EXHIBIT 99.01
CHEVY CHASE MASTER CREDIT CARD TRUST II
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment
Agreement"), dated as of September 30, 1998 is among CHEVY CHASE BANK, F.S.B., a
federally chartered stock savings bank ("Chevy Chase"), CCB HOLDING CORPORATION,
a Delaware corporation ("CCBH"), First USA Bank, N.A., a national banking
association ("Purchaser"), and BANKERS TRUST COMPANY, a New York banking
corporation, as Trustee (the "Trustee") under the Pooling and Servicing
Agreement dated as of June 1, 1995 (as amended by the First Amendment to the
Pooling and Servicing Agreement dated as of March 28, 1996, as further amended
by the Second Amendment to the Pooling and Servicing Agreement dated as of July
1, 1996, as further amended by the Third Amendment to the Pooling and Servicing
Agreement dated as of June 26, 1997, as further amended by the Fourth Amendment
to the Pooling and Servicing Agreement dated as of June 18, 1998, and as further
amended by the Fifth Amendment to the Pooling and Servicing Agreement dated as
of September 30, 1998, and as supplemented by each of the outstanding
Supplements and each of the Assignments of Receivables in Additional Accounts
entered into on or prior to the date hereof, the "Agreement") pursuant to which
the Chevy Chase Master Credit Card Trust II ("MTII") was created and the
Investor Certificates and Transferor Certificates described in Schedule II
hereto have been delivered. Each Series of Investor Certificates and each of the
1996, 1997 and 1998 Supplemental Certificates was issued pursuant to a
Supplement and all of such Supplements in effect as of the date hereof are
listed on Schedule I to this Assignment Agreement (collectively, the
"Supplements").
All capitalized terms used herein and not defined herein have the
meaning assigned thereto in the Agreement. The term "Effective Date" when used
herein shall mean the Closing Date under the Purchase and Sale Agreement among
Chevy Chase, CCBH and the Purchaser dated as of September 2, 1998, as amended,
(the "Purchase and Sale Agreement").
WHEREAS, pursuant to the terms of Section 7.05 of the Agreement a
Transferor may assign, convey and transfer all of its consumer revolving credit
card accounts and the receivables arising thereunder (which may include all, but
not less than all, of the Accounts and such Transferor's remaining interest in
the Receivables arising thereunder and its interest in the Transferors'
Interest), together with all servicing functions and other obligations under the
Agreement or related to the transactions contemplated thereby, to another entity
(which may be an entity that is not affiliated with such Transferor);
WHEREAS, pursuant to the terms of Section 7.02 of the Agreement a
Transferor may convey or transfer its properties and assets substantially as an
entirety to any Person; and
WHEREAS, Chevy Chase and Purchaser have agreed that Chevy Chase will
assign and delegate to Purchaser and Purchaser will accept and assume all of
Xxxxx Xxxxx'x rights and obligations as Transferor, Servicer and Holder of the
Bank Certificate under the Agreement;
WHEREAS, CCBH and Purchaser have agreed that CCBH will convey and transfer
its properties and assets substantially as an entirety to Purchaser and that
CCBH will assign and delegate to Purchaser and Purchaser will accept and assume
all of CCBH's rights and obligations as Transferor and Holder of the Bank
Certificate under the Agreement.
NOW, THEREFORE, pursuant to the Agreement and in consideration of these
premises, and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, it is hereby agreed that:
ARTICLE I
ASSIGNMENT OF CHEVY CHASE AND CCBH RIGHTS AND
DELEGATION OF CHEVY CHASE AND CCBH DUTIES AND OBLIGATIONS
Section 1.1. Assignment of Xxxxx Xxxxx'x and CCBH's Rights. Chevy Chase
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and CCBH, from and after the Effective Date, hereby assign, convey and transfer
to Purchaser all of their respective rights, titles and interests as Transferors
and Holders of the Bank Certificate, and in the case of Chevy Chase, as
Servicer, including all of the Accounts, the Transferors' remaining interest in
the Receivables arising thereunder and the Transferors' interest in the
Transferors' Interest and the Bank Certificate, the Transferors' rights as
Spread Account Residual Interest Holders with respect to the Class C
Supplemental Agreements dated as of September 1, 1996, December 1, 1996 and June
1, 1998, among Chevy Chase, CCBH and the Trustee, and the rights of Chevy Chase
and CCB Holding as the Cash Collateral Depositors (collectively, the "Assigned
Assets").
