignment No. 2 of Receivables in Additional Asset Pool One Accounts,
dated as of March 24, 2003, Assignment No. 3 of Receivables in Additional Asset
Pool One Accounts, dated as of August 18, 2003, Assignment No. 4 of Receivables
in Additional Asset Pool One Accounts, dated as of March 26, 2004, Assignment
No. 5 of Receivables in Additional Asset Pool One Accounts, dated as of December
17, 2004, Assignment No. 6 of Receivables in Additional Asset Pool One Accounts,
dated as of May 16, 2005, Assignment No. 7 of Receivables in Additional Asset
Pool One Accounts, dated as of August 17, 2005, Assignment No. 8 of Receivables
in Additional Asset Pool One Accounts, dated as of September 30, 2005,
Assignment No. 9 of Receivables in Additional Asset Pool One Accounts, dated
as
of November 10, 2005, Assignment No. 10 of Receivables in Additional Asset
Pool
One Accounts, dated as of May 30, 2006, Assignment No. 11 of Receivables in
Additional Asset Pool One Accounts, dated as of August 29, 2006, Assignment
No.
12 of Receivables in Additional Asset Pool One Accounts, dated as of November
28, 2006, Assignment No. 13 of Receivables in Additional Asset Pool One
Accounts, dated as of February 26, 2007, Assignment No. 14 of Receivables in
Additional Asset Pool One Accounts, dated as of March 28, 2007, Assignment
No.
15 of Receivables in Additional Asset Pool One Accounts, dated as of June 27,
2007, Assignment No. 16 of Receivables in Additional Asset Pool One
Accounts, dated as of October 19, 2007, Assignment No. 17 of Receivables in
Additional Asset Pool One Accounts, dated as of November 15, 2007 and Assignment
No. 18 of Receivables in Additional Asset Pool One Accounts, dated as of
December 18, 2007, each between the Issuing Entity and the Collateral
Agent.
“Invested
Amount” has, with respect to any Asset Pool One Collateral Certificate, the
meaning specified in the applicable Series Supplement.
“Issuing
Entity” means Chase Issuance Trust, a Delaware statutory trust.
“Monthly
Servicer’s Certificate” means the certificate forwarded by the Servicer to
various parties as described in Section 3.14.
“Nominal
Liquidation Amount” has, with respect to any Series, Class or Tranche of
Asset Pool One Notes, the meaning specified in the applicable Indenture
Supplement for such Series, Class or Tranche of Asset Pool One
Notes.
“Nominal
Liquidation Amount Deficit” has, with respect to any Series, Class or
Tranche of Asset Pool One Notes, the meaning specified in the applicable
Indenture Supplement for such Series, Class or Tranche of Asset Pool One
Notes.
“Noteholder
Percentage” means, for any Series of Asset Pool One Notes, with respect to
Asset Pool One Principal Collections, Asset Pool One Finance Charge Collections,
the Asset Pool One Default Amount and the Asset Pool One Servicing Fee, the
percentage stated in the applicable Indenture Supplement for such Series of
Asset Pool One Notes.
9
“Note
Rating Agency” means, with respect to any Outstanding Asset Pool One Notes,
each statistical rating agency selected by the Issuing Entity to rate such
Notes.
“Note
Transfer Date” means, for any Series, Class or Tranche of Asset Pool One
Notes:
(i) the
Business Day prior to:
|
(a)
|
the
Payment Date for such Series, Class or Tranche of Asset Pool One
Notes;
or
|
|
(b)
|
for
any Monthly Period in which no Payment Date occurs for such Series,
Class
or Tranche of Asset Pool One Notes, the date in such Monthly Period
corresponding numerically to the next Payment Date (without regard
to
whether or not such Payment Date is a Business Day) for such Series,
Class
or Tranche of Asset Pool One Notes, provided that (1) if there is
no such
numerically corresponding date, such date shall be the last Business
Day
of such Monthly Period, or (2) if such numerically corresponding
date is
not a Business Day, such date shall be the immediately preceding
Business
Day; or
|
(ii) such
other date as shall be specified in the applicable Indenture Supplement or
Terms
Document for such Series, Class or Tranche of Asset Pool One Notes.
“Notice
Date” has the meaning specified in subsection 2.4(c)(ii):
“Prefunding
Excess Amount” has, with respect to any Series, Class or Tranche of Asset
Pool One Notes, the meaning specified in the applicable Indenture Supplement
for
such Series, Class or Tranche of Asset Pool One Notes.
“Principal
Shortfalls” has the meaning specified in the applicable Series Supplement
for a Collateral Certificate.
“Proposed
Principal Shortfall Amount” has the meaning specified in Section
3.13.
“Reassignment”
has the meaning specified in subsection 2.5(b)(ii).
“Remaining
Series Available Principal Collections Shortfall” has, with respect to any
Series of Asset Pool One Notes, the meaning specified in the applicable
Indenture Supplement for such Series of Asset Pool One Notes.
“Removal
Cut-Off Date” means, with respect to any Removed Asset Pool One Account, the
date as of which the Receivables in such Removed Asset Pool One Account shall
have been selected by the Issuing Entity for removal from Asset Pool One
pursuant to Section 2.5.
“Removal
Date” has the meaning specified in subsection 2.5(a).
10
“Removal
Notice Date” has the meaning specified in subsection 2.5(a).
“Removed
Asset Pool One Accounts” has the meaning specified in subsection
2.5(a).
“Revolving
Period” has, with respect to any Series, Class or Tranche of Asset Pool One
Notes, the meaning specified in the applicable Indenture Supplement with respect
to such Series, Class or Tranche of Asset Pool One Notes.
“Security
Interest” means the security interest granted pursuant to the Granting
Clause.
“Secured
Party” has the meaning specified in the Granting Clause of this Asset Pool
One Supplement.
“Series”
means, with respect to any Note, the series specified in the applicable
Indenture Supplement.
“Series
Available Principal Collections Shortfall” has, with respect to any Series
of Asset Pool One Notes, the meaning specified in the applicable Indenture
Supplement for such Series of Asset Pool One Notes.
“Shared
Excess Available Principal Collections” has, with respect to any Series of
Asset Pool One Notes, the meaning specified in the applicable Indenture
Supplement for such Series of Asset Pool One Notes.
“Successor
Servicer” has the meaning specified in subsection 10.02(a) of the Transfer
and Servicing Agreement.
“Supplemental
Bank Account” means the trust account or accounts designated as such and
established pursuant to subsection 5.1(a)(i).
“Targeted
Interest Deposit Amount” has, with respect to any Series, Class or Tranche
of Asset Pool One Notes, the meaning specified in the applicable Indenture
Supplement for such Series, Class or Tranche of Asset Pool One
Notes.
“Targeted
Principal Deposit Amount” has, with respect to any Series, Class or Tranche
of Asset Pool One Notes, the meaning specified in the applicable Indenture
Supplement for such Series, Class or Tranche of Asset Pool One
Notes.
“Transfer
and Servicing Agreement” means the Third Amended and Restated Transfer and
Servicing Agreement, dated as of December 19, 2007, among Chase USA, as
Transferor, Servicer and Administrator, the Issuing Entity, and Xxxxx Fargo
Bank, National Association, as Indenture Trustee and Collateral
Agent.
“Transferor
Certificate” means, for Asset Pool One, if any Transferor elects to evidence
its interest in the Transferor Interest in certificated form, the certificate
executed by the Issuing Entity and authenticated by the Owner Trustee,
substantially in the form set forth as
11
Exhibit
A; provided, that as used herein and in any Indenture Supplement
“Transferor Certificate” shall mean either a certificate executed and delivered
by the Issuing Entity and authenticated by the Owner Trustee substantially
in
the form of Exhibit A or the uncertificated interest in the Transferor
Interest.
“Transferor
Interest” means, with respect to Asset Pool One, the interest in Asset Pool
One not represented by the issued and Outstanding Asset Pool One
Notes.
“Trust”
has the meaning specified in the first paragraph of this Asset Pool One
Supplement.
Section
1.2 Effect
of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and will
not
affect the construction hereof.
Section
1.3 Successors
and Assigns. All covenants and agreements in this Asset Pool One
Supplement by the Issuing Entity will bind its successors and assigns, whether
so expressed or not. All covenants and agreements of the Collateral
Agent in this Asset Pool One Supplement shall bind the successors and agents
of
the Collateral Agent.
Section
1.4 Separability. In
case any provision in this Asset Pool One Supplement will be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
Section
1.5 Governing
Law. THIS ASSET POOL ONE SUPPLEMENT WILL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY 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.
Section
1.6 Counterparts. This
Asset Pool One Supplement may be executed in any number of counterparts, each
of
which so executed will be deemed to be an original, but all such counterparts
will together constitute but one and the same instrument.
[END
OF ARTICLE I]
12
ARTICLE
II
COLLATERAL
Section
2.1 Initial
Collateral. By execution of the Original Asset Pool One
Supplement, the Issuing Entity designated the First USA Collateral Certificate
as an Asset Pool One Collateral Certificate. By execution of
the Amended and Restated Asset Pool One Supplement, the Issuing Entity
designated the Chase Collateral Certificate as an Asset Pool One Collateral
Certificate. By execution of each Initial Asset Pool One Account
Assignment, the Issuing Entity included the Receivables existing on the
applicable Cut-Off Date or thereafter created in the Accounts designated
thereby, all Interchange and Recoveries related thereto, all monies due or
to
become due and all amounts received or receivable with respect thereto and
the
“proceeds” (including “proceeds” as defined in the applicable UCC) thereof and
Insurance Proceeds relating thereto. The First USA Collateral
Certificate was registered in the name of the Collateral Agent and delivered
to
the Collateral Agent on or about the Initial Issuance Date. The
Chase Collateral Certificate was registered in the name of the Collateral Agent
and delivered to the Collateral Agent on or about the Chase CC Issuance
Date. Unless written notice has been delivered to the Servicer, the
Owner Trustee and the Indenture Trustee, each Asset Pool One Collateral
Certificate shall continue to be held by the Collateral Agent in the State
of
New York.
Section
2.2 [Reserved]
Section
2.3 Increases
in the Invested Amount of an Existing Asset Pool One Collateral
Certificate.
(a) The
Invested Amount of any existing Asset Pool One Collateral Certificate may be
increased by the applicable Transferor on any Business Day in connection
with:
(i) the
issuance of an additional Series, Class or Tranche of Asset Pool One Notes;
or
(ii) the
increase of the Asset Pool One Transferor Amount.
(b) In
connection with any increase in the Invested Amount of an existing Asset Pool
One Collateral Certificate, such increase shall either be funded from the
proceeds of the issuance of an additional Series, Class or Tranche of Asset
Pool
One Notes or be funded by the applicable Transferor (which funding may be in
cash or through an increase in the Transferor Interest for Asset Pool
One).
(c) Notwithstanding
any other provision of this Agreement, with respect to any Monthly Period,
the
Invested Amount of an existing Asset Pool One Collateral Certificate shall
not
be increased if (i) an Early Amortization Event shall have occurred with respect
to any Asset Pool One Notes as a result of a failure to add Collateral to Asset
Pool One or a failure to increase the Invested Amount of an existing Asset
Pool
One Collateral Certificate at a time when the Asset Pool One Pool Balance for
the prior Monthly Period is less than the Asset
13
Pool
One Minimum Pool Balance for such prior Monthly Period and (ii) increasing
the
Invested Amount of or reinvesting in an existing Asset Pool One Collateral
Certificate would result in a reduction in the allocation percentage applicable
for principal collections for such existing Asset Pool One Collateral
Certificate.
Section
2.4 Addition
of Collateral.
(a) Required
Additions.
(i) If,
(A) as determined on any Determination Date, the Asset Pool One Transferor
Amount for the prior Monthly Period is less than the Asset Pool One Required
Transferor Amount for such prior Monthly Period, the Issuing Entity shall (1)
designate Receivables in additional Accounts for inclusion in Asset Pool One
(each, an “Additional Asset Pool One Account”), (2) designate one or more
Additional Collateral Certificates for inclusion in Asset Pool One (each, an
“Additional Asset Pool One Collateral Certificate”) or (3) increase the Invested
Amount of one or more existing Asset Pool One Collateral Certificates pursuant
to Section 2.3 in a sufficient amount such that, after giving effect to such
addition or increase, the Asset Pool One Transferor Amount for the prior Monthly
Period would have been at least equal to the Asset Pool One Required Transferor
Amount for such prior Monthly Period, or (B) as determined on any Determination
Date, the Asset Pool One Pool Balance for the prior Monthly Period is less
than
the Asset Pool One Minimum Pool Balance for such prior Monthly Period, the
Issuing Entity shall (1) designate Receivables in Additional Asset Pool One
Accounts for inclusion in Asset Pool One, (2) designate one or more Additional
Asset Pool One Collateral Certificates for inclusion in Asset Pool One or (3)
increase the Invested Amount of one or more existing Asset Pool One Collateral
Certificates pursuant to Section 2.3 in a sufficient amount such that, after
giving effect to such addition or increase, the Asset Pool One Pool Balance
would have been equal to or greater than the Asset Pool One Minimum Pool Balance
for such prior Monthly Period; provided, however, that in the event of a
Servicer Rating Event, the Asset Pool One Transferor Amount and the Asset Pool
One Pool Balance will be determined on a daily basis in accordance with a method
to be determined by the Transferor, subject to satisfaction of the Note Rating
Agency Condition.
Any
increase in the Invested Amount of one or more existing Asset Pool One
Collateral Certificates shall occur and/or designation of Receivables in any
Additional Asset Pool One Accounts and/or any Additional Asset Pool One
Collateral Certificates to be transferred to the Trust and designated for
inclusion in Asset Pool One shall be transferred to the Trust and designated
for
inclusion in Asset Pool One, as applicable, on or before the thirtieth Business
Day following such Determination Date (such date, in connection with the
addition of Additional Asset Pool One Accounts or Additional Asset Pool One
Collateral Certificates, the “Addition Date” and in connection with the increase
of an existing Asset Pool One Collateral Certificate, the “Increase Date”);
provided, however, that in the event of a Servicer Rating Event,
any such Addition Date or Increase Date shall be on or before the tenth Business
Day following such Determination Date. The failure of any Transferor
to increase the Asset Pool One Transferor Amount or the Asset Pool One Pool
Balance as provided in this clause (i)
14
solely
as a result of the unavailability to such Transferor of a sufficient amount
of
Additional Asset Pool One Accounts and/or Additional Asset Pool One Collateral
Certificates and/or the inability to increase the Invested Amount of one or
more
existing Asset Pool One Collateral Certificates shall not constitute a breach
of
this Asset Pool One Supplement or the Transfer and Servicing Agreement; provided
that any such failure which has not been timely cured may nevertheless result
in
the occurrence of an Early Amortization Event.
(ii) Any
Additional Asset Pool One Accounts or Additional Asset Pool One Collateral
Certificates designated to be included in Asset Pool One pursuant to clause
(i)
above may only be so included if the applicable conditions specified in
subsection (c) below have been satisfied.
(b) Permitted
Additions.
(i) In
addition to its obligation under subsection 2.4(a), the Issuing Entity may,
but
shall not be obligated to, subject to the conditions in paragraph (c) below,
(x)
designate from time to time Receivables in Additional Asset Pool One Accounts
to
be included as Collateral, and/or Additional Asset Pool One Collateral
Certificates to be included as Collateral and (y) increase the Invested Amount
of existing Asset Pool One Collateral Certificates. Such additional
Collateral shall be transferred to the Issuing Entity and designated for
inclusion in Asset Pool One on the Addition Date or the Increase Date, as
applicable.
(ii) On
any Business Day, consideration in the form of cash will be applied or an
increase in the Asset Pool One Transferor Amount will be effected in connection
with any increase in the Collateral.
(c) Conditions
to Additions. On each Addition Date with respect to any
Additional Asset Pool One Accounts and/or Additional Asset Pool One Collateral
Certificates, the applicable Receivables in Additional Asset Pool One Accounts
(and such Additional Asset Pool One Accounts shall be deemed to be Accounts
for
purposes of this Asset Pool One Supplement) or the applicable Additional Asset
Pool One Collateral Certificates existing as of the close of business on the
applicable Addition Date shall be designated as additional Collateral, subject
to the satisfaction of the following conditions (which shall not apply with
respect to any increase in the Invested Amount of any existing Asset Pool One
Collateral Certificate except as specified in clause (ii) below):
(i) all
of the requirements for the addition of Accounts set forth under subsection
2.12(c) of the Transfer and Servicing Agreement shall have been satisfied and
all of the representations and warranties set forth under subsection 2.04(a)
of
the Transfer and Servicing Agreement to be made on each Addition Date shall
be
true and correct in all material respects on such Addition Date;
(ii) on
or before the third Business Day prior to the Addition Date or the Increase
Date, as applicable, with respect to additions or increases pursuant to
subsection 2.4(a) and on or before the fifth Business Day prior to the Addition
Date with
15
respect
to additions pursuant to subsection 2.4(b) (the “Notice Date”), the Issuing
Entity shall have delivered to the Indenture Trustee, the Collateral Agent,
each
Note Rating Agency and the Servicer written notice (unless such notice
requirement is otherwise waived) that such additional Collateral will be
designated for inclusion in Asset Pool One, or an increased Invested Amount
of
an existing Asset Pool One Collateral Certificate will be designated for
inclusion in the Collateral (the latter notice requirement shall only apply
to
increases made pursuant to subsection 2.4(a); provided, however,
that notice shall be delivered to the Collateral Agent in connection with any
increase in the Invested Amount of an existing Asset Pool One Collateral
Certificate on or prior to the relevant Increase Date) which notice shall
specify, as applicable, (x) the approximate aggregate amount of the Principal
Receivables to be designated for inclusion in Asset Pool One, (y) the Invested
Amount of the Additional Asset Pool One Collateral Certificates to be designated
for inclusion in Asset Pool One or (z) the amount by which the Invested Amount
of an existing Asset Pool One Collateral Certificate is to be increased, as
well
as the applicable Addition Date or Increase Date and, in connection with the
Additional Asset Pool One Accounts, the Addition Cut-Off Date;
(iii) as
of the applicable Addition Cut-Off Date, each Additional Asset Pool One Account
is an Eligible Account;
(iv) as
of the applicable Addition Date, each Additional Asset Pool One Collateral
Certificate is an Eligible Collateral Certificate;
(v) on
or before the Addition Date with respect to Additional Asset Pool One Accounts
and the Receivables arising thereunder, the Issuing Entity shall have delivered
to the Collateral Agent and the Servicer a written assignment (including an
acceptance by the Collateral Agent for the benefit and security of the Asset
Pool One Noteholders and the other Secured Parties) in substantially the form
of
Exhibit B (the “Account Assignment”) and the Issuing Entity shall have, within
five Business Days after the Addition Date, delivered to the Collateral Agent
a
true and complete list (in the form of a computer file, microfiche list, CD-ROM
or such other form as is agreed upon between the Transferor and the Collateral
Agent) of all Additional Asset Pool One Accounts, identified by account
number and the aggregate amount of the Receivables in each Additional Asset
Pool
One Account as of the Addition Cut-Off Date, which list shall, as of the
Addition Date, modify and amend and be incorporated into and made a part of
such
Account Assignment and this Asset Pool One Supplement;
(vi) on
or before the Addition Date with respect to Additional Asset Pool One Collateral
Certificates, the Issuing Entity shall have delivered to the Collateral Agent
and the Servicer a written assignment in substantially the form of Exhibit
C
(the “Certificate Assignment”) and each Collateral Certificate shall be
registered in the name of and shall be delivered to the Collateral Agent in
accordance with Section 4.14;
(vii) as
of each of the Addition Cut-Off Date and the Addition Date, no Insolvency Event
with respect to the Account Owner, as applicable, the applicable Transferor
or the Issuing Entity shall have occurred nor shall the transfer to
16
Asset
Pool One of the Receivables arising in the Additional Asset Pool One Accounts
or
of the Additional Asset Pool One Collateral Certificate, as applicable, have
been made in contemplation of the occurrence thereof;
(viii) the
designation for inclusion in Asset Pool One of the Receivables arising in the
Additional Asset Pool One Accounts or of the Additional Asset Pool One
Collateral Certificates shall not, in the reasonable belief of the Issuing
Entity, result in an Adverse Effect;
(ix) if,
with respect to any three-month period or with respect to any twelve-month
period, the aggregate number of Additional Asset Pool One Accounts designated
to
have their Receivables added to the Trust shall exceed the applicable Aggregate
Addition Limit, the Issuing Entity shall have received notice from each Note
Rating Agency that the inclusion pursuant to subsection 2.4(b) of such
Additional Asset Pool One Accounts in Asset Pool One in excess of the applicable
Aggregate Addition Limit will not result in the reduction or withdrawal of
its
then existing rating of any Series, Class or Tranche of Asset Pool One Notes
then issued and Outstanding and shall have delivered such notice to the
Collateral Agent;
(x) if
so notified by any Note Rating Agency on or before the second Business Day
prior
to the Addition Date with respect to additions of Additional Asset Pool One
Collateral Certificates pursuant to subsection 2.4(a) or on or before the fourth
Business Day prior to the Addition Date with respect to additions of Additional
Asset Pool One Collateral Certificates pursuant to subsection 2.4(b) that such
Note Rating Agency has elected to impose a Note Rating Agency Condition with
respect to the addition of an Additional Asset Pool One Collateral Certificate,
the Issuing Entity shall have received notice from such Note Rating Agency
on or
prior to the applicable Addition Date that the Note Rating Agency Condition
shall have been satisfied with respect to such Note Rating Agency and the
Issuing Entity shall have delivered such notice to the Collateral Agent;
and
(xi) the
Issuing Entity shall have delivered to the Collateral Agent an Officer’s
Certificate, dated the Addition Date, confirming, to the extent applicable,
the
items set forth in clauses (iii) through (x) above.
