EXHIBIT 4.1
MASTER INDENTURE
Dated as of October 24, 2002
FIRST NATIONAL MASTER NOTE TRUST,
Issuer,
and
THE BANK OF NEW YORK,
Indenture Trustee
FIRST NATIONAL MASTER NOTE TRUST
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01. Definitions................................................................................2
Section 1.02. Other Definitional Provisions..............................................................2
ARTICLE II
THE NOTES
Section 2.01. Form Generally.............................................................................3
Section 2.02. Denominations..............................................................................4
Section 2.03. Execution, Authentication and Delivery.....................................................4
Section 2.04. Authenticating Agent.......................................................................4
Section 2.05. Registration of and Limitations on Transfer and Exchange of Notes..........................5
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes.................................................7
Section 2.07. Persons Deemed Owners......................................................................8
Section 2.08. Appointment of Paying Agent................................................................8
Section 2.09. Access to List of Noteholders' Names and Addresses.........................................9
Section 2.10. Cancellation...............................................................................9
Section 2.11. New Issuances.............................................................................10
Section 2.12. Book-Entry Notes..........................................................................11
Section 2.13. Notices to Clearing Agency or Foreign Clearing Agency.....................................12
Section 2.14. Definitive Notes..........................................................................12
Section 2.15. Global Note...............................................................................13
Section 2.16. Meetings of Noteholders...................................................................13
Section 2.17. Uncertificated Classes....................................................................13
Section 2.18. Record Date for Voting....................................................................13
ARTICLE III
REPRESENTATIONS AND COVENANTS OF ISSUER
Section 3.01. Payment of Principal and Interest.........................................................13
Section 3.02. Maintenance of Office or Agency...........................................................14
Section 3.03. Money for Note Payments to Be Held in Trust...............................................14
Section 3.04. Existence.................................................................................15
Section 3.05. Protection of Collateral..................................................................15
Section 3.06. Opinions as to Collateral.................................................................16
Section 3.07. Performance of Obligations; Servicing of Receivables......................................16
Section 3.08. Negative Covenants........................................................................18
Section 3.09. Statements as to Compliance...............................................................19
Section 3.10. Issuer May Consolidate, Etc., Only on Certain Terms.......................................19
Section 3.11. Successor Substituted.....................................................................21
Section 3.12. No Other Business.........................................................................21
Section 3.13. Investments...............................................................................21
Section 3.14. Capital Expenditures......................................................................21
Section 3.15. Removal of Administrator..................................................................21
Section 3.16. Restricted Payments.......................................................................21
Section 3.17. Notice of Events of Default and Pay Out Events............................................21
Section 3.18. Derivative Financial Investments..........................................................22
Section 3.19. Further Instruments and Acts..............................................................22
Section 3.20. Perfection Representations and Warranties.................................................22
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of the Indenture...............................................24
Section 4.02. Application of Issuer Money...............................................................25
ARTICLE V
PAY OUT EVENTS, DEFAULTS AND REMEDIES
Section 5.01. Pay Out Events............................................................................25
Section 5.02. Events of Default.........................................................................26
Section 5.03. Acceleration of Maturity; Rescission and Annulment........................................26
Section 5.04. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.................27
Section 5.05. Remedies; Priorities......................................................................29
Section 5.06. Optional Preservation of the Collateral...................................................31
Section 5.07. Limitation on Suits.......................................................................31
Section 5.08. Unconditional Rights of Noteholders to Receive Principal and Interest.....................32
Section 5.09. Restoration of Rights and Remedies........................................................32
Section 5.10. Rights and Remedies Cumulative............................................................32
Section 5.11. Delay or Omission Not Waiver..............................................................33
Section 5.12. Rights of Noteholders to Direct Indenture Trustee.........................................33
Section 5.13. Waiver of Past Defaults...................................................................33
Section 5.14. Undertaking for Costs.....................................................................33
Section 5.15. Waiver of Stay or Extension Laws..........................................................34
Section 5.16. Sale of Receivables.......................................................................34
Section 5.17. Action on Notes...........................................................................34
ARTICLE VI
INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee...............................................................35
Section 6.02. Notice of Pay Out Event or Event of Default...............................................37
ii
Section 6.03. Rights of Indenture Trustee...............................................................37
Section 6.04. Not Responsible for Recitals or Issuance of Notes.........................................38
Section 6.05. Dealings With Issuer......................................................................38
Section 6.06. Money Held in Trust.......................................................................38
Section 6.07. Compensation, Reimbursement and Indemnification...........................................39
Section 6.08. Replacement of Indenture Trustee..........................................................39
Section 6.09. Successor Indenture Trustee by Merger.....................................................40
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee.........................41
Section 6.11. Eligibility; Disqualification.............................................................42
Section 6.12. Preferential Collection of Claims Against.................................................42
Section 6.13. Representations and Covenants of Indenture Trustee........................................42
Section 6.14. Custody of the Collateral.................................................................42
ARTICLE VII
NOTEHOLDERS' LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER
Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders....................43
Section 7.02. Preservation of Information; Communications to Noteholders................................43
Section 7.03. Reports by Issuer.........................................................................44
Section 7.04. Reports by Indenture Trustee..............................................................44
ARTICLE VIII
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 8.01. Collection of Money.......................................................................45
Section 8.02. Rights of Noteholders.....................................................................45
Section 8.03. Establishment of Collection Account and Excess Funding Account............................45
Section 8.04. Collections and Allocations...............................................................47
Section 8.05. Excess Principal Collections..............................................................48
Section 8.06. Excess Finance Charge Collections.........................................................48
Section 8.07. Release of Collateral; Eligible Loan Documents............................................49
Section 8.08. Opinion of Counsel........................................................................49
ARTICLE IX
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS........................................................................50
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures Without Consent of Noteholders....................................50
Section 10.02. Supplemental Indentures with Consent of Noteholders.......................................51
Section 10.03. Execution of Supplemental Indentures......................................................53
Section 10.04. Effect of Supplemental Indenture..........................................................53
iii
Section 10.05. Conformity with Trust Indenture Act.......................................................53
Section 10.06. Reference in Notes to Supplemental Indentures.............................................53
ARTICLE XI
TERMINATION
Section 11.01. Termination of Issuer.....................................................................53
Section 11.02. Final Distribution........................................................................54
Section 11.03. Issuer's Termination Rights...............................................................55
ARTICLE XII
MISCELLANEOUS
Section 12.01. Compliance Certificates and Opinions etc..................................................55
Section 12.02. Form of Documents Delivered to Indenture Trustee..........................................57
Section 12.03. Acts of Noteholders.......................................................................57
Section 12.04. Notices, Etc. to Indenture Trustee and Issuer.............................................58
Section 12.05. Notices to Noteholders; Waiver............................................................58
Section 12.06. Alternate Payment and Notice Provisions...................................................59
Section 12.07. Conflict with Trust Indenture Act.........................................................59
Section 12.08. Effect of Headings and Table of Contents..................................................59
Section 12.09. Successors and Assigns....................................................................59
Section 12.10. Separability..............................................................................59
Section 12.11. Benefits of Indenture.....................................................................59
Section 12.12. Legal Holidays............................................................................59
Section 12.13. Governing Law.............................................................................60
Section 12.14. Counterparts..............................................................................60
Section 12.15. Issuer Obligation.........................................................................60
Section 12.16. No Petition...............................................................................60
Section 12.17. Limited Recourse..........................................................................60
ANNEX A DEFINITIONS
iv
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND INDENTURE PROVISIONS(1)
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
310(a)(1)............................................................... 6.11
(a)(2)............................................................... 6.11
(a)(3)............................................................... 6.10
(a)(4)............................................................... Not Applicable
(a)(5)............................................................... 6.11
(b)............................................................... 6.08, 6.11
(c)............................................................... Not Applicable
311(a)............................................................... 6.12
(b)............................................................... 6.12
(c)............................................................... Not Applicable
312(a)............................................................... 7.01, 7.02(a)
(b) .............................................................. 7.02(b)
(c)............................................................... 7.02(c)
313(a)............................................................... 7.04
(b)............................................................... 7.04
(c)............................................................... 7.03, 7.04
(d)............................................................... 7.04
314(a)............................................................... 3.09, 7.03(a)
(b)............................................................... 3.06
(c)(1)............................................................... 8.07(c), 12.01(a)
(c)(2)............................................................... 8.07(c), 8.08, 12.01(a)
(c)(3)............................................................... 8.07(c), 12.01(a)
(d)(1)............................................................... 8.07(c), 12.01(b)
(d)(2)............................................................... Not Applicable
(d)(3)............................................................... Not Applicable
(e)............................................................... 12.01(a)
315(a)............................................................... 6.01(b)
(b)............................................................... 6.02
(c)............................................................... 6.01(a)
(d)............................................................... 6.01(d)
(d)(1)............................................................... 6.01(d)
(d)(2)............................................................... 6.01(d)
(d)(3)............................................................... 6.01(d)
(e)............................................................... 5.14
316(a)(1)(A)............................................................ 5.12
316(a)(1)(B)............................................................ 5.13
316(a)(2)............................................................... Not Applicable
316(b)............................................................... 5.08
316(c)............................................................... 2.18
317(a)(1)............................................................... 5.04
317(a)(2)............................................................... 5.04(d)
317(b)............................................................... 5.04(a)
318(a)............................................................... 12.07
- ----------
(1) This reconciliation and tie shall not, for any purpose, be deemed to be
part of the within indenture.
MASTER INDENTURE, dated as of October 24, 2002 (the "Indenture"), between
FIRST NATIONAL MASTER NOTE TRUST, a statutory trust organized under the laws of
the State of Delaware ("Issuer"), and THE BANK OF NEW YORK, a New York banking
corporation, as indenture trustee ("Indenture Trustee"). The Indenture may be
supplemented at any time and from time to time by an indenture supplement in
accordance with Article X (an "Indenture Supplement," and together with the
Indenture and any amendments, the "Agreement"). If a conflict exists between the
terms and provisions of the Indenture and any Indenture Supplement, the terms
and provisions of the Indenture Supplement shall be controlling with respect to
the related Series.
PRELIMINARY STATEMENTS
Issuer has duly authorized the execution and delivery of the Indenture to
provide for an issue of its Notes as provided in the Indenture. All covenants
and agreements made by Issuer herein are for the benefit and security of the
Noteholders. Issuer is entering into the Indenture, and Indenture Trustee is
accepting the trusts created hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
Simultaneously with the delivery of the Indenture, Issuer is entering into
a Transfer and Servicing Agreement with First National Funding LLC, a Nebraska
limited liability company, as Transferor, and First National Bank of Omaha, a
national banking association, as Servicer, pursuant to which (a) Transferor will
convey to Issuer all of its right, title and interest in, to and under (i) the
Collateral Certificate, which Transferor will have received from Certificate
Trust pursuant to the Collateral Series Supplement, and (ii) on and after the
Certificate Trust Termination Date, the Receivables arising in the Accounts from
time to time, which Transferor will have received from FNBO pursuant to the
Receivables Purchase Agreement and (b) Servicer will agree to service the
Receivables and make collections thereon on behalf of the Noteholders on and
after the Certificate Trust Termination Date.