Section 1.2. Delegation of Chevy Chase and CCBH Duties and Obligations.
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Chevy Chase and CCBH, from and after the Effective Date, hereby delegate to
Purchaser all of their respective liabilities, duties and obligations as
Transferors, as Holders of the Bank Certificate, as Spread Account Residual
Interest Holders and as Cash Collateral Depositors, all of their respective
liabilities, duties and obligations in their individual capacities and, in the
case of Chevy Chase, as Servicer, under the Agreement (collectively, the
"Assumed Obligations").
Section 1.3. Acceptance and Assumption. Purchaser, from and after the
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Effective Date, hereby accepts from Chevy Chase and CCBH and acknowledges the
transfer of all the Assigned Assets. Purchaser, from and after the Effective
Date, hereby accepts and assumes the Assumed Obligations, including the
obligation under the Agreement to transfer the Receivables arising under the
Accounts to the Trust, and the substitution of the Purchaser for purposes of
Sections 7.04, 9.01 and 9.02 of the Agreement, and Purchaser hereby agrees and
acknowledges, for the benefit of the Trustee and all of the Certificateholders,
that Purchaser hereby assumes all of the liabilities, duties and obligations
under and assumes and agrees to perform each and every covenant and obligation
of the Transferors and the Holder of the Bank Certificate and the Transferors'
Interest, of the Cash Collateral Depositors and Spread Account Residual Interest
Holders, of Chevy Chase and CCBH in their individual capacities and of the
Servicer contained in the Agreement, including but not limited to the
obligations of the Transferors to transfer the Receivables and the proceeds
thereof to the Trust, in each case only from and after the Effective Date.
Purchaser, from and after the Effective Date, hereby expressly assumes the
rights and liabilities, duties and obligations of the Servicer under the
Custodial Agreements as described in
Section 8.09 of the Agreement. Purchaser, from and after the Effective Date,
assumes all liabilities, duties and obligations of Chevy Chase and CCBH in any
capacity under the Assignments of Receivables in Additional Accounts entered
into in connection with MTII. For purposes of Sections 3.05 and 3.06 of the
Agreement, Chevy Chase will prepare the annual servicer's report and provide the
independent accountant's reports with respect to each month during which Chevy
Chase was the Servicer (or performing such functions pursuant to an agreement
between Chevy Chase and the Purchaser), and thereafter the Purchaser will be
responsible for preparing and providing all such reports.