Section
2.5 Removal
of Accounts.
(a) Subject
to the conditions set forth below, the Issuing Entity may, but shall not be
obligated to, designate certain Asset Pool One Accounts (the “Removed Asset Pool
One Accounts”) the Asset Pool One Receivables in which will be removed from the
Collateral. On or before the fifth Business Day (the “Removal Notice
Date”) prior to the date on which the Asset Pool One Receivables from the
designated Removed Asset Pool One Accounts will be removed from the Collateral
(the “Removal Date”), the Issuing Entity shall give the Indenture Trustee, the
Owner Trustee, the Collateral Agent, the Servicer and each Note Rating Agency
written notice that the Asset Pool One Receivables from such Removed Asset
Pool
One Accounts are to be removed from the Collateral.
17
(b) The
Issuing Entity shall be permitted to designate Removed Asset Pool One Accounts
and remove the related Asset Pool One Receivables from the Collateral only
upon
satisfaction of the following conditions:
(i) the
removal of any Asset Pool One Receivables of any Removed Asset Pool One Accounts
on any Removal Date shall not, in the reasonable belief of the Issuing Entity,
cause an Adverse Effect or the Asset Pool One Transferor Amount to be less
than
the Asset Pool One Required Transferor Amount or the Asset Pool One Pool Balance
to be less than the Asset Pool One Minimum Pool Balance for the Monthly Period
in which such removal occurs;
(ii) on
or prior to the Removal Date, the Issuing Entity shall have delivered to the
Collateral Agent for execution a written assignment in substantially the form
of
Exhibit D (the “Reassignment”) and, within five Business Days after the Removal
Date, the Issuing Entity shall have delivered to the Collateral Agent a true
and
complete list (in the form of a computer file, microfiche list, CD-ROM or such
other form as is agreed upon between the Transferor and the Collateral
Agent) of all Removed Asset Pool One Accounts, identified by account number
and the aggregate amount of the Asset Pool One Receivables in each Removed
Asset
Pool One Account as of the Removal Cut-Off Date, which list shall, as of the
Removal Date, modify and amend and be incorporated into and made a part of
this
Asset Pool One Supplement;
(iii) the
Servicer shall represent and warrant that (x) a random selection procedure
was
used by the Servicer in selecting the Removed Asset Pool One Accounts and only
one such removal of randomly selected Asset Pool One Accounts shall occur in
the
then current Monthly Period, (y) the Removed Asset Pool One Accounts arose
pursuant to an affinity, private-label, agent-bank, co-branding or other
arrangement with a third party that has been cancelled by such third party
or
has expired without renewal and which by its terms permits the third party
to
repurchase the Removed Asset Pool One Accounts subject to such arrangement,
upon
such cancellation or non-renewal and the third party has exercised such
repurchase right or (z) the Removed Asset Pool One Accounts were selected using
another method that will not preclude transfers from being accounted for as
sales under generally accepted accounting principles or prevent the Issuing
Entity from continuing to qualify as a qualifying special purpose entity in
accordance with SFAS 140 (or any relevant replacement statement);
(iv) on
or prior to the Removal Date, if such removal is pursuant to subsection
2.5(b)(iii)(z), the Note Rating Agency Condition shall have been satisfied;
and
(v) (A)
the Issuing Entity shall have delivered to the Collateral Agent an Officer’s
Certificate confirming the items set forth in clauses (i) and (ii) above and
(B)
the Servicer shall have delivered to the Collateral Agent an Officer’s
Certificate confirming the items set forth in clauses (iii) and (iv)
above. The Indenture Trustee and the Collateral Agent 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.
18
Upon
satisfaction of the above conditions, the Collateral Agent shall execute and
deliver the Reassignment to the Issuing Entity, and the Asset Pool One
Receivables from the Removed Asset Pool One Accounts shall no longer constitute
a part of the Collateral. Thereafter, such Accounts shall be removed
from the Trust pursuant to Section 2.13 of the Transfer and Servicing
Agreement.
Section
2.6 Account
Allocations. In the event that the Issuing Entity is unable
for any reason to designate Asset Pool One Receivables for inclusion in Asset
Pool One in accordance with the provisions of this Asset Pool One Supplement
(including by reason of a Transfer Restriction Event), then, in any such event,
(a) the Issuing Entity and the Servicer agree (except as prohibited by any
such
order) to allocate and pay to Asset Pool One, after the date of such inability,
all Collections, including Collections of Principal Receivables and Finance
Charge Receivables designated for inclusion in Asset Pool One prior to the
occurrence of such event, and all amounts which would have constituted
Collections with respect to Principal Receivables and Finance Charge Receivables
but for the Issuing Entity’s inability to designate such Asset Pool One
Receivables (up to the lesser of the amount of such insufficiency or an
aggregate amount equal to the amount of Principal Receivables and Finance Charge
Receivables in Asset Pool One on such date transferred to Asset Pool One by
the
Issuing Entity), (b) the Issuing Entity and the Servicer agree that such amounts
will be applied as Collections in accordance with the terms hereof and the
terms
of each Indenture Supplement and (c) for only so long as the allocation and
application of all Collections and all amounts that would have constituted
Collections are made in accordance with clauses (a) and (b) above, Principal
Receivables and Finance Charge Receivables (and all amounts which would have
constituted Principal Receivables and Finance Charge Receivables but for the
Issuing Entity’s inability to designate Asset Pool One Receivables for inclusion
in Asset Pool One) which are charged off as uncollectible in accordance with
this Asset Pool One Supplement shall continue to be allocated in accordance
with
the terms hereof and each Indenture Supplement and all amounts that would have
constituted Principal Receivables but for the Issuing Entity’s inability to
designate Asset Pool One Receivables for inclusion in Asset Pool One shall
be
deemed to be Principal Receivables for the purpose of calculating the applicable
Noteholder Percentage with respect to Principal Receivables with respect to
any
Series, Class or Tranche secured by the Asset Pool One
Receivables. For the purpose of the immediately preceding sentence,
the Issuing Entity and the Servicer shall treat the first received Collections
with respect to the Asset Pool One Accounts as allocable to Asset Pool One
until
Asset Pool One shall have been allocated and paid Collections in an amount
equal
to the aggregate amount of Principal Receivables in Asset Pool One as of the
date of the occurrence of such event. If the Issuing Entity and the
Servicer are unable pursuant to any Requirements of Law to allocate Collections
as described above, the Issuing Entity and the Servicer agree that, after the
occurrence of such event, payments on each Asset Pool One Account with respect
to the principal balance of such Asset Pool One Account shall be allocated
first
to the oldest principal balance of such Asset Pool One Account and shall have
such payments applied as Collections in accordance with the terms hereof and
each Indenture Supplement. The parties hereto agree that Asset Pool
One Finance Charge Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to Asset Pool One, or that would
have been conveyed to Asset Pool One but for the above described inability
to
designate such Asset Pool One Receivables, shall continue to be a part of Asset
Pool One notwithstanding any cessation of the transfer of additional Principal
Receivables
19
to
Asset Pool One and Collections with respect thereto shall continue to be
allocated and paid in accordance with the terms hereof and each Indenture
Supplement.
Section
2.7 Discount
Receivables.
(a) In
the event the Transferor, pursuant to the Transfer and Servicing Agreement,
opts
to designate at any time and from time to time the Yield Factor of all or any
specified portion of Gross Principal Receivables outstanding in Asset Pool
One
on any date of determination and subsequently created to be treated as Discount
Receivables and included in Finance Charge Receivables, such designation shall
be applicable under this Asset Pool One Supplement and each Indenture
Supplement. Subject to the conditions specified in the Transfer and
Servicing Agreement, the Yield Factor may, without notice to or the consent
of
any Noteholder in Asset Pool One, from time to time, be increased, reduced
or
eliminated on or after such Discount Option Date; provided, however, that on
each Discount Option Date after a change in Yield Factor, the Transferor shall
apply the new Yield Factor to all or the portion of the Gross Principal
Receivables outstanding in Asset Pool One which are to be treated as Discount
Receivables.
(b) After
the Discount Option Date, Discount Receivables Collections with respect to
Asset
Pool One Receivables shall be treated as Asset Pool One Finance Charge
Collections.
Section
2.8 Recording,
Etc.
(a) The
Issuing Entity intends the Security Interest granted pursuant to this Asset
Pool
One Supplement in favor of the Collateral Agent to be prior to all other liens
in respect of the Collateral. Subject to Section 2.9, the Issuing
Entity will take all actions necessary to obtain and maintain a perfected lien
on and security interest in the Collateral in favor of the Collateral
Agent. The Issuing Entity will from time to time execute, authorize
and deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and other
instruments, all as prepared by the Issuing Entity, and will take such other
action necessary or advisable to:
(i) grant
a Security Interest more effectively in all or any portion of the
Collateral;
(ii) maintain
or preserve the Security Interest (and the priority thereof) created by this
Asset Pool One Supplement or carry out more effectively the purposes
hereof;
(iii) perfect,
publish notice of or protect the validity of any grant made or to be made by
this Asset Pool One Supplement;
(iv) enforce
each Asset Pool One Collateral Certificate, the Asset Pool One Receivables,
any
Derivative Agreements, any Supplemental Credit Enhancement Agreements and any
Supplemental Liquidity Agreements and each other instrument or agreement
designated for inclusion in the Collateral;
20
(v) preserve
and defend title to the Collateral and the rights of the Collateral Agent in
the
Collateral against the claims of all persons and parties; or
(vi) pay
all taxes or assessments levied or assessed upon the Collateral when
due.
(b) The
Issuing Entity will from time to time promptly pay and discharge all financing
and continuation statement recording and/or filing fees, charges and taxes
relating to this Asset Pool One Supplement, any amendments hereto and any other
instruments of further assurance. The Issuing Entity hereby
designates the Servicer its agent and attorney-in-fact to authorize upon the
Issuing Entity’s failure to do so, any financing statement, continuation
statement or other instrument required by the Collateral Agent pursuant to
this
Section.
(c) Without
limiting the generality of clause (a)(ii) or (a)(iii):
(i) The
Issuing Entity will cause this Asset Pool One Supplement, all amendments and
supplements hereto and/or all financing statements and continuation statements
and any other necessary documents covering the Collateral Agent’s right, title
and interest in and to the Collateral to be promptly recorded, registered and
filed, and at all times to be kept, recorded, registered and filed, all in
such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Collateral Agent in and to all
property comprising the Collateral. The Issuing Entity will deliver
to the Collateral Agent file-stamped copies of, or filing receipts for, any
document recorded, registered or filed as provided above, as soon as available
following such recording, registration or filing.
(ii) Within
30 days after the Issuing Entity makes any change in its name, identity or
corporate structure which would make any financing statement or continuation
statement filed in accordance with paragraph (d) below seriously misleading
within the meaning of Section 9-506 (or any comparable provision) of the UCC,
the Issuing Entity will give the Collateral Agent notice of any such change
and
will file such financing statements or amendments as may be necessary to
continue the perfection of the Collateral Agent’s interest in the
Collateral.
(d) The
Issuing Entity will give the Collateral Agent prompt notice of any relocation
of
its state of location, and any change in the jurisdiction of its organization,
and whether, as a result of such relocation or change, the applicable provision
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 will
file such financing statements or amendments as may be necessary to perfect
or
to continue the perfection of the Collateral Agent’s security interest in the
Collateral. The Issuing Entity will at all times maintain its chief
executive office within the United States.
(e) The
duty of the Collateral Agent to execute or authorize any instrument required
pursuant to this Section will arise only if the Collateral Agent has actual
knowledge of the type described in subsection 6.01(c) of the Indenture of any
default of the Issuing Entity in complying with the provisions of this
Section.
21
Section
2.9 Trust
Indenture Act Requirements. The release of any Collateral from
the lien created by this Asset Pool One Supplement or the release, in whole
or
in part, of the liens on all Collateral, will not be deemed to impair the
Security Interest in contravention of the provisions hereof if and to the extent
the Collateral or liens are released pursuant to the terms
hereof. The Collateral Agent and the Indenture Trustee, each in its
individual capacity, and each of the Asset Pool One Noteholders are hereby
deemed to acknowledge that a release of Collateral securing an Asset Pool or
liens strictly in accordance with the terms hereof will not be deemed for any
purpose to be an impairment of the remaining Security Interests in contravention
of the terms of this Asset Pool One Supplement. To the extent
applicable, the Issuing Entity will cause Section 314(d) of the Trust Indenture
Act relating to the release of property or securities from the liens hereof
to
be complied with. Any certificate or opinion required by Section
314(d) of the Trust Indenture Act may be made by an officer of the Issuing
Entity, except in cases in which Section 314(d) of the Trust Indenture Act
requires that such certificate or opinion be made by an independent
person.
Section
2.10 Suits
To Protect the Collateral. Subject to the provisions of this
Asset Pool One Supplement, the Collateral Agent will have power to institute
and
to maintain such suits and proceedings as it may deem expedient to prevent
any
impairment of the Collateral by any acts which may be unlawful or in violation
of this Asset Pool One Supplement, and such suits and proceedings as the
Collateral Agent may deem expedient to preserve or protect the interests of
the
Asset Pool One Noteholders and the interests of the Indenture Trustee and the
Collateral Agent, each in its individual capacity, in the Collateral (including
power to institute and maintain suits or proceedings to restrain the enforcement
of or compliance with any legislative or other governmental enactment, rule
or
order that may be unconstitutional or otherwise invalid if the enforcement
of,
or compliance with, such enactment, rule or order would impair the Security
Interest or be prejudicial to the interests of the Asset Pool One Noteholders,
the Indenture Trustee or the Collateral Agent). No counterparties to
a Derivative Agreement, Supplemental Credit Enhancement Agreement or
Supplemental Liquidity Agreement may direct the Collateral Agent to enforce
the
Security Interest. Each Derivative Counterparty’s, Supplemental
Credit Enhancement Provider’s and Supplemental Liquidity Provider’s rights
consist solely of the right to receive Collections allocated for such party’s
benefit pursuant to the related Indenture Supplement.
Section
2.11 Purchaser
Protected. In no event will any purchaser in good faith of any
property purported to be released hereunder be bound to ascertain the authority
of the Collateral Agent to execute the release or to inquire as to the
satisfaction of any conditions required by the provisions hereof for the
exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor will any purchaser or other
transferee of any property or rights permitted by this Article to be sold be
under any obligation to ascertain or inquire into the authority of the Issuing
Entity or any other obligor, as applicable, to make any such sale or other
transfer.
Section
2.12 Powers
Exercisable by Receiver or Collateral Agent. In case the
Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article II upon the Issuing Entity
or
any other obligor, as applicable, with respect to the release, sale or other
disposition of such property may be exercised by such receiver or trustee,
and
an instrument signed by such receiver or trustee shall be deemed
the
22
equivalent
of any similar instrument of the Issuing Entity or any other obligor, as
applicable, or of any officer or officers thereof required by the provisions
of
this Article II.
Section
2.13 Determinations
Relating to Collateral. In the event (i) the Collateral Agent or
the Indenture Trustee shall receive any written request from the Issuing Entity
or any other obligor for consent or approval with respect to any matter or
thing
relating to any Collateral or the Issuing Entity’s or any other obligor’s
obligations with respect thereto or (ii) there shall be due to or from the
Collateral Agent or the Indenture Trustee under the provisions hereof any
performance or the delivery of any instrument or (iii) the Collateral Agent
or
the Indenture Trustee shall become aware of any nonperformance by the Issuing
Entity or any other obligor of any covenant or any breach of any representation
or warranty of the Issuing Entity or any other obligor set forth in this Asset
Pool One Supplement, then, in each such event, the Collateral Agent or the
Indenture Trustee, as applicable, shall be entitled to hire experts,
consultants, agents and attorneys to advise the Collateral Agent or the
Indenture Trustee, as applicable, on the manner in which the Collateral Agent
or
the Indenture Trustee, as applicable, should respond to such request or render
any requested performance or response to such nonperformance or breach (the
expenses of which will be reimbursed to the Collateral Agent or the Indenture
Trustee, as applicable, pursuant to Section 4.6). Each of the
Collateral Agent and the Indenture Trustee will be fully protected in the taking
of any action recommended or approved by any such expert, consultant, agent
or
attorney or agreed to by Holders of more than 66⅔% of the Outstanding Dollar
Principal Amount of the Outstanding Asset Pool One Notes.