GRANTING CLAUSE
Issuer hereby Grants to Indenture Trustee, for the benefit of the Holders
of the Notes and the Enhancement Providers, all of Issuer's right, title and
interest, whether now owned or hereafter acquired, in, to and under (a) the
Collateral Certificate, (b) the Receivables, (c) Collections and Recoveries
related to and all money, instruments, investment property and other property
distributed or distributable in respect of (together with all earnings,
dividends, distributions, income, issues, and profits relating to) the
Receivables pursuant to the terms of the Transfer and Servicing Agreement, the
Indenture and any Indenture Supplement; (d) all Permitted Investments and all
money, investment property, instruments and other property on deposit from time
to time in, credited to or related to the Collection Account, the Series
Accounts and the Excess Funding Account (including any subaccounts of any such
account), and in all interest, dividends, earnings, income and other
distributions from time to time received, receivable or otherwise distributed or
distributable thereto or in respect thereof (including any accrued discount
realized on liquidation of any investment purchased at a discount); (e) all
rights, remedies, powers, privileges and claims of Issuer under or with respect
to any Enhancement and the Transfer and Servicing Agreement (whether arising
pursuant to the terms of the related Enhancement Agreement or the Transfer and
Servicing Agreement or otherwise available to Issuer at law or in equity),
including the rights of Issuer to enforce such
Enhancement Agreement or the Transfer and Servicing Agreement, and to give or
withhold any and all consents, requests, notices, directions, approvals,
extensions or waivers under or with respect to such Enhancement Agreement or the
Transfer and Servicing Agreement to the same extent as Issuer could but for the
assignment and security interest granted to Indenture Trustee for the benefit of
the Noteholders; (f) all Insurance Proceeds; (g) all proceeds of any derivative
contracts between Issuer and a counterparty, as described in any Indenture
Supplement; (h) all money, accounts, general intangibles, chattel paper,
instruments, documents, goods, investment property, deposit accounts, letters of
credit, and letter-of-credit rights consisting of, arising from or related to
the foregoing; (i) all other property of Issuer; (j) all present and future
claims, demands, causes and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all proceeds,
products, rents, receipts or profits of the conversion, voluntary or
involuntary, into cash or other property, all cash and non-cash proceeds, and
other property consisting of, arising from or relating to all or any part of any
of the foregoing; and (k) any proceeds of the foregoing (collectively, the
"Collateral").
LIMITED RECOURSE
The obligation of Issuer to make payments of principal, interest and other
amounts in respect of the Notes is limited by recourse only to the Collateral.
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. Capitalized terms used herein are defined in
Annex A.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined directly or by reference in the Indenture
shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of the Indenture and all such certificates and other documents,
unless the context otherwise requires: (i) accounting terms not otherwise
defined in the Indenture, and accounting terms partly defined in the
Indenture to the extent not defined, shall have the respective meanings
given to them under GAAP; (ii) terms defined in Article 9 of the UCC as in
effect in the State of Nebraska and not otherwise defined in the Indenture
are used as defined in that Article; (iii) any reference to each Rating
Agency shall only apply to any specific rating agency if such rating
agency is then rating any outstanding Series at the request of the Issuer;
(iv) references to any amount as on deposit or outstanding on any
particular date means such amount at the close of business on such day;
(v) the words "hereof," "herein" and "hereunder" and words of similar
import refer to the Indenture (or the certificate or other document in
which they are used) as a whole and not to any particular provision of the
Indenture (or such certificate or document); (vi) references to any
Section, Annex, Schedule or Exhibit are references to Sections, Annexes,
Schedules and Exhibits in or to the Indenture (or the certificate or other
document in which the reference is made), and references to any paragraph,
Section, clause or other subdivision within any Section or definition
refer to such paragraph, subsection, clause or other subdivision of such
Section
2
or definition; (vii) the term "including" means "including without
limitation"; (viii) references to any law or regulation refer to that law
or regulation as amended from time to time and include any successor law
or regulation; (ix) references to any Person include that Person's
successors and assigns; (x) references to any agreement refer to that
agreement as amended, supplemented or otherwise modified from time to
time; and (xi) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
(b) Whenever the Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of the
Indenture. The following TIA terms used in the Indenture have the
following meanings:
(i) "indenture securities" means the Notes;
(ii) "indenture security holder" means a Noteholder;
(iii) "indenture to be qualified" means the Indenture;
(iv) "indenture trustee" or "institutional trustee" means
Indenture Trustee; and
(v) "obligor" on the indenture securities means Issuer and any
other obligor on the indenture securities.
All other TIA terms used in the Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meanings assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.01. FORM GENERALLY. Any Series or Class of Notes, together with
Indenture Trustee's certificate of authentication related thereto, may be issued
in bearer form (the "Bearer Notes") with attached interest coupons and a special
coupon (collectively, the "Coupons") or in fully registered form (the
"Registered Notes") and shall be in substantially the form of an exhibit to the
related Indenture Supplement with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the Indenture
or such Indenture Supplement, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon, as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of such Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note. The terms of any Notes set forth in an exhibit to the
related Indenture Supplement are part of the terms of the Indenture, as
applicable.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, all as determined by
the officers executing such Notes, as evidenced by their execution of such
Notes.
3
Each Note will be dated the related Closing Date and each Definitive Note
will be dated as of the date of its authentication.
SECTION 2.02. DENOMINATIONS. Except as otherwise specified in the related
Indenture Supplement and the Notes, each class of Notes of each Series shall be
issued in fully registered form in minimum amounts of $1,000 and in integral
multiples of $1,000 in excess thereof (except that one Note of each Class may be
issued in a different amount, so long as such amount exceeds the applicable
minimum denomination for such Class), and shall be issued upon initial issuance
as one or more Notes in an aggregate original principal amount equal to the
applicable Note Principal Balance for such Class or Series.
SECTION 2.03. EXECUTION, AUTHENTICATION AND DELIVERY. Each Note shall be
executed by manual or facsimile signature on behalf of Issuer by an Authorized
Officer.
Notes bearing the manual or facsimile signature of an individual who was,
at the time when such signature was affixed, authorized to sign on behalf of
Issuer shall not be rendered invalid, notwithstanding the fact that such
individual ceased to be so authorized prior to the authentication and delivery
of such Notes or does not hold such office at the date of issuance of such
Notes.
At any time and from time to time after the execution and delivery of the
Indenture, Issuer may deliver Notes executed by Issuer to Indenture Trustee for
authentication and delivery, and Indenture Trustee shall authenticate at the
written direction of Issuer and deliver such Notes as provided in the Indenture
or the related Indenture Supplement and not otherwise.
No Note shall be entitled to any benefit under the Indenture or the
applicable Indenture Supplement or be valid or obligatory for any purpose,
unless there appears on such Note a certificate of authentication substantially
in the form provided for herein or in the related Indenture Supplement executed
by or on behalf of Indenture Trustee by the manual signature of a duly
authorized signatory, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.04. AUTHENTICATING AGENT.
(a) Indenture Trustee, at the expense of Issuer, may appoint one or
more authenticating agents with respect to the Notes which shall be
authorized to act on behalf of Indenture Trustee in authenticating the
Notes in connection with the issuance, delivery, registration of transfer,
exchange or repayment of the Notes. Whenever reference is made in the
Indenture to the authentication of Notes by Indenture Trustee or Indenture
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of Indenture Trustee by an authenticating
agent and a certificate of authentication executed on behalf of Indenture
Trustee by an authenticating agent. Each authenticating agent must be
acceptable to Issuer and Servicer.
(b) Any institution succeeding to the corporate agency business of
an authenticating agent shall continue to be an authenticating agent
without the execution or filing of any power or any further act on the
part of Indenture Trustee or such authenticating agent.
4
(c) An authenticating agent may at any time resign by giving written
notice of resignation to Indenture Trustee, Issuer and Servicer. Indenture
Trustee may at any time terminate the agency of an authenticating agent by
giving notice of termination to such authenticating agent and to Issuer
and Servicer. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to
be acceptable to Indenture Trustee or Issuer and Servicer, Indenture
Trustee may promptly appoint a successor authenticating agent. Any
successor authenticating agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of
its predecessor hereunder, with like effect as if originally named as an
authenticating agent. No successor authenticating agent shall be appointed
unless acceptable to Issuer and Servicer.
(d) Issuer agrees to pay to each authenticating agent from time to
time reasonable compensation for its services under this Section 2.04.
(e) The provisions of Sections 6.01 and 6.04 shall be applicable to
any authenticating agent.
(f) Pursuant to an appointment made under this Section 2.04, the
Notes may have endorsed thereon, in lieu of or in addition to Indenture
Trustee's certificate of authentication, an alternative certificate of
authentication in substantially the following form:
"This is one of the Notes described in the within-mentioned
Agreement.
as Authenticating Agent
for Indenture Trustee
By:
Authorized Signatory"
Dated: ____________________
SECTION 2.05. REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE OF
NOTES. Issuer shall cause to be kept a register (the "Note Register") in which
Issuer shall provide for the registration of Notes and the registration of
transfers of Notes. Indenture Trustee initially shall be Transfer Agent and
Registrar (in such capacity, the "Transfer Agent and Registrar") for the purpose
of registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Transfer Agent and Registrar, Issuer shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the duties of
Transfer Agent and Registrar.
If a Person other than Indenture Trustee is appointed by Issuer as
Transfer Agent and Registrar, Issuer will give Indenture Trustee prompt written
notice of the appointment of a Transfer Agent and Registrar and of the location,
and any change in the location, of Transfer
5
Agent and Registrar and Note Register. Indenture Trustee shall have the right to
inspect the Note Register at all reasonable times and to obtain copies thereof,
and Indenture Trustee shall have the right to conclusively rely upon a
certificate executed on behalf of Transfer Agent and Registrar by an officer
thereof as to the names and addresses of the Noteholders and the principal
amounts and numbers of such Notes.
Upon surrender for registration of transfer of any Note at the office or
agency of Transfer Agent and Registrar, to be maintained as provided in Section
3.02, if the requirements of Section 8-401 of the UCC are met as certified by
Issuer to Indenture Trustee, Issuer shall execute, and upon receipt of such
surrendered Note, Indenture Trustee shall authenticate and deliver to the
Noteholder, in the name of the designated transferee or transferees, one or more
new Notes (of the same Series and Class) in any authorized denominations of like
aggregate principal amount.
At the option of a Noteholder, Notes may be exchanged for other Notes (of
the same Series and Class) in any authorized denominations and of like aggregate
principal amount, upon surrender of such Notes to be exchanged at the office or
agency of Transfer Agent and Registrar. Whenever any Notes are so surrendered
for exchange, if the requirements of Section 8-401 of the UCC are met as
certified by Issuer to Indenture Trustee, Issuer shall execute, and upon receipt
of such surrendered Note, Indenture Trustee shall authenticate and deliver to
the Noteholder, the Notes which the Noteholder making the exchange is entitled
to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall evidence the same obligations, evidence the same debt, and be entitled to
the same rights and privileges under the Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in a form satisfactory to Indenture Trustee duly executed by, the
Noteholder thereof or its attorney-in-fact duly authorized in writing, and by
such other documents as Indenture Trustee may reasonably require.
Any Note held by Transferor at any time after the date of its initial
issuance may be transferred or exchanged only upon the delivery to the Owner
Trustee and Indenture Trustee of a Tax Opinion dated as of the date of such
transfer or exchange, as the case may be, with respect to such transfer or
exchange.
The registration of transfer of any Note shall be subject to the
additional requirements, if any, set forth in the related Indenture Supplement.
No service charge shall be made for any registration of transfer or
exchange of Notes, but Issuer and Transfer Agent and Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
such Notes.
All Notes surrendered for registration of transfer and exchange shall be
canceled by Issuer and delivered to Indenture Trustee for subsequent destruction
without liability on the part of either. Indenture Trustee shall destroy the
Global Note upon its exchange in full for Definitive Notes and shall deliver a
certificate of destruction to Transferor. Such certificate shall also state that
a certificate or certificates of each Foreign Clearing Agency referred to in the
6
applicable Indenture Supplement was received with respect to each portion of the
Global Note exchanged for Definitive Notes.
The preceding provisions of this Section 2.05 notwithstanding, Issuer
shall not be required to make, and Transfer Agent and Registrar need not
register, transfers or exchanges of Notes for a period of twenty (20) days
preceding the due date for any payment with respect to the Note.
If and so long as any Series of Notes are listed on the Luxembourg Stock
Exchange and such exchange shall so require, Issuer shall appoint a co-transfer
agent and co-registrar in Luxembourg or another European city. Any reference in
the Indenture to Transfer Agent and Registrar shall include any co-transfer
agent and co-registrar unless the context otherwise requires. Indenture Trustee
will enter into any appropriate agency agreement with any co-transfer agent and
co-registrar not a party to the Indenture, which will implement the provisions
of the Indenture that relate to such agent.
