1
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).
2
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:
2
3
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.
3
4
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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇
Title: Managing Director
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
4
5
Schedule 1
to Reassignment
of Receivables
REMOVED ACCOUNTS