Section
2.14 Release
of all Collateral.
(a) Subject
to the payment of its fees and expenses pursuant to Section 4.6, the Collateral
Agent shall, at the request of the Issuing Entity or when otherwise required
by
the provisions of this Asset Pool One Supplement, execute instruments to release
property from the lien of this Asset Pool One Supplement, or convey the
Collateral Agent’s interest (which is held by the Collateral Agent for the
benefit of the Asset Pool One Noteholders) in the same, in a manner and under
circumstances which are not inconsistent with the provisions of this Asset
Pool
One Supplement. No party relying upon an instrument executed by the
Collateral Agent as provided in this Article II will be bound to ascertain
the
Collateral Agent’s authority, inquire into the satisfaction of any conditions
precedent or see to the application of any funds.
(b) Upon
delivery of an Officer’s Certificate certifying that the Issuing Entity’s
obligations under the Indenture and this Asset Pool One Supplement have been
satisfied and discharged by complying with the provisions of this Article II,
the Collateral Agent shall (i) execute and deliver such releases, termination
statements and other instruments (in recordable form, where appropriate) as
the
Issuing Entity or any other obligor, as applicable, may reasonably request
evidencing the termination of the Security Interest created by this Asset Pool
One Supplement and (ii) not be deemed to hold the Security Interest for the
benefit of itself, the Indenture Trustee, the Asset Pool One Noteholders, any
applicable Derivative Counterparty, any applicable Supplemental Credit
Enhancement Provider or any applicable Supplemental Liquidity
Provider.
(c) The
Transferor and the Asset Pool One Noteholders shall be entitled to receive
at
least 10 days written notice when the Collateral Agent proposes to take
any
23
action
pursuant to clause (a), accompanied by copies of any instruments involved,
and
the Collateral Agent shall also be entitled to require, as a condition to such
action, an Opinion of Counsel, stating the legal effect of any such action,
outlining the steps required to complete the same, and concluding that all
conditions precedent to the taking of such action have been complied
with. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate
or
other instrument delivered to the Collateral Agent in connection with any such
action.
Section
2.15 Certain
Actions by Collateral Agent. Any action taken by the Collateral
Agent pursuant to this Article in respect of the release of any or
all of the Collateral will be taken by the Collateral Agent as its interest
in
such Collateral may appear, and no provision of this Article II is intended
to,
or will, excuse compliance with any provision hereof.
Section
2.16 Opinions
as to Collateral.
(a) On
the Effective Date, the Issuing Entity shall furnish to the Collateral Agent
an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording and filing of this Asset
Pool One Supplement, any amendments, supplements or modifications hereto and
any
other requisite documents and with respect to the execution and filing of any
financing statements and continuation statements, as are necessary to perfect
and maintain the perfection of the Security Interest granted by this Asset
Pool
One Supplement in favor of the Collateral Agent and reciting the details of
such
action, or stating that, in the opinion of such counsel, no such action is
necessary to make such lien and security interest perfected.
(b) On
or before April 30 in each calendar year, the Issuing Entity shall furnish
to
the Collateral Agent an Opinion of Counsel with respect to each UCC financing
statement which has been filed by the Issuing Entity either stating that, (i)
in
the opinion of such counsel, such action has been taken with respect to the
recording, filing, re-recording and refiling of this Asset Pool One Supplement,
any amendments, supplements or modifications hereto and any other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements as is necessary to maintain the first
priority lien and Security Interest created by this Asset Pool One Supplement
and reciting the details of such action or (ii) in the opinion of such counsel
no such action is necessary to maintain such lien and Security
Interest. Such Opinion of Counsel will also describe the recording,
filing, re-recording and refiling of this Asset Pool One Supplement, any
amendments, supplements or modifications hereto and any other requisite
documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and Security Interest of this Asset Pool One Supplement
until April 30 in the following calendar year.
Section
2.17 Delegation
of Duties. Until this appointment is rescinded by the
Issuing Entity, the Issuing Entity hereby appoints Chase USA to assist it in
its
performance of its duties under this Asset Pool One Supplement. In
addition, the Issuing Entity may contract with or appoint other Persons
(including Chase USA and its Affiliates) to assist it in performing its
duties under this Asset Pool One Supplement. Any performance of
duties by a Person who is
24
identified
to the Collateral Agent and the Indenture Trustee in an Officer’s Certificate
will be deemed to be action taken by the Issuing Entity.
Section
2.18 Issuing
Entity’s Representations and Warranties. As of each Issuance Date,
the Issuing Entity shall make the following representations and warranties
to
the Collateral Agent. Such representations and warranties shall
survive until the termination of this Asset Pool One Supplement. Such
representations and warranties shall not be waived by any of the parties to
this
Asset Pool One Supplement unless the Note Rating Agency Condition shall have
been satisfied with respect to such waiver.
(a) At
the time of the granting of the security interest in the Collateral, the Issuing
Entity owned and had good marketable title to the Collateral free and clear
of
any Lien (other than any Lien for municipal or other local taxes if such taxes
were not then due and payable or if the Issuing Entity was then contesting
the
validity thereof in good faith by appropriate proceedings and had set aside
on
its books and records adequate reserves with respect thereto), claim or
encumbrance of any Person.
(b) This
Asset Pool One Supplement creates a valid and continuing security interest
(as
defined in the applicable UCC) in the Collateral in favor of the Collateral
Agent, which security interest is prior to all other Liens, and is enforceable
as such against creditors of and purchasers from the Issuing
Entity.
(c) The
Issuing Entity has caused or will have caused within ten days of the granting
of
the security interest in any portion of the Collateral, the filing of all
appropriate financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest
in
the Collateral granted to the Collateral Agent hereunder.
(d) Other
than the security interest granted to the Collateral Agent pursuant to this
Asset Pool One Supplement or any other security interest that has been
terminated, the Issuing Entity has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed the Collateral; the Issuing Entity
has not authorized the filing of and is not aware of any financing statements
against itself that include a description of collateral covering the Collateral
other than any financing statement relating to the security interest granted
to
the Collateral Agent hereunder or that has been terminated; and the Issuing
Entity is not aware of any judgment or tax lien filings against
itself.
(e) Each
Asset Pool One Collateral Certificate constitutes a “certificated security”
within the meaning of the applicable UCC; the Issuing Entity has in its
possession all original copies of the certificates that constitute such Asset
Pool One Collateral Certificate; none of the certificates that constitute or
evidence such Asset Pool One Collateral Certificate have any marks or notations
indicating that it has been pledged, assigned or otherwise conveyed to any
Person other than the Collateral Agent; and all financing statements filed
or to
be filed against the Issuing Entity in favor of the Collateral Agent in
connection herewith describing such Asset Pool One Collateral Certificate
contain a statement to the following effect: “A purchase of or security interest
in any collateral described in this financing statement will violate the rights
of the Collateral Agent.”
25
(f) Each
Asset Pool One Receivable constitutes an “account” within the meaning of the
applicable UCC.
[END
OF ARTICLE II]
26
ARTICLE
III
COLLECTIONS,
ALLOCATIONS, DEPOSITS AND PAYMENTS
Section
3.1 Collections
and Allocations. The Servicer pursuant to the terms of the
Transfer and Servicing Agreement (or, if the authority of the Servicer has
been
revoked pursuant to Section 10.01 of the Transfer and Servicing Agreement,
the
Indenture Trustee, or, if a Successor Servicer has been appointed, the Successor
Servicer) shall instruct the Collateral Agent to apply all funds on deposit
in
the Collection Account as described in this Article III and in any Indenture
Supplement for any Series. Except as otherwise provided below, the
Servicer pursuant to the terms of Transfer and Servicing Agreement shall deposit
Collections with respect to the Asset Pool One Receivables into the Collection
Account for Asset Pool One as promptly as possible after the Date of Processing
of such Collections, but in no event later than the second Business Day
following the Date of Processing and shall deposit Collections received with
respect to the Asset Pool One Collateral Certificates with respect to any
Monthly Period into the Collection Account for Asset Pool One no later than
the
First Note Transfer Date in the next succeeding Monthly Period.
Subject
to the express terms of any Indenture Supplement, but notwithstanding anything
else in this Asset Pool One Supplement, the Indenture or the Transfer and
Servicing Agreement to the contrary, for as long as Chase USA remains the
Servicer under the Transfer and Servicing Agreement and (i) no Servicer Rating
Event shall have occurred and be continuing or (ii) Chase USA obtains a
guarantee or letter of credit covering risk of collection with respect to its
deposit and payment obligations under the Transfer and Servicing Agreement
(in
form and substance satisfactory to each Note Rating Agency) from a guarantor
having a short-term credit rating of at least “A-1” from Standard & Poor’s
or “P-1” from Xxxxx’x or “F1” from Fitch (or such other rating below “A-1” or
“P-1” or, to the extent rated by Fitch, “F1,” as the case may be, which is
acceptable to such Note Rating Agency), or (iii) the Note Rating Agency
Condition will have been satisfied despite the Servicer’s inability to satisfy
the rating requirement specified in clause (i) or (ii) above, or (iv) for 5
Business Days following any reduction of any such rating or failure to satisfy
the conditions specified in clause (i) or (ii) above, the Servicer need not
make
the daily deposits of Collections into the Collection Account as provided in
the
preceding paragraph, but may make deposits in an amount equal to the net amount
of such deposits and payments which would have been made with respect to Asset
Pool One Notes to receive payments on the related Payment Date had the
conditions of this sentence not applied, into the Collection Account in
immediately available funds not later than 1:00 p.m., New York City time, on
each applicable Note Transfer Date following the Monthly Period with respect
to
which such deposit relates. To the extent that, in accordance with
this Section 3.1, the Servicer has retained amounts which would otherwise be
required to be deposited into the Collection Account or any Supplemental Bank
Account with respect to any Monthly Period, the Servicer shall be required
to
deposit such amounts in the Collection Account or such Supplemental Bank Account
on the applicable Note Transfer Date to the extent necessary to make required
distributions on the related Payment Date. Notwithstanding
anything in this Asset Pool One Supplement to the contrary, unless otherwise
specified in the Indenture or any Indenture Supplement, the Servicer need not
deposit any amount allocated to be paid to any Transferor pursuant to the
Indenture, this
27
Asset
Pool One Supplement or any applicable Indenture Supplement into the Collection
Account or any Supplemental Bank Account, but shall pay such amounts as
collected to the applicable Transferor.
Section
3.2 Allocations
of Finance Charge Collections and Default Amounts.
(a) With
respect to each Monthly Period, the Collateral Agent, at the direction of the
Servicer, shall allocate to each Series of Asset Pool One Notes an amount equal
to the product of (i) the Noteholder Percentage for Asset Pool One Finance
Charge Collections for such Monthly Period for such Series and (ii) the sum
of
the Asset Pool One Finance Charge Collections for such Monthly Period and the
investment earnings for such Monthly Period on amounts on deposit in the
Collection Account and the Excess Funding Account established for the benefit
of
all Asset Pool One Notes.
(b) With
respect to each Monthly Period, the Collateral Agent, at the direction of the
Servicer, shall allocate to each Series of Asset Pool One Notes an amount equal
to the product of (i) the Noteholder Percentage for the Asset Pool One Default
Amount for such Monthly Period for such Series and (ii) the Asset Pool One
Default Amount for such Monthly Period.
Section
3.3 Allocations
of Principal Collections. With respect to each Monthly Period,
the Collateral Agent, at the direction of the Servicer, shall allocate to each
Series of Asset Pool One Notes an amount equal to the product of (i) the
Noteholder Percentage for Asset Pool One Principal Collections for such Monthly
Period for such Series and (ii) the Asset Pool One Principal Collections for
such Monthly Period. In addition, with respect to each Monthly
Period, if there is a Remaining Series Available Principal Collections Shortfall
for any Series of Asset Pool One Notes, the Collateral Agent shall allocate
to
each such Series of Asset Pool One Notes a portion of Asset Pool One Collateral
Certificate Principal Shortfall Payments for such Monthly Period in an amount
equal to the Remaining Series Available Principal Collections Shortfall for
such
Series in accordance with the applicable Indenture Supplement; provided,
however, that if the aggregate amount of Asset Pool One Collateral Certificate
Principal Shortfall Payments is less than the aggregate Remaining Series
Available Principal Collections Shortfall for all Series, then Asset Pool One
Collateral Certificate Principal Shortfall Payments allocable to each Series
shall equal the product of (A) the Asset Pool One Collateral Certificate
Principal Shortfall Payments for such Monthly Period and (B) a fraction, the
numerator of which is the Remaining Series Available Principal Collections
Shortfall for such Series and the denominator of which is the aggregate
Remaining Series Available Principal Collections Shortfall for all Series of
Asset Pool One Notes for such Monthly Period.
Section
3.4 Allocations
of the Asset Pool One Servicing Fee.
(a) As
compensation for its servicing activities hereunder and as reimbursement for
any
expense incurred by it in connection therewith, the Servicer shall be entitled
to receive a servicing fee (the “Asset Pool One Servicing Fee”). For
each Monthly Period, the Asset Pool One Servicing Fee shall equal the sum of
(i)
the servicing fee amount for
28
each
Asset Pool One Collateral Certificate, as specified in the related Series
Supplement, and (ii) the Asset Pool One Receivables Servicing Fee.
(b) With
respect to each Monthly Period, the Collateral Agent, at the direction of the
Servicer, shall allocate to each Series of Asset Pool One Notes an amount equal
to the product of (i) the Asset Pool One Servicing Fee for such Monthly Period
and (ii) the Noteholder Percentage for the Asset Pool One Servicing Fee for
such
Monthly Period for such Series of Asset Pool One Notes.
Section
3.5 Allocations
of Amounts to the Excess Funding Account and Allocations of Amounts on Deposit
in the Excess Funding Account. With respect to each Monthly
Period, if (i) the Asset Pool One Transferor Amount is, or as a result of a
payment on the related First Note Transfer Date would become, less than the
Asset Pool One Required Transferor Amount or (ii) the Asset Pool One Pool
Balance is, or as a result of a payment on the related First Note Transfer
Date
would become, less than the Asset Pool One Minimum Pool Balance, the Collateral
Agent shall allocate or deposit pursuant to subsection 3.8(d) of this Asset
Pool
One Supplement to the Excess Funding Account an amount equal to the greater
of
the amount by which the Asset Pool One Transferor Amount would be less than
the
Asset Pool One Required Transferor Amount and the amount by which the Asset
Pool
One Pool Balance would be less than the Asset Pool One Minimum Pool Balance,
each determined with respect to the related Monthly Period.
Amounts
on deposit in the Excess Funding Account shall be treated as Shared Excess
Available Principal Collections and, to the extent required, allocated to each
Series of Asset Pool One Notes in accordance with the applicable Indenture
Supplement. Any remaining amounts on deposit in the Excess Funding
Account in excess of the amount required to be treated as Shared Excess
Available Principal Collections for a Monthly Period shall be released to the
holders of the Transferor Interest in Asset Pool One in accordance with the
related Indenture Supplement to the extent that after such release (A) the
Asset
Pool One Transferor Amount is equal to or greater than the Asset Pool One
Required Transferor Amount and (B) the Asset Pool One Pool Balance is equal
to
or greater than the Asset Pool One Minimum Pool Balance.
Section
3.6 Final
Payment. Each Series, Class or Tranche of Asset Pool One Notes,
as applicable, will be considered to be paid in full in the manner set forth
in
the applicable Indenture Supplement. A Series, Class or Tranche of
Asset Pool One Notes will be considered paid in full and the Holders of such
Series, Class or Tranche of Asset Pool One Notes, as applicable, will have
no
further right or claim, and the Issuing Entity will have no further obligation
or liability for principal or interest with respect to such Series, Class or
Tranche of Notes, as applicable, on the earliest to occur of:
(a) the
date of the payment in full of the Outstanding Dollar Principal Amount of and
all accrued but unpaid interest and any additional interest on that Series,
Class or Tranche of Asset Pool One Notes, as applicable;
(b) the
date on which the Outstanding Dollar Principal Amount of such Asset Pool One
Notes, after giving effect to all deposits, allocations, reallocations, sales
of
29
Collateral
and payments to be made on such date, is reduced to zero, and all accrued but
unpaid interest and any additional interest on such Asset Pool One Notes is
paid
in full;
(c) the
Legal Maturity Date of such Asset Pool One Notes, after giving effect to all
deposits, allocations, reimbursements, reallocations, sales of Collateral and
payments to be made on such date; or
(d) the
date of the payment following the date on which a sale of Collateral has taken
place with respect to that Series, Class or Tranche of Asset Pool One Notes,
as
described in the Indenture.
Section
3.7 Payments
within a Series, Class or Tranche. All payments of principal,
interest or other amounts to Holders of the Asset Pool One Notes of a Series,
Class or Tranche will be made in accordance with the related Indenture
Supplement.
Section
3.8 Allocations
of Finance Charge Collections, Default Amounts, Servicing Fees and Principal
Collections Allocable to the Transferor Interest.
(a) Unless
otherwise stated in any Indenture Supplement, the Servicer shall allocate to
the
holder of the Transferor Interest in Asset Pool One an amount equal to the
product of (i) the Asset Pool One Transferor Percentage for Asset Pool One
Finance Charge Collections with respect to such Monthly Period and (ii) the
Asset Pool One Finance Charge Collections and earnings on amounts on deposit
in
the Collection Account and the Excess Funding Account with respect to such
Monthly Period. If so specified in any Indenture Supplement, such
amounts may be applied to cover certain shortfalls in the amount of investment
earnings on investments of funds in certain Supplemental Bank
Accounts.
(b) The
Servicer shall allocate to the holders of the Transferor Interest in Asset
Pool
One an amount equal to the product of (i) the Asset Pool One Transferor
Percentage for the Asset Pool One Default Amount with respect to such Monthly
Period and (ii) the Asset Pool One Default Amount with respect to such Monthly
Period.
(c) The
Servicer shall allocate to the holders of the Transferor Interest in Asset
Pool
One an amount equal to the product of (i) Asset Pool One Transferor Percentage
with respect to such Monthly Period and (ii) the Asset Pool One Servicing Fee
with respect to such Monthly Period.