Notwithstanding any other provision of the Indenture, with respect to any
Notes for which an Opinion of Counsel has not been issued opining on the
treatment of such Notes as debt for federal income tax purposes, no transfer (or
purported transfer) of all or any part of such Notes (or any economic interest
therein) shall be effective, and any such transfer (or purported transfer) shall
be void ab initio, and no Person shall otherwise become a Holder of such Notes
if (i) at the time of transfer (or purported transfer) such Notes are traded on
an established securities market or readily tradeable on a secondary market or
(ii) after such transfer (or purported transfer) the Trust would have more than
95 Holders of such Notes and any other interests in the Trust for which an
Opinion of Counsel is not rendered in connection with the issuance of such
interest to the effect that such interest will be characterized as debt for
federal income tax purposes. For purposes of determining whether the Trust will
have more than 95 Holders, each Person indirectly owning an interest in the
Trust through a partnership (including an entity treated as a partnership for
federal income tax purposes), a grantor trust or an S corporation (each such
entity a "flow through entity") shall be treated as a Holder unless the Servicer
determines, after consulting with qualified tax counsel, that less than
substantially all of the value of the beneficial owner's interest in the
flow-through entity is attributable to the flow-through entity's interest
(direct or indirect) in the Trust.
SECTION 2.06. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (a) any
mutilated Note is surrendered to Indenture Trustee, or Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (b) in case of destruction, loss, or theft there is delivered to
Indenture Trustee such security or indemnity as may be required by it to hold
Issuer, the Noteholders, Indenture Trustee and Transfer Agent and Registrar
harmless, then, in the absence of notice to Issuer, Transfer Agent and Registrar
or Indenture Trustee that such Note has been acquired by a protected purchaser
(as defined in Section 8-303 of the UCC as in effect in the State of Nebraska),
Issuer shall execute, and Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of like tenor (including the same date of issuance) and
principal amount, bearing a number not contemporaneously outstanding; provided,
however, that if any such mutilated, destroyed, lost or stolen Note shall have
become or within seven (7) days shall be due and payable, or shall have been
selected or called for redemption, instead of issuing a replacement Note, Issuer
may pay such Note without surrender thereof, except that any mutilated Note
shall be surrendered. If,
7
after the delivery of such replacement Note or payment of a destroyed, lost or
stolen Note pursuant to the proviso to the preceding sentence, a protected
purchaser (as defined in Section 8-303 of the UCC as in effect in the State of
Nebraska) of the original Note in lieu of which such replacement Note was issued
presents for payment such original Note, Issuer and Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from the Person to
whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note was delivered or any assignee of such
Person, except a protected purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by Issuer or Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section 2.06, Issuer
may require the payment by the Holder of such Note of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of Indenture
Trustee or Transfer Agent and Registrar) connected therewith.
Every replacement Note issued pursuant to this Section 2.06 in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute complete and
indefeasible evidence of an obligation of the Trust, as if originally issued,
whether or not the mutilated, destroyed, lost or stolen Note shall be found at
any time, and shall be entitled to all the benefits of the Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.06 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.07. PERSONS DEEMED OWNERS. Prior to due presentment for
registration of transfer of any Note, Issuer, Transferor, Indenture Trustee and
any agent of Issuer, Transferor or Indenture Trustee shall treat the Person in
whose name any Note is registered as the owner of such Note for the purpose of
receiving distributions pursuant to the terms of the applicable Indenture
Supplement and for all other purposes whatsoever, whether or not such Note is
overdue, and neither Issuer, Transferor, Indenture Trustee nor any agent of
Issuer, Transferor or Indenture Trustee shall be affected by any notice to the
contrary.
SECTION 2.08. APPOINTMENT OF PAYING AGENT.
(a) Issuer reserves the right at any time to vary or terminate the
appointment of a Paying Agent for the Notes, and to appoint additional or
other Paying Agents, provided that it will at all times maintain Indenture
Trustee as a Paying Agent.
If and so long as any Notes are listed on the Luxembourg Stock
Exchange and such exchange shall so require, Issuer will appoint a
co-paying agent in Luxembourg or another European city. Indenture Trustee
will enter into any appropriate agency agreement with any co-paying agent
not a party to the Indenture, which will implement the provisions of the
Indenture that relate to such agent.
Notice of all changes in the identity or specified office of a
Paying Agent will be delivered promptly to the Noteholders by Indenture
Trustee.
8
(b) Indenture Trustee shall cause each Paying Agent (other than
itself) to execute and deliver to Indenture Trustee an instrument in which
such Paying Agent shall agree with Indenture Trustee that such Paying
Agent will hold all sums, if any, held by it for payment to the
Noteholders in trust for the benefit of the Noteholders entitled thereto
until such sums shall be paid to such Noteholders and shall agree, and if
Indenture Trustee is Paying Agent it hereby agrees, that it shall comply
with all requirements of the Code regarding the withholding by Indenture
Trustee of payments in respect of federal income taxes due from the Note
Owners.
SECTION 2.09. ACCESS TO LIST OF NOTEHOLDERS' NAMES AND ADDRESSES.
(a) Issuer will furnish or cause to be furnished to Indenture
Trustee, Servicer or Paying Agent, within five (5) Business Days after
receipt by Issuer of a written request therefor from Indenture Trustee,
Servicer or Paying Agent, respectively, a list of the names and addresses
of the Noteholders. Unless otherwise provided in the related Indenture
Supplement, the Holders of not less than 10% of the principal balance of
the Outstanding Notes of any Series (the "Applicants") may apply in
writing to Indenture Trustee, and if such application states that the
Applicants desire to communicate with other Noteholders of any Series with
respect to their rights under the Indenture or under the Notes and is
accompanied by a copy of the communication which such Applicants propose
to transmit, then Indenture Trustee, after having been adequately
indemnified by such Applicants for its costs and expenses, shall afford or
shall cause Transfer Agent and Registrar to afford such Applicants access
during normal business hours to the most recent list of Noteholders held
by Indenture Trustee and shall give Servicer notice that such request has
been made, within five (5) Business Days after the receipt of such
application. Such list shall be as of a date no more than forty-five (45)
days prior to the date of receipt of such Applicants' request.
(b) Every Noteholder, by receiving and holding a Note, agrees that
none of Issuer, Indenture Trustee, Transfer Agent and Registrar and
Servicer or any of their respective agents and employees shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Noteholders hereunder, regardless of the
sources from which such information was derived.
SECTION 2.10. CANCELLATION. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than Indenture Trustee, be delivered to Indenture Trustee and shall
be promptly canceled by it. Issuer may at any time deliver to Indenture Trustee
for cancellation any Notes previously authenticated and delivered hereunder
which Issuer may have acquired in any lawful manner whatsoever, and all Notes so
delivered shall be promptly canceled by Indenture Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section 2.10, except as expressly permitted by the Indenture. All canceled
Notes held by Indenture Trustee shall be disposed of by it in its customary
manner unless Issuer shall direct Indenture Trustee in a timely manner that they
be returned to Issuer.
9
SECTION 2.11. NEW ISSUANCES.
(a) Pursuant to one or more Indenture Supplements, Transferor may
from time to time direct the Owner Trustee, on behalf of Issuer, to issue
one or more new Series of Notes (a "New Issuance"). The Notes of all
outstanding Series shall be equally and ratably entitled as provided
herein to the benefits of the Indenture without preference, priority or
distinction, all in accordance with the terms and provisions of the
Indenture and the applicable Indenture Supplement except, with respect to
any Series or Class, as provided in the related Indenture Supplement.
Interest on and principal of the Notes of each outstanding Series shall be
paid as specified in the Indenture Supplement relating to such outstanding
Series.
(b) On or before the Closing Date relating to any new Series of
Notes, the parties hereto will execute and deliver an Indenture Supplement
which will specify the Principal Terms of such Series. The terms of such
Indenture Supplement may modify or amend the terms of the Indenture solely
as applied to such new Series. The obligation of the Owner Trustee to
execute, on behalf of Issuer, the Notes of any Series and of Indenture
Trustee to authenticate such Notes (other than any Series issued pursuant
to an Indenture Supplement dated as of the date hereof) and to execute and
deliver the related Indenture Supplement is subject to the satisfaction of
the following conditions:
(i) on or before the fifth Business Day immediately preceding
the Closing Date, Transferor shall have given Owner Trustee,
Indenture Trustee, Servicer and each Rating Agency notice (unless
such notice requirement is otherwise waived) of such issuance and
the Closing Date;
(ii) Transferor shall have delivered to Owner Trustee and
Indenture Trustee any related Indenture Supplement, in form
satisfactory to Owner Trustee and Indenture Trustee, executed by
each party hereto (other than Indenture Trustee);
(iii) Transferor shall have delivered to Owner Trustee and
Indenture Trustee any related Enhancement Agreement executed by
Transferor and Enhancement Provider;
(iv) the Rating Agency Condition shall have been satisfied
with respect to such issuance;
(v) Transferor shall have delivered to Owner Trustee and
Indenture Trustee an Officer's Certificate, dated the Closing Date
to the effect that Transferor reasonably believes that such issuance
will not, based on the facts known to such officer at the time of
such certification have an Adverse Effect;
(vi) Transferor shall have delivered to Owner Trustee and
Indenture Trustee (with a copy to each Rating Agency) a Tax Opinion,
dated the Closing Date with respect to such issuance;
(vii) Transferor shall have delivered to Owner Trustee and
Indenture Trustee an Officer's Certificate stating that (A) the
Transferor Interest shall not be
10
less than the Minimum Transferor Interest and (B) the Aggregate
Principal Balance shall not be less than the Minimum Aggregate
Principal Receivables, in each case as of the Closing Date and after
giving effect to such issuance; and
(viii) unless Certificate Trust has terminated, all of the
conditions set forth in Section 6.09 of the Pooling and Servicing
Agreement have been met.
(c) Upon satisfaction of the above conditions, as evidenced by an
Officer's Certificate of Transferor, pursuant to Section 2.03, Owner
Trustee, on behalf of Issuer, shall execute and Indenture Trustee shall
upon written direction of Issuer authenticate and deliver the Notes of
such Series as provided in the Indenture and the applicable Indenture
Supplement.
(d) Issuer may direct Indenture Trustee in writing to deposit the
net proceeds from any New Issuance in the Excess Funding Account. Issuer
may also specify that on any Transfer Date the proceeds from the sale of
any new Series may be withdrawn from the Excess Funding Account and
treated as Excess Principal Collections.
SECTION 2.12. BOOK-ENTRY NOTES. Unless otherwise provided in any related
Indenture Supplement, the Notes, upon original issuance, shall be issued in the
form of typewritten or printed Notes representing the Book-Entry Notes to be
delivered to the depository specified in such Indenture Supplement which shall
be the Clearing Agency or Foreign Clearing Agency, by or on behalf of such
Series.
The Notes of each Series shall, unless otherwise provided in the related
Indenture Supplement, initially be registered in the Note Register in the name
of the nominee of the Clearing Agency or Foreign Clearing Agency for such
Book-Entry Notes and shall be delivered to Indenture Trustee or, pursuant to
such Clearing Agency's or Foreign Clearing Agency's instructions held by
Indenture Trustee's agent as custodian for the Clearing Agency or Foreign
Clearing Agency.
Unless and until Definitive Notes are issued under the limited
circumstances described in Section 2.14, no Note Owner shall be entitled to
receive a Definitive Note representing such Note Owner's interest in such Note.
