CANADIAN IMPERIAL BANK OF COMMERCE as Seller and initial Servicer and COMPUTERSHARE TRUST COMPANY OF CANADA as Custodian SECOND AMENDMENT TO POOLING AND SERVICING AGREEMENT October 13, 2016
SECOND AMENDMENT TO POOLING AND SERVICING AGREEMENT SECOND AMENDMENT TO POOLING AND SERVICING AGREEMENT made as of October, 2016 among CANADIAN IMPERIAL BANK OF COMMERCE, a Canadian chartered bank, as Seller and initial Servicer, and COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company governed by the laws of Canada, as agent, nominee and bare trustee for and on behalf of the Seller and the Co-Owners (the Custodian ). RECITALS: (a) (b) In the Second Amended and Restated Pooling and Servicing Agreement made as of May 28, 2012 between the Seller and the Custodian, as amended by a first amending agreement dated January 23, 2015 (collectively, the Original Agreement ), the parties wish to (i) amend the definition of Account Assets to exclude any security granted to the Seller in respect of the payment of amounts due on the Receivables under an Account; (ii) provide that the Eligible Credit Card Accounts exclude Secured Accounts (as defined below); and (iii) require the Seller to deposit, subject to certain provisions in the Original Agreement, in the Collection Account an amount equal to the sum of the outstanding amounts of all Receivables under any Account that becomes a Secured Account, and, upon such deposit, such Account shall become a Removed Account; and the parties wish to make the foregoing amendments and revisions to the Original Agreement pursuant to Section 12.2(2) of the Original Agreement in the manner provided for herein. NOW THEREFORE, this Agreement witnesses that for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, as follows: Section 1 Defined Terms. Capitalized terms used in this amending agreement and not otherwise defined herein have the meanings ascribed thereto in the Original Agreement or incorporated by reference therein. Section 2 Amendments. The Original Agreement is amended by: (i) deleting the definition of Account Assets in its entirety in Section 1.1 and in Section 3 of Exhibit A Form of Assignment of Undivided Co- Ownership Interests in Account Assets under Additional Accounts, and replacing it with the following definition: Account Assets shall mean, (a) with respect to an Account at a time, (i) the Receivables then or thereafter due or owing under the Account, but excluding any security granted to the Seller in respect of the payment thereof, (ii) all monies due or becoming due under the Account, including Card Income and all other non-principal amounts due or becoming due under the Account, and (iii) all monies due in respect of such Account
- 2 - pursuant to a guarantee or an insurance policy, and (b) the then applicable Pool Interchange Amount. ; (ii) deleting the definition of Eligible Credit Card Account in its entirety in Section 1.1 and in Section 3 of Exhibit A Form of Assignment of Undivided Co-Ownership Interests in Account Assets under Additional Accounts, and replacing it with the following definition: Eligible Credit Card Account shall mean a Credit Card Account established by the Seller on which one or more credit cards have been issued pursuant to the related Credit Card Agreement and in accordance with the Visa Manual, the MasterCard Rules, or the by-laws and regulations of any other similar entity or organization relating to Credit Card Accounts which provides for the extension of credit on a revolving basis by the Seller to the cardholder under the related Credit Card Agreement to (a) finance the purchase of products and services from Persons that accept a Specified Account Designation credit card as a method of payment for such products and services and/or (b) obtain cash advances directly or indirectly by way of credit card cheques and balance transfers, and which is not a Secured Account. ; (iii) inserting in Section 1.1 and in Section 3 of Exhibit A Form of Assignment of Undivided Co-Ownership Interests in Account Assets under Additional Accounts the following defined term and definition immediately before the defined term Seller and the definition thereof: Secured Account shall mean a Credit Card Account that is subject to an agreement between the related Obligor and the Seller pursuant to which such Obligor has provided security to the Seller in respect of the payment of the Receivables under such Credit Card Account. ; (iv) deleting Section 2.4(1)(f) in its entirety and replacing it with the following: Eligible Accounts. On the applicable Reference Date, (i) each Eligible Credit Card Account complies, in all material respects, with all applicable Requirements of Law, and (ii) each Account satisfied the eligibility criteria set forth in paragraph (a) of the definition of Account and is not subject to any right of set-off, right of rescission, counterclaim or other defense other than those arising out of or under applicable bankruptcy, insolvency or other similar laws affecting the rights of creditors or under the principles of equity. ; (v) deleting in Section 2.5(1) the words or (c) it is so provided in a Series Purchase Agreement in relation to the inaccuracy of a representation and warranty or the failure to comply with a covenant set forth therein which adversely affects the Account Assets under any Accounts, then the Seller shall deposit the amount referred to in Section 2.5(2) in respect of the