(d) Unless
otherwise stated in any Indenture Supplement, the Servicer shall allocate to
the
holders of the Transferor Interest in Asset Pool One an amount equal to the
product of (i) the Asset Pool One Transferor Percentage for Asset Pool One
Principal Collections with respect to such Monthly Period and (ii) the Asset
Pool One Principal Collections with respect to such Monthly Period;
provided, however, that amounts payable to the holders of the
Transferor Interest pursuant to this subsection 3.8(d) shall instead be
deposited into the Excess Funding Account to the extent that (A) the Asset
Pool
One Transferor Amount is, or as a result of such payment would become, less
than
the Asset Pool One Required Transferor Amount or (B) the Asset Pool One Pool
Balance is, or as a result of such payment would become, less than the Asset
Pool One Minimum Pool Balance.
30
Section
3.9 Transfer
of Defaulted Accounts. Unless otherwise provided in any Indenture
Supplement, in consideration of receiving Recoveries as provided in subsection
3.11(a) hereof, on the date on which an Asset Pool One Account becomes a
Defaulted Account, the Collateral Agent shall automatically and without further
action or consideration be deemed to transfer, set over, and otherwise convey
to
the applicable Transferor, without recourse, representation, or warranty, all
the right, title and interest of the Collateral Agent in and to the Asset Pool
One Receivables in such Defaulted Account, all monies due or to become due
with
respect thereto, all proceeds thereof allocable to Asset Pool One with respect
to such Asset Pool One Receivables, excluding Recoveries in respect of Asset
Pool One Defaulted Accounts relating thereto, which shall remain a part of
the
Collateral.
Section
3.10 Adjustments
for Miscellaneous Credits and Fraudulent Charges.
(a) The
Servicer shall be obligated to reduce on a net basis for each Monthly Period
the
aggregate amount of Asset Pool One Principal Receivables (a “Credit Adjustment”)
with respect to any Asset Pool One 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 (x) the
calculation of the Asset Pool One Transferor Amount would cause the Asset Pool
One Transferor Amount to be an amount less than the Asset Pool One Required
Transferor Amount or (y) the calculation of the Asset Pool One Pool Balance
would cause the Asset Pool One Pool Balance to be an amount less than the Asset
Pool One Minimum Pool Balance, the applicable Transferor shall make a deposit,
no later than (A) the First Note Transfer Date following the Monthly Period
with
respect to which such Credit Adjustment occurs or (B) in the event of a Servicer
Rating Event, 10 Business Days after the inclusion of the Credit Adjustment
that
caused the Asset Pool One Transferor Amount to be less than the Asset Pool
One
Required Transferor Amount or the Asset Pool One Pool Balance to be less than
the Asset Pool One Minimum Pool Balance, into the Excess Funding Account for
Asset Pool One in immediately available funds in an amount equal to the greater
of the amount by which (I) the Asset Pool One Transferor Amount would be less
than the Asset Pool One Required Transferor Amount or (II) the Asset Pool One
Pool Balance would be an amount less than the Asset Pool One Minimum Pool
Balance, due to Credit Adjustments with respect to Asset Pool One Receivables
conveyed by such Transferor (each such deposit, an “Adjustment
Payment”).
(b) If
(i) the Servicer makes a deposit into the Collection Account for Asset Pool
One
in respect of a Collection of an Asset Pool One Receivable and such Collection
was received by the Servicer in the form of a check which is not honored for
any
reason or (ii) the Servicer makes a mistake with respect to the amount of any
Collection for Asset Pool One and deposits an amount that is less than or more
than the actual amount of such Collection, the Servicer shall appropriately
adjust the amount subsequently deposited into the Collection Account for Asset
Pool One to reflect such dishonored check or mistake. Any Asset Pool
One Receivable in respect of which a dishonored check is received shall be
deemed not to have been
31
paid. Notwithstanding
the first two sentences of this paragraph, adjustments made pursuant to this
Section shall not require any change in any report previously
delivered.
Section
3.11 Recoveries
and Interchange.
(a) Recoveries. On
or prior to the second Business Day following the end of each Monthly Period,
the Transferor shall notify the Servicer of the amount of Recoveries in respect
of Asset Pool One Defaulted Accounts to be included as Collections for Asset
Pool One with respect to the preceding Monthly Period. On the First
Note Transfer Date following the applicable Monthly Period, the Transferor
shall
pay to the Servicer and the Servicer shall deposit into the Collection Account
for Asset Pool One, in immediately available funds, the amount of Recoveries
in
respect of Asset Pool One Defaulted Accounts to be so included as Collections
for Asset Pool One with respect to the preceding Monthly Period;
provided, however, that such deposit need be made only to the
extent that such funds are required to be retained in the applicable Bank
Accounts for the benefit of any Series, Class or Tranche of Asset Pool One
Notes
pursuant to the provisions of this Article III of this Asset Pool One Supplement
or any applicable Indenture Supplement and any such amount that is not so
deposited shall be paid to the applicable Transferor.
(b) Interchange. On
or prior to the second Business Day following the end of each Monthly Period,
each Account Owner shall notify the Servicer of the Interchange Amount, if
any,
which is required to be included as Asset Pool One Finance Charge Collections
with respect to the preceding Monthly Period. On the First Note
Transfer Date following the applicable Monthly Period, each Account Owner shall
pay to the Servicer and the Servicer shall deposit into the Collection Account,
in immediately available funds, the Interchange Amount to be so included as
Asset Pool One Finance Charge Collections with respect to the preceding Monthly
Period; provided, however, that such deposit need be made only to
the extent that such funds are required to be retained in the applicable Bank
Accounts for the benefit of any Series, Class or Tranche of Asset Pool One
Notes
pursuant to the provisions of this Article III of this Asset Pool One Supplement
or any applicable Indenture Supplement and any such amount that is not so
deposited shall be paid to the applicable Transferor.
Section
3.12 [Reserved].
Section
3.13 Designation
of Remaining Principal Shortfalls. On each Determination Date,
the Servicer shall determine with respect to the prior Monthly Period whether
there is a Remaining Series Available Principal Collections Shortfall for any
Series of Asset Pool One Notes after application of Shared Excess Available
Principal Collections for the benefit of such Series of Notes for such Monthly
Period. The Servicer shall determine the aggregate amount of such
Remaining Series Available Principal Collections Shortfalls for all Series
of
Asset Pool One Notes for such Monthly Period and shall propose, with respect
to
each Asset Pool One Collateral Certificate, a principal shortfall amount (the
“Proposed Principal Shortfall Amount”) for such Monthly Period. The
sum of all such Proposed Principal Shortfall Amounts shall equal the aggregate
amount of such Remaining Series Available Principal Collections Shortfalls
for
such Monthly Period. In determining the Proposed Principal Shortfall
Amount for each Asset Pool One Collateral Certificate, the Servicer agrees
to
determine such
32
amount
in a manner that shall maximize the amount of payments received from Asset
Pool
One Collateral Certificates in respect of Proposed Principal Shortfall
Amounts.
Section
3.14 Monthly
Servicer’s Certificate. Unless otherwise stated in
the related Indenture Supplement with respect to any Series, on each
Determination Date the Servicer shall forward to the Owner Trustee, the
Indenture Trustee, the Collateral Agent and each Note Rating Agency, a
certificate of a duly authorized representative of the Servicer substantially
in
the form of Exhibit F. In addition, on each Distribution Date, the
Servicer shall forward to the Owner Trustee, the Indenture Trustee, the
Collateral Agent and each Note Rating Agency, a report containing all material
information listed in Item 1121 of Regulation AB but not otherwise included
in
the Asset Pool One Monthly Servicer’s Certificate or any Monthly Noteholders’
Statement, which report shall be included in the Issuing Entity’s monthly
distribution report on Form 10-D to be filed with the Commission.
[END
OF ARTICLE III]
33
ARTICLE
IV
THE
COLLATERAL AGENT
Section
4.1 Certain
Duties and Responsibilities.
(a) The
Collateral Agent undertakes to perform such duties and only such duties as
are
specifically set forth in this Asset Pool One Supplement with respect to the
Asset Pool One Notes of any Series, Class or Tranche, and no implied covenants
or obligations will be read into this Asset Pool One Supplement against the
Collateral Agent.
(b) The
Collateral Agent hereby agrees that it shall hold all Collateral Certificates
designated for inclusion in Asset Pool One in the State of New York and shall
give written notice to the Owner Trustee, the Indenture Trustee and the Servicer
before relocating any Collateral Certificate.
(c) In
the absence of bad faith on its part, the Collateral Agent may, with respect
to
the Asset Pool One Notes of any Series, Class or Tranche, conclusively rely,
as
to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Collateral Agent and
conforming to the requirements of the Indenture, this Asset Pool One Supplement
or the related Indenture Supplement, as applicable, but in the case of any
such
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Collateral Agent, the Collateral Agent will be under
a
duty to examine the same to determine whether or not they conform to the
requirements of this Asset Pool One Supplement but need not confirm or
investigate the accuracy of any mathematical calculations or other facts stated
therein.
(d) In
case an Event of Default with respect to any Series, Class or Tranche of Asset
Pool One Notes has occurred and is continuing, the Collateral Agent will
exercise with respect to the Asset Pool One Notes of such Series, Class or
Tranche such rights and powers vested in it by this Asset Pool One Supplement,
and use the same degree of care and skill in their exercise, as a fiduciary
would exercise or use under the circumstances in the conduct of such person’s
own affairs.
(e) No
provision of this Asset Pool One Supplement will be construed to relieve the
Collateral Agent from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) this
subsection (e) will not be construed to limit the effect of subsection (a)
of
this Section;
(ii) the
Collateral Agent will not be liable for any error of judgment made in good
faith
by a Collateral Agent Authorized Officer, unless it will be proved that the
Collateral Agent was negligent in ascertaining the pertinent facts;
34
(iii) the
Collateral Agent will not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the direction of the
Indenture Trustee or Holders of more than 66⅔% of the Outstanding Dollar
Principal Amount of any Series, Class or Tranche of Asset Pool One Notes
relating to the time, method and place of conducting any proceeding for any
remedy available to the Collateral Agent, or exercising any trust or power
conferred upon the Collateral Agent, under this Asset Pool One Supplement with
respect to the Asset Pool One Notes of such Series, Class or Tranche;
and
(iv) no
provision of this Asset Pool One Supplement will require the Collateral Agent
to
expend or risk its own funds or otherwise incur any financial liability in
the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it will have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to the Collateral Agent
against such risk or liability is not reasonably assured to it.
(f) Whether
or not therein expressly so provided, every provision of this Asset Pool One
Supplement relating to the conduct or affecting the liability of or affording
protection to the Collateral Agent will be subject to the provisions of this
Section.
Section
4.2 Certain
Rights of the Collateral Agent. Except as otherwise
provided in Section 4.1:
(a) the
Collateral Agent may conclusively rely and will be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture
or
other paper or document (whether in its original or facsimile form) believed
by
it to be genuine and to have been signed or presented by the proper party or
parties;
(b) whenever
in the performance of its duties under this Asset Pool One Supplement the
Collateral Agent will deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Collateral Agent
(unless other evidence be herein specifically prescribed) may, in the absence
of
bad faith on its part, rely upon an Officer’s Certificate;
(c) the
Collateral Agent may consult with counsel of its own selection and the advice
of
such counsel or any Opinion of Counsel will be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(d) the
Collateral Agent will be under no obligation to exercise any of the rights
or
powers vested in it by this Asset Pool One Supplement at the request or
direction of the Indenture Trustee or any of the Asset Pool One Noteholders
pursuant to this Asset Pool One Supplement, unless the Indenture Trustee or
such
Asset Pool One Noteholders shall have offered to the Collateral Agent security
or indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
35
(e) the
Collateral Agent will not be bound to make any investigation into the facts
or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other
paper or document, but the Collateral Agent, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Collateral Agent will determine to make such further inquiry or
investigation, it will be entitled to examine the books, records and premises
of
the Issuing Entity, personally or by agent or attorney;
(f) the
Collateral Agent may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Collateral Agent will not be responsible for any misconduct or negligence
on
the part of any agent or attorney appointed with due care by it hereunder;
and
(g) the
Collateral Agent will not be responsible for filing any financing statements
or
continuation statements in connection with the Collateral, but will cooperate
with the Issuing Entity in connection with the filing of such financing
statements or continuation statements.
Section
4.3 Not
Responsible for Recitals or Issuance of Notes. The recitals
contained herein and in the Asset Pool One Notes, except the certificates of
authentication, will be taken as the statements of the Issuing Entity, and
the
Collateral Agent assumes no responsibility for their correctness. The
Collateral Agent makes no representations as to the validity or sufficiency
of
this Asset Pool One Supplement or of the Asset Pool One Notes. The
Collateral Agent will not be accountable for the use or application by the
Issuing Entity of Asset Pool One Notes or the proceeds thereof.
Section
4.4 May
Hold Notes. The Collateral Agent, in its individual or any other
capacity, may become the owner or pledgee of Asset Pool One Notes and, subject
to Sections 4.7, 4.8 and 4.12, may otherwise deal with the Issuing Entity with
the same rights it would have if it were not Collateral Agent.
Section
4.5 Money
Held in Trust. Money held by the Collateral Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Collateral Agent will be under no liability for interest
on any money received by it hereunder except as otherwise agreed with the
Issuing Entity.
Section
4.6 Compensation
and Reimbursement; Limit on Compensation, Reimbursement and
Indemnity.
(a) The
Issuing Entity agrees:
(i) to
pay to the Collateral Agent from time to time reasonable compensation for all
services rendered by it hereunder (which compensation will not be limited by
any
provision of law in regard to the compensation of a trustee of an express
trust);
(ii) except
as otherwise expressly provided herein, to reimburse the Collateral Agent upon
its request for all reasonable expenses, disbursements and
36
advances
incurred or made by the Collateral Agent in accordance with any provision of
this Asset Pool One Supplement (including the reasonable compensation and the
reasonable expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(iii) to
indemnify the Collateral Agent for, and to hold it harmless against, any and
all
loss, liability or expense incurred without negligence or bad faith on its
part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim
or
liability (whether asserted by the Issuing Entity, the Servicer, any Holder
or
any other Person) in connection with the exercise or performance of any of its
powers or duties hereunder.
The
Collateral Agent will have no recourse to (x) any asset of the Issuing Entity
other than funds available pursuant to the Indenture, the relevant Indenture
Supplement, or this Asset Pool One Supplement and any such recourse shall be
subordinate to the payment obligations on the Asset Pool One Notes, or (y)
any
Person other than the Transferor, the Servicer or the Issuing
Entity.
(b) This
Section will survive the termination of this Asset Pool One Supplement and
the
resignation or replacement of the Collateral Agent under Section
4.9.
Section
4.7 Disqualification;
Conflicting Interests. If the Collateral Agent has or will
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Collateral Agent will, if so required by the Trust Indenture Act, either
eliminate such interest or resign, to the extent and in the manner provided
by,
and subject to the provisions of, the Trust Indenture Act and this Asset Pool
One Supplement. Nothing herein will prevent the Collateral Agent from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
Section
4.8 Corporate
Collateral Agent Required; Eligibility. There will at all times
be a Collateral Agent hereunder with respect to each Series, Class or Tranche
of
Asset Pool One Notes which will be either a bank or a corporation organized
and
doing business under the laws of the United States of America or of any state,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority, and having a rating of at least
“BBB-” by Standard & Poor’s. 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 purposes
of
this Section, the combined capital and surplus of such corporation will be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Issuing Entity may not, nor may
any Person directly or indirectly controlling, controlled by, or under common
control with the Issuing Entity, serve as Collateral Agent. If at any
time the Collateral Agent with respect to any Series, Class or Tranche of Asset
Pool One Notes will cease to be eligible in accordance with the provisions
of
this Section, it will resign immediately in the manner and with the effect
hereinafter specified in this Article.
37
Section
4.9 Resignation
and Removal; Appointment of Successor.
(a) No
resignation or removal of the Collateral Agent and no appointment of a successor
Collateral Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Collateral Agent under Section
4.10.
(b) The
Collateral Agent may resign with respect to any Series, Class or Tranche of
Asset Pool One Notes at any time by giving written notice thereof to the Issuing
Entity. If an instrument of acceptance by a successor Collateral
Agent shall not have been delivered to the Collateral Agent within 30 days
after
the giving of such notice of resignation, the resigning Collateral Agent may
petition any court of competent jurisdiction for the appointment of a successor
Collateral Agent.
(c) The
Collateral Agent may be removed with respect to any Series, Class or Tranche
of
Asset Pool One Notes at any time by Act of the Majority Holders of that Series,
Class or Tranche of Asset Pool One Notes delivered to the Collateral Agent
on
behalf of the Indenture Trustee and the Issuing Entity.
(d) If
at any time:
(i) the
Collateral Agent fails to comply with Section 310(b) of the Trust Indenture
Act
with respect to any Series, Class or Tranche of Notes after written request
therefor by the Issuing Entity or by any Asset Pool One Noteholder who has
been
a bona fide Holder of an Asset Pool One Note of that Series, Class or Tranche
for at least 6 months,
(ii) the
Collateral Agent ceases to be eligible under Section 4.8 with respect to any
Series, Class or Tranche of Asset Pool One Notes and fails to resign after
written request therefor by the Issuing Entity or by any such Asset Pool One
Noteholder,
(iii) the
Collateral Agent becomes incapable of acting with respect to any Series, Class
or Tranche of Asset Pool One Notes, or
(iv) the
Collateral Agent is adjudged bankrupt or insolvent or a receiver of the
Collateral Agent or of its property is appointed or any public officer takes
charge or control of the Collateral Agent or of its property or affairs for
the
purpose of rehabilitation, conservation or liquidation,
then,
in any such case, (A) the Issuing Entity may remove the Collateral Agent or
(B)
subject to Section 6.17 of the Indenture, any Asset Pool One Noteholder who
has
been a bona fide Holder of an Asset Pool One Note of such Series, Class or
Tranche for at least 6 months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Collateral Agent with respect to such Series, Class or Tranche and the
appointment of a successor Collateral Agent with respect to such Series, Class
or Tranche, or, in the case of clause (iv), with respect to all Series, Classes
and Tranches.
38
(e) If
the Collateral Agent resigns, is removed or becomes incapable of acting with
respect to Asset Pool One, or if a vacancy shall occur in the office of the
Collateral Agent with respect to Asset Pool One for any cause, the Issuing
Entity shall promptly appoint a successor Collateral Agent for Asset Pool
One. If, within one year after such resignation, removal or
incapacity, or the occurrence of such vacancy, a successor Collateral Agent
with
respect to Asset Pool One is appointed by Act of the Majority Holders of the
Asset Pool One Notes delivered to the Issuing Entity and the retiring Collateral
Agent, the successor Collateral Agent so appointed will, forthwith upon its
acceptance of such appointment, become the successor Collateral Agent with
respect to Asset Pool One and supersede the successor Collateral Agent appointed
by the Issuing Entity with respect to Asset Pool One. If no successor
Collateral Agent with respect to the Asset Pool One Notes shall have been so
appointed by the Issuing Entity or the Asset Pool One Noteholders and accepted
appointment in the manner hereinafter provided, any Asset Pool One Noteholder
who has been a bona fide Holder of an Asset Pool One Note for at least 6 months
may, on behalf of itself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Collateral Agent
with respect to Asset Pool One.