Unless and until Definitive Notes have been issued to the Note Owners pursuant
to Section 2.14:
(a) the provisions of this Section 2.12 shall be in full force and
effect with respect to each such Series;
(b) Indenture Trustee shall be entitled to deal with the Clearing
Agency or Foreign Clearing Agency and the Clearing Agency Participants for
all purposes of the Indenture (including the payment of principal of and
interest on the Notes of each such Series) as the authorized
representatives of the Note Owners;
(c) to the extent that the provisions of this Section 2.12 conflict
with any other provisions of the Indenture, the provisions of this Section
2.12 shall control with respect to each such Series;
11
(d) the rights of Note Owners of each such Series shall be exercised
only through the Clearing Agency or Foreign Clearing Agency and the
applicable Clearing Agency Participants and shall be limited to those
established by law and agreements between such Note Owners and the
Clearing Agency or Foreign Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the depository agreement applicable to a Series,
unless and until Definitive Notes of such Series are issued pursuant to
Section 2.14, the initial Clearing Agency shall make book-entry transfers
among the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Notes to such Clearing
Agency Participants; and
(e) whenever the Indenture requires or permits actions to be taken
based upon instructions or directions of the Holders of Notes representing
a specified percentage of the Outstanding Amount, the Clearing Agency or
Foreign Clearing Agency shall be deemed to represent such percentage only
to the extent that they have received instructions to such effect from the
Note Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
Notes and has delivered such instructions to Indenture Trustee.
SECTION 2.13. NOTICES TO CLEARING AGENCY OR FOREIGN CLEARING AGENCY.
Whenever a notice or other communication to the Noteholders is required under
the Indenture, unless and until Definitive Notes shall have been issued to Note
Owners pursuant to Section 2.14, Indenture Trustee shall give all such notices
and communications specified herein to be given to Noteholders to the Clearing
Agency or Foreign Clearing Agency, as applicable, and shall have no obligation
to the Note Owners.
SECTION 2.14. DEFINITIVE NOTES. If (i)(A) Transferor advises Indenture
Trustee in writing that the Clearing Agency is no longer willing or able to
discharge properly its responsibilities as Clearing Agency with respect to the
Book-Entry Notes of a given Class or Series and (B) Indenture Trustee or Issuer
is unable to locate and reach an agreement on satisfactory terms with a
qualified successor, (ii) Transferor, at its option, advises Indenture Trustee
in writing that it elects to terminate the book-entry system through the
Clearing Agency with respect to such Class or Series or (iii) after the
occurrence of a Servicer Default, a Pay Out Event or an Event of Default, Note
Owners of Notes evidencing more than 50% of the Outstanding Amount (or such
other percentage as specified in the related Indenture Supplement) of such Class
or Series, as applicable, advise Indenture Trustee and the applicable Clearing
Agency through the applicable Clearing Agency Participants in writing that the
continuation of a book-entry system is no longer in the best interests of the
Note Owners of such Class or Series, the Clearing Agency shall notify all Note
Owners of such Class or Series of the occurrence of such event and of the
availability of Definitive Notes to Note Owners of such Class or Series
requesting the same. Upon surrender to Indenture Trustee of the Notes of such
Class or Series, accompanied by registration instructions from the applicable
Clearing Agency, Issuer shall execute and Indenture Trustee shall authenticate
Definitive Notes of such Class or Series and shall recognize the registered
holders of such Definitive Notes as Noteholders under the Indenture. Neither
Issuer nor Indenture Trustee shall be liable for any delay in delivery of such
instructions, and Issuer and Indenture Trustee may conclusively rely on, and
shall be fully protected in relying on, such instructions. Upon the issuance of
Definitive Notes of such Class or Series, all references herein to obligations
imposed upon or to be performed by the applicable Clearing Agency or Foreign
Clearing Agency shall be deemed to be imposed upon and performed by Indenture
Trustee, to the extent applicable with
12
respect to such Definitive Notes, and Indenture Trustee shall recognize the
registered holders of the Definitive Notes of such Class or Series as
Noteholders of such Class or Series hereunder. Definitive Notes will be
transferable and exchangeable at the offices of Transfer Agent and Registrar.
SECTION 2.15. GLOBAL NOTE. If specified in the related Indenture
Supplement for any Series, Notes may be initially issued in the form of a single
temporary Global Note (the "Global Note") in bearer form, without interest
coupons, in the denomination of the initial principal amount and substantially
in the form attached to the related Indenture Supplement. Unless otherwise
specified in the related Indenture Supplement, the provisions of this Section
2.15 shall apply to such Global Note. The Global Note will be authenticated by
Indenture Trustee upon the same conditions, in substantially the same manner and
with the same effect as the Definitive Notes. The Global Note may be exchanged
in the manner described in the related Indenture Supplement for Registered Notes
or Bearer Notes in definitive form. Except as otherwise specifically provided in
the Indenture Supplement, any Notes that are issued in bearer form pursuant to
the Indenture shall be issued in accordance with the requirements of Code
section 163(f)(2).
SECTION 2.16. MEETINGS OF NOTEHOLDERS. To the extent provided by the
Indenture Supplement for any Series issued in whole or in part in Bearer Notes,
Servicer or Indenture Trustee may at any time call a meeting of the Noteholders
of such Series, to be held at such time and at such place as Servicer and
Indenture Trustee, as the case may be, shall determine, for the purpose of
approving a modification or amendment to, or obtaining a waiver of, any covenant
or condition set forth in the Indenture with respect to such Series or in the
Notes of such Series, subject to Article X.
SECTION 2.17. UNCERTIFICATED CLASSES. Notwithstanding anything to the
contrary contained in this Article II or in Article XI, unless otherwise
specified in any Indenture Supplement, any provisions contained in this Article
II and in Article XI relating to the registration, form, execution,
authentication, delivery, presentation, cancellation and surrender of Notes
shall not be applicable to any uncertificated Notes, provided, however, that,
except as otherwise specifically provided in the Indenture Supplement, any such
uncertificated Notes shall be issued in "registered form" within the meaning of
Code section 163(f)(1).
SECTION 2.18. RECORD DATE FOR VOTING. The record date for purposes of
determining the identity of Noteholders and Noteowners entitled to vote or
consent to any action pursuant to the Indenture or any Indenture Supplement
shall be as specified in TIA Section 316(c).
ARTICLE III
REPRESENTATIONS AND COVENANTS OF ISSUER
SECTION 3.01. PAYMENT OF PRINCIPAL AND INTEREST.
(a) Issuer will duly and punctually pay principal and interest in
accordance with the terms of the Notes as specified in the relevant
Indenture Supplement.
(b) The Noteholders of a Series as of the Record Date in respect of
a Distribution Date shall be entitled to the interest accrued and payable
and principal
13
payable on such Distribution Date as specified in the related Indenture
Supplement. All payment obligations under a Note are discharged to the
extent such payments are made to the Noteholder of record.
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY. Issuer will maintain an
office or agency within the State of New York and such other locations as may be
set forth in an Indenture Supplement where Notes may be presented or surrendered
for payment, where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon Issuer in respect of the Notes
and the Indenture may be served. Issuer hereby initially appoints Indenture
Trustee at its Corporate Trust Office to serve as its agent for the foregoing
purposes. Issuer will give prompt written notice to Indenture Trustee and the
Noteholders of the location, and of any change in the location, of any such
office or agency. If at any time Issuer shall fail to maintain any such office
or agency or shall fail to furnish Indenture Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office, and Issuer hereby appoints Indenture Trustee at its
Corporate Trust Office as its agent to receive all such presentations,
surrenders, notices and demands.
SECTION 3.03. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST. All payments of
amounts due and payable with respect to the Notes which are to be made from
amounts withdrawn from the Collection Account and the Excess Funding Account
shall be made on behalf of Issuer by Indenture Trustee or by Paying Agent, and
no amounts so withdrawn from the Collection Account or the Excess Funding
Account shall be paid over to or at the direction of Issuer except as provided
in this Section 3.03 and in the related Indenture Supplement.
Whenever Issuer shall have a Paying Agent in addition to Indenture
Trustee, it will, on or before the Business Day next preceding each Distribution
Date, direct Indenture Trustee to deposit with such Paying Agent on or before
such Distribution Date an aggregate sum sufficient to pay the amounts then
becoming due, such sum to be (i) held in trust for the benefit of Persons
entitled thereto and (ii) invested, pursuant to an Issuer Order, by Paying Agent
in Permitted Investments in accordance with the terms of the related Indenture
Supplement. For all investments made by a Paying Agent under this Section 3.03,
such Paying Agent shall be entitled to all of the rights and obligations of
Indenture Trustee under the related Indenture Supplement, such rights and
obligations being incorporated in this paragraph by this reference.
Issuer will cause each Paying Agent other than Indenture Trustee to
execute and deliver to Indenture Trustee an instrument in which such Paying
Agent shall agree with Indenture Trustee (and if Indenture Trustee acts as
Paying Agent, it hereby so agrees), subject to the provisions of this Section
3.03, that such Paying Agent, in acting as Paying Agent, is an express agent of
Issuer and, further, that such Paying Agent will:
(a) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and pay such sums to such Persons as herein
provided;
(b) give Indenture Trustee written notice of any default by Issuer
(or any other obligor upon the Notes) of which it has actual knowledge in
the making of any payment required to be made with respect to the Notes;
14
(c) at any time during the continuance of any such default, upon the
written request of Indenture Trustee, forthwith pay to Indenture Trustee
all sums so held in trust by such Paying Agent;
(d) immediately resign as a Paying Agent and forthwith pay to
Indenture Trustee all sums held by it in trust for the payment of Notes if
at any time it ceases to meet the standards required to be met by a Paying
Agent at the time of its appointment; and
(e) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
Issuer may at any time, for the purpose of obtaining the satisfaction and
discharge of the Indenture or for any other purpose, by Issuer Order direct any
Paying Agent to pay to Indenture Trustee all sums held in trust by such Paying
Agent, such sums to be held by Indenture Trustee upon the same trusts as those
upon which such sums were held by such Paying Agent; and upon such payment by
any Paying Agent to Indenture Trustee, such Paying Agent shall be released from
all further liability with respect to such sums.
SECTION 3.04. EXISTENCE. Issuer will keep in full effect its existence,
rights and franchises as a statutory trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral and each other
related instrument or agreement.
SECTION 3.05. PROTECTION OF COLLATERAL. Issuer will from time to time
prepare, or cause to be prepared, execute and deliver all such supplements and
amendments hereto and all such financing statements, continuation statements,
instruments of further assurance and other instruments, and will take such other
action necessary or advisable to:
(a) grant more effectively all or any portion of the Collateral as
security for the Notes;
(b) maintain or preserve the lien (and the priority thereof) of the
Indenture or to carry out more effectively the purposes hereof;
(c) perfect, publish notice of, or protect the validity of any Grant
made or to be made under the Indenture;
(d) enforce any of the Collateral; or
(e) preserve and defend title to the Collateral securing the Notes
and the rights therein of Indenture Trustee and the Noteholders secured
thereby against the claims of all Persons and parties.
15
Issuer hereby designates Indenture Trustee its agent and attorney-in-fact
to execute any financing statement, continuation statement or other instrument
required pursuant to this Section 3.05 and provided to it.
Issuer shall pay or cause to be paid any taxes levied on all or any part
of the Collateral securing the Notes.
SECTION 3.06. OPINIONS AS TO COLLATERAL.
(a) On the Closing Date relating to any new Series of Notes, Issuer
shall furnish to Indenture Trustee an Opinion of Counsel (with a copy to
each Rating Agency) either stating that, in the opinion of such counsel,
such action has been taken to perfect the lien and security interest of
the Indenture, including with respect to the recording and filing of the
Indenture, any indentures supplemental hereto, and any other requisite
documents, and with respect to the execution and filing of any financing
statements and continuation statements, as are so necessary and reciting
the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to maintain the perfection of such
lien and security interest.
(b) On or before March 31 in each calendar year, beginning in 2003,
Issuer shall furnish to Indenture Trustee an Opinion of Counsel
satisfactory to the Rating Agencies either stating that, in the opinion of
such counsel, such action has been taken to perfect the lien and security
interest of the Indenture, including with respect to the recording,
filing, re-recording and refiling of the Indenture, any indentures
supplemental hereto and any other requisite documents and with respect to
the execution and filing of any financing statements and continuation
statements as is so necessary and reciting the details of such action or
stating that in the opinion of such counsel no such action is necessary to
maintain the perfection of such lien and security interest. Such Opinion
of Counsel shall also describe the recording, filing, re-recording and
refiling of the Indenture, any indentures supplemental hereto and any
other requisite documents and the execution and filing of any financing
statements and continuation statements that will, in the opinion of such
counsel, be required to maintain the perfection of the lien and security
interest of the Indenture until March 31 in the following calendar year.
