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EXECUTION COPY
FOURTH AMENDMENT
TO
POOLING AND SERVICING AGREEMENT
THIS FOURTH AMENDMENT TO THE FIRST UNION MASTER CREDIT CARD TRUST
POOLING AND SERVICING AGREEMENT, dated as of September 1, 1997 (the "Fourth
Amendment") is by and between FIRST UNION DIRECT BANK, NATIONAL ASSOCIATION, as
Transferor and Servicer, and THE BANK OF NEW YORK, as Trustee.
WHEREAS the Transferor and Servicer and the Trustee have executed that
certain Pooling and Servicing Agreement, dated as of September 29, 1995 (as
amended and otherwise supplemented, the "Pooling and Servicing Agreement");
WHEREAS, the Transferor, the Servicer and the Trustee wish to amend
the Pooling and Servicing Agreement (in the manner set forth below) to provide
that, beginning on September 1, 1997 (the "Effective Date"), interest and
investment earnings (net of losses and investment expenses) on funds allocated
to the Investor Certificates and on deposit in the Collection Account and funds
on deposit in the Principal Account and the Finance Charge Account shall be
treated as Collections of Finance Charge Receivables; and
WHEREAS, pursuant to Section 13.01(a) of the Pooling and Servicing
Agreement, such amendment may be effected without the consent of any of the
Certificateholders.
NOW, THEREFORE, pursuant to Section 13.01(a) of the Pooling and
Servicing Agreement, the Transferor, the Servicer and the Trustee hereby agree
as follows:
SECTION 1. Amendments of Section 1.01.
(a) As of the Effective Date, the definition of the term "Collections"
appearing in Section 1.01 of the Pooling and Servicing Agreement is hereby
amended and restated in its entirety to read as follows:
"Collections" shall mean (a) all payments (including Insurance
Proceeds) received by the Servicer in respect of the Receivables, in
the form of cash, checks, wire transfers, ATM transfers or other form
of payment in accordance with the Credit Card Agreement in effect from
time to time on any Receivables and (b) all amounts deemed, pursuant
to subsections 4.02(e) and (f), to constitute Collections of
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Finance Charge Receivables. A Collection processed on an Account in
excess of the aggregate amount of Receivables in such Account as of
the Date of Processing of such Collection shall be deemed to be a
payment in respect of Principal Receivables to the extent of such
excess. Collections with respect to any Monthly Period shall include
the amount of Interchange (if any) allocable to any Series of
Certificates pursuant to any Supplement with respect to such Monthly
Period (to the extent received by the Trust and deposited into the
Finance Charge Account or any Series Account as the case may be, on
the Transfer Date following such Monthly Period), to be applied as if
such amount were Collections of Finance Charge Receivables for all
purposes.
(b) As of the Effective Date, the definition of the term "Finance Charge
Receivables" appearing in Section 1.01 of the Pooling and Servicing Agreement
is hereby amended and restated in its entirety to read as follows:
"Finance Charge Receivables" shall mean Receivables created in respect
of the Periodic Finance Charges, Annual Membership Fees, Cash Advance
Fees, Overlimit Fees, Fees for Documents, Returned Payment Check Fees,
Stop Payment Fees, Returned Access Check Fees and Late Payment Fees
and similar fees and charges, and Special Fees to the extent such
Special Fees are categorized as Finance Charge Receivables. Finance
Charge Receivables with respect to any Monthly Period shall include
the amount of Interchange (if any), Recoveries (if any), Discount
Option Receivables (if any), all amounts deemed, pursuant to
subsections 4.02(e) and (f) to constitute Collections of Finance
Charge Receivables and other amounts allocable to any Series of
Certificates pursuant to any Supplement with respect to such Monthly
Period (to the extent received by the Trust and deposited into the
Finance Charge Account or any Series Account, as the case may be, on
the Transfer Date following such Monthly Period).
SECTION 2. Amendment of Section 4.02. (a) As of the Effective Date,
Section 4.02(e) of the Pooling and Servicing Agreement shall be amended and
restated in its entirety to read as follows:
(e) Administration of the Finance Charge and Principal Accounts.