(f) The
Issuing Entity shall give written notice of each resignation and each removal
of
the Collateral Agent with respect to Asset Pool One and each appointment of
a
successor Collateral Agent with respect to Asset Pool One as provided in Section
1.06 of the Indenture and to each Note Rating Agency. To facilitate
delivery of such notice, upon request by the Issuing Entity, the Note Registrar
shall provide to the Issuing Entity a list of the relevant Registered
Noteholders. Each notice will include the name of the successor
Collateral Agent and the address of its principal Corporate Trust
Office.
Section
4.10 Acceptance
of Appointment by Successor. Every successor Collateral Agent
appointed hereunder shall execute, acknowledge and deliver to the Issuing Entity
and to the predecessor Collateral Agent an instrument accepting such
appointment, with a copy to the Note Rating Agencies, and thereupon the
resignation or removal of the predecessor Collateral Agent will become effective
with respect to Asset Pool One, and such successor Collateral Agent, without
any
further act, deed or conveyance, will become vested with all the rights, powers,
trusts and duties of the predecessor Collateral Agent; but, on request of the
Issuing Entity or the successor Collateral Agent, such predecessor Collateral
Agent shall, upon payment of its reasonable charges, if any, execute and deliver
an instrument transferring to such successor Collateral Agent all the rights,
powers and trusts of the predecessor Collateral Agent, and will duly assign,
transfer and deliver to such successor Collateral Agent all property and money
held by such predecessor Collateral Agent hereunder, subject nevertheless to
its
lien, if any, provided for in Section 4.6. Upon request of any such
successor Collateral Agent, the Issuing Entity will execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Collateral Agent all such rights, powers and trusts.
No
successor Collateral Agent will accept its appointment unless at the time of
such acceptance such successor Collateral Agent will be qualified and eligible
with respect to Asset Pool One under this Article.
Section
4.11 Merger,
Conversion, Consolidation or Succession to Business. Any
corporation into which the Collateral Agent may be merged or converted or with
which it
39
may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Collateral Agent shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Collateral Agent, will be the successor of the Collateral Agent hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the
part of any of the parties hereto. The Collateral Agent shall give
prompt written notice of such merger, conversion, consolidation or succession
to
the Note Rating Agencies. In addition, upon such merger, conversion,
consolidation or succession the Collateral Agent shall give written notice
to
the Servicer, the Owner Trustee and the Indenture Trustee of any change of
address of the surviving entity and stating where the Collateral Certificates
are to be held.
Section
4.12 Preferential
Collection of Claims Against Issuing Entity. If and when the
Collateral Agent shall be or become a creditor of the Issuing Entity (or any
other obligor upon the Asset Pool One Notes), the Collateral Agent will be
subject to the provisions of Section 311 of the Trust Indenture
Act. A Collateral Agent who has resigned or been removed will be
subject to Section 311(a) of the Trust Indenture Act to the extent provided
therein.
Section
4.13 Representations
and Covenants of the Collateral Agent. The Collateral Agent
represents, warrants and covenants that:
(i) The
Collateral Agent is a national banking association duly organized and validly
existing under the laws of the United States of America;
(ii) The
Collateral Agent has full power and authority to deliver and perform this Asset
Pool One Supplement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Asset Pool One Supplement
and
other documents to which it is a party; and
(iii) Each
of this Asset Pool One Supplement and the other documents to which it is a
party
has been duly executed and delivered by the Collateral Agent and constitutes
legal, valid and binding obligation of the Collateral Agent in accordance with
its terms.
Section
4.14 Custody
of Asset Pool One Collateral Certificates and Other
Collateral. Each Asset Pool One Collateral Certificate, including
the Initial Collateral Certificate, shall be registered in the name of and
shall
be delivered to and held by the Collateral Agent separate and apart from all
other property held by such Collateral Agent. The Collateral Agent
shall hold the Collateral that constitutes Permitted Investments separate from,
and shall not commingle such Collateral with, any and all other funds or
property of the Issuing Entity or the Indenture Trustee.
Section
4.15 Collateral
Agent’s Application for Instructions from the Issuing Entity. Any
application by the Collateral Agent for written instructions from the Issuing
Entity may, at the option of the Collateral Agent, set forth in writing any
action proposed to be taken or omitted by the Collateral Agent under and in
accordance with this Asset Pool One Supplement and the date on and/or after
which such action shall be taken or such omission shall be effective, provided
that such application shall make specific reference to this Section
4.15. The Collateral
40
Agent
shall not be liable for any action taken by, or omission of, the Collateral
Agent in accordance with a proposal included in such application on or after
the
date specified in such application (which date shall not be less than 5 Business
Days after the date any officer of the Issuing Entity actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date
in
the case of an omission), the Collateral Agent shall have received written
instructions in response to such application specifying the action to be taken
or omitted.
Section
4.16 Events
of Default and Remedies; Reports of Indenture Trustee; Reports to Issuing
Entity.
(a) The
Collateral Agent shall promptly give notice to the Indenture Trustee and the
Issuing Entity upon the occurrence of any of the Events of Default set forth
in
Section 6.01 of the Indenture of which it has knowledge, including any “Notice
of Default” pursuant to subsection 6.10(c) (unless it has received notice of any
such Event of Default by the Indenture Trustee).
(b) The
Collateral Agent agrees to perform its obligations and, in its discretion,
exercise the rights of, and pursue remedies on behalf of, the Secured Parties
pursuant to Article VI of the Indenture.
(c) The
Collateral Agent agrees to provide in a timely fashion to the Indenture Trustee
the information applicable to the Collateral Agent and the Collateral required
to be included in the reports of the Indenture Trustee pursuant to the Indenture
or any Indenture Supplement, including pursuant to Sections 8.03 and 8.06 of
the
Indenture.
(d) The
Collateral Agent shall report to the Issuing Entity or the Indenture Trustee,
as
applicable, with respect to the amounts on deposit in each of the Bank Accounts,
and the identity of the investments included therein and the amount of earnings
thereon, as the Issuing Entity or the Indenture Trustee reasonably may request
from time to time.
[END
OF ARTICLE IV]
41
ARTICLE
V
BANK
ACCOUNTS AND INVESTMENTS
Section
5.1 Bank
Accounts.
(a) Bank
Accounts; Deposits to and Distributions from Bank Accounts.
(i) On
or before the date hereof the Issuing Entity shall cause to be established
and
maintained for Asset Pool One, one or more Qualified Bank Accounts (each such
account, a “Collection Account” and collectively, the “Collection Accounts”) in
the name of the Collateral Agent, bearing a designation clearly indicating
that
the funds deposited therein are held for the benefit of the Collateral Agent,
the Indenture Trustee and the applicable Asset Pool One
Noteholders. All collections received pursuant to Section 3.1 shall
be deposited into the Collection Account. From time to time in
connection with the issuance of a Series, Class or Tranche of Asset Pool
One Notes, the Indenture Trustee may cause the Collateral
Agent to establish one or more Qualified Bank Accounts denominated as
“Supplemental Bank Accounts” in the name of the Collateral Agent, bearing a
designation clearly indicating that the funds deposited therein are held for
the
benefit of the Collateral Agent, the Indenture Trustee and the applicable Asset
Pool One Noteholders. The Collection Account and any Supplemental
Bank Account shall be under the control (within the meaning of Section 9-104
of
the UCC) of the Collateral Agent for the benefit of the Collateral Agent, the
Indenture Trustee and the applicable Asset Pool One Noteholders. If,
at any time, the institution holding the Collection Account or any Supplemental
Bank Account ceases to be a Qualified Institution, the Issuing Entity shall
within 10 Business Days (or such longer period, not to exceed 30 calendar days,
as to which each Note Rating Agency may consent in writing) establish a new
Collection Account or Supplemental Bank Account, as applicable, that is a
Qualified Bank Account and shall transfer any cash and/or investments from
such
Collection Account or Supplemental Bank Account, as applicable, to such new
Collection Account or Supplemental Bank Account, as applicable. From
the date each such new Collection Account is established, it shall be the
“Collection Account.” From the date each such new Supplemental Bank
Account is established, it shall be a “Supplemental Bank
Account.” Any Supplemental Bank Account will receive deposits as set
forth herein, in the Indenture and in the applicable Indenture
Supplement.
(ii) On
or before the date hereof, the Issuing Entity shall cause to be established
and
maintained for Asset Pool One, one or more Qualified Bank Accounts (each such
account, an “Excess Funding Account” and collectively, the “Excess Funding
Accounts”) in the name of the Collateral Agent, bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Collateral Agent, the Indenture Trustee and the Asset Pool One
Noteholders. Principal Collections allocated to Asset Pool One that
would otherwise be paid to the holders of the Transferor Interest or that the
applicable Indenture Supplement specifies are to be deposited in
the
42
Excess
Funding Account, shall be deposited in the Excess Funding Account, if, after
giving effect to reinvestment in new Collateral on that day the Asset Pool
One
Transferor Amount is not greater than or equal to the Asset Pool One Required
Transferor Amount or the Asset Pool One Pool Balance is not greater than or
equal to the Asset Pool One Minimum Pool Balance. Each Excess Funding
Account shall be under the control (within the meaning of Section 9-104 of
the
UCC) of the Collateral Agent for the benefit of the Collateral Agent, the
Indenture Trustee and the Asset Pool One Noteholders. If, at any
time, the institution holding any Excess Funding Account ceases to be a
Qualified Institution, the Issuing Entity shall within 10 Business Days (or
such
longer period, not to exceed 30 calendar days, as to which each Note Rating
Agency may consent in writing) establish a new Excess Funding Account that
is a
Qualified Bank Account and shall transfer any cash and/or investments to such
new Excess Funding Account. From the date each such new Excess
Funding Account is established, it shall be an “Excess Funding
Account.”
(b) All
payments to be made from time to time by or on behalf of the Indenture Trustee
to the Asset Pool One Noteholders out of funds in the Bank Accounts pursuant
to
this Asset Pool One Supplement, the Indenture and any Indenture Supplement
will
be made by the Collateral Agent to the Indenture Trustee or on behalf of the
Indenture Trustee directly to the Paying Agent not later than 1:00 p.m. New
York
City time on the applicable Payment Date or earlier, if necessary, or as
otherwise provided in the applicable Indenture Supplement but only to the extent
of available funds in the applicable Bank Account or Sub-Account.
Section
5.2 Investment
of Funds in the Bank Accounts.
(a) Funds
on deposit in the Bank Accounts shall (unless otherwise stated in the applicable
Indenture Supplement) be invested and reinvested by the Collateral Agent or
its
designee acting on behalf of the Indenture Trustee at the written direction
of
the Issuing Entity in one or more Permitted Investments. Absent such
written direction, the Collateral Agent shall invest the funds in the Permitted
Investments described in clause (a)(v) of the definition thereof. The
Issuing Entity may authorize the Indenture Trustee to direct the Collateral
Agent to make specific investments pursuant to written instructions, in such
amounts as the Issuing Entity will specify. Notwithstanding the
foregoing, funds held by the Collateral Agent in any of the Bank Accounts will
be invested in Permitted Investments that will mature in each case no later
than
the date on which such funds in the Bank Accounts are scheduled to be
transferred or distributed by the Indenture Trustee pursuant to the Indenture
(or as necessary to provide for timely payment of principal or interest on
the
applicable Principal Payment Date or Interest Payment Date (as each such term
is
defined in the Indenture)).
(b) All
funds deposited from time to time in the Bank Accounts pursuant to the Indenture
and all investments made with such funds will be held by the Collateral Agent
in
the Bank Accounts as part of the Collateral as herein provided, subject to
withdrawal by the Collateral Agent or the Indenture Trustee for the purposes
set
forth in the Indenture.
(c) Funds
and other property in any of the Bank Accounts will not be commingled with
any
other funds or property of the Issuing Entity, the Indenture Trustee or the
related Collateral Agent.
43
(d) The
Servicer shall not give direction to dispose of a Permitted Investment and
no
Permitted Investment shall be disposed of prior to its maturity if such disposal
will result in a loss.
[END
OF ARTICLE V]
44
ARTICLE
VI
MISCELLANEOUS
Section
6.1 No
Petition. The Collateral Agent, by entering into this Asset Pool
One Supplement, each Derivative Counterparty, by designating that the
obligations of the Issuing Entity pursuant to the applicable Derivative
Agreement are secured by the Collateral, each Supplemental Credit Enhancement
Provider or Supplemental Liquidity Provider, as applicable, by designating
that
the obligations of the Issuing Entity pursuant to the applicable Supplemental
Credit Enhancement Agreement or Supplemental Liquidity Agreement are secured
by
the Collateral, and each Asset Pool One Noteholder, by accepting a Note, agrees,
to the fullest extent permitted by applicable law, that it will not at any
time
institute against Chase USA, any Master Trust or the Issuing Entity, or join
in
any institution against Chase USA, any Master Trust or the Issuing Entity of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Asset Pool One Notes, the Indenture, any Derivative Agreement, any Supplemental
Credit Enhancement Agreement and any Supplemental Liquidity
Agreement.
Section
6.2 Actions
by the Issuing Entity. All actions to be taken by the Issuing
Entity under this Asset Pool One Supplement shall be taken by the Administrator
on behalf of the Issuing Entity and all notices to be given and/or received
by
the Issuing Entity under this Asset Pool One Supplement shall be given and
received by the Administrator.
Section
6.3 Limitations
on Liability.
(a) It
is expressly understood and agreed by the parties hereto that (i) this Asset
Pool One Supplement is executed and delivered by each Transferor not
individually or personally but solely as Beneficiary under the Trust Agreement,
in the exercise of the powers and authority conferred and vested in it, (ii)
each of the representations, undertakings and agreements herein made on the
part
of the Issuing Entity is made and intended not as a personal representation,
undertaking or agreement by any Transferor but is made and intended for the
purpose of binding only the Issuing Entity, (iii) nothing herein contained
will
be construed as creating any liability on any Transferor individually or
personally, to perform any covenant of the Issuing Entity either expressed
or
implied contained herein, all such liability, if any, being expressly waived
by
the parties to the Indenture and by any Person claiming by, through or under
them and (iv) under no circumstances will any Transferor be personally liable
for the payment of any indebtedness or expenses of the Issuing Entity or be
liable for the breach or failure of any obligation, representation, warranty
or
covenant made or undertaken by the Issuing Entity under this Asset Pool One
Supplement or any related documents.
(b) None
of the Collateral Agent, the Indenture Trustee, the Owner Trustee, Chase USA
or
any other Beneficiary of the Issuing Entity or any of their respective officers,
directors, employees, incorporators or agents will have any liability with
respect to this
45
Asset
Pool One Supplement, and recourse may be had solely to the Collateral pledged
to
secure the Asset Pool One Notes under this Asset Pool One
Supplement.
Section
6.4 Termination
of Issuing Entity. The Issuing Entity and the respective
obligations and responsibilities of the Collateral Agent created hereby shall
terminate as provided in the Trust Agreement.
Section
6.5 Termination
Distributions. Upon the termination of the Issuing Entity
pursuant to the terms of the Trust Agreement, the Collateral Agent shall
release, assign and convey to the applicable Transferor or any of its designees,
without recourse, representation or warranty, all of its right, title and
interest in the Collateral securing Asset Pool One, whether then existing or
thereafter created, all monies due or to become due and all amounts received
or
receivable with respect thereto (including all moneys then held in any Bank
Account) and all proceeds thereof. The Collateral Agent shall execute
and deliver such instruments of transfer and assignment as shall be provided
to
it, in each case without recourse, as shall be reasonably requested by any
Transferor, to vest in such Transferor, as Beneficiary under the Trust
Agreement, or any of its designees all right, title and interest which the
Collateral Agent had in and to the Collateral and such other property securing
Asset Pool One.
Section
6.6 Derivative
Counterparty, Supplemental Credit Enhancement Provider and Supplemental
Liquidity Provider as Third-Party Beneficiary. Each Derivative
Counterparty, Supplemental Credit Enhancement Provider and Supplemental
Liquidity Provider is a third-party beneficiary of this Asset Pool One
Supplement to the extent specified in the applicable Derivative Agreement,
Supplemental Credit Enhancement Agreement, Supplemental Liquidity Agreement
or
Indenture Supplement.
Section
6.7 Amendments. Except
as expressly set forth in Article IX of the Indenture, this Asset Pool One
Supplement may not be amended, supplemented or modified.
[END
OF ARTICLE VI]
46
IN
WITNESS WHEREOF, the parties hereto have caused this Asset Pool One Supplement
to be duly executed as of the day and year first above written.
CHASE
ISSUANCE TRUST
|
|||
By:
|
CHASE
BANK USA, NATIONAL ASSOCIATION, as Beneficiary and not in its individual
capacity
|
||
By:
|
/s/
Xxxxx X. Xxxxxx
|
||
Name:
Xxxxx X. Xxxxxx
|
|||
Title: President
|
|||
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee and
Collateral Agent and not in its individual capacity
|
|||
By:
|
s/
Xxxxxx Xxxxxxxxx
|
||
Name:
Xxxxxx Xxxxxxxxx
|
|||
Title: Assistant
Vice President
|
Acknowledged
and Accepted:
CHASE
BANK USA,
NATIONAL
ASSOCIATION,
as
Transferor, Servicer and Administrator
By: /s/
Xxxxx X.
Xxxxx __
Name:
Xxxxx X. Xxxxxx
Title: President
CHAIT
Second A&R APO Signature
Page
Exhibit
A
No.
__ One
Unit
FORM
OF
CHASE
ISSUANCE TRUST
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 ASSET POOL ONE
SUPPLEMENT REFERRED TO HEREIN. A COPY OF THE ASSET POOL ONE
SUPPLEMENT WILL BE FURNISHED TO THE HOLDER OF THIS CERTIFICATE BY THE INDENTURE
TRUSTEE UPON WRITTEN REQUEST.
This
Certificate represents an
undivided
interest in the
Chase
Issuance Trust
Evidencing
an undivided interest in a trust, the corpus of which consists of Collateral,
as
defined in the Asset Pool One Supplement described below.
(Not
an interest in or a recourse obligation of Chase Bank USA, National Association
or any Affiliate thereof.)
This
certifies that CHASE BANK USA, NATIONAL ASSOCIATION (the “Holder”) is the
registered owner of an undivided interest in the Chase Issuance Trust (the
“Trust”), the corpus of which currently consists of the Initial Collateral
Certificates (as defined in the Transfer and Servicing Agreement) and the other
assets and interests constituting the Trust pursuant to the Second Amended
and
Restated Asset Pool One Supplement, dated as of December 19, 2007, as the same
may be further amended, supplemented or otherwise modified (the “Asset Pool One
Supplement”), by and between the Trust and Xxxxx Fargo Bank, National
Association, as Indenture Trustee (the “Indenture Trustee”) and Collateral Agent
(the “Collateral Agent”), a summary of certain of the pertinent provisions of
which is set forth below.
