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EXHIBIT 4.1
FIFTH AMENDMENT
TO
THE FIRST UNION MASTER CREDIT CARD TRUST
POOLING AND SERVICING AGREEMENT
THIS FIFTH AMENDMENT TO THE FIRST UNION MASTER CREDIT CARD TRUST
POOLING AND SERVICING AGREEMENT, dated as of August 16, 1999 (the "Fifth
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 by the First Amendment to the Pooling and Servicing Agreement, dated as
of February 22, 1996 and as further amended by the Second Amendment to the
Pooling and Servicing Agreement, dated as of March 31, 1996 and as further
amended by the Third Amendment to the Pooling and Servicing Agreement, dated as
of June 13, 1996 and as further amended by the Fourth Amendment to the Pooling
and Servicing Agreement, dated as of September 1, 1997, and as supplemented by
the Supplemental Agreement to the Pooling and Servicing Agreement, dated as of
June 2, 1997 (as otherwise amended and supplemented from time to time, 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 or after August 16, 1999 (the "Effective Date"), Section 2.01
shall provide that the Transferor may, by written notice to the Trustee, change
the designation of the conveyed Accounts in the Pool Index File; 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. Amendment of Section 2.01. Section 2.01 of the Pooling
and Servicing Agreement is hereby amended by replacing the third sentence of the
third paragraph thereof with the following:
The Transferor further agrees not to alter the file designation
referenced in clause (i) of this paragraph in a way that would cause
such Account not to be identified by the designation "S" during the
term of this Agreement unless and until such Account becomes a
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Removed Account, a Defaulted Account or a Zero Balance Account or
unless and until (y) the Transferor shall give written notice of any
such alteration to the Trustee, such written notice to be, as of the
date of its receipt by the Trustee, incorporated into and made part
of this Agreement, and (z) the Trustee and/or the Transferor shall
execute and file any UCC financing statements or amendments thereof
necessitated by such alteration.
SECTION 2. Effectiveness. As contemplated by Section 13.01(a) of the
Pooling and Servicing Agreement, the amendment provided for by this Fifth
Amendment shall become effective upon the receipt by Trustee of the following,
each of which shall be reasonably satisfactory to the Trustee:
(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 Fifth Amendment will not adversely affect in any material
respect the interests of any Investor Certificateholder; and
(c) Counterparts of this Fifth Amendment, duly executed by the
parties hereto.
SECTION 3. 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 the Pooling and Servicing
Agreement as amended by this Fifth Amendment. This Fifth 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
Fifth Amendment, as though the terms and obligations of the Pooling and
Servicing Agreement were set forth herein.
SECTION 4. Counterparts. This Fifth 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 5. Governing Law. THIS FIFTH 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 6. 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 Fifth 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
Title: Managing Director
THE BANK OF NEW YORK,
TRUSTEE
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
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