SECTION 3.07. PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES.
(a) Issuer will not take any action and will use its best efforts
not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under
any instrument or agreement included in the Collateral or that would
result in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any such
instrument or agreement, except as expressly provided in the Indenture,
the Pooling and Servicing Agreement, the Transfer and Servicing Agreement
or such other instrument or agreement.
(b) Issuer may contract with other Persons to assist it in
performing its duties under the Indenture, and any performance of such
duties by a Person identified to Indenture Trustee in an Officer's
Certificate of Issuer shall be deemed to be action taken
16
by Issuer. Initially, Issuer has contracted with Administrator to assist
Issuer in performing its duties under the Indenture.
(c) Issuer will punctually perform and observe all of its
obligations and agreements contained in the Indenture, the other
Transaction Documents and in the instruments and agreements relating to
the Collateral, including but not limited to filing or causing to be filed
all UCC financing statements and continuation statements required to be
filed by the terms of the Indenture, the Pooling and Servicing Agreement
and the Transfer and Servicing Agreement in accordance with and within the
time periods provided for herein and therein.
(d) If Issuer shall have knowledge of the occurrence of a Servicer
Default under the Pooling and Servicing Agreement or the Transfer and
Servicing Agreement, Issuer shall cause Indenture Trustee to promptly
notify the Rating Agencies thereof, and shall cause Indenture Trustee to
specify in such notice the action, if any, being taken with respect to
such default. If a Servicer Default arises from the failure of Servicer to
perform any of its duties or obligations under the Pooling and Servicing
Agreement or the Transfer and Servicing Agreement with respect to the
Receivables, Issuer shall take all reasonable steps available to it to
remedy such failure.
(e) On and after the receipt by Servicer of a Termination Notice
pursuant to Section 7.01 of the Transfer and Servicing Agreement, Servicer
shall continue to perform all servicing functions under the Transfer and
Servicing Agreement until the date specified in the Termination Notice or
until a date mutually agreed upon by Servicer and Indenture Trustee. As
promptly as possible after the giving of a Termination Notice to Servicer,
Indenture Trustee shall appoint a Successor Servicer, and such Successor
Servicer shall accept its appointment by a written assumption. In the
event that a Successor Servicer has not been appointed and accepted its
appointment at the time when Servicer ceases to act as Servicer, Indenture
Trustee in accordance with Section 7.02 of the Transfer and Servicing
Agreement without further action shall automatically be appointed the
Successor Servicer. Indenture Trustee may delegate any of its servicing
obligations to an Affiliate or agent in accordance with Section 3.01(b)
and Section 5.07 of the Transfer and Servicing Agreement. Notwithstanding
the foregoing, Indenture Trustee shall, if it is legally unable so to act,
petition at the expense of Servicer a court of competent jurisdiction to
appoint any established institution qualifying as an Eligible Servicer as
the Successor Servicer. Indenture Trustee shall give prompt notice to each
Rating Agency and each Enhancement Provider upon the appointment of a
Successor Servicer. Upon its appointment, the Successor Servicer shall be
the successor in all respects to Servicer with respect to servicing
functions under the Transfer and Servicing Agreement and shall be subject
to all the responsibilities, duties and liabilities relating thereto
placed on Servicer after the date of such appointment by the terms and
provisions thereof, and all references in the Indenture to Servicer shall
be deemed to refer to the Successor Servicer. In connection with any
Termination Notice, Indenture Trustee will review any bids which it
obtains from Eligible Servicers and shall be permitted to appoint any
Eligible Servicer submitting such a bid as a Successor Servicer for
servicing compensation, subject to the limitations set forth in Section
7.02 of the Transfer and Servicing Agreement. Notwithstanding anything
else herein to the contrary, in no event shall Indenture Trustee be liable
for any servicing fee.
17
(f) Without derogating from the absolute nature of the assignment
granted to Indenture Trustee under the Indenture or the rights of
Indenture Trustee hereunder, Issuer agrees (i) that it will not, without
the prior written consent of Indenture Trustee and Noteholders holding a
majority of the Outstanding Amount of each Series, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms
of any Collateral (except to the extent otherwise provided in the Pooling
and Servicing Agreement or the Transfer and Servicing Agreement) or the
Transaction Documents (except to the extent otherwise provided in the
Transaction Documents), or waive timely performance or observance by
Servicer or Transferor of their respective obligations under the Pooling
and Servicing Agreement or the Transfer and Servicing Agreement (except to
the extent otherwise provided therein); and (ii) that any such amendment
shall not (A) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be
made for the benefit of the Noteholders or (B) reduce the aforesaid
percentage of the Notes that is required to consent to any such amendment,
without the consent of the Holders of all the Outstanding Notes. If any
such amendment, modification, supplement or waiver shall be so consented
to by Indenture Trustee and such Noteholders, Issuer agrees, to execute
and deliver, in its own name and at its own expense, such agreements,
instruments, consents and other documents as are necessary or appropriate
in the circumstances.
SECTION 3.08. NEGATIVE COVENANTS. So long as any Notes are Outstanding,
Issuer will not:
(a) sell, transfer, exchange, or otherwise dispose of any part of
the Collateral unless directed to do so by Indenture Trustee, except as
expressly permitted by the Indenture and any Indenture Supplement, the
Trust Agreement, the Pooling and Servicing Agreement or the Transfer and
Servicing Agreement;
(b) claim any credit on, or make any deduction from, the principal
and interest payable in respect of the Notes (other than amounts properly
withheld from such payments under the Code or applicable state law) or
assert any claim against any present or former Noteholder by reason of the
payment of any taxes levied or assessed upon any part of the Collateral;
(c) incur, assume, guarantee or otherwise become liable, directly or
indirectly, for any indebtedness other than incurred under the Notes and
the Indenture;
(d) (i) permit the validity or effectiveness of the Indenture to be
impaired, or permit the lien of the Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to the Notes under
the Indenture except as may be expressly permitted hereby, (ii) permit any
Lien, charge, excise, claim, security interest, mortgage or other
encumbrance (other than the lien of the Indenture) to be created on or
extend to or otherwise arise upon or burden the Collateral or any part
thereof or any interest therein or the proceeds thereof or (iii) permit
the lien of the Indenture not to constitute a valid first priority
security interest (other than with respect to a tax, mechanics, or similar
lien) in the Collateral;
18
(e) amend its operating agreement or articles of organization,
unless the Rating Agency Condition is met; or
(f) voluntarily dissolve or liquidate in whole or in part.
SECTION 3.09. STATEMENTS AS TO COMPLIANCE. Issuer will deliver to
Indenture Trustee and the Rating Agencies, within 120 days after the end of each
fiscal year of Issuer at the end of which any Notes are outstanding (commencing
within 120 days after the end of the fiscal year 2002, an Officer's Certificate
stating, as to the Authorized Officer signing such Officer's Certificate, that
(a) a review of the activities of Issuer during the 12-month period
ending at the end of such fiscal year and of performance under the
Indenture has been made under such Authorized Officer's supervision,
(b) to the best of such Authorized Officer's knowledge, based on
such review, Issuer has complied with all conditions and covenants under
the Indenture throughout such year, or, if there has been a default in the
compliance of any such condition or covenant, specifying each such default
known to such Authorized Officer and the nature and status thereof; and
(c) such Authorized Officer is the principal executive officer,
principal financial officer or principal accounting officer of the
Administrator.
SECTION 3.10. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
(a) Issuer shall not consolidate or merge with or into any
other Person, unless:
(i) the Person (if other than Issuer) formed by or surviving
such consolidation or merger (the "Surviving Person") (A) is
organized and existing under the laws of the United States of
America or any state thereof, (B) is not subject to regulation as an
"investment company" under the Investment Company Act and (C)
expressly assumes, by an indenture supplemental hereto, executed and
delivered to Indenture Trustee, in a form satisfactory to Indenture
Trustee, the obligation to make due and punctual payment of the
principal of and interest on all Notes and the performance of every
covenant of the Indenture on the part of Issuer to be performed or
observed;
(ii) immediately after giving effect to such transaction, no
Event of Default or Pay Out Event shall have occurred and be
continuing;
(iii) Issuer shall have delivered to Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that
(A) such consolidation or merger and such supplemental indenture
comply with this Section 3.10, (B) all conditions precedent provided
for in this Section 3.10 relating to such transaction have been
complied with (including any filing required by the Exchange Act)
and (iii) such supplemental indenture is duly authorized, executed
and delivered and is valid, binding and enforceable against the
Surviving Person;
19
(iv) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(v) Issuer shall have received a Tax Opinion with respect to
such consolidation or merger; and
(vi) any action that is necessary to maintain the lien and
security interest created by the Indenture shall have been taken.
For the avoidance of doubt, this Section 3.10 shall not apply to the
transfer of the Receivables and other assets to Issuer on the Certificate Trust
Termination Date.
(b) Issuer shall not convey or transfer any of its properties or
assets, including those included in the Collateral, substantially as an
entirety to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of Issuer (the "Acquiring Person") (A) is a
United States citizen or a Person organized and existing under the
laws of the United States of America or any state thereof, (B) is
not subject to regulation as an "investment company" under the
Investment Company Act, (C) expressly assumes, by an indenture
supplemental hereto, executed and delivered to Indenture Trustee, in
form satisfactory to Indenture Trustee, the obligation to make due
and punctual payments of the principal of and interest on all Notes
and the performance of every covenant of the Indenture on the part
of Issuer to be performed or observed, (D) expressly agrees by means
of such supplemental indenture that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the
rights of Holders of the Notes, (E) expressly agrees to indemnify,
defend and hold harmless Issuer against and from any loss, liability
or expense arising under or related to the Indenture and the Notes
and (F) expressly agrees by means of such supplemental indenture
that such Person (or if a group of Persons, then one specified
Person) shall make all filings with the Commission (and any other
appropriate Person) required by the Exchange Act in connection with
the Notes;
(ii) immediately after giving effect to such transaction, no
Event of Default or Pay Out Event shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) Issuer shall have received a Tax Opinion with respect to
such transaction;
(v) any action that is necessary to maintain the lien and
security interest created by the Indenture shall have been taken;
and
(vi) Issuer shall have delivered to Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that
(A) such conveyance or transfer and such supplemental indenture
comply with this Section 3.10, (B) all conditions precedent herein
provided for relating to such transaction have been
20
complied with (including any filing required by the Exchange Act), and (C)
such supplemental indenture is duly authorized, executed and delivered and
is valid, binding and enforceable against the Acquiring Person.
SECTION 3.11. SUCCESSOR SUBSTITUTED. Upon any consolidation or merger, or
any conveyance or transfer of the properties and assets of Issuer substantially
as an entirety in accordance with Section 3.10, the Surviving Person or the
Acquiring Person, as the case may be, shall succeed to, and be substituted for,
and may exercise every right and power of, Issuer under the Indenture with the
same effect as if such Person had been named as Issuer herein. In the event of
any such conveyance or transfer, the Person named as Issuer in the first
paragraph of the Indenture or any successor which shall theretofore have become
such in the manner prescribed in this Section 3.11 shall be released from its
obligations under the Indenture immediately upon the effectiveness of such
conveyance or transfer, provided that Issuer shall not be released from any
obligations or liabilities to Indenture Trustee or the Noteholders arising prior
to such effectiveness.
SECTION 3.12. NO OTHER BUSINESS. Issuer shall not engage in any business
other than the activities set forth in Section 2.03 of the Trust Agreement.
SECTION 3.13. INVESTMENTS. Except as contemplated by the Indenture or the
Transfer and Servicing Agreement, Issuer shall not own, purchase, repurchase or
acquire (or agree contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.
SECTION 3.14. CAPITAL EXPENDITURES. Issuer shall not make any expenditure
(by long-term or operating lease or otherwise) for capital assets (either realty
or personalty).
SECTION 3.15. REMOVAL OF ADMINISTRATOR. So long as any Notes are
outstanding, Issuer shall not remove Administrator without cause unless the
Rating Agency Condition shall have been satisfied in connection with such
removal.
