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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) September 1, 1997
First Union Direct Bank, N.A.
(Successor to the First Union National Bank of Georgia as Originator
of the First Union Master Credit Card Trust)
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(Exact name of registrant as specified in its charter)
on behalf of
First Union Master Credit Card Trust
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<S> <C> <C>
United States 33-98546 56-2017017
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(State or Other Jurisdiction of Incorporation) (Commission File Number) (IRS Employer
Identification Number)
600 Broad Street
Augusta, Georgia 30903
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(Address of Principal Executive Office) (Zip Code)
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Registrant's telephone number, including area code (706) 823-2580
N/A
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(Former Name or Former Address, if Changed Since Last Report)
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INFORMATION TO BE INCLUDED IN THE REPORT
Item 1. Not Applicable.
Item 2. Not Applicable.
Item 3. Not Applicable.
Item 4. Not Applicable.
Item 5. On September 1, 1997 the Pooling and Servicing Agreement for
the First Union Master Credit Card Trust, dated as of
September 29, 1995 between First Union Direct Bank, N.A.
(successor to First Union National Bank of Georgia) as
Transferor and Servicer, and the Bank of New York, as Trustee
was amended by the Fourth Amendment to the Pooling and
Servicing Agreement, dated as of September 1, 1997. On
December 31, 1997, First Union Direct Bank, N.A. and the
Bank of New York executed Reassignment No. 3 of Receivables,
dated December 31, 1997.
Item 6. Not Applicable.
Item 7. Exhibits.
The following are filed as Exhibits to this Report under Exhibits 4.1 and 4.2.
Exhibit 4.1 Fourth Amendment to Pooling and Servicing
Agreement, dated September 1, 1997.
Exhibit 4.2 Reassignment No. 3 of Receivables, dated
December 31, 1997.
Item 8. Not Applicable.
Item 9. Not Applicable.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the registrant has duly caused this report to be signed on
their behalf by the undersigned hereunto duly authorized.
FIRST UNION DIRECT BANK, N.A.,
on behalf of the First Union
Master Credit Card Trust
By: /s/ James H. Gilbraith II
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Name: James H. Gilbraith II
Title: Vice President and
Managing Director
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EXHIBIT INDEX
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Exhibit Description
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Exhibit 4.1 Fourth Amendment to Pooling and Servicing Agreement, dated September 1, 1997.
Exhibit 4.2 Reassignment No. 3 of Receivables, dated December 31, 1997.
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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/ James H. Gilbraith II
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Name: James H. Gilbraith II
Title: Managing Director
THE BANK OF NEW YORK,
TRUSTEE
By: /s/ Reyne A. Macadaeg
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Name: Reyne A. Macadaeg
Title: Assistant Vice President
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EXECUTION COPY
REASSIGNMENT NO. 3 OF RECEIVABLES
REASSIGNMENT NO. 3 OF RECEIVABLES, dated as of December 31, 1997 (the
"Reassignment"), by and between First Union Direct Bank N.A., a national
banking association organized under the laws of the United States (the "Bank"),
and The Bank of New York, a banking corporation organized under the laws of the
State of New York (the "Trustee") pursuant to the Pooling and Servicing
Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Bank (as successor by merger to First Union National Bank
of Georgia) and the Trustee are parties to the Pooling and Servicing Agreement,
dated as of September 29, 1995 (hereinafter as such agreement may have been, or
may from time to time be, amended, supplemented or otherwise modified, the
"Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the Bank
wishes to remove all Receivables from certain designated Accounts of the Bank
(the "Removed Accounts") and to cause the Trustee to reconvey the Receivables
of such Removed Accounts, whether now existing or hereafter created, from the
Trust to the Bank (as each such term is defined in the Pooling and Servicing
Agreement); and
WHEREAS, the Trustee is willing to accept such designation and to
reconvey the Receivables in the Removed Accounts subject to the terms and
conditions hereof;
NOW, THEREFORE, the Bank and the Trustee hereby agree as follows:
1. Defined Terms. All terms defined in the Pooling and Servicing
Agreement and used herein shall have such defined meanings when used herein,
unless otherwise defined herein.