Section 1.4. Delivery and Consents. Pursuant to Sections 7.02 and 7.05 of
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the Agreement, the Trustee shall have received the following on or prior to the
Effective Date: (a) from Chevy Chase and/or CCBH, as applicable, an Officer's
Certificate stating that such transfer and assumption and this Agreement comply
with Sections 7.02 and 7.05 of the Agreement, that this Assignment Agreement is
a valid and binding obligation of Purchaser enforceable against Purchaser in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship or other similar laws affecting creditor's rights generally or
the rights of creditors of national banking associations from time to time in
effect and except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity), and that all
conditions precedent provided for in the Agreement relating to such transaction
have been complied with and an Opinion of Counsel as required by Section 7.02
and 7.05; (b) from Chevy Chase, evidence of the consent to the transfer and
assumption from each Series Enhancer; (c) from Purchaser, copies of UCC-1
financing statements covering such Accounts to perfect the Trust's interest in
the Receivables arising thereunder; (d) from Chevy Chase, written notice from
each Rating Agency that the Rating Agency Condition has been satisfied with
respect to such transfer and assumption and such conveyance or transfer of
assets; (e) from Chevy Chase and/or the Purchaser, an Opinion of Counsel as to
clause (c) above and certain other matters specified in Exhibit H-2 to the
Agreement; (f) from Chevy Chase, a Tax Opinion (which in the case of the Tax
Opinion delivered pursuant to Section 7.02 shall have been furnished to each
Rating Agency, in addition to the Trustee); and (g) from Purchaser, an Opinion
of Counsel that this Assignment Agreement is a valid and binding obligation of
Purchaser enforceable against Purchaser in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship or other similar laws
affecting creditors' rights generally or the rights of creditors of national
banking associations from time to time in effect and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
Section 1.5. Acknowledgment, Consent and Release. The Trustee hereby
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acknowledges and consents to the assignment and delegation of Xxxxx Xxxxx'x and
CCBH's rights, title, interests, liabilities, duties and obligations as
Transferors, as Holders of the Bank Certificate and the Transferors' Interest,
as Spread Account Residual Interest Holders and as Cash Collateral Depositors
and in their individual capacities and, in the case of Chevy Chase, as Servicer,
and to Purchaser's acceptance and assumption thereof and hereby acknowledges and
agrees that from and after the Effective Date, Purchaser has been substituted
for Chevy Chase and CCBH as Transferor and Servicer, as Holder of the Bank
Certificate and the Transferors' Interest, as the Spread Account Residual
Interest Holders and as Cash Collateral Depositors and in their
individual capacity under the Agreement and that, as a result, from and after
the Effective Date Chevy Chase and CCBH are released as Transferors, as Holders
of the Bank Certificate and of the Transferors' Interest, as the Spread Account
Residual Interest Holders and as Cash Collateral Depositors, Chevy Chase is
released as Servicer under the Agreement and both Chevy Chase and CCBH are
released in their individual capacities under the Agreement and that, from and
after the Effective Date, Chevy Chase and CCBH are hereby, in any capacity,
released from all duties and obligations under the Agreement except to the
extent of liabilities, duties and obligations, other than those specified by
Section 7.05, that arose prior to the Effective Date.
Section 1.6. Amendment, Assignment and Termination of Receivables Purchase
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Agreement. Chevy Chase and CCBH, from and after the Effective Date, hereby
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assign, convey and transfer to Purchaser all of their respective rights, titles
and interests, in any capacity, under the Receivables Purchase Agreement and the
related Supplemental Conveyances. Chevy Chase and CCBH, from and after the
Effective Date, hereby delegate to Purchaser all of their respective
liabilities, duties and obligations, in any capacity, under the Receivables
Purchase Agreement and the related Supplemental Conveyances. The Purchaser
hereby accepts from Chevy Chase and CCBH and acknowledges transfer of such
rights, titles and interests and accepts and assumes such liabilities, duties
and obligations, in each case from and after the Effective Date. In connection
with the assumption and assignment of the Receivables Purchase Agreement and the
related Supplemental Conveyances, all references therein to "Chevy Chase Bank,
F.S.B." or "Chevy Chase" or any similar reference and all references therein to
"CCB Holding Corporation," "CCB Holding" or "CCBH" or any similar reference
shall be references to the Purchaser and all rights with respect to reassignment
of receivables thereunder shall be terminated. The termination of the
Receivables Purchase Agreement and the related Supplemental Conveyances shall
not affect any transfer or assignment of or security interest in receivables or
other property thereunder that has been effected or created prior to the
termination of the Receivables Purchase Agreement and the related Supplemental
Conveyances.