SECTION 3.16. RESTRICTED PAYMENTS. Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in Issuer or
otherwise with respect to any ownership or equity interest or security in or of
Issuer or to Servicer, (ii) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; provided, however, that
Issuer may make, or cause to be made, (x) distributions as contemplated by, and
to the extent funds are available for such purpose under, the Transaction
Documents and (y) payments to Indenture Trustee pursuant to Section 6.07. Issuer
will not, directly or indirectly, make payments to or distributions from the
Collection Account except in accordance with the Transaction Documents.
SECTION 3.17. NOTICE OF EVENTS OF DEFAULT AND PAY OUT EVENTS. Issuer
agrees to give Indenture Trustee and the Rating Agencies prompt written notice
of each Event of Default and each Pay Out Event hereunder, written notice of
each default on the part of Servicer or Transferor of its obligations under the
Transfer and Servicing Agreement and each default on the
21
part of RPA Seller of its obligations under the Receivables Purchase Agreement,
immediately after obtaining knowledge thereof.
SECTION 3.18. DERIVATIVE FINANCIAL INVESTMENTS. Issuer shall not hold any
derivative financial instrument unless such derivative financial instrument
complies with the requirements of paragraph 40 of Statement of Financial
Accounting Standards No. 140 issued by the Financial Accounting Standards Board,
including any interpretations thereof or any successor regulations issued by the
Financial Accounting Standards Board.
SECTION 3.19. FURTHER INSTRUMENTS AND ACTS. Issuer will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of the Indenture.
SECTION 3.20. PERFECTION REPRESENTATIONS AND WARRANTIES.
(a) Issuer hereby represents, warrants and covenants to Indenture
Trustee as follows as of the Initial Closing Date:
(i) The Indenture creates a valid and continuing security
interest (as defined in the applicable UCC) in the Collateral
Certificate and the proceeds thereof, in favor of the Indenture
Trustee, which (a) is enforceable upon execution of the Indenture
against creditors of and purchasers from Issuer, as such
enforceability may be limited by applicable Debtor Relief Laws, now
or hereafter in effect, and by general principles of equity (whether
considered in a suit at law or in equity) and (b) upon filing of the
financing statements described in clause (v) below, will be prior to
all other Liens (other than Liens permitted pursuant to clause (iii)
below).
(ii) The Collateral Certificate constitutes "certificated
security" within the meaning of the applicable Uniform Commercial
Code.
(iii) Issuer owns and has good and marketable title to the
Collateral Certificate free and clear of any Lien, claim or
encumbrance of any Person; provided that nothing in this clause
(iii) shall prevent or be deemed to prohibit Issuer from suffering
to exist upon the Collateral Certificate or any of the Receivables
any Liens for any taxes if such taxes shall not at the time be due
and payable or if FNBO, Transferor, Seller or Issuer, as applicable,
shall currently be contesting the validity thereof in good faith by
appropriate proceedings and shall have set aside on its books
adequate reserves with respect thereto.
(iv) There are no consents or approvals required by the terms
of the Collateral Certificate for the pledge of the Collateral
Certificate to the Indenture Trustee pursuant to the Indenture.
(v) Issuer (or the Administrator on behalf of the Issuer) has
caused the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the security interest granted to
the Indenture Trustee under the Indenture in the Collateral
Certificate.
22
(vi) There is only one executed copy of the Collateral
Certificate and such copy has been delivered to the Indenture
Trustee. The Collateral Certificate is registered in the name of the
Indenture Trustee, upon original issue or registration of transfer
by the Issuer.
(vii) Other than the pledge of the Collateral Certificate to
Indenture Trustee pursuant to the Indenture, Issuer has not pledged,
assigned, sold, granted a security interest in, or otherwise
conveyed the Collateral Certificate. Issuer has not authorized the
filing of and is not aware of any financing statements against
Issuer that include a description of collateral covering the
Collateral Certificate, except for the financing statement filed
pursuant to the Indenture. Issuer is not aware of any judgment or
tax lien filings against Issuer.
(viii) The Collateral Certificate does not have any marks or
notations indicating that it has been pledged, assigned or otherwise
conveyed to any Person other than the Indenture Trustee.
(ix) Notwithstanding any other provision of the Indenture, the
representations and warranties set forth in Section 3.20(a) shall be
continuing, and remain in full force and effect, until such time as
the Collateral Certificate is retired. Indenture Trustee shall not
waive any representation or warranty made in this Section 3.20(a).
(b) Indenture Trustee covenants that it shall not, without
satisfying the Rating Agency Condition with respect to each outstanding
Series and the Rating Agency Condition (as defined in the Pooling and
Servicing Agreement) with respect to each outstanding series of Investor
Certificates, waive a breach of any representation or warranty set forth
in Section 3.20(a).
(c) Servicer covenants that in order to evidence the interests of
Issuer and Indenture Trustee under the Indenture, Servicer shall take such
action, or execute and deliver such instruments as may be necessary or
advisable (including such actions as are requested by Indenture Trustee)
to maintain and perfect, as a first priority interest, Indenture Trustee's
security interest in the Collateral Certificate.
(d) Issuer hereby makes the Perfection Representations and
Warranties to the Indenture Trustee as of the Certificate Trust
Termination Date, with the Indenture as the Specified Agreement, the
Issuer as the Debtor and the Indenture Trustee as the Secured Party. The
rights and remedies with respect to any breach of the Perfection
Representations and Warranties made under this Section 3.20(d) shall be
continuing and shall survive any termination of the Specified Agreement.
Secured Party shall not waive a breach of any Perfection Representation
and Warranty. In order to evidence the interests of Debtor and Secured
Party under the Specified Agreement, the Debtor and Servicer shall, from
time to time take such action, and execute and deliver such instruments
(including, without limitation, such actions or filings as are requested
by the Secured Party and financing statements under the UCC as enacted and
then in effect in any jurisdiction in which the Debtor is organized, has
its principal place of business or maintains any books, records, files or
other information concerning the Receivables) in
23
order to maintain and perfect, as a first priority interest, the Secured
Party's security interest in the Receivables. Debtor hereby authorizes
Servicer to file financing statements under the UCC without Debtor's
signature where allowed by applicable law.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF THE INDENTURE. The Indenture
shall cease to be of further effect with respect to the Notes except as to (a)
rights of registration of transfer and exchange, (b) substitution of mutilated,
destroyed, lost or stolen Notes, (c) the rights of Noteholders to receive
payments of principal thereof and interest thereon, (d) Sections 3.03, 3.07,
3.08, 3.11, 3.12 and 12.16, (e) the rights and immunities of Indenture Trustee
hereunder, including the rights of Indenture Trustee under Section 6.07, and the
obligations of Indenture Trustee under Section 4.02, and (f) the rights of
Noteholders as beneficiaries hereof with respect to the property so deposited
with Indenture Trustee and payable to all or any of them, and Indenture Trustee,
on written demand of and at the expense of Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of the Indenture with
respect to the Notes when:
(i) either
(A) all Notes theretofore authenticated and delivered
(other than (1) Notes which have been destroyed, lost or
stolen and which have been replaced, or paid as provided in
Section 2.06, and (2) Notes for whose full payment Issuer has
theretofore deposited money in trust, which money has
thereafter been repaid to Issuer or discharged from such
trust, as provided in Section 3.03) have been delivered to
Indenture Trustee for cancellation; or
(B) all Notes not theretofore delivered to Indenture
Trustee for cancellation:
(1) have become due and payable;
(2) will become due and payable at the Series
Termination Date for such Class or Series of Notes; or
(3) are to be called for redemption within one
year under arrangements satisfactory to Indenture
Trustee for the giving of notice of redemption by
Indenture Trustee in the name, and at the expense, of
Issuer;
(4) and Issuer, in the case of (1), (2) or (3)
above, has irrevocably deposited or caused to be
irrevocably deposited with Indenture Trustee cash or
direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the
date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge
the entire
24
indebtedness on such Notes not theretofore delivered to
Indenture Trustee for cancellation when due at the
Series Termination Date for such Class or Series of
Notes or the Redemption Date (if Notes shall have been
called for redemption pursuant to the related Indenture
Supplement), as the case may be;
(ii) Issuer has paid or caused to be paid all other sums
payable hereunder by Issuer; and
(iii) Issuer has delivered to Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or
Indenture Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable
requirements of Section 12.01(a) and each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of the Indenture have been complied with.
Notwithstanding the satisfaction and discharge of the Indenture, the
obligations of Issuer to Indenture Trustee under Section 6.07 and of Indenture
Trustee to the Noteholders under Section 4.02 shall survive such satisfaction
and discharge.
SECTION 4.02. APPLICATION OF ISSUER MONEY. All monies deposited with
Indenture Trustee pursuant to Section 4.01 shall be held in trust and applied by
it, in accordance with the provisions of the Notes, the Indenture and the
applicable Indenture Supplement, to make payments, either directly or through
any Paying Agent to the Noteholders and for the payment in respect of which such
monies have been deposited with Indenture Trustee, of all sums due and to become
due thereon for principal and interest; but such monies need not be segregated
from other funds except to the extent required herein or in the Transfer and
Servicing Agreement or required by law.
ARTICLE V
PAY OUT EVENTS, DEFAULTS AND REMEDIES
SECTION 5.01. PAY OUT EVENTS. If any one of the following events (each, a
"Trust Pay Out Event") shall occur:
(a) the occurrence of an Insolvency Event relating to FNBO or
Transferor;
(b) FNBO shall become unable for any reason to transfer Receivables
to Transferor pursuant to the Receivables Purchase Agreement or Transferor
shall become unable for any reason to transfer Receivables to Issuer
pursuant to the Transfer and Servicing Agreement or to the Certificate
Trust pursuant to the Pooling and Servicing Agreement; or
(c) Certificate Trust or Issuer shall become subject to regulation
by the Commission as an "investment company" within the meaning of the
Investment Company Act;
25
then a Pay Out Event with respect to all Series of Notes shall occur without any
notice or other action on the part of Indenture Trustee or the Noteholders
immediately upon the occurrence of such event.
SECTION 5.02. EVENTS OF DEFAULT. "Event of Default," wherever used herein,
means with respect to any Series any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of the principal of any Note of that
Series, if and to the extent not previously paid, when the same becomes
due and payable on its Series Termination Date;
(b) default in the payment of any interest on any Note of that
Series when the same becomes due and payable, and such default shall
continue for a period of thirty-five (35) days;
(c) the occurrence of an Insolvency Event relating to Issuer; or
(d) default in the observance or performance of any covenant or
agreement of Issuer made in the Indenture made in respect of the Notes of
such Series (other than a covenant or agreement, a default in the
observance or performance of which is elsewhere in this Section 5.02
specifically dealt with) (all of such covenants and agreements in the
Indenture which are not expressly stated to be for the benefit of a
particular Series being deemed to be in respect of the Notes of all Series
for this purpose) and such default shall continue or not be cured for a
period of sixty (60) days after there shall have been given, by registered
or certified mail, return receipt requested, or by courier or overnight
delivery, to Issuer by Indenture Trustee or to Issuer and Indenture
Trustee by the Holders of Notes representing at least 25% of the
Outstanding Amount of such Series, a written notice specifying such
default and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder and, as a result of such default, the
interests of the Holders of the Notes are materially and adversely
affected and continue to be materially and adversely affected during the
60-day period; or
(e) any additional events specified in the Indenture Supplement
related to such Series.
In addition to the notice required under Section 3.17, Issuer shall
deliver to Indenture Trustee, within five (5) days after the occurrence thereof,
written notice in the form of an Officer's Certificate of any Default or Event
of Default, its status and what action Issuer is taking or proposes to take with
respect thereto.
SECTION 5.03. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default described in paragraph (a), (b) or (d) of Section 5.02 should
occur and be continuing with respect to a Series, then and in every such case
Indenture Trustee or the Holders of Notes representing more than 50% of the
Outstanding Amount of such Series may declare all the Notes of such Series to be
immediately due and payable, by a notice in writing to Issuer (and to Indenture
Trustee if declared by Noteholders), and upon any such declaration the
Outstanding
26
Amount of such Series, together with accrued and unpaid interest thereon through
the date of acceleration, shall become immediately due and payable.