Funds on deposit in the Principal Account and the Finance Charge
Account shall at all times be invested in Permitted Investments. Any
such investment shall mature and such funds shall be available for
withdrawal on or prior to the Transfer Date related to the Monthly
Period in which such funds were processed for collection, or if so
specified in the related Supplement, immediately preceding a
Distribution Date. The Trustee shall maintain for the benefit of the
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Investor Certificateholders possession of the negotiable instruments
or securities evidencing the Permitted Investments described in clause
(a) of the definition thereof from the time of purchase thereof until
the time of sale or maturity; provided, that no such investment shall
be disposed of prior to its maturity date. On each Transfer Date, all
interest and other investment earnings (net of losses and investment
expenses) accrued on or prior to said Transfer Date in connection with
the investment of funds deposited in the Principal Account or the
Finance Charge Account with respect to the most recently ended Monthly
Period and all earnings, distributions or proceeds thereof (i) shall
be deemed to constitute, and for all purposes hereof shall be treated
as, Collections of Finance Charge Receivables and (ii) shall be
deposited or retained in the Finance Charge Account and allocable to
the Investor Certificates for such Monthly Period. Subject to the
restrictions set forth above, the Servicer, or a Person designated in
writing by the Servicer, of which the Trustee shall have received
written notification thereof, shall have the authority to instruct the
Trustee with respect to the investment of funds on deposit in the
Principal Account and the Finance Charge Account.
(b) As of the Effective Date, Section 4.02(f) of the Pooling and Servicing
Agreement shall be amended and restated in its entirety to read as follows:
(f) Administration of the Collection Account. For so long as the
Servicer is eligible to make deposits of Collections into the
Principal Account, the Finance Charge Account or any Series Account on
the Transfer Date relating to each Monthly Period pursuant to the
third paragraph of subsection 4.03(a), the funds allocated to the
Investor Certificates and on deposit in the Collection Account shall
at all times be invested in Permitted Investments. Any such
investment shall mature and such funds shall be available for
withdrawal on or prior to the Transfer Date related to the Monthly
Period in which such funds were processed for collection. The
Qualified Institution at which the Collection Account is maintained
shall maintain for the benefit of the Investor Certificateholders
possession of the negotiable instruments or securities evidencing the
Permitted Investments described in clause (a) of the definition
thereof from the time of purchase thereof until the time of sale or
maturity; provided, that no such investment shall be disposed of prior
to its maturity date. On each Transfer Date, all interest and other
investment earnings (net of losses and investment expenses) accrued on
or prior to said Transfer Date in connection with the investment of
funds allocated to the Investor Certificates and deposited in the
Collection Account with respect to the most recently ended Monthly
Period and all earnings, distributions or proceeds thereof (i) shall
be deemed to constitute, and for all purposes hereof shall be treated
as, Collections of Finance Charge Receivables and (ii)
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shall be deposited or retained in the Finance Charge Account and
allocable to the Investor Certificates for such Monthly Period.
Subject to the restrictions set forth above, the Servicer, or a Person
designated in writing by the Servicer, of which the Trustee shall have
received written notification thereof, shall have the authority to
instruct the Trustee with respect to the investment of funds on
deposit in the Collection Account.
SECTION 3. Amendment of Section 2.06. As of the Effective Date,
Section 2.06(c)(iv)(x)(iii) of the Pooling and Servicing Agreement shall be
amended and restated in its entirety to read as follows:
(iii) the Transferor's right to receive interest accruing on, and
investment earnings in respect of any Series Account as provided in the related
Supplement or
SECTION 4. Effectiveness. As contemplated by Section 13.01(a) of the
Pooling and Servicing Agreement, the amendments provided for by this Fourth
Amendment shall become effective upon receipt by the Trustee of the following,
each of which shall be satisfactory to the Trustee in its sole discretion:
(a) Written notification from each Rating Agency that such action
will not result in a reduction or withdrawal of the rating of any outstanding
Series or Class to which it is a Rating Agency;
(b) An Officer's Certificate from the Transferor to the effect that
the terms of this Fourth Amendment will not adversely affect in any material
respect the interests of any Investor Certificateholder; and
(c) Counterparts of this Fourth Amendment, duly executed by the
parties hereto.
SECTION 5. Pooling and Servicing Agreement in Full Force and Effect
as Amended. Except as specifically amended or waived hereby, all of the terms
and conditions 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 Fourth Amendment. This Fourth 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 Fourth Amendment, as though the terms and obligations of the Pooling and
Servicing Agreement were set forth herein.
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.
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SECTION 7. Governing Law. THIS FOURTH AMENDMENT SHALL BE 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.
SECTION 8. Defined Terms. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Pooling
and Servicing Agreement.
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IN WITNESS WHEREOF, the Transferor, the Servicer 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.
FIRST UNION DIRECT BANK,
NATIONAL ASSOCIATION,
TRANSFEROR AND SERVICER
By: /s/ Xxxxx X. Xxxxxxxxx XX
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Name: Xxxxx X. Xxxxxxxxx XX
Title: Managing Director
THE BANK OF NEW YORK,
TRUSTEE
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
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