"Removal Date" shall mean, with respect to the Removed Accounts
designated hereby, December 31, 1997.
"Removal Notice Date" shall mean, with respect to the Removed
Accounts designated hereby, December 24, 1997 (which shall be a date
on or prior to the fifth Business Day prior to the Removal Date).
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2. Designation of Removed Accounts.
(a) The Bank shall deliver to the Trustee, not later than five
Business Days after the Removal Date, a computer file or microfiche
list containing a true and complete list of each MasterCard and VISA
account which as of the Removal Date shall be deemed to be a Removed
Account, such accounts being identified by account number and by the
aggregate amount of Receivables in such accounts as of the close of
business on the Removal Date. Such list shall be marked as Schedule 1
to this Reassignment and shall be incorporated into and made a part of
this Reassignment as of the Removal Date.
(b) The Bank shall remove the designation "S" from the Pool Index
File for the Removed Accounts.
3. Conveyance of Receivables. The Trustee, on behalf of the Trust,
does hereby reconvey to the Bank, without recourse on and after the Removal
Date, all right, title and interest of the Trust in and to the Receivables now
existing and hereafter created in the Removed Accounts designated hereby, all
monies due or to become due with respect thereto (including all Finance Charge
Receivables), all proceeds (as defined in Section 9-306 of the UCC as in effect
in the State of Georgia) of such Receivables, Insurance Proceeds relating to
such Receivables and the proceeds thereof.
4. Representations and Warranties of the Bank. The Bank hereby
represents and warrants to the Trust as of the Removal Date:
(a) Legal Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Bank
enforceable against the Bank in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
general and the rights of creditors of national banking associations
and except as such enforceability may be limited by general principles
of equity (whether considered in a suit at law or in equity).
(b) Selection Procedures. No selection procedures believed by the
Bank to be materially adverse to the interests of the Investor
Certificateholders were utilized in selecting the Removed Accounts
designated hereby.
5. Conditions Precedent. The amendment of the Pooling and Servicing
Agreement set forth in Section 6 hereof is subject to the satisfaction, on or
prior to the Removal Date, of the following condition precedent:
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The Bank shall have delivered to the Trustee an Officer's
Certificate certifying that (i) as of the Removal Date, all
requirements set forth in Section 2.07 of the Pooling and Servicing
Agreement for designating Removed Accounts and reconveying the
Receivables of such Removed Accounts, whether now existing or
hereafter created, have been satisfied, and (ii) each of the
representations and warranties made by the Bank in Section 4 hereof is
true and correct as of the Removal Date. The Trustee may conclusively
rely on such Officer's Certificate, shall have no duty to make
inquiries with regard to the matters set forth therein, and shall
incur no liability in so relying.
6. Amendment of the Pooling and Servicing Agreement. The Pooling and
Servicing Agreement is hereby amended to provide that all references therein to
the "Pooling and Servicing Agreement," to "this Agreement" and "herein" shall
be deemed from and after the Removal Date to be a dual reference to the Pooling
and Servicing Agreement as supplemented by this Reassignment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions to the Pooling and Servicing Agreement shall remain
unamended and shall continue to be, and shall remain, in full force and effect
in accordance with its terms and except as expressly provided herein shall not
constitute or be deemed to constitute a waiver of compliance with or a consent
to non-compliance with any term or provision of the Pooling and Servicing
Agreement.
7. Counterparts. This Reassignment may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
8. Governing Law. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS.
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IN WITNESS WHEREOF, the undersigned have caused this Reassignment to
be duly executed and delivered by their respective duly authorized officers on
the day and year first above written.
FIRST UNION DIRECT BANK, N.A.,
as Transferor
By: /s/ James H. Gilbraith II
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Name: James H. Gilbraith II
Title: Managing Director
THE BANK OF NEW YORK,
as Trustee
By: /s/ Reyne A. Macadaeg
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Name: Reyne A. Macadaeg
Title: Assistant Vice President
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Schedule 1
to Reassignment
of Receivables
REMOVED ACCOUNTS