If an Event of Default described in paragraph (c) of Section 5.02 should
occur and be continuing, then the Outstanding Amount of each Series, together
with accrued and unpaid interest thereon through the date of acceleration, shall
automatically become due and payable.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by Indenture Trustee as hereinafter provided in this Article V, the
Holders of Notes representing more than 50% of the Outstanding Amount of such
Series, by written notice to Issuer, Indenture Trustee and the Rating Agencies,
may rescind and annul such declaration and its consequences; provided, that:
(a) Issuer has paid or deposited with Indenture Trustee a sum
sufficient to pay:
(i) all payments of principal of and interest on all Notes,
and all other amounts, that would then be due hereunder or upon such
Notes if the Event of Default giving rise to such acceleration had
not occurred; and
(ii) all sums paid or advanced by Indenture Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of Indenture Trustee and its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.04. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE.
(a) Issuer covenants that if (i) default is made in the payment of
any interest on any Note when the same becomes due and payable, and such
default continues for a period of thirty-five (35) days following the date
on which such interest became due and payable or (ii) default is made in
the payment of principal of any Note, if and to the extent not previously
paid, when the same becomes due and payable on the Series Termination
Date, Issuer will, upon demand of Indenture Trustee, pay to it, for the
benefit of the Holders of the Notes of the affected Series, the whole
amount then due and payable on such Notes for principal and interest, with
interest upon the overdue principal, and, to the extent payment at such
rate of interest shall be legally enforceable, interest upon overdue
installments of interest, as specified in the related Indenture
Supplement, and in addition thereto will pay such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of Indenture
Trustee and its agents and counsel.
27
(b) In case Issuer shall fail forthwith to pay such amounts upon
such demand, Indenture Trustee, in its own name and as trustee of an
express trust, may institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against Issuer or other obligor upon such
Notes and collect in the manner provided by law out of the Collateral or
the property of such other obligor upon such Notes, wherever situated, the
moneys adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, Indenture
Trustee may, as more particularly provided in Section 5.05, in its
discretion, proceed to protect and enforce its rights and the rights of
the Noteholders of the affected Series, by such appropriate Proceedings as
Indenture Trustee shall deem necessary to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement
in the Indenture or in aid of the exercise of any power granted herein, or
to enforce any other proper remedy or legal or equitable right vested in
Indenture Trustee by the Indenture or by law.
(d) In case there shall be pending, relative to Issuer or any other
obligor upon the Notes of the affected Series, or any Person having or
claiming an ownership interest in the Collateral, Proceedings under Title
11 of the United States Code or any other applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
in case a receiver, conservator, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator, custodian or other similar
official shall have been appointed for or taken possession of Issuer or
its property or such other obligor or Person, or in case of any other
comparable judicial Proceedings relative to Issuer or other obligor upon
the Notes of such Series, or to the creditors or property of Issuer or
such other obligor, Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether Indenture
Trustee shall have made any demand pursuant to the provisions of this
Section 5.04, shall be entitled and empowered, by intervention in such
Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes
of such Series and to file such other papers or documents as may be
necessary or advisable in order to have the claims of Indenture
Trustee (including any claim for reasonable compensation to
Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of
all expenses and liabilities incurred, and all advances made, by
Indenture Trustee and each predecessor Indenture Trustee, except as
a result of negligence or willful misconduct) and of the Noteholders
of such Series allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes of such Series in any
election of a trustee, a standby trustee or Person performing
similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect
28
to the claims of the Noteholders of such Series and of Indenture
Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of Indenture Trustee or the Holders of Notes of such Series
allowed in any judicial Proceedings relative to Issuer, its
creditors and its property;
and any trustee, receiver, conservator, liquidator, custodian, assignee,
sequestrator or other similar official in any such Proceeding is hereby
authorized by each of such Noteholders to make payments to Indenture
Trustee, and, in the event that Indenture Trustee shall consent to the
making of payments directly to such Noteholders, to pay to Indenture
Trustee such amounts as shall be sufficient to cover reasonable
compensation to Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by Indenture Trustee and
each predecessor Indenture Trustee except as a result of negligence or
willful misconduct.
(e) Nothing herein contained shall be deemed to authorize Indenture
Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof or to authorize Indenture Trustee to vote in respect of the claim
of any Noteholder in any such proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under the
Indenture, or under any of the Notes, may be enforced by Indenture Trustee
without the possession of any of the Notes or the production thereof in
any trial or other Proceedings relative thereto, and any such action or
Proceedings instituted by Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents and attorneys, shall be for the benefit of the Holders of the Notes
of the affected Series as provided herein.
(g) In any Proceedings brought by Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of the Indenture
to which Indenture Trustee shall be a party), Indenture Trustee shall be
held to represent all the Holders of the Notes of the affected Series, and
it shall not be necessary to make any such Noteholder a party to any such
Proceedings.
SECTION 5.05. REMEDIES; PRIORITIES.
(a) If an Event of Default shall have occurred and be continuing
with respect to any Series, and the Notes of such Series have been
accelerated pursuant to Section 5.03, Indenture Trustee may do one or more
of the following (subject to Sections 5.06 and 12.16):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes of the affected
29
Series or under the Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from Issuer and any other obligor upon such Notes moneys adjudged
due;
(ii) take any other appropriate action to protect and enforce
the rights and remedies of Indenture Trustee and the Holders of the Notes of the
affected Series;
(iii) cause the Receivables Trust to sell Principal
Receivables in an amount equal to the Collateral Amount of the
accelerated Series, together with the related Finance Charge
Receivables, or interests therein, in accordance with Section 5.16;
provided, however, that Indenture Trustee may not exercise the remedy
described in subparagraph (iii) above unless (A)(1) the Holders of Notes
representing 100% of the Outstanding Amount of the affected Series consent
in writing thereto, (2) Indenture Trustee determines that any proceeds of
such exercise distributable to the Noteholders of the affected Series will
be sufficient to discharge in full all amounts then due and unpaid upon
the Notes for principal and interest and obtains the consent to exercise
this remedy from Holders of Notes representing more than 50% of the
Outstanding Amount of such Series or (3) Indenture Trustee determines that
the Collateral may not continue to provide sufficient funds for the
payment of principal of and interest on the Notes as they would have
become due if the Notes had not been declared due and payable, and
Indenture Trustee obtains the consent of the Holders of Notes representing
at least 66-2/3% of the Outstanding Amount of each Class of such Series
and (B) Indenture Trustee has been provided with an Opinion of Counsel to
the effect that the exercise of such remedy complies with applicable
federal and state securities laws. In determining such sufficiency or
insufficiency with respect to clauses (A)(2) and (A)(3), Indenture Trustee
may, but need not, obtain and conclusively rely upon an opinion of an
Independent investment banking or accounting firm of national reputation
as to the feasibility of such proposed action and as to the sufficiency of
the Collateral for such purpose.
The remedies provided in this Section 5.05(a) are the exclusive
remedies provided to the Noteholders with respect to the Collateral and
each of the Noteholders (by their acceptance of their respective interests
in the Notes) hereby expressly waives any other remedy that might have
been available under the applicable UCC or any other law.
(b) If Indenture Trustee collects any money or property pursuant to
this Article V following the acceleration of the Notes of the affected
Series pursuant to Section 5.03 (so long as such a declaration shall not
have been rescinded or annulled), it shall pay out the money or property
in the following order:
FIRST: to Indenture Trustee for amounts due pursuant to
Section 6.07; and
SECOND: unless otherwise specified in the related Indenture
Supplement, to Servicer for distribution in accordance with Article
IV of the related Indenture Supplement with such amounts being
deemed to be Principal Collections and
30
Finance Charge Collections in the same proportion as (x) the
outstanding principal balance of the Notes bears to (y) the sum of
the accrued and unpaid interest on the Notes and other fees and
expenses payable in connection therewith under the applicable
Indenture Supplement, including the amounts payable under any
Enhancements with respect to such Series.
(c) Indenture Trustee may, upon notification to Issuer, fix a record
date and payment date for any payment to Noteholders of the affected
Series pursuant to this Section 5.05. At least fifteen (15) days before
such record date, Indenture Trustee shall mail or send by facsimile, at
the expense of Servicer, to each such Noteholder a notice that states the
record date, the payment date and the amount to be paid.
(d) In addition to the application of money or property referred to
in Section 5.05(b) for an accelerated Series, amounts then held in the
Collection Account, Excess Funding Account or any Series Accounts for such
Series and any amounts available under the Enhancement for such Series
shall be used to make payments to the Holders of the Notes of such Series
and the Enhancement Provider for such Series in accordance with the terms
of the Indenture, the related Indenture Supplement and the Enhancement for
such Series. Following the sale of any Principal Receivables and related
Finance Charge Receivables pursuant to Section 5.05(a)(iii) (or interests
therein) for a Series and the application of the proceeds of such sale to
such Series and the application of the amounts then held in the Collection
Account, the Excess Funding Account and any Series Accounts for such
Series as are allocated to such Series and any amounts available under the
Enhancement for such Series, such Series shall no longer be entitled to
any allocation of Collections or other property constituting the
Collateral under the Indenture.
SECTION 5.06. OPTIONAL PRESERVATION OF THE COLLATERAL. If the Notes of any
Series have been declared to be due and payable under Section 5.03 following an
Event of Default and such declaration and its consequences have not been
rescinded and annulled, and Indenture Trustee has not received directions from
the Noteholders pursuant to Section 5.12, Indenture Trustee may, but need not,
elect to maintain possession of the portion of the Collateral which secures such
Notes and apply proceeds of the Collateral to make payments on such Notes to the
extent such proceeds are available therefor. In determining whether to maintain
possession of the Collateral, Indenture Trustee may, but need not, obtain and
conclusively rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Collateral for such purpose.
SECTION 5.07. LIMITATION ON SUITS. No Noteholder shall have any right to
institute any proceedings, judicial or otherwise, with respect to the Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) the Holders of Notes representing not less than 25% of the
Outstanding Amount of each affected Series have made written request to
Indenture Trustee to institute such proceeding in its own name as
indenture trustee;
(b) such Noteholder or Noteholders has previously given written
notice to Indenture Trustee of a continuing Event of Default;
31
(c) such Noteholder or Noteholders has offered to Indenture Trustee
indemnity satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) Indenture Trustee for sixty (60) days after its receipt of such
request and offer of indemnity has failed to institute any such
Proceeding; and
(e) no direction inconsistent with such written request has been
given to Indenture Trustee during such 60-day period by the Holders of
Notes representing more than 25% of the Outstanding Amount of each
affected Series;
it being understood and intended that no one or more Noteholders of the affected
Series shall have any right in any manner whatever by virtue of, or by availing
of, any provision of the Indenture to affect, disturb or prejudice the rights of
any other Noteholders of such Series or to obtain or to seek to obtain priority
or preference over any other Noteholders of such Series or to enforce any right
under the Indenture, except in the manner herein provided.
In the event Indenture Trustee shall receive conflicting or inconsistent
requests and indemnity from two (2) or more groups of Noteholders of any
affected Series, each representing no more than 50% of the Outstanding Amount of
such Series, Indenture Trustee in its sole discretion may determine what action,
if any, shall be taken, notwithstanding any other provisions of the Indenture.
SECTION 5.08. UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST. Notwithstanding any other provision in the Indenture, each Noteholder
shall have the right which is absolute and unconditional to receive payment of
the principal of and interest in respect of such Note as such principal and
interest becomes due and payable and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the consent of
such Noteholder.