ARTICLE II
TRANSFER OF THE BANK CERTIFICATE
Section 2.1. Transfer of Bank Certificate. As provided in Section 2.07(c)
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of the Agreement, if the conditions set forth in Section 2.07(c) of the
Agreement are met, the Bank Certificate may be transferred to Purchaser in a
transaction under Section 7.02 or Section 7.05 of the Agreement, and the
Transferors, from and after the Effective Date, hereby assign and transfer to
Purchaser all of the Transferors' right, title and interest in the Bank
Certificate and the Transferors' Interest, and on the Effective Date the
Transferors will surrender the Bank Certificate to the Trustee, as Transfer
Agent and Registrar, for registration of transfer to Purchaser and the Trustee,
as Transfer Agent and Registrar, shall issue a new Bank Certificate to the
Purchaser as provided in the Agreement. The Transferors represent that they
have, as required under Section 2.07(c) of the Agreement, obtained the following
consents: (i) the consent of the Transferors, in their capacity as owners of the
Bank Certificate; (ii) the consent of CCBH, in its capacity as holder of the
Seller Certificate issued by the Chevy Chase Master Credit Card Trust; and (iii)
the consent of the trustee under the Chevy Chase 1996-A Spread Account Trust, on
behalf of such trust, and confirmation that such trustee has obtained the
consent of the RACES Certificateholders owning not less than 51% of the
undivided interests in the outstanding principal amount of the RACES
certificates as defined in the Chevy Chase 1996-A Spread Account Trust
Agreement, as amended from time to time, among Chevy Chase, CCBH, the trustee
and Marine Midland Bank, dated as of March 28, 1996.
ARTICLE III
ASSIGNMENT OF RECEIVABLES
Section 3.1. Assignment of Receivables. Purchaser hereby acknowledges that
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Chevy Chase has transferred to Purchaser all of Xxxxx Xxxxx'x portfolio of
consumer credit card accounts including all of the Accounts designated for the
Trust pursuant to the terms of Section 2.01 of the Agreement or pursuant to
Section 2.09 of the Agreement and the Assignments of Receivables in Additional
Accounts (the "Account Assignments"). Purchaser acknowledges that, pursuant to
the Agreement and the Account Assignments, each of Chevy Chase and CCBH have
transferred, assigned, set over, sold and otherwise conveyed to the Trustee, on
behalf of the Trust, for the benefit of the Certificateholders, all its right,
title and interest in, to and under the Receivables existing on the initial
Closing Date, in the case of Receivables (or any interest therein) transferred
by such Transferor and arising in the Initial Accounts, and on the applicable
Addition Date, in the case of Receivables (or any interest therein) transferred
by such Transferor and arising in the Additional Accounts, and in each case,
thereafter created from time to time until the termination of the Trust, all
Interchange and Recoveries that are allocable to the Trust as provided in the
Pooling and Servicing Agreement, all securities, investments and other property
relating to the foregoing, all moneys due or to become due and all amounts
received with respect to any of the foregoing, all moneys, securities,
investments and other property on deposit in the Collection Account, the Special
Funding Account and any Series Account and all proceeds (including "proceeds" as
defined in the UCC) of any of the foregoing (including, without limitation, all
interest in the foregoing acquired by CCBH pursuant to the Receivables Purchase
Agreement).
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties. Chevy Chase and CCBH Represent
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and warrant to the Purchaser that, immediately prior to the effectiveness of the
Fifth Amendment to the Agreement, the representations and warranties of Chevy
Chase or of CCBH, as applicable, in any capacity, under the Agreement are true
and correct as of the Effective Date (or, if specifically made as of a prior
date, including any Closing Date or any Addition Date, as of such prior date).
The Purchaser's remedies for any breach of the foregoing representation and
warranty shall be subject to the provisions and limitations of Article 8 of the
Purchase and Sale Agreement and any claims with respect to the foregoing
representation and warranty shall be included in calculating whether such
limitations have been satisfied.
