EXHIBIT 99.02
CHEVY CHASE MASTER CREDIT CARD TRUST
FIFTH AMENDMENT
TO THE
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
THIS FIFTH AMENDMENT TO THE AMENDED AND RESTATED POOLING AND SERVICING
AGREEMENT, dated as of September 30, 1998, (this "Amendment") is between CHEVY
CHASE BANK, F.S.B., a federally chartered stock savings bank ("Chevy Chase"), as
Seller and Servicer, and BANKERS TRUST COMPANY, as Trustee (the "Trustee") under
the Amended and Restated Pooling and Servicing Agreement dated as of August 1,
1994, between Chevy Chase, as Seller and Servicer, and the Trustee (as amended,
supplemented and in effect on the date hereof, and from time to time hereafter,
the "Pooling and Servicing Agreement").
RECITALS
WHEREAS, Chevy Chase wishes to amend the Pooling and Servicing Agreement as
provided herein in accordance with Section 13.01(a) of the Pooling and Servicing
Agreement and the Trustee is willing to consent to such amendment upon the terms
provided for herein.
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used herein and not otherwise
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defined herein shall have the meanings specified in the Pooling and Servicing
Agreement. In addition, the following words and phrases shall have the following
meanings:
"Assignment and Assumption" shall mean the Assignment and Assumption
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Agreement dated as of September 30, 1998 among Chevy Chase, CCB Holding
Corporation, Purchaser and the Trustee relating to the Trust, as amended
from time to time.
"CCBH" shall mean CCB Holding Corporation, a Delaware corporation that is a
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wholly owned subsidiary of Chevy Chase, and its successors and assigns.
"Purchase and Sale Agreement" shall mean the Purchase and Sale Agreement
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among Chevy Chase, CCBH and Purchaser, dated as of September 2, 1998, as
amended from time to time.
"Purchaser" shall mean First USA Bank, N.A., a national banking
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association, and its successors and assigns.
SECTION 2. Amendment of Section 1.01. From and after the Effective
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Date, Section 1.01 of the Pooling and Servicing Agreement is hereby amended to
add the following definitions:
"Acquired Assets" shall mean all of the Transferring Entities' consumer
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revolving credit card accounts and all of the Transferring Entities' right,
title and interest in the receivables arising thereunder, which include all
of the Accounts and the remaining interest of the Transferring Entities in
the Receivables arising thereunder, the interest of the Transferring
Entities in the Participation Interests and the Seller's Interest and the
Seller Certificate and the rights of the Transferring Entities as the Cash
Collateral Depositors, and shall include the Assigned Assets.
"Assignment and Assumption" shall mean the Assignment and Assumption
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Agreement dated as of September 30, 1998 among the Transferring Entities,
FUSA and the Trustee, as amended from time to time.
"Effective Date" shall mean the "Effective Date" as defined in the
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Assignment and Assumption.
"FUSA" shall mean First USA Bank, N.A., a national banking association, and
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its successors and assigns.
"Transferring Entities" shall mean Chevy Chase Bank, F.S.B., a federally
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chartered savings bank, CCB Holding Corporation, a Delaware corporation,
and their respective successors and assigns.
Section 1.01 is further amended to delete the definition of "Trust" in its
entirety and to substitute the following definition:
"Trust" shall mean the CC Master Credit Card Trust (formerly the Chevy
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Chase Master Credit Card Trust) created by this Agreement.
SECTION 3. References to Chevy Chase. From and after the Effective
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Date, the following shall apply to the Pooling and Servicing Agreement:
All references to "Chevy Chase" or "the Bank" or "Chevy Chase Bank, F.S.B."
or any similar references shall, from and after the Effective Date of this
Amendment, be references to the Purchaser. Without limiting the generality of
the foregoing, the Purchaser shall be substituted for Chevy Chase in Sections
1.02(d), 2.07(c), 3.01(a), 3.01(b), 3.03, 3.08, 4.02, 4.03, 10.02(c) and
13.05(c) of the Pooling and Servicing Agreement.
SECTION 4. Amendment of Section 2.07(c). All references to "CCB Holding
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Corporation" in Section 2.07(c) of the Pooling and Servicing Agreement shall be
amended to replace the words "CCB Holding Corporation" with the word "FUSA."
SECTION 5. Amendment of Sections 2.07(c) and 8.09. All references to
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the "Chevy Chase 1995-A Spread Account Trust," the "Chevy Chase 1996-A Spread
Account Trust" and the "Chevy Chase 1997-A Spread Account Trust" shall be
amended by replacing the words "Chevy Chase 1995-A Spread Account Trust," "Chevy
Chase 1996-A Spread Account Trust" and "Chevy Chase 1997-A Spread Account Trust"
with "CC 1995-A Spread Account Trust (formerly
the Chevy Chase 1995-A Spread Account Trust)," "CC 1996-A Spread Account Trust
(formerly the Chevy Chase 1996-A Spread Account Trust)" and "CC 1997-A Spread
Account Trust (formerly the Chevy Chase 1997-A Spread Account Trust)," as the
case may be.