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Asset Pool One Supplement. This Transferor
Certificate is issued under and is subject to the terms, provisions and
conditions of the Asset Pool One Supplement, to which Asset Pool One Supplement,
as amended from time to time, the Holder by virtue of the acceptance hereof
assents and by which the Holder is bound.
A-1
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 Transferor Certificate shall be permitted other than
in accordance with the provisions of Section 2.07 or 2.08 of the Transfer and
Servicing Agreement.
This
Transferor Certificate is the Transferor Certificate (the “Transferor
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 Asset Pool One Supplement and each Indenture Supplement
to be paid to the Holder of the Transferor Certificate. The aggregate
interest represented by this Transferor Certificate at any time in the
Collateral of the Trust shall not exceed the Asset Pool One Transferor Amount
at
such time. In addition to this Transferor Certificate, one or more
Series of Notes will be issued to investors pursuant to the Indenture and an
Indenture Supplement, each of which will represent an undivided interest in
the
Trust. This Transferor Certificate shall not represent any interest
in the Bank Accounts or any Enhancement, except to the extent provided in the
Asset Pool One Supplement and any Indenture Supplement. The Asset
Pool One Transferor Amount for any Monthly Period will be an amount equal to
(i)
the Asset Pool One Pool Balance for such Monthly Period minus (ii) the aggregate
Nominal Liquidation Amount of all Asset Pool One Notes as of the close of
business on the last day of such Monthly Period.
The
Servicer, pursuant to the terms of Transfer and Servicing Agreement, shall
deposit Collections with respect to the Asset Pool One Receivables into the
Collection Account for Asset Pool One as promptly as possible after the Date
of
Processing of such Collections, but in no event later than the second Business
Day following the Date of Processing (except as provided below and except as
provided in any Indenture Supplement) and shall deposit Collections received
with respect to the Asset Pool One Collateral Certificates with respect to
any
Monthly Period into the Collection Account for Asset Pool One no later than
the
First Note Transfer Date in the next succeeding Monthly
Period. Unless otherwise stated in any Indenture Supplement,
throughout the existence of the Trust, the Servicer shall allocate to the Holder
of this Certificate an amount equal to the Asset Pool One Transferor
Amount. Notwithstanding the first sentence of this paragraph, the
Servicer need not deposit this amount or any other amounts so allocated to
this
Transferor Certificate pursuant to the Asset Pool One Supplement into the
Collection Account and shall pay, or be deemed to pay, such amounts as collected
to the Holder of this Transferor Certificate.
Chase
Bank USA, National Association, as Servicer, is entitled to receive as servicing
compensation a monthly servicing fee. The portion of the servicing
fee which will be allocable to the Holder of this Transferor Certificate
pursuant to the Asset Pool One Supplement will be payable by the Holder of
this
Transferor Certificate and none of the Trust, the Owner Trustee, the Indenture
Trustee, the Collateral Agent or the Noteholders will have any obligation to
pay
such portion of the servicing fee.
This
Transferor Certificate does not represent a recourse obligation of, or any
interest in, the Transferor or the Servicer, and none of this Transferor
Certificate, any Collateral Certificate, any Notes, the Accounts or Receivables
are insured or guaranteed by the Federal Deposit Insurance Corporation or any
other governmental agency or instrumentality. This Transferor
Certificate is limited in right of payment to certain Collections respecting
the
A-2
Receivables
and the Collateral Certificates, all as more specifically set forth hereinabove
and in the Asset Pool One Supplement.
Upon
the termination of the Trust pursuant to Section 8.01 of the Third Amended
and
Restated Trust Agreement, the Indenture Trustee shall assign and convey to
the
Holder of this Transferor Certificate (without recourse, representation or
warranty) all right, title and interest of the Trust in the Collateral
Certificates, the Receivables, whether then existing or thereafter created,
and
all proceeds thereof and Insurance Proceeds relating thereto. The
Indenture 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 this Transferor Certificate to vest in such Holder all right,
title and interest which the Indenture Trustee had in the Collateral
Certificates and the Receivables.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Indenture Trustee, by manual signature, this Transferor Certificate shall
not be entitled to any benefit under the Asset Pool One Supplement, or be valid
for any purpose.
A-3
IN
WITNESS WHEREOF, the Trust has caused this Transferor Certificate to be duly
executed on this _____ day of _________.
CHASE
ISSUANCE TRUST
|
|||
By:
|
CHASE
BANK USA, NATIONAL ASSOCIATION, as Beneficiary of the Chase Issuance
Trust
|
||
By:
|
|||
Name:
|
|||
Title:
|
|||
CERTIFICATE
OF AUTHENTICATION
This
is the Transferor Certificate referred to in the within-mentioned Asset Pool
One
Supplement.
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, as Authenticating
Agent
|
|||
By:
|
|
||
Name:
|
|||
Title:
|
Date: __________
A-4
Exhibit
B
ASSIGNMENT
OF RECEIVABLES IN ADDITIONAL ACCOUNTS
INCLUDED
IN ASSET POOL ONE
(as
required by subsection 2.4(c)(v) of the Asset Pool One Supplement)
ASSIGNMENT
NO. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS INCLUDED IN ASSET POOL ONE (this
“Assignment”), dated as of _______ ___, ____, by and between CHASE ISSUANCE
TRUST (the “Trust”) and XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Xxxxx Fargo”)
as collateral agent (in such capacity, the “Collateral Agent”), pursuant to the
Asset Pool One Supplement referred to below, and acknowledged by Chase Bank
USA,
National Association, in its capacity as servicer under the Third Amended and
Restated Transfer and Servicing Agreement, dated as of December 19, 2007 (the
“Transfer and Servicing Agreement”), among Chase Bank USA, National Association,
as transferor, administrator and servicer, the Trust and Xxxxx Fargo, as
indenture trustee (in such capacity, the “Indenture Trustee”) and Collateral
Agent (in such capacity, the “Collateral Agent”).
W
I T N E S S E T H:
WHEREAS,
the Trust, the Collateral Agent and the Indenture Trustee are parties to the
Second Amended and Restated Asset Pool One Supplement, dated as of December
19,
2007 (hereinafter as such agreement may have been, or may from time to time
be,
amended, supplemented or otherwise modified, the “Asset Pool One
Supplement”);
WHEREAS,
pursuant to the Asset Pool One Supplement, the Trust wishes to designate
Additional Accounts to be included as Asset Pool One Accounts and to pledge
hereby the Receivables of such Additional Accounts, whether now existing or
hereafter created, to the Collateral Agent to be included as Asset Pool One
Receivables; and
WHEREAS,
the Collateral Agent, on behalf of and for the benefit and security of the
Asset
Pool One Noteholders, the Indenture Trustee, in its individual capacity and
the
Collateral Agent, in its individual capacity, is willing to accept such
designation and pledge subject to the terms and conditions hereof;
NOW,
THEREFORE, the Trust and the Collateral Agent hereby agree as
follows:
1. Defined
Terms. All capitalized terms used herein shall have the meanings
ascribed to them in the Asset Pool One Supplement unless otherwise defined
herein.
“Addition
Cut-Off Date” shall mean, with respect to the Additional Accounts designated
hereby, _______________.
“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,
________________.
2. Designation
of Additional Accounts. Within five Business Days after the
Addition Date, the Trust shall deliver to the Collateral Agent a true and
complete list (in the form of a computer file, microfiche list, CD-ROM or such
other form as is agreed upon between the Transferor and the Collateral Agent)
of
each VISA® and
MasterCard®
account which, as of the Addition Date, shall be deemed to be an Additional
Asset Pool One Account, identified by account number and the aggregate amount
of
the Receivables in each such Additional Asset Pool One Account as of the
Addition Cut-Off Date, which list shall be marked as Schedule 1 to this
Assignment and shall, as of the Addition Date, modify and amend and be
incorporated into and made a part of this Assignment and the Asset Pool One
Supplement.
3. Pledge
of Receivables.
(a) The
Trust hereby grants to the Collateral Agent, for the benefit and security of
the
Asset Pool One Noteholders, the Indenture Trustee, in its individual capacity
and the Collateral Agent, in its individual capacity, a security interest in
all
of its right, title and interest, whether owned on the Addition Cut-Off Date
or
thereafter acquired, in the Receivables existing on the Addition Cut-Off Date
or
thereafter created in the Additional Asset Pool One Accounts, all Interchange
and Recoveries related thereto, all monies due or to become due and all amounts
received or receivable with respect thereto and the “proceeds” (including
“proceeds” as defined in the applicable UCC) thereof and Insurance Proceeds
relating thereto to secure the Asset Pool One Notes (and the obligations under
the Indenture and the Asset Pool One Supplement), equally and ratably without
prejudice, priority or distinction between any Asset Pool One Note by reason
of
difference in time of issuance or otherwise, except as otherwise expressly
provided in the Indenture, or in the Indenture Supplement which establishes
any
Series, Class or Tranche of Asset Pool One Notes, and to secure (i) the payment
of all amounts due on such Asset Pool One Notes in accordance with their
respective terms, (ii) the payment of all other sums payable by the Trust under
the Indenture, any Indenture Supplement and the Asset Pool One Supplement
relating to the Asset Pool One Notes and (iii) compliance by the Trust with
the
provisions of the Indenture, any Indenture Supplement or the Asset Pool One
Supplement relating to the Asset Pool One Notes. This Assignment
constitutes a security agreement under the UCC.
(b) If
necessary, the Trust agrees to record and file, at its own expense, financing
statements (and continuation statements when applicable) with respect to the
Asset Pool One Receivables in Additional Asset Pool One Accounts existing on
the
Addition Cut-Off Date and thereafter created meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect, and maintain perfection of, the sale and assignment of its interest
in such Asset Pool One Receivables to the Collateral Agent, and to deliver
a
file-stamped copy of each such financing statement or other evidence of such
filing to the Collateral Agent on or prior to the Addition Date. The
Collateral Agent shall be under no obligation whatsoever to file such financing
or continuation statements or to make any filing under the UCC in connection
with such sale and assignment.
(c) In
connection with such assignment, the Trust further agrees, at its own expense,
on or prior to the date of this Assignment, to indicate in the appropriate
computer files
B-2
that
Receivables created in connection with the Additional Asset Pool One Accounts
and designated hereby have been pledged to the Collateral Agent pursuant to
this
Assignment for the benefit and security of the Asset Pool One Noteholders,
the
Indenture Trustee, in its individual capacity and the Collateral Agent, in
its
individual capacity.
(d) The
parties hereto agree that all pledges of Receivables to the Collateral Agent
pursuant to this Assignment are subject to, and shall be treated in accordance
with, the Delaware Act and each of the parties hereto agrees that this
Assignment has been entered into by the parties hereto in express reliance
upon
the Delaware Act. For purposes of complying with the requirements of
the Delaware Act, each of the parties hereto hereby agrees that any property,
assets or rights purported to be pledged, in whole or in part, by the Trust
pursuant to this Assignment shall be deemed to no longer be the property, assets
or rights of the Trust. The parties hereto acknowledge and agree that
each such assignment is occurring in connection with a “securitization
transaction” within the meaning of the Delaware Act.
4. Acceptance
by Collateral Agent. The Collateral Agent hereby acknowledges its
acceptance of all right, title and interest in and to the Receivables in the
Additional Asset Pool One Accounts now existing and hereafter created, pledged
to the Collateral Agent pursuant to Section 3(a) of this Assignment and declares
that it shall maintain such right, title and interest, upon the trust herein
set
forth, for the benefit and security of the Asset Pool One Noteholders, the
Indenture Trustee, in its individual capacity and the Collateral Agent, in
its
individual capacity.
5. Representations
and Warranties of the Trust. The Trust hereby represents and
warrants to the Collateral Agent, as of the Addition Date (or such other date
as
is specified below), that:
(a) Conditions
Precedent. All of the requirements for the addition of Accounts
set forth under subsection 2.12(c) of the Transfer and Servicing Agreement
shall
have been satisfied and all of the representations and warranties set forth
under subsection 2.04(a) of the Transfer and Servicing Agreement to be made
on
each Addition Date shall be true and correct in all material respects on such
Addition Date;
(b) Legal,
Valid and Binding Obligation. This Assignment constitutes a
legal, valid and binding obligation of the Trust enforceable against the Trust
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 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 Additional Accounts. As of the Addition Cut-Off Date, each
Additional Account designated hereby was an Eligible Account;
(d) Insolvency. As
of each of the Addition Cut-Off Date and the Addition Date, no Insolvency Event
with respect to the Trust has occurred and the
assignment by the Trust of Receivables arising in the
Additional Accounts to the Collateral Agent has not been made in contemplation
of the occurrence thereof;
B-3
(e) No
Adverse Effect. The acquisition by the Collateral Agent of the Receivables
arising in the Additional Accounts shall not, in the reasonable belief of the
Trust, result in an Adverse Effect;
(f) No
Conflict. The execution and delivery by the Trust of this
Assignment, the performance of the transactions contemplated by this Assignment
and the fulfillment of the terms hereof applicable to the Trust, will not
conflict with or violate any Requirements of Law applicable to the Trust or
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 Trust is a party or by which it or its
properties are bound;
(g) No
Proceedings. There are no proceedings or investigations, pending
or, to the best knowledge of the Trust, threatened against the Trust before
any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Assignment, (ii) seeking
to
prevent the consummation of any of the transactions contemplated by this
Assignment, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Trust, would materially and adversely affect the performance
by
the Trust of its obligations under this Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Assignment; and
(h) All
Consents. All authorizations, consents, orders or approvals of
any court or other governmental authority required to be obtained by the Trust
in connection with the execution and delivery of this Assignment by the Trust
and the performance of the transactions contemplated by this Assignment by
the
Trust, have been obtained.
6. Conditions
Precedent. The acceptance by the Collateral Agent set forth in
Section 4 hereof and the amendment of the Asset Pool One Supplement pursuant
to
Section 7 hereof are each subject to the satisfaction of the conditions
precedent set forth in subsection 2.4(c) of the Asset Pool One Supplement on
or
prior to the dates specified in such subsection 2.4(c), except to the extent
any
such conditions have been waived. For purposes of subsection
2.4(c)(ii) of the Asset Pool One Supplement, “Notice Date” shall having the
meaning specified in Section 1 hereof. With respect to the condition
specified in subsection 2.4(c)(xi) of the Asset Pool One Supplement, on or
prior
to the date hereof, the Administrator, on behalf of the Issuing Entity, shall
have delivered to the Collateral Agent a certificate of a Vice President or
more
senior officer of the Administrator, substantially in the form of Schedule
2
hereto, certifying that all requirements set forth in subsection 2.4(c) of
the
Asset Pool One Supplement for designating and conveying Receivables in
Additional Asset Pool One Accounts have been satisfied or waived. The
Collateral Agent 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.
7. Amendment
of the Asset Pool One Supplement. The Asset Pool One Supplement
is hereby amended to provide that all references therein to the “Asset Pool One
Supplement,” to “this Asset Pool One Supplement” and to “herein” shall be deemed
from and after the Addition Date to be a dual reference to the Asset Pool One
Supplement as supplemented by this Assignment. All references therein
to Additional Asset Pool One Accounts shall be
B-4
deemed
to include the Additional Accounts designated hereby and all references therein
to Asset Pool One Receivables shall be deemed to include the Receivables pledged
hereby. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Asset Pool
One Supplement 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
provision of the Asset Pool One Supplement.
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
shall constitute one and the same instrument.
9. GOVERNING
LAW. THIS ASSIGNMENT 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.
10. Limitation
of Liability. Notwithstanding any other provision herein or
elsewhere, this Assignment has been executed and delivered by Wilmington Trust
Company on behalf of the Trust, not in its individual capacity, but solely
in
its capacity as Owner Trustee, and in no event shall Wilmington Trust Company
in
its individual capacity have any liability in respect of the representations,
warranties, or obligations of the Trust hereunder or under any other document,
as to all of which recourse shall be had solely to the assets of the Trust,
and
for all purposes of this Assignment and each other document, the Owner Trustee
(as such or in its individual capacity) shall be subject to, and entitled to
the
benefits of, the terms and provisions of the Trust Xxxxxxxxx.XX WITNESS WHEREOF,
the parties hereto have caused this Assignment to be duly executed by their
respective officers as of the day and year first above written.
B-5
CHASE
ISSUANCE TRUST
|
|||
By:
|
WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as Owner
Trustee
on behalf of the Trust
|
||
By:
|
|||
Name:
|
|||
Title:
|
|||
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, as Collateral
Agent
|
|||
By:
|
|||
Name:
|
|||
Title:
|
Acknowledged
by:
CHASE
BANK USA,
NATIONAL
ASSOCIATION,
as
Servicer
By:
__________________________________
Name:
Title:
B-6
Schedule
1 (to Exhibit B)
LIST
OF ADDITIONAL ASSET POOL ONE ACCOUNTS
[TO
BE DELIVERED TO THE COLLATERAL AGENT BY THE TRUST AND MARKED AS SCHEDULE 1
TO
THIS ASSIGNMENT]
B-7
Schedule
2 (to Exhibit B)
Chase
Issuance Trust
Officer’s
Certificate
__________________,
a duly authorized officer of Chase Bank USA, National Association, as
administrator (the “Administrator”) for the Chase Issuance Trust (the “Trust”),
hereby certifies and acknowledges on behalf of the Trust that to the best of
his
knowledge the following statements are true on _______________ (the “Addition
Date”), and acknowledges on behalf of the Trust that this Officer’s Certificate
will be relied upon by Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”),
as collateral agent (the “Collateral Agent”) in connection with the Collateral
Agent entering into Assignment No. ___ of Receivables in Additional Accounts,
dated as of _______________ (the “Assignment”), by and between the Trust and the
Collateral Agent, in connection with the Second Amended and Restated Asset
Pool
One Supplement, dated as of December 19, 2007 (as heretofore supplemented and
amended, the “Asset Pool One Supplement”), by and between the Trust and Xxxxx
Fargo as indenture trustee (the “Indenture Trustee”) and Collateral
Agent. The undersigned hereby certifies and acknowledges on behalf of
the Trust that:
(a) Conditions
Precedent. All of the requirements for the addition of Accounts
set forth under subsection 2.4(c) of the Asset Pool One Supplement shall have
been satisfied in all material respects on the Addition Date.