Section 4.2 Ability to Perform. After giving effect to the Fifth Amendment
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to the Agreement, as of the Effective Date the Purchaser makes all
representations and warranties set forth in the Agreement to be made by it in
any capacity under the Agreement (except to the extent such representations and
warranties relate to an earlier date, as to which the Purchaser
makes no representation or warranty) and can perform all covenants and
obligations required to be performed by the Purchaser in any capacity under the
Agreement. Purchaser represents that it meets the requirements set forth in the
definition of Eligible Servicer in the Agreement. Purchaser further represents
that it is a corporation organized and existing under the laws of the United
States of America or any State or the District of Columbia and is a Non-Code
Entity.
Section 4.3 Covenants.
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(a) Purchaser, as Transferor, as Holder of the Bank Certificate and the
Transferors' Interest, as the Spread Account Residual Interest Holders, as
Cash Collateral Depositors and as Servicer, and in its individual capacity,
agrees to comply with all of the covenants applicable to the Purchaser as
set forth in the Agreement and from and after the date of this Assignment
Agreement, Purchaser covenants to execute and deliver to Chevy Chase, CCBH
or to the Trustee such additional documents and instruments and to take
such action, all without further consideration, as Chevy Chase, CCBH or the
Trustee shall reasonably request to effectuate the assignment, assumption
and release provided herein, including, but not limited to, the execution
and filing of UCC financing statements.
(b) From and after the date of this Assignment Agreement, Chevy Chase and
CCBH covenant to execute and deliver to Purchaser such additional documents
and instruments and to take such action, all without further consideration,
as Purchaser shall reasonably request to effectuate the assignment,
assumption and release provided herein, including, but not limited to, the
execution and filing of UCC financing statements.
(c) Trustee covenants that, notwithstanding anything in this Assignment
Agreement to the contrary, the terms of Section 11.17 of the Agreement,
relating to confidentiality of information, will be binding against the
Trustee with regard to any information furnished by Chevy Chase or CCBH,
regardless of whether such information was furnished on, prior to or after
the date of this Assignment Agreement.
Section 4.4 CCB Holding. After the Effective Date, Chevy Chase may
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liquidate CCBH, through a merger, state law dissolution, liquidating
distribution or any other means, and, upon such liquidation, all funds of CCBH
will be the exclusive property of Chevy Chase and shall not be subject to any
claim of set-off or any other claim of any party hereto.
Section 4.5 No Petition Agreements. Notwithstanding anything to the
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contrary in this Assignment Agreement or the Fifth Amendment to the Agreement,
all agreements of any Person limiting such Person's rights with respect to the
initiation of a bankruptcy proceeding of CCBH (or any successor thereto),
including but not limited to Section 13.11 of the Agreement, shall continue in
full force and effect for a period of one year and one day after the Effective
Date.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1 Headings. The headings herein are for purposes of
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reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 5.2 Counterparts. This Assignment Agreement may be executed in
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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.
Section 5.3 Governing Law. THIS ASSIGNMENT AGREEMENT SHALL BE
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 5.4 Additional Information.
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(a) Schedule III is delivered by Purchaser to identify its Servicing
Officers.
(b) Schedule IV is delivered by Purchaser in satisfaction of Section
13.02(c) of the Agreement.
Section 5.5 Further Assurances. Chevy Chase and CCBH agree to do and
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perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the Trustee more fully to effect
the purposes of this Agreement or to preserve the interest of the Trustee in the
Trust Assets, including the execution of any financing statements or
continuation statements relating to the Receivables or the Trust Assets for
filing under the provisions of the UCC of any applicable jurisdiction.
