Exhibit 4.12
EXECUTION COPY
FOURTH AMENDMENT
TO
THE CHEVY CHASE MASTER CREDIT CARD TRUST
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
THIS FOURTH AMENDMENT (this "Fourth Amendment") TO THE CHEVY CHASE MASTER
CREDIT CARD TRUST AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT (as
previously amended, the "Agreement"), dated as of June 26, 1997, is by and
between CHEVY CHASE BANK, F.S.B. (the "Bank"), a federally chartered stock
savings bank, as Seller and Servicer, and BANKERS TRUST COMPANY, as Trustee
under the Amended and Restated Pooling and Servicing Agreement, dated as of
August 1, 1994, between Chevy Chase Bank, F.S.B., as Seller and Servicer, and
the Trustee.
WHEREAS Section 13.01(a) of the Agreement permits amendment of the
Agreement or any Supplement on the terms and conditions therein specified; and
WHEREAS the Seller and the Trustee wish to amend the Agreement as provided
herein;
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Amendment of Section 1.01. Section 1.01 of the Agreement shall
-------------------------
be amended by deleting the last sentence of the definition of "Receivable" and
substituting in its place the following:
Receivables that become Defaulted Receivables (and any other
Receivables in any Account that are charged off as uncollectible in
accordance with the Credit Card Guidelines and the Servicer's customary and
usual servicing procedures for servicing revolving credit card receivables
comparable to the Receivables) shall not be shown on the Servicer's records
as amounts payable (and shall cease to be included as Receivables) on the
day on which they become Defaulted Receivables (or are so charged off).
SECTION 2. Amendment of Section 2.07(c). Section 2.07(c) of the Agreement
----------------------------
shall be amended by deleting the sentence that was added at the end of such
Section pursuant to the Second Amendment to the Agreement and adding in lieu
thereof the following sentence at the end of such Section:
Notwithstanding the foregoing or any other provision of this
Agreement (including without limitation those cited in the preceding
sentence of this Section 2.07(c)), the Seller Certificate or any
interest therein (together, the "Nontransferable Seller's Interest")
may not be transferred, assigned, exchanged or otherwise conveyed or
pledged, hypothecated or otherwise subjected to any security interest,
by operation of law or otherwise, and any such transfer, assignment,
exchange or other conveyance or pledge, hypothecation or grant of a
security interest shall be null and void; provided, however, that the
-------- -------
prohibition set forth in this sentence shall not preclude (i) any
transfer of the Nontransferable Seller's Interest in accordance with
any transaction permitted by Section 7.02 or 7.05 of this Agreement
and as provided in Section 2.08(f) and 6.03 of this Agreement to Chevy
Chase Bank, F.S.B. or to any direct or indirect wholly owned
subsidiary of Chevy Chase Bank, F.S.B.; or (ii) any transfer of the
Nontransferable Seller's Interest in accordance with any transaction
permitted by Section 7.02 or 7.05 of this Agreement and as provided in
Section 2.08(f) and 6.03 of this Agreement to any Person, so long as
the written consent of each of the following Persons, which consent
may be granted or withheld in the sole discretion of each such Person
(the "Consent"), is obtained prior to the transfer: (1) the Consent of
CCB Holding Corporation ("CCBH"), in its capacity as holder of the
Seller Certificate as defined in this Agreement, or any successor
holder of such Seller Certificate, (2) the Consent of the trustee
under the Chevy Chase 1995-A Spread Account Trust, on behalf of such
trust, and confirmation that such trustee has obtained the Consent of
"RACES certificateholders" owning not less than 51% of the "undivided
interest" in the "outstanding principal amount" of the "RACES
certificates" as defined in the Chevy Chase 1995-A Spread Account
Trust Agreement, as amended from time to time, between Chevy Chase
Bank, F.S.B. and Bankers Trust Company, dated as of March 31, 1995,
and (3) the Consent of any Person irrevocably designated by the holder
of the Seller Certificate in writing to the Trustee as a "Consenting
Person" under this Section 2.07(c); provided, further, however, that
-------- ------- -------
the prohibition set forth in this sentence shall not apply to the
issuance or transfer of any Supplemental Certificate.
SECTION 3. Addition of Section 8.09. The following Section 8.09 shall
------------------------
be added to the Agreement:
Section 8.09. Custodial Agreement. The Servicer shall enter
-------------------
into, and act as servicer under (i) the Custodial Agreement, dated as
of March 28, 1996 (the "1996-A Custodial Agreement"),
2
among Chevy Chase Bank, F.S.B. (the "Bank"), CCBH, Bankers Trust
Company, as trustee of Chevy Chase 1996-A Spread Account Trust, and
Bankers Trust Company, as custodian and (ii) the Custodial Agreement,
dated as of June 26, 1997 (the "1997-A Custodial Agreement", and
together with the 1996-A Custodial Agreement, the "Custodial
Agreements") among the Bank, CCBH, Bankers Trust Company, as trustee
of Chevy Chase 1997-A Spread Account Trust, and Bankers Trust Company,
as custodian. Additionally, any Successor Servicer appointed in
accordance with Section 10.02 shall succeed to the rights and
obligations of the servicer under the Custodial Agreements.
SECTION 4. Effectiveness. The amendments provided for by this Fourth
-------------
Amendment shall become effective as of the day and year first above written upon
the occurrence of each of the following events:
(a) the Rating Agency Condition shall have been satisfied with
respect to this Fourth Amendment;
(b) the Bank shall each have delivered to the Trustee an Officer's
Certificate to the effect that the Bank reasonably believes that the
amendment to the Agreement effected by this Fourth Amendment will not
adversely affect in any material respect the interests of any Investor
Certificateholder;
(c) the Servicer shall have delivered to the Trustee and any Series
Enhancer entitled thereto pursuant to the relevant Supplement an Opinion of
Counsel pursuant to Section 13.02(d)(i) of the Agreement to the effect
specified in Exhibit H-1 of the Agreement; and
(d) the Trustee and the Bank shall have received counterparts of this
Fourth Amendment, duly executed by the parties hereto.
SECTION 5. Agreement in Full Force and Effect as Amended. Except as
---------------------------------------------
specifically amended hereby, all of the terms and conditions of the Agreement
shall remain in full force and effect. All references to the Agreement and the
Supplements in any other document or instrument shall be deemed to mean the
Agreement and the Supplements as amended by this Fourth Amendment. This Fourth
Amendment shall not constitute a novation of the Agreement and the Supplements,
but shall constitute an amendment thereof.
SECTION 6. Counterparts. This Fourth Amendment may be executed in any
------------
number 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 7. Governing Law. THIS FOURTH AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
3
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 8. Defined Terms. Capitalized terms used herein and not
-------------
otherwise defined shall have the meanings assigned to such terms in the
Agreement.
4
IN WITNESS WHEREOF, Chevy Chase Bank, F.S.B. and the Trustee have
caused this Fourth Amendment to be duly executed by their respective 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
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President and
Controller
BANKERS TRUST COMPANY,
as Trustee
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Vice President