(b) Delivery
of Assignment. On or prior to the Addition Date, (i) the Trust
has delivered to the Collateral Agent the Assignment (including an acceptance
by
the Collateral Agent for the benefit and security of the Asset Pool One
Noteholders, the Indenture Trustee, in its individual capacity and the
Collateral Agent, in its individual capacity) and (ii) the Trust has indicated
in its computer files that the Receivables created in connection with the
Additional Accounts have been assigned to the Collateral
Agent. Within five Business Days after the Addition Date, the Trust
shall deliver to the Collateral Agent a true and complete list (in the form
of a
computer file, microfiche list, CD-ROM or such other form as is agreed upon
between the Transferor and the Collateral Agent) of all Additional Accounts,
identified by account number and the aggregate amount of the Receivables in
each
Additional Account as of the Addition Cut-Off Date, which list shall, as of
the
Addition Date, modify and amend and be incorporated into and made a part of
the
Assignment and the Asset Pool One Supplement.
(c) Legal,
Valid and Binding Obligation. The Assignment constitutes a legal,
valid and binding obligation of the Trust enforceable against the Trust 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 except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity).
(d) Eligibility
of Additional Accounts. As of the Addition Cut-Off Date, each
Additional Account designated pursuant to the Assignment was an Eligible
Account.
B-8
(e) Insolvency. As
of each of the Addition Cut-Off Date and the Addition Date, no Insolvency Event
with respect to the Trust has occurred and the assignment by the Trust of
Receivables arising in the Additional Accounts to the Collateral Agent has
not
been made in contemplation of the occurrence thereof.
(f) No
Adverse Effect. The acquisition by the Collateral Agent of the
Receivables arising in the Additional Accounts shall not, in the reasonable
belief of the Trust, result in an Adverse Effect.
(g) No
Conflict. The execution and delivery by the Trust of the
Assignment, the performance of the transactions contemplated by the Assignment
and the fulfillment of the terms thereof applicable to the Trust, will not
conflict with or violate any Requirements of Law applicable to the Trust or
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 Trust is a party or by which it or its
properties are bound.
(h) No
Proceedings. There are no proceedings or investigations, pending
or, to the best knowledge of the Trust, threatened against the Trust before
any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of the Assignment, (ii) seeking
to
prevent the consummation of any of the transactions contemplated by the
Assignment, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Trust, would materially and adversely affect the performance
by
the Trust of its obligations under the Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of the Assignment.
(i) All
Consents. All authorizations, consents, orders or approvals of any court or
other governmental authority required to be obtained by the Trust in connection
with the execution and delivery of the Assignment by the Trust and the
performance of the transactions contemplated by the Assignment by the Trust,
have been obtained.
Initially
capitalized terms used herein and not otherwise defined are used as defined
in
the Asset Pool One Supplement.
B-9
IN
WITNESS WHEREOF, I have hereunto set my hand this ____ day of
__________.
CHASE
ISSUANCE TRUST
|
|||
By:
|
CHASE
BANK USA, NATIONAL ASSOCIATION, not in its individual capacity but
solely
as Administrator on behalf of the Trust
|
||
By:
|
|||
Name:
|
|||
Title:
|
|||
:
B-10
Exhibit
C
FORM
OF ASSIGNMENT OF AN ADDITIONAL COLLATERAL CERTIFICATE
INCLUDED
IN ASSET POOL ONE
(as
required by subsection 2.4(c)(vi) of the Asset Pool One Supplement)
ASSIGNMENT
NO. __ OF AN ADDITIONAL COLLATERAL CERTIFICATE INCLUDED IN ASSET POOL ONE (this
“Assignment”) dated as of _____________, by and between CHASE ISSUANCE TRUST
(the “Trust”) and XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Xxxxx Fargo”) as
collateral agent (the “Collateral Agent”), pursuant to the Asset Pool One
Supplement referred to below.
W
I T N E S S E T H:
WHEREAS,
the Trust and Xxxxx Fargo, as Collateral Agent and Indenture Trustee, are
parties to the Second Amended and Restated Asset Pool One Supplement, dated
as
of December 19, 2007 (hereinafter as such agreement may have been, or may from
time to time be, amended, supplemented or otherwise modified, the “Asset Pool
One Supplement”);
WHEREAS,
pursuant to subsection 2.4(a) or 2.4(b) of the Asset Pool One Supplement, the
Trust wishes to designate an Additional Collateral Certificate to be included
as
an Asset Pool One Collateral Certificate and to pledge hereby such Additional
Collateral Certificate to the Collateral Agent; and
WHEREAS,
the Collateral Agent, on behalf of and for the benefit and security of the
Asset
Pool One Noteholders, the Indenture Trustee, in its individual capacity and
the
Collateral Agent, in its individual capacity, is willing to accept such
designation and pledge subject to the terms and conditions hereof;
NOW,
THEREFORE, the Trust and the Collateral Agent agree as follows:
1. Defined
Terms. All capitalized terms used herein shall have the meanings ascribed to
them in the Asset Pool One Supplement unless otherwise defined
herein.
“Addition
Date” shall mean, with respect to the Additional Collateral Certificate
designated on Schedule 1 hereto, ____________.
“Notice
Date” shall mean, with respect to the Additional Collateral Certificate
designated on Schedule 1 hereto, ____________ [which shall be a date on or
prior
to the third Business Day prior to the Addition Date with respect to additions
pursuant to subsection 2.4(a) of the Asset Pool One Supplement and the fifth
Business Day prior to the Addition Date with respect to additions pursuant
to
subsection 2.4(b) of the Asset Pool One Supplement].
2. Pledge
of Additional Collateral Certificates.
(a)
The Trust does hereby grant to the Collateral Agent, for the benefit and
security of the Asset Pool One Noteholders, the Indenture Trustee, in its
individual capacity and the Collateral
C-1
Agent,
in its individual capacity, a security interest in all of its right, title
and
interest, whether now owned or hereafter acquired, in and to the Additional
Collateral Certificate. The foregoing does not constitute and is not
intended to result in the creation or assumption by the Collateral Agent of
any
obligation of the Trust or any other Person in connection with the Additional
Collateral Certificate or under any agreement or instrument relating thereto,
including any obligation to Obligors, merchant banks, merchants clearance
systems, VISA®,
MasterCard® or
insurers. This Assignment constitutes a security agreement under the
UCC.
(b) If
necessary, the Trust agrees to record and file, at its own expense, financing
statements (and continuation statements when applicable) with respect to the
Additional Collateral Certificate meeting the requirements of applicable state
law in such manner and in such jurisdictions as are necessary to perfect, and
maintain perfection of, the assignment of its interest in such Additional
Collateral Certificate to the Collateral Agent, and to deliver a file-stamped
copy of each such financing statement or other evidence of such filing to the
Collateral Agent on or prior to the Addition Date. Neither the
Indenture Trustee nor the Collateral Agent shall be under any obligation
whatsoever to file such financing or continuation statements or to make any
filing under the UCC in connection with such assignment.
(c) The
parties agree hereto that all pledges of Additional Collateral Certificates
to
the Collateral Agent pursuant to this Assignment are subject to, and shall
be
treated in accordance with, the Delaware Act and each of the parties hereto
agrees that this Assignment has been entered into by the parties hereto in
express reliance upon the Delaware Act. For purposes of complying
with the requirements of the Delaware Act, each of the parties hereto hereby
agrees that any property, assets or rights purported to be pledged, in whole
or
in part, by the Trust pursuant to this Assignment shall be deemed to no longer
be the property, assets or rights of the Trust. The parties hereto
acknowledge and agree that each such pledge is occurring
in connection with a “securitization transaction” within the meaning of the
Delaware Act.
3. Acceptance
by the Collateral Agent. The Collateral Agent hereby acknowledges
its acceptance for the benefit and security of the Asset Pool One Noteholders,
the Indenture Trustee, in its individual capacity and the Collateral Agent,
in
its individual capacity, of a security interest in all right, title and interest
to the Additional Collateral Certificate which has been pledged to the
Collateral Agent pursuant to Section 2(a) of this Assignment.
4. Representations
and Warranties of the Trust. The Trust hereby represents and
warrants to the Collateral Agent, as of the Addition Date, that:
(a) Conditions
Precedent. All of the requirements for the addition of Additional
Collateral Certificates set forth under subsection 2.12(c) of the Transfer
and
Servicing Agreement shall have been satisfied and all of the representations
and
warranties set forth under subsection 2.04(a) of the Transfer and Servicing
Agreement to be made on each Addition Date shall be true and correct in all
material respects on such Addition Date;
(b) Legal,
Valid and Binding Obligation. This Assignment constitutes a
legal, valid and binding obligation of the Trust enforceable against the Trust
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
C-2
enforcement
of creditors’ rights in general 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 Additional Collateral Certificate. As of the Addition Date,
the Additional Collateral Certificate designated hereby is an Eligible
Collateral Certificate;
(d) Insolvency. As
of the Addition Date, no Insolvency Event with respect to the Trust has occurred
and the pledge by the Trust of the
Additional Collateral Certificate to the Collateral Agent has not been made
in
contemplation of the occurrence thereof;
(e) No
Adverse Effect. The acquisition by the Collateral Agent of the
Additional Collateral Certificate shall not, in the reasonable belief of the
Trust, result in an Adverse Effect;
(f) No
Conflict. The execution and delivery by the Trust of this
Assignment, the performance of the transactions contemplated by this Assignment
and the fulfillment of the terms hereof applicable to the Trust, will not
conflict with or violate any Requirements of Law applicable to the Trust or
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 Trust is a party or by which it or its properties
are bound;
(g) No
Proceedings. There are no proceedings or investigations, pending
or, to the best knowledge of the Trust, threatened against the Trust before
any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Assignment, (ii) seeking
to
prevent the consummation of any of the transactions contemplated by this
Assignment, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Trust, would materially and adversely affect the performance
by
the Trust of its obligations under this Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Assignment; and
(h) All
Consents. All authorizations, consents, orders or approvals of
any court or other governmental authority required to be obtained by the Trust
in connection with the execution and delivery of this Assignment by the Trust
and the performance of the transactions contemplated by this Assignment by
the
Trust, have been obtained.
5. Conditions
Precedent. The acceptance by the Collateral Agent set forth in
Section 3 hereof and the amendment of the Asset Pool One Supplement pursuant
to
Section 6 hereof are each subject to the satisfaction of the conditions
precedent set forth in subsection 2.4(c) of the Asset Pool One Supplement on
or
prior to the dates specified in such subsection 2.4(c). For purposes
of subsection 2.4(c)(ii) of the Asset Pool One Supplement, “Notice Date” shall
having the meaning specified in Section 1 hereof. With respect to the
condition specified in subsection 2.4(c)(xi) of the Asset Pool One Supplement,
on or prior to the date hereof, the Administrator, on behalf of the Trust,
shall
have delivered to the Collateral Agent a certificate of a Vice President or
more
senior officer of the Administrator, substantially in the form of Schedule
2
hereto, certifying that all requirements set forth in subsection 2.4(c) of
the
Asset Pool One Supplement for designating and conveying Additional Collateral
Certificates have been satisfied. The
C-3
Collateral
Agent 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 Asset Pool One Supplement. The Asset Pool One Supplement
is hereby amended to provide that all references therein to the “Asset Pool One
Supplement,” to “this Asset Pool One Supplement” and to “herein” shall be deemed
from and after the Addition Date to be a dual reference to the Asset Pool One
Supplement as supplemented by this Assignment. All references therein
to Additional Asset Pool One Collateral Certificates shall be deemed to include
the Additional Collateral Certificate designated hereby. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Asset Pool One Supplement 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 provision of the Asset Pool One
Supplement.
7. 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
shall constitute one and the same instrument.
8. GOVERNING
LAW. THIS ASSIGNMENT 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.
9. Limitation
of Liability. Notwithstanding any other provision herein or
elsewhere, this Assignment has been executed and delivered by Wilmington Trust
Company on behalf of the Trust, not in its individual capacity, but solely
in
its capacity as Owner Trustee, and in no event shall Wilmington Trust Company
in
its individual capacity have any liability in respect of the representations,
warranties, or obligations of the Trust hereunder or under any other document,
as to all of which recourse shall be had solely to the assets of the Trust,
and
for all purposes of this Assignment and each other document, the Owner Trustee
(as such or in its individual capacity) shall be subject to, and entitled to
the
benefits of, the terms and provisions of the Trust Agreement.
C-4
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust, and the Collateral
Agent have caused this Assignment to be duly executed by their respective
officers as of the day and year first above written.
CHASE
ISSUANCE TRUST
|
|||
By:
|
WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as Owner
Trustee
on behalf of the Trust
|
||
By:
|
|||
Name:
|
|||
Title:
|
|||
XXXXX
FARGO BANK,
NATIONAL
ASSOCIATION, as Collateral
|
|||
By:
|
|||
Name:
|
|||
Title:
|
C-5
Schedule
1 (to Exhibit C)
LIST
OF ADDITIONAL ASSET POOL ONE COLLATERAL CERTIFICATES
C-6
Schedule
2 (to Exhibit C)
Chase
Issuance Trust
Officer’s
Certificate
__________________,
a duly authorized officer of Chase Bank USA, National Association, as
administrator (the “Administrator”) for the Chase Issuance Trust (the “Trust”),
hereby certifies and acknowledges on behalf of the Trust that to the best of
[his/her] knowledge the following statements are true on _______________ (the
“Addition Date”), and acknowledges on behalf of the Trust that this Officer’s
Certificate will be relied upon by Xxxxx Fargo Bank, National Association
(“Xxxxx Fargo”), as collateral agent (the “Collateral Agent”) in connection with
the Collateral Agent entering into Assignment No. ___ of an Additional
Collateral Certificate, dated as of _______________ (the “Assignment”), by and
between the Trust and the Collateral Agent, in connection with the Second
Amended and Restated Asset Pool One Supplement, dated as of December 19, 2007
(as heretofore supplemented and amended, the “Asset Pool One Supplement”), by
and between the Trust and Xxxxx Fargo as indenture trustee (the “Indenture
Trustee”) and Collateral Agent. The undersigned hereby certifies and
acknowledges on behalf of the Trust that:
(a) Conditions
Precedent. All of the requirements for the addition of Additional
Collateral Certificates set forth under subsection 2.4(c) of the Asset Pool
One
Supplement shall have been satisfied in all material respects on the Addition
Date.
(b) Delivery
of Assignment. On or before the Addition Date, with respect to
the Additional Asset Pool One Collateral Certificates, the Trust has delivered
to the Collateral Agent the Assignment (including an acceptance by the
Collateral Agent for the benefit and security of the Asset Pool One Noteholders,
the Indenture Trustee, in its individual capacity and the Collateral Agent,
in
its individual capacity).
(c) Legal,
Valid and Binding Obligation. The Assignment constitutes a legal,
valid and binding obligation of the Trust enforceable against the Trust 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 except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity).
(d) Eligibility
of Additional Collateral Certificate. As of the Addition Date,
each Additional Collateral Certificate designated pursuant to the Assignment
is
an Eligible Collateral Certificate.
(e) Insolvency. As
of the Addition Date, no Insolvency Event with respect to the Trust has occurred
and the pledge by the Trust of the Additional Collateral Certificate to the
Collateral Agent has not been made in contemplation of the occurrence
thereof.
(f) No
Adverse Effect. The acquisition by the Collateral Agent of the
Additional Collateral Certificate shall not, in the reasonable belief of the
Trust, result in an Adverse Effect.
C-7
(g) No
Conflict. The execution and delivery by the Trust of this
Assignment, the performance of the transactions contemplated by the Assignment
and the fulfillment of the terms thereof applicable to the Trust, will not
conflict with or violate any Requirements of Law applicable to the Trust or
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 Trust is a party or by which it or its properties
are bound.
(h) No
Proceedings. There are no proceedings or investigations, pending
or, to the best knowledge of the Trust, threatened against the Trust before
any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of the Assignment, (ii) seeking
to
prevent the consummation of any of the transactions contemplated by the
Assignment, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Trust, would materially and adversely affect the performance
by
the Trust of its obligations under the Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of the Assignment.
(i) All
Consents. All authorizations, consents, orders or approvals of
any court or other governmental authority required to be obtained by the Trust
in connection with the execution and delivery of the Assignment by the Trust
and
the performance of the transactions contemplated by the Assignment by the Trust,
have been obtained.
Initially
capitalized terms used herein and not otherwise defined are used as defined
in
the Asset Pool One Supplement.
C-8
IN
WITNESS WHEREOF, I have hereunto set my hand this ____ day of
__________.
CHASE
ISSUANCE TRUST
|
|||
By:
|
CHASE
BANK USA, NATIONAL ASSOCIATION, not in its individual capacity but
solely
as Administrator on behalf of the Trust
|
||
By:
|
|||
Name:
|
|||
Title:
|
|||
:
C-9
Exhibit
D
FORM
OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
INCLUDED
IN ASSET POOL ONE
(as
required by subsection 2.5(b)(ii) of the Asset Pool One Supplement)
REASSIGNMENT
NO. _______ OF RECEIVABLES INCLUDED IN ASSET POOL ONE (this “Reassignment”),
dated as of _________, by and between the CHASE ISSUANCE TRUST (the “Trust”) and
XXXXX FARGO BANK, NATIONAL ASSOCIATION (the “Collateral Agent”), pursuant to the
Asset Pool One Supplement referred to below.
W
I T N E S S E T H:
WHEREAS,
the Trust and the Collateral Agent are parties to the Second Amended and
Restated Asset Pool One Supplement, dated as of December 19, 2007 (hereinafter
as such agreement may have been, or may from time to time be, amended,
supplemented or otherwise modified, the “Asset Pool One
Supplement”);
WHEREAS,
pursuant to the Asset Pool One Supplement, the Trust wishes to remove from
Asset
Pool One all Asset Pool One Receivables in certain designated Asset Pool One
Accounts identified on Schedule 1 to this Reassignment (the “Removed Asset Pool
One Accounts”) and to cause the Collateral Agent to reassign the Asset Pool One
Receivables of such Removed Asset Pool One Accounts, whether now existing or
hereafter created, from the Collateral Agent to the Trust; and
WHEREAS,
the Collateral Agent is willing to accept such designation and to reassign
the
Asset Pool One Receivables in the Removed Asset Pool One Accounts subject to
the
terms and conditions hereof;
NOW,
THEREFORE, the Owner Trustee, on behalf of the Trust, and the Collateral Agent
hereby agree as follows:
1. Defined
Terms. All terms defined in the Asset Pool One Supplement and
used herein shall have such defined meanings when used herein, unless otherwise
defined herein.
“Removal
Cut-Off Date” shall mean, with respect to the Removed Asset Pool One
Accounts designated hereby, ___________
“Removal
Date” shall mean, with respect to the Removed Asset Pool One Accounts
designated hereby, _____________
“Removal
Notice Date” shall mean, with respect to the Removed Asset Pool One
Accounts, ___________.
2. Designation
of Removed Asset Pool One Accounts. No later than five Business
Days after the Removal Date, or as otherwise agreed upon between the Trust
and
the Collateral Agent, the Trust will deliver to the Collateral Agent a true
and
complete list (in the form of a
D-1
computer
file, microfiche list, CD-ROM or such other form as is agreed upon between
the
Transferor and the Collateral Agent) of all Removed Asset Pool One Accounts,
identified by account number and the aggregate amount of Asset Pool One
Principal Receivables in each Removed Asset Pool One Account as of the Removal
Cut-Off Date, which list shall, as of the Removal Date, modify and amend and
be
incorporated into and made a part of this Reassignment and the Asset Pool One
Supplement.