- 3 - affected Account Assets under such Accounts on or before the expiry of such 30 day (or shorter) period and replacing them with the words: (c) it is so provided in a Series Purchase Agreement in relation to the inaccuracy of a representation and warranty or the failure to comply with a covenant set forth therein which adversely affects the Account Assets under any Accounts, or (d) any Account becomes a Secured Account, then the Seller shall deposit the amount referred to in Section 2.5(2) in respect of the affected Account Assets under such Accounts on or before the expiry of such 30 day (or shorter) period, or, in the case of clause (d), on or before the second Transfer Date following the calendar month during which such Account became a Secured Account ; (vi) deleting Section 2.8(3)(c) in its entirety and replacing it with the following: the Additional Account shall satisfy the eligibility criteria set forth in paragraph (a) of the definition of Account on the related Addition Cut- Off Date and no selection procedures believed by the Seller to be materially adverse to the Co-Owners or any Entitled Party s interests in the Account Assets were used in selecting such Additional Accounts; ; and (vii) deleting the definition of Additional Account Assets in its entirety in Section 3 of Exhibit A Form of Assignment of Undivided Co- Ownership Interests in Account Assets under Additional Accounts, and replacing it with the following definition: Additional Account Assets shall mean, (a) with respect to an Account at a time, (i) the Receivables then or thereafter due or owing under the Account, but excluding any security granted to the Seller in respect of the payment thereof, (ii) all monies due or becoming due under the Account, including Card Income and all other non-principal amounts due or becoming due under the Account, and (iii) all monies due in respect of such Account pursuant to a guarantee or an insurance policy, and (b) the then applicable portion of the Interchange Fees which have been transferred by the Seller in accordance with the Pooling and Servicing Agreement;. Section 3 Representations and Warranties of Seller. 1. The Seller represents and warrants to and in favour of the Custodian as of the date hereof as follows: (a) it is validly existing under the laws of Canada and is duly qualified to carry on business in each jurisdiction in which the failure to be so would reasonably be expected to have a material adverse affect on the Seller;
- 4 - (b) (c) (d) (e) it has full corporate power and capacity to enter into this Agreement and to do all acts and things as are required or contemplated of it hereunder; it has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and to do all acts and things as are required or contemplated of it hereunder; this Agreement has been duly executed and delivered by it and constitutes its legally binding obligation enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, arrangement and other laws affecting creditors rights generally and equitable principles of general applications (regardless of whether enforcement is sought in a proceeding at law or in equity); and the execution and delivery of this Agreement and compliance with its terms and conditions will not (i) result in a violation of its constating documents or by-laws or any resolutions passed by its board of directors or shareholders or any applicable law, rule, regulation, order, judgment, injunction, award or decree as a result of which a material adverse effect on the Seller would reasonably be expected to occur; (ii) result in a breach of, or constitute a default under, any agreement or instrument to which it is a party or by which it is bound which would reasonably be expected to have a material adverse effect on the Seller; or (iii) require any approval or consent of, or any notice to or filing with, any Governmental Authority having jurisdiction except such as has already been given, filed or obtained, as the case may be. 2. The representations and warranties set forth in Section 3(1.) shall survive the Transfers of undivided co-ownership interests in the Account Assets to the Co-Owners and remain in full force and effect for the benefit of the Custodian. Section 4 Effect. Except as specifically amended by this amending agreement, the Original Agreement shall remain in full force and effect and is hereby ratified and confirmed. Section 5 References to the Original Agreement. Any reference to the Original Agreement made in any document delivered pursuant thereto or in connection therewith shall be deemed to refer to the Original Agreement as amended, modified, supplemented, restated or replaced from time to time. Section 6 Governing Law. This amending agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein.
- 5 - Section 7 Execution Counterparts. This amending agreement be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and the counterparts together shall constitute one and the same agreement. [Remainder of page intentionally left blank.]
IN WITNESS WHEREOF the parties have executed this Agreement. CANADIAN IMPERIAL BANK OF COMMERCE, as Seller and initial Servicer Wojtek Niebrzydowski Name: Wojtek Niebrzydowski Title: Vice President, Treasury COMPUTERSHARE TRUST COMPANY OF CANADA, as Custodian Judy Kang Name: Judy Kang Title: Corporate Trust Officer Mircho Mirchev Name: Mircho Mirchev Title: Corporate Trust Officer The undersigned hereby consents to the foregoing amendments pursuant to Section 6.02(g)(iii) of the trust indenture dated as of September 16, 2004 among Montreal Trust Company of Canada, as trustee of CARDS II Trust, BNY Trust Company of Canada, as indenture trustee, and Canadian Imperial Bank of Commerce, as note issuance and payment agent, as supplemented. CANADIAN IMPERIAL BANK OF COMMERCE, as Credit Enhancer Wojtek Niebrzydowski Name: Wojtek Niebrzydowski Title: Vice President, Treasury [Second Amendment to the Pooling and Servicing Agreement]
The undersigned hereby consents to the foregoing amendments. MONTREAL TRUST COMPANY OF CANADA, as trustee of CARDS II TRUST, as Co-Owner, by its Financial Services Agent, CANADIAN IMPERIAL BANK OF COMMERCE Andrew Maciel Name: Andrew Maciel Title: Authorized Signatory [Second Amendment to the Pooling and Servicing Agreement]