SECTION 6. Amendment of Sections 1.01 and 2.03(f). Section 1.01 of the
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Pooling and Servicing Agreement (definition of "UCC") shall be amended to
replace the word "Maryland" with the word "Delaware" and Sections 1.01
(definition of "Tax Opinion") and 2.03(f) of the Pooling and Servicing Agreement
shall be amended to replace the words "Maryland state income and franchise tax
purposes" with the words "Delaware state income tax purposes."
SECTION 7. Amendment of Sections 2.03(a), 2.04 and 3.03. Sections
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2.03(a), 2.04(a)(i) and 3.03(a) of the Pooling and Servicing Agreement shall be
amended to replace the words "federally chartered stock savings bank" and
"federally chartered savings banks" with the words "a national banking
association".
SECTION 8. Amendment of Section 3.03. The first sentence of Section
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3.03 of the Pooling and Servicing Agreement shall be amended by replacing the
words "Chevy Chase Bank, F.S.B., as initial Servicer" with the words "FUSA, as
successor Servicer under Section 7.05."
SECTION 9. Amendment of Section 6.03(d). Section 6.03(d) of the
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Pooling and Servicing Agreement shall be amended to replace the words "X.X. Xxxx
Real Estate Investment Trust" with the words "Banc One Corporation and its
successors."
SECTION 10. Amendment to Change Name of the Trust. From and after the
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Effective Date, every reference in the Pooling and Servicing Agreement and in
any certificate or other document made or delivered pursuant thereto to the
"Chevy Chase Master Credit Card Trust" shall be amended to refer to the "CC
Master Credit Card Trust (formerly the Chevy Chase Master Credit Card Trust)"
and the name of the Trust shall be the "CC Master Credit Card Trust (formerly
the Chevy Chase Master Credit Card Trust)."
SECTION 11. Amendment to Section 7.05. Section 7.05 of the Pooling and
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Servicing Agreement shall be amended by deleting the first sentence of such
Section (up to but not including clauses (a) through and including (f) thereof)
and substituting the following:
Section 7.05. Assumption of the Seller's Obligations. Notwithstanding the
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provisions of Section 7.02, the Seller and the Holder of the Seller
Certificate may not assign, convey and transfer all of the Seller's
consumer revolving credit card accounts and the receivables arising
thereunder, which may include all, but not less than all, of the Accounts
and remaining interest of the Seller and of the Holder of the Seller
Certificate in the Receivables arising thereunder, in the Participation
Interests and in the Seller's Interest (collectively, the "Assigned
Assets"), together with all servicing functions and other obligations under
this Agreement or relating to the transactions contemplated hereby
(collectively, the "Assumed Obligations"), to another entity (the "Assuming
Entity") which may be an entity that is not affiliated with the Seller or
the Holder of the Seller Certificate, and the Seller and the Holder of the
Seller Certificate may not assign, convey and transfer the Assigned Assets
and the Assumed Obligations to the Assuming
Entity, without the consent and approval of the Holders of the Certificates
in the proportions described in Section 9.02(a), except upon satisfaction
of the following conditions:
Section 7.05 shall be further amended by adding the following sentences to the
end thereof:
Upon the transfer by the Transferring Entities of the Assigned Assets and
Assumed Obligations to FUSA pursuant to this Section 7.05, FUSA shall be
and is deemed to be the Seller that transferred all Receivables to the
Trust and agrees to accept the reassignment of Receivables as provided in
Sections 2.05(b), 2.06, 2.07(a), 3.03 and 3.09 from the Trust (and to pay
any cash amounts in connection therewith), notwithstanding the fact that a
Receivable may have been transferred to the Trust on, prior to or after the
Effective Date. After the Effective Date, (i) no reassignment of a
Receivable shall be made to the Transferring Entity, (ii) any amounts
required to be deposited as a result of such reassignment shall be an
obligation of FUSA, and (iii) such reassignment to FUSA shall be the sole
remedy for the breach by the Transferring Entity of any representations,
warranties or covenants, as Seller or Servicer, under the Pooling and
Servicing Agreement.
SECTION 12. Amendment of Section 13.05. Section 13.05 shall be amended
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to delete the words "8401 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxx 00000,
Attention of the General Counsel (facsimile number (000) 000-0000)" with the
words "3 Xxxxxxxxx Centre, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx Xxxxxx (facsimile: (000) 000-0000), with a copy to: First USA
Bank, N.A., 0000 Xxx Xxxxxx, 00/xx/ Xxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxx
Xxxxxx (facsimile: (000) 000-0000)."