Section 5.6 Successors and Assigns. This Assignment Agreement shall
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enure to the benefit of and be binding on the parties hereto and their
respective successors and permitted assigns. No party may assign its rights or
obligations hereunder without the prior written consent of the other parties
hereto. Notwithstanding the foregoing or any other provision in this agreement
to the contrary, the Purchaser shall not be required to obtain the consent of
any party hereto after the date hereof in connection with any action taken by
the Purchaser in accordance with the Agreement (including, without limitation,
in connection with any assignment of any of the Purchaser's rights, liabilities,
duties or obligations under the Agreement), except as may be otherwise required
by the Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Assignment
Agreement to be duly executed and delivered by their respective duly authorized
officers as of the day and year first above written.
CHEVY CHASE BANK, F.S.B.,
as Transferor and Servicer, Holder of the Bank
Certificate and Transferors' Interest, Spread Account
Residual Interest Holder, Cash Collateral Depositor and
in its individual capacity
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: Senior Vice President and Controller
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CCB HOLDING CORPORATION,
as Transferor, Holder of the Bank Certificate and
Transferors' Interest, Spread Account Residual Interest
Holder, Cash Collateral Depositor and in its individual
capacity
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Vice President
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FIRST USA BANK, N.A.,
as Assignee, Transferor and
Servicer, Holder of the Bank Certificate and Transferors'
Interest, Spread Account Residual
Interest Holder and Cash Collateral Depositor
by assignment and assumption
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Vice President
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BANKERS TRUST COMPANY,
as Trustee
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: Vice President
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SCHEDULE I
List of All Outstanding Supplements to the Pooling
and Servicing Agreement dated as of June 1, 1995, as amended
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Series 1995-A Supplement, dated as of June 1, 1995, as amended by the First
Amendment to the Chevy Chase Master Credit Card Trust II Pooling and
Servicing Agreement, dated as of March 28, 1996
Series 1995-B Supplement, dated as of September 1, 1995, as amended by the First
Amendment to the Chevy Chase Master Credit Card Trust II Pooling and
Servicing Agreement, dated as of March 28, 1996
Series 1995-C Supplement, dated as of December 1, 1995, as amended by the First
Amendment to the Chevy Chase Master Credit Card Trust II Pooling and
Servicing Agreement, dated as of March 28, 1996
Series 1995-D Supplement, dated as of December 15, 1995
Series 1996-A Supplement, dated as of September 1, 1996
and related Class C Supplemental Agreement
Series 1996-B Supplement, dated as of October 1, 1996
Series 1996-C Supplement, dated as of December 1, 1996
and related Class C Supplemental Agreement
Series 1998-A Supplement, dated as of June 1, 1998
and related Class C Supplemental Agreement
Supplemental Certificate Supplement, dated as of March 1, 1996,
as amended and restated as of June 1, 1997
Supplemental Certificate Supplement, dated as of June 1, 1997
Supplemental Certificate Supplement, dated as of June 1, 1998
SCHEDULE II
List of All Certificates
Outstanding Under the Agreement
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Bank Certificate
Investor Certificates
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1995-A (Class A and Class B)
1995-B (Class A and Class B)
1995-C (Class A and Class B)
1995-D
1996-A (Class A, Class B and Class C)*
1996-B
1996-C (Class A, Class B and Class C)*
1998-A (Class A, Class B and Class C)*
Supplemental Certificates
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1996 Supplemental Certificate, as amended
1997 Supplemental Certificate
1998 Supplemental Certificate
* Class C Interests are uncertificated.
SCHEDULE III
Purchaser's List of Servicing Officers
Name Title
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Xxxxx X. Xxxxxxx Executive Vice President
Xxxxxxx Xxxxxxx Vice President
Xxxxxx X. Xxxxxxx Vice President
Xxxxxx Xxxxx Vice President
Xxxxxxx X. Xxxxxx Vice President
F. Xxxxxx Xxxxxxx Vice President
SCHEDULE IV
[Information from the Purchaser pursuant to Section 13.02(c) of the Agreement
relating to the relocation of the office from which the Servicer services
Receivables, keeps records concerning the Receivables and maintains its chief
executive office.]
3 Xxxxxxxxx Centre
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