3. Reassignment
of Receivables. The Collateral Agent does hereby reassign to the
Trust, without recourse, on and after the Removal Date, all right, title and
interest of the Collateral Agent in, to and under the Asset Pool One Receivables
now existing and hereafter created from time to time in the Removed Asset Pool
One Accounts, all Interchange and Recoveries related thereto, all monies due
or
to become due (including all Asset Pool One Finance Charge Receivables) and
all
amounts received or receivable with respect thereto and all proceeds (as defined
in the UCC as in effect in the applicable jurisdiction) thereof (the “Removed
Collateral”).
4. Conditions
Precedent. The reassignment hereunder of the Asset
Pool One Receivables in the Removed Asset Pool One Accounts and the amendment
of
the Asset Pool One Supplement pursuant to Section 7 of this Reassignment are
each subject to the satisfaction, on or prior to the Removal Date, of the
conditions set forth in subsection 2.5(b) of the Asset Pool One
Supplement.
5. Representations
and Warranties. The Trust hereby represents and warrants to the
Collateral Agent as of the Removal Date that:
(a) Legal,
Valid and Binding Obligation. This Reassignment constitutes a
legal, valid and binding obligation of the Trust enforceable against the Trust,
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 national 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); and
(b) List
of Removed Accounts. The list of Removed Asset Pool One Accounts
delivered pursuant to subsection 2.5(b)(ii) of the Asset Pool One Supplement,
as
of the Removal Date, is true and complete in all material respects.
6. Representations
and Warranties of the Servicer. No selection procedures believed
by the Servicer to be materially adverse to the interests of the Asset Pool
One
Noteholders were utilized in selecting the Removed Asset Pool One Accounts
to be
removed from the Trust and (I) a random selection procedure was used by the
Servicer in selecting the Removed Asset Pool One Accounts and only one such
removal of randomly selected Accounts shall occur in the then current Monthly
Period, (II) the Removed Asset Pool One Accounts arose pursuant to an affinity,
private-label, agent-bank, co-branding or other arrangement with a third party
that has been cancelled by such third party or has expired without renewal
and
which by its terms permits the third party to repurchase the Removed Asset
Pool
One Accounts subject to such arrangement, upon such cancellation or non-renewal
and the third party has exercised such repurchase right or
D-2
(III)
the Removed Asset Pool One Accounts were selected using another method that
will
not preclude transfers from being accounted for as sales under generally
accepted accounting principles or prevent the Trust from continuing to qualify
as a qualifying special purpose entity in accordance with SFAS 140.
7. Amendment
of the Asset Pool One Supplement. The Asset Pool One Supplement
is hereby amended to provide that all references therein to the “Asset Pool One
Supplement,” to “this Asset Pool One Supplement” and to “herein” shall be deemed
from and after the Removal Date to be a dual reference to the Asset Pool One
Supplement as supplemented by this Reassignment. All references
therein to the Asset Pool One Accounts shall be deemed not to include the
Removed Asset Pool One Accounts designated hereunder and all references to
Asset
Pool One Receivables shall be deemed not to include the Asset Pool One
Receivables reassigned hereunder. Except as expressly amended hereby,
all of the representations, warranties, terms, covenants and conditions of
the
Asset Pool One Supplement 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
provision of the Asset Pool One Supplement.
8. Release.
(a) The
Collateral Agent hereby expressly terminates, relinquishes, releases, discharges
and renders ineffective any and all security interests, liens, mortgages and
encumbrances, as against the Trust, any transferee of the Trust and any person
claiming title to or an interest in the Removed Collateral through any such
person, or any successor or assign of any of the foregoing (all such persons
and
entities being referred to individually as a “Transferee” and collectively as
the “Transferees”), any and all right, title, benefit, interest or claim
whatsoever, present or future, actual or contingent (collectively, “Rights”),
owned or held by the Collateral Agent to, against or in respect of the Removed
Collateral.
(b) In
case any provision of this Reassignment shall be rendered invalid, illegal
or
unenforceable in any jurisdiction, the Collateral Agent hereby acknowledges
that
its interest in the Removed Collateral is subordinate and junior to the security
interest of any Transferee and hereby expressly agrees that any security
interest it may have in any Removed Collateral is and shall remain subordinate
and junior to all security interests granted by a Transferee, regardless of
the
time of the recording, perfection or filing thereof or with respect
thereto.
(c) The
Collateral Agent acknowledges and agrees that the Transferees and their
representatives are expressly entitled to rely on the provisions of this Section
8, it being the intent of the Collateral Agent that the Transferees will acquire
title to the Removed Collateral purchased by them free of any Rights owned
or
held by the Collateral Agent to, against or in respect of the Removed
Collateral.
9. 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 shall constitute one and the same instrument.
D-3
10. GOVERNING
LAW. THIS REASSIGNMENT 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.
11. Limitation
of Liability. Notwithstanding any other provision herein or
elsewhere, this Reassignment has been executed and delivered by Wilmington
Trust
Company on behalf of the Trust, not in its individual capacity, but solely
in
its capacity as Owner Trustee, in no event shall Wilmington Trust Company in
its
individual capacity have any liability in respect of the representations,
warranties, or obligations of the Trust hereunder or under any other document,
as to all of which recourse shall be had solely to the assets of the Trust,
and
for all purposes of this Reassignment and each other document, the Owner Trustee
(as such or in its individual capacity) shall be subject to, and entitled to
the
benefits of, the terms and provisions of the Trust Agreement.
12. Authorization. The
Collateral Agent hereby authorizes the Trust, or any agent designated by the
Trust, to file any financing statements or continuation statements, and
amendments to financing statements, in any jurisdictions and with any filing
offices as the Trust may determine, in its sole discretion, are necessary or
advisable to reflect the reassignment to the Trust pursuant to Section 3
hereof. Such financing statements may describe the collateral in the
same manner as described herein or may contain an indication or description
of
collateral that describes such property in any other manner as the Trust may
determine, in its sole discretion, is necessary, advisable or prudent to ensure
the perfection of the security interest in the collateral granted to the Trust
in connection herewith, including, without limitation, describing such property
as “all assets” or “all personal property.”
D-4
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust, and the Collateral
Agent have caused this Reassignment to be duly executed by their respective
officers as of the day and year first above written.
CHASE
ISSUANCE TRUST
|
|||
By:
|
WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as Owner
Trustee
on behalf of the Trust
|
||
By:
|
|||
Name:
|
|||
Title:
|
|||
XXXXX
FARGO BANK,
NATIONAL
ASSOCIATION, as Collateral Agent
|
|||
By:
|
|||
Name:
|
|||
Title:
|
D-5
Schedule
1 (to Exhibit D)
LIST
OF REMOVED ASSET POOL ONE ACCOUNTS
[Delivered
to the Owner Trustee]
D-6
Schedule
2-A (to Exhibit D)
Chase
Issuance Trust
Officer’s
Certificate
__________________,
a duly authorized officer of Chase Bank USA, National Association, as
administrator (the “Administrator”) for the Chase Issuance Trust (the “Trust”),
hereby certifies and acknowledges on behalf of the Trust that to the best of
[his/her] knowledge the following statements are true on _______________ (the
“Removal Date”), and acknowledges on behalf of the Trust that this Officer’s
Certificate will be relied upon by Xxxxx Fargo Bank, National Association
(“Xxxxx Fargo”), as collateral agent (the “Collateral Agent”) in connection with
the Collateral Agent entering into Reassignment No. ___ of Receivables in
Removed Accounts, dated as of _______________ (the “Reassignment”), by and
between the Trust and the Collateral Agent, in connection with the Second
Amended and Restated Asset Pool One Supplement, dated as of December 19, 2007
(as heretofore supplemented and amended, the “Asset Pool One Supplement”), by
and between the Trust and Xxxxx Fargo as indenture trustee (the “Indenture
Trustee”) and Collateral Agent. The undersigned hereby certifies and
acknowledges on behalf of the Trust that:
(a) Conditions
Precedent. All of the requirements for the removal of Accounts
set forth under subsection 2.5(b) of the Asset Pool One Supplement shall have
been satisfied in all material respects on the Removal Date.
(b) Delivery
of Reassignment. On or prior to the Removal Date, the Trust has
delivered to the Collateral Agent, for execution, the Reassignment and within
five Business Days after the Removal Date, the Trust shall deliver to the
Collateral Agent a true and complete list (in the form of a computer file,
microfiche list, CD-ROM or such other form as is agreed upon between the
Transferor and the Collateral Agent) of the Removed Asset Pool One Accounts,
identified by account number and the aggregate amount of the Asset Pool One
Receivables in each Removed Asset Pool One Account as of the Removal Cut-Off
Date and such list shall, as of the Removal Date, modify and amend and be
incorporated into and made a part of the Reassignment and the Asset Pool One
Supplement.
(c) Legal,
Valid and Binding Obligation. The Reassignment constitutes a
legal, valid and binding obligation of the Trust enforceable against the Trust
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 national 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).
Initially
capitalized terms used herein and not otherwise defined are used as defined
in
the Asset Pool One Supplement.
D-7
IN
WITNESS WHEREOF, I have hereunto set my hand this ____ day of
__________.
CHASE
ISSUANCE TRUST
|
|||
By:
|
CHASE
BANK USA, NATIONAL ASSOCIATION, not in its individual capacity but
solely
as Administrator on behalf of the Trust
|
||
By:
|
|||
Name:
|
|||
Title:
|
D-8
Schedule
2-B (to Exhibit D)
Chase
Bank USA, National Association
Chase
Issuance Trust
Officer’s
Certificate
____________________,
a duly authorized officer of Chase Bank USA, National Association, a national
banking association (the “Servicer”), hereby certifies and acknowledges on
behalf of the Servicer that to the best of [her/his] knowledge the following
statements are true on ___________ (the “Removal Date”), and acknowledges on
behalf of the Servicer that this Officer’s Certificate will be relied upon by
Xxxxx Fargo Bank, National Association, as Collateral Agent (the “Collateral
Agent”) of the Chase Issuance Trust in connection with the Collateral Agent
entering into Reassignment No. ___ of Receivables in Removed Accounts, dated
as
of the related Removal Date (the “Reassignment”), by and between the Issuing
Entity and the Collateral Agent, in connection with the Second Amended and
Restated Asset Pool One Supplement, dated as of December 19, 2007 (as heretofore
supplemented and amended, the “Asset Pool One Supplement”), by and among the
Trust, and Xxxxx Fargo Bank, National Association, as Indenture Trustee and
Collateral Agent. The undersigned hereby certifies and acknowledges
on behalf of the Servicer that:
(a) (x)
a random selection procedure was used by the Servicer in selecting the Removed
Asset Pool One Accounts and only one such removal of randomly selected Accounts
shall occur in the then current Monthly Period, (y) the Removed Asset Pool
One
Accounts arose pursuant to an affinity, private-label, agent-bank, co-branding
or other arrangement with a third party that has been cancelled by such third
party or has expired without renewal and which by its terms permits the third
party to repurchase the Removed Asset Pool One Accounts subject to such
arrangement, upon such cancellation or non-renewal and the third party has
exercised such repurchase right or (z) the Removed Asset Pool One Accounts
were
selected using another method that will not preclude transfers from being
accounted for as sales under generally accepted accounting principles or prevent
the Trust from continuing to qualify as a qualifying special purpose entity
in
accordance with SFAS 140 (or any relevant replacement statement);
and
(b)
on or before the Removal Notice Date specified in the Reassignment, the Servicer
gave each Note Rating Agency written notice that the Asset Pool One Receivables
from the Removed Asset Pool One Accounts are to be reassigned to the Trust
or
its designee, specifying the date for removal of the Removed Asset Pool One
Accounts.
Initially
capitalized terms used herein and not otherwise defined are used as defined
in
the Transfer and Servicing Agreement.
D-9
IN
WITNESS WHEREOF, I have hereunto set my hand as of the _____ day of
_____________.
CHASE
BANK USA, NATIONAL ASSOCIATION, as Servicer
|
|||
By:
|
|||
Name:
|
|||
Title:
|
D-10
Exhibit
E-1
CHASE
ISSUANCE TRUST
Form
of Monthly Payment Instructions and Notification to the
First
USA Credit Card Master Trust Collateral Certificate
Monthly
Period: [ ]
20[ ]
1. Unless
otherwise specified herein, capitalized terms used in this certificate have
their respective meanings set forth in the First USA Credit Card Master Trust
Pooling and Servicing Agreement, as supplemented by the Series 2002-CC
Supplement, dated as of October 15, 2004, each as between Chase Bank USA,
National Association and The Bank of New York (Delaware), as trustee of the
First USA Credit Card Master Trust (collectively, the “Agreement”).
2. Chase
Bank USA, National Association is, as of the date hereof, the Transferor,
Servicer and Administrator under the Transfer and Servicing
Agreement.
3. The
undersigned is a Servicing Officer.
4. The
Proposed Principal Shortfall Amount for the related Monthly Period which the
Series 2002-CC Certificateholder requests to be made in accordance with Section
3.13 of the Asset Pool One Supplement is $_______________.
5. The
Additional Invested Amount which the Series 2002-CC Certificateholder requests
to purchase from the First USA Credit Card Master Trust on the related Transfer
Date is $_______________.
IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this
certificate on this _____ day of _____________.
CHASE
BANK USA, NATIONAL ASSOCIATION, as Servicer
|
|||
By:
|
|||
Name:
|
|||
Title:
|
E-1-1
Exhibit
E-2
CHASE
ISSUANCE TRUST
Form
of Monthly Payment Instructions and Notification to the
Chase
Credit Card Master Trust Trustee
Chase
Credit Card Master Trust Collateral Certificate
Monthly
Period: [ ]
20[ ]
1. Unless
otherwise specified herein, capitalized terms used in this certificate have
their respective meanings set forth in the Chase Credit Card Master Trust
Pooling and Servicing Agreement, as supplemented by the Series 2004-CC
Supplement, dated as of October 20, 2004, each as between Chase Bank USA,
National Association and The Bank of New York, as trustee of the Chase Credit
Card Master Trust (collectively, the “Agreement”).
2. Chase
Bank USA, National Association is, as of the date hereof, the Transferor,
Servicer and Administrator under the Agreement.
3. The
undersigned is a Servicing Officer.
4. The
Proposed Principal Shortfall Amount for the related Monthly Period which the
Series 2004-CC Certificateholder requests to be made in accordance with Section
3.13 of the Asset Pool One Supplement is $_______________.
5. The
Additional Invested Amount which the Series 2004-CC Certificateholder requests
to purchase from the Chase Credit Card Master Trust on the related Transfer
Date
is $_______________.
IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this
certificate on this _____ day of _____________.
CHASE
BANK USA, NATIONAL ASSOCIATION, as Servicer
|
|||
By:
|
|||
Name:
|
|||
Title:
|
X-0-0
Xxxxxxx
X
XXXXX
XXXXXXXX TRUST
Form
of Asset Pool One Monthly Servicer’s Certificate
Monthly
Period: [ ]
20[ ]
1. Capitalized
terms used in this certificate have their respective meanings set forth in
the
Third Amended and Restated Indenture, dated as of December 19, 2007, and the
Second Amended and Restated Asset Pool One Supplement, dated as of December
19,
2007, each between the Chase Issuance Trust and Xxxxx Fargo Bank, National
Association, and, with respect to the First USA Credit Card Master Trust, the
Third Amended and Restated Pooling and Servicing Agreement, dated as of December
19, 2007 between Chase Bank USA, National Association and The Bank of New York
(Delaware) or, with respect to the Chase Credit Card Master Trust, the Fifth
Amended and Restated Pooling and Servicing Agreement, dated as of December
19,
2007, between Chase Bank USA, National Association and The Bank of New
York.
2. Chase
Bank USA, National Association is, as of the date hereof, the Transferor,
Servicer and Administrator under the Transfer and Servicing
Agreement.
3. The
undersigned is a Servicing Officer.
4. Collateral
of Asset Pool One as of the last day of the related Monthly Period:
Collateral
Certificates $
Principal
Receivables $
Excess
Funding
Amount $________________
TOTAL: $
5a. The
Nominal Liquidation Amount of all Asset Pool One Notes as of the last day of
the
related Monthly Period:
CHASEseries $________________
TOTAL $
5b. Asset
Pool One Transferor Amount as of the last day of the related Monthly Period
is
$______________.
5c. Asset
Pool One Required Transferor Amount for the related Monthly Period is
$______________.
5d. Asset
Pool One Pool Balance for the related Monthly Period is
$___________.
5e. Asset
Pool One Minimum Pool Balance for the related Monthly Period is
$_________.
F-1
6a. The
aggregate amount of Collections of Principal Receivables received by Asset
Pool
One for the related Monthly Period is $______________.
6b. The
aggregate amount of Collections of Principal Receivables allocated pursuant
to
Section 3.3 of the Asset Pool One Supplement for the related Monthly
Period:
CHASEseries _____%$______________
TOTAL %$
7a. The
aggregate amount of Collections of Finance Charge Receivables received by Asset
Pool One for the related Monthly Period is $______________.
7b. The
aggregate amount of Collections of Finance Charge Receivables allocated pursuant
to subsection 3.2(a) of the Asset Pool One Supplement for the related Monthly
Period:
CHASEseries _____%$______________
TOTAL %$
8a. The
Asset Pool One Servicing Fee for the related Monthly Period is
$_________.
8b. The
Asset Pool One Servicing Fee allocated to each Series pursuant to subsection
3.4(b) of the Asset Pool One Supplement for the related Monthly
Period:
CHASEseries _____%$______________
TOTAL %$
9a. The
Asset Pool One Default Amount for the related Monthly Period is
$_________.
9b. The
Asset Pool One Default Amount allocated to each Series pursuant to subsection
3.2(b) of the Asset Pool One Supplement for the related Monthly
Period:
CHASEseries _____%$______________
TOTAL %$
10. The
percentage of outstanding balances in Asset Pool One that were delinquent as
of
the end of the day of the last day of the related Monthly Period:
30-59
days
|
%
|
60-89
days
|
%
|
90-119
days
|
%
|
120-149
days
|
%
|
150-179
days
|
%
|
180
or more days
|
%__________
|
TOTAL
|
%
|
F-2
IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate on this _______ day of ___________.
CHASE
BANK USA, NATIONAL ASSOCIATION, as Servicer
|
|||
By:
|
|||
Name:
|
|||
Title:
|
F-3
Schedule
1
LIST
OF ASSET POOL ONE ACCOUNTS
Delivered
to the Collateral Agent
[Deemed
Incorporated]
Schedule 1-1