SECTION 13. Amendment of Section 2.01. Section 2.01 shall be amended to
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add the following paragraphs at the end of such Section:
FUSA hereby confirms, affirms and ratifies the sale, transfer,
assignment, set over, conveyance and pledge to the Trustee on behalf of the
Trust, for the benefit of the Certificateholders, contained in the
Agreement and in each of the Assignments and acknowledges and agrees that
it is acquiring the Acquired Assets subject thereto, and FUSA hereby sells,
transfers, assigns, sets over and otherwise conveys 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 in the
Accounts on the Effective Date and thereafter created from time to time
until the termination of the Trust, all Interchange and Recoveries
allocable to the Trust, all moneys due or to become due and all amounts
received with respect to any of the foregoing and all proceeds (including
"proceeds" as defined in the UCC) of any of the foregoing and all moneys on
deposit in the Collection Account, the Special Funding Account and the
Series Accounts. FUSA does hereby confirm the conveyance set forth in this
Section 2.01 and in each Assignment and does hereby sell, transfer, assign,
set over and otherwise convey to the Trustee, on behalf of the Trust, for
the benefit of the Certificateholders, all of its right, title and interest
in, to and under the Receivables now existing and hereafter arising in the
accounts listed on
Schedule I hereto, all Interchange and Recoveries allocable to the Trust,
all monies due or to become due and all amounts received with respect to
any of the foregoing and all monies on deposit in the Collection Account,
the Special Funding Account, the Series Accounts and the Series Enhancement
Accounts and all funds or other property therein or now or hereafter
credited thereto and all proceeds (including "proceeds" as defined in the
UCC) of any of the foregoing. In the event that the account number or bin
numbers of any such Accounts shall change as a result of the conversion of
such Accounts to Accounts issued by FUSA, the foregoing conveyance shall
extend to such new Accounts and FUSA shall furnish the Trustee with a list
of such new Accounts within 90 days of the conversion thereof.
It is the intention of the parties hereto that the arrangements with
respect to the Receivables shall constitute a purchase and sale of such
Receivables and not a loan. If, however, a regulatory agency or a court of
competent jurisdiction were to hold that the transactions evidenced hereby
constitute a loan and not a purchase and sale, it is the intention of the
parties hereto (including FUSA) that this Agreement shall constitute a
security agreement under applicable law, and that FUSA shall be deemed to
have granted to the Trustee, on behalf of the Trust, for the benefit of the
Certificateholders, a security interest which is perfected and of first
priority in all of FUSA's right, title and interest in, to or under the
Receivables and the other Trust Assets. In furtherance of the foregoing,
FUSA hereby grants to the Trustee, on behalf of the Trust, for the benefit
of the Certificateholders, a security interest, which shall be perfected
and of first priority, in all of FUSA's right, title and interest in, to
and under the Receivables existing in the Accounts on the Effective Date
and thereafter created from time to time until the termination of the
Trust, all Interchange and Recoveries allocable to the Trust, all moneys
due or to become due and all amounts received with respect to any of the
foregoing and all proceeds (including "proceeds" as defined in the UCC) of
any of the foregoing and all moneys on deposit in the Collection Account,
the Special Funding Account and the Series Accounts and this Agreement
shall constitute an applicable security agreement under applicable law.
The Trustee hereby acknowledges its acceptance on behalf of the Trust,
for the benefit of the Certificateholders, of all right, title and interest
in and to the property, now existing and hereafter created, conveyed to the
Trustee pursuant to the second preceding paragraph and declares that it
shall maintain such right, title and interest, upon the trust set forth in
this Agreement for the benefit of the Certificateholders. The Trustee also
hereby acknowledges its acceptance on behalf of the Trust, for the benefit
of the Certificateholders, of a security interest in all right, title and
interest in and to the property, now existing and hereafter created,
granted to the Trustee pursuant to the preceding paragraph and declares
that it shall maintain such right, title and interest upon the trust set
forth in this Agreement for the benefit of all the Certificateholders.
SECTION 14. Amendment of Series 1994-5 Supplement. The Series 1994-5
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Supplement shall be amended to correct a typographical error in the definition
of "Class B Expected Final Payment Date" so that such date shall be the July
2000 Distribution Date.
SECTION 15. Effectiveness. This Amendment shall become effective on the
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Closing Date under the Purchase and Sale Agreement (the "Effective Date").
SECTION 16. Pooling and Servicing Agreement in Full Force and Effect as
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Amended. Except as specifically amended hereby, all of the terms and conditions
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of the Pooling and Servicing Agreement shall remain in full force and effect.
All references to the Pooling and Servicing Agreement in any other document or
instrument shall be deemed to mean such Pooling and Servicing Agreement as
amended by this Amendment. This Amendment shall not constitute a novation of the
Pooling and Servicing Agreement, but shall constitute an amendment thereof. The
parties hereto agree to be bound by the terms and obligations of the Pooling and
Servicing Agreement, as amended by this Amendment, as though the terms and
obligations of the Pooling and Servicing Agreement were set forth herein.
SECTION 17. Counterparts. This Amendment may be executed in any number
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of counterparts and by separate parties hereto on separate counterparts, each of
which when executed shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
SECTION 18. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Pooling and Servicing Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
CHEVY CHASE BANK, F.S.B.,
as Seller and Servicer
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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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 ACCOUNTS
[Microfiche List of Accounts as of the Cut Off Date under the Purchase and Sale
Agreement delivered to the Trustee]