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES. If Indenture Trustee or
any Noteholder has instituted any Proceeding to enforce any right or remedy
under the Indenture and such Proceeding has been discontinued or abandoned, or
has been determined adversely to Indenture Trustee or to such Noteholder, then
and in every such case Issuer, Indenture Trustee and the Noteholder shall,
subject to any determination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of Indenture Trustee and the Noteholders shall continue as though no
such Proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE. Except as specified in
Section 5.05(a) above, no right, remedy, power or privilege herein conferred
upon or reserved to Indenture Trustee or to the Noteholders is intended to be
exclusive of any other right, remedy, power or privilege, and every right,
remedy, power or privilege shall, to the extent permitted by law, be cumulative
and in addition to every other right, remedy, power or privilege given hereunder
or now or hereafter existing at law or in equity or otherwise. Except as
specified in Section 5.05(a) above, the assertion or exercise of any right or
remedy shall not preclude any other further assertion or the exercise of any
other appropriate right or remedy.
32
SECTION 5.11. DELAY OR OMISSION NOT WAIVER. No failure to exercise and no
delay in exercising, on the part of Indenture Trustee or of any Noteholder or
other Person, any right or remedy occurring hereunder upon any Event of Default
shall impair any such right or remedy or constitute a waiver thereof of any such
Event of Default or an acquiescence therein. Except as specified in Section
5.05(a) above, every right and remedy given by this Article V or by law to
Indenture Trustee or to the Noteholders may be exercised from time to time, and
as often as may be deemed expedient, by Indenture Trustee or by the Noteholders,
as the case may be.
SECTION 5.12. RIGHTS OF NOTEHOLDERS TO DIRECT INDENTURE TRUSTEE. The
Holders of Notes representing more than 50% of the Outstanding Amount of any
affected Series shall have the right to direct in writing the time, method and
place of conducting any Proceeding for any remedy available to Indenture Trustee
with respect to such Series or exercising any trust or power conferred on
Indenture Trustee with respect to such Series; provided, however, that subject
to Section 6.01 Indenture Trustee shall have the right to decline any such
direction if:
(a) Indenture Trustee, after being advised by counsel, determines
that the action so directed is in conflict with any rule of law or with
the Indenture;
(b) Indenture Trustee in good faith shall, by a Responsible Officer
of Indenture Trustee, determine that the Proceedings so directed would be
illegal or involve Indenture Trustee in personal liability or be unjustly
prejudicial to the Noteholders not parties to such direction; or
(c) Indenture Trustee reasonably believes it will not be adequately
indemnified against the costs, expenses and liabilities which might be
incurred by it in complying with the action so directed.
SECTION 5.13. WAIVER OF PAST DEFAULTS. Prior to the declaration of the
acceleration of the maturity of the Notes of the affected Series as provided in
Section 5.03, Holders of Notes representing not less than 66 2/3 of the
Outstanding Amount of such Series (or with respect to any such Series with two
or more Classes, of each Class), may, on behalf of all such Noteholders, waive
in writing any past default, with written notice to Indenture Trustee, with
respect to such Notes and its consequences, except a default:
(a) in the payment of the principal or interest in respect of any
Note of such Series, or
(b) in respect of a covenant or provision hereof that under Section
10.02 cannot be modified or amended without the consent of the Noteholder
of each Outstanding Note affected;
which, in the case of either clause (a) or (b), can only be waived by all
Noteholders of each affected Series. Upon any such written waiver, such default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of the Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 5.14. UNDERTAKING FOR COSTS. All parties to the Indenture agree,
and each Noteholder by its acceptance thereof shall be deemed to have agreed,
that any court may in its
33
discretion require, in any suit for the enforcement of any right or remedy under
the Indenture, or in any suit against Indenture Trustee for any action taken,
suffered or omitted by it as Indenture Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant (other than Indenture
Trustee) in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 5.14 shall not apply to any suit instituted by Indenture Trustee, to any
suit instituted by any Noteholder, or group of Noteholders (in compliance with
Section 5.08) holding Notes representing more than 10% of the Outstanding Amount
of the affected Series, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal or interest in respect of any Note
on or after the Distribution Date on which any of such amounts was due (or, in
the case of redemption, on or after the applicable Redemption Date).
SECTION 5.15. WAIVER OF STAY OR EXTENSION LAWS. Issuer covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may adversely affect the covenants or the performance of the
Indenture; and Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
Indenture Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
SECTION 5.16. SALE OF RECEIVABLES.
(a) The method, manner, time, place and terms of any sale of
Receivables (or interests therein) pursuant to Section 5.05(a)(iii) shall
be commercially reasonable. Indenture Trustee may from time to time
postpone any sale by public announcement made at the time and place of
such sale. Indenture Trustee hereby expressly waives its right to any
amount fixed by law as compensation for any sale.
(b) Indenture Trustee is hereby irrevocably appointed the agent and
attorney-in-fact of Issuer in connection with any sale of Receivables
pursuant to Section 5.05(a)(iii). No purchaser or transferee at any such
sale shall be bound to ascertain Indenture Trustee's authority, inquire
into the satisfaction of any conditions precedent or see to the
application of any monies.
(c) In its exercise of the foreclosure remedy pursuant to Section
5.05(a)(iii), Indenture Trustee shall solicit, or cause to be solicited,
bids for the sale of Receivables (or interests therein), in the amount
specified in Section 5.05(a)(iii). Indenture Trustee shall sell, or cause
to be sold, such Receivables (or interests therein) to the bidder with the
highest cash purchase offer. The proceeds of any such sale shall be
applied as specified in the applicable Indenture Supplement.
SECTION 5.17. ACTION ON NOTES. Indenture Trustee's right to seek and
recover judgment on the Notes or under the Indenture shall not be affected by
the seeking or obtaining of or application for any other relief under or with
respect to the Indenture. Neither the lien of the Indenture nor any rights or
remedies of Indenture Trustee or the Noteholders shall be impaired
34
by the recovery of any judgment by Indenture Trustee against Issuer or by the
levy of any execution under such judgment upon any portion of the Collateral or
upon any of the assets of Issuer. Any money or property collected by Indenture
Trustee shall be applied as specified in the applicable Indenture Supplement.
ARTICLE VI
INDENTURE TRUSTEE
SECTION 6.01. DUTIES OF INDENTURE TRUSTEE.
(a) If an Event of Default has occurred and is continuing and a
Responsible Officer of Indenture Trustee shall have actual knowledge or
written notice of such Event of Default, Indenture Trustee shall exercise
the rights and powers vested in it by the Indenture and use the same
degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default or a Pay
Out Event:
(i) Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in the Indenture, and
no implied covenants or obligations shall be read into the Indenture
against Indenture Trustee; and
(ii) in the absence of bad faith or negligence on its part,
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to Indenture Trustee and
conforming to the requirements of the Indenture; provided, however,
Indenture Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders or other
instruments furnished to Indenture Trustee which are specifically
required to be furnished pursuant to any provision of the Indenture
or any Indenture Supplement, shall examine them to determine whether
they substantially conform to the requirements of the Indenture or
any Indenture Supplement but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein.
(c) If a Pay Out Event has occurred and is continuing and a
Responsible Officer of Indenture Trustee shall have actual knowledge or
written notice of such Pay Out Event, Indenture Trustee shall exercise the
rights and powers vested in it by the Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or
use under the circumstances in the conduct of such person's own affairs.
(d) No provision of the Indenture shall be construed to relieve
Indenture Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this Section 6.01(d) shall not be construed to limit the
effect of Section 6.01(a);
35
(ii) Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of Indenture
Trustee, unless it shall be proved that Indenture Trustee was
negligent in ascertaining the pertinent facts; and
(iii) Indenture Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it in good
faith in accordance with the Indenture and/or the direction of the
Holders of Notes or for exercising any trust or power conferred upon
Indenture Trustee, under the Indenture. Indenture Trustee shall not
be liable for any action taken, suffered or omitted to be taken by
it in good faith in accordance with the direction of Servicer,
Transferor, Administrator or Owner Trustee in compliance with the
terms of the Indenture or any Indenture Supplement.
(e) No provision of the Indenture shall require Indenture Trustee to
expend or risk its own funds or otherwise incur any liability, financial
or otherwise, in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not reasonably
assured to it.
(f) Every provision of the Indenture that in any way relates to
Indenture Trustee is subject to this Section 6.01.
(g) Except as expressly provided in the Indenture, Indenture Trustee
shall have no power to vary the Collateral, including by (i) accepting any
substitute payment obligation for a Receivable initially transferred to
the Trust under the Transfer and Servicing Agreement, (ii) adding any
other investment, obligation or security to the Trust or (iii) withdrawing
from Issuer any Receivable (except as otherwise provided in the Transfer
and Servicing Agreement).
(h) Indenture Trustee shall have no responsibility or liability for
investment losses on Permitted Investments (other than Permitted
Investments on which the institution acting as Indenture Trustee is an
obligor). Indenture Trustee shall have no obligation to invest and
reinvest any cash held in the absence of timely and specific written
investment direction from Issuer. In no event shall Indenture Trustee be
liable for the selection of investments or for investment losses incurred
thereon. Indenture Trustee shall have no liability in respect of losses
incurred as a result of the liquidation of any investment prior to its
stated maturity or the failure of Issuer or Servicer to provide timely
written investment direction.
(i) Indenture Trustee shall promptly notify each Rating Agency (i)
of any change in any rating of the Notes by any other Rating Agency of
which a Responsible Officer of Indenture Trustee has written notice and
(ii) of the occurrence of any Event of Default or Pay Out Event (or any
other event or condition which, with the giving of notice or passage of
time, or both, will constitute an Event of Default or Pay out Event) of
which a Responsible Officer of Indenture Trustee has actual knowledge or
has received written notice from Servicer.
36
(j) For all purposes under the Indenture, Indenture Trustee shall
not be deemed to have notice or knowledge of any Event of Default, Pay Out
Event or Servicer Default unless a Responsible Officer of Indenture
Trustee has actual knowledge thereof or has received written notice
thereof. For purposes of determining Indenture Trustee's responsibility
and liability hereunder, any reference to an Event of Default, Pay Out
Event or Servicer Default shall be construed to refer only to such event
of which Indenture Trustee is deemed to have notice as described in this
Section 6.01(j).
SECTION 6.02. NOTICE OF PAY OUT EVENT OR EVENT OF DEFAULT. Upon the
occurrence of any Pay Out Event or Event of Default of which a Responsible
Officer of Indenture Trustee has actual knowledge or has received written
notice, Indenture Trustee shall transmit by mail to all Noteholders as their
names and addresses appear on the Note Register and the Rating Agencies, notice
of such Pay Out Event or Event of Default within ten (10) Business Days after a
Responsible Officer of Indenture Trustee receives such written notice or obtains
such actual knowledge.
SECTION 6.03. RIGHTS OF INDENTURE TRUSTEE. Except as otherwise provided in
Section 6.01:
(a) Indenture Trustee may conclusively rely and shall fully be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note or other paper or document (whether
in its original or facsimile form) reasonably believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) Whenever, in the administration of the Indenture, Indenture
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, Indenture
Trustee (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, conclusively rely upon an Officer's
Certificate of Issuer. Issuer shall provide a copy of such Officer's
Certificate to the Noteholders at or prior to the time Indenture Trustee
receives such Officer's Certificate;
(c) As a condition to the taking, suffering or omitting of any
action by it hereunder, Indenture Trustee may consult with counsel of its
own selection and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in-good faith and in
reliance thereon;
(d) Indenture Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by the Indenture or to honor the
request or direction of any of the Noteholders pursuant to the Indenture,
unless such Noteholders shall have offered to Indenture Trustee security
or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(e) Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note or other paper or document,
37
but Indenture Trustee at the written direction of one or more of the
Noteholders and at the expense of the Noteholders, in its discretion, may
make such further inquiry or investigation into such facts or matters as
it may see fit, and, if Indenture Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of Issuer and Servicer, personally or by agent
or attorney and shall at the expense of the Servicer incur no liability of
any kind by reason of such inquiry or investigation;
(f) Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, attorneys, custodians or nominees and Indenture Trustee shall not
be responsible for any (i) misconduct or negligence on the part of any
agent, attorney, custodians or nominees appointed with due care by it
hereunder or (ii) the supervision of such agents, attorneys, custodians or
nominees after such appointment with due care;
(g) Indenture Trustee shall not be liable for any actions taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights conferred upon Indenture
Trustee by the Indenture; and
(h) in the event that Indenture Trustee is also acting as Paying
Agent and Transfer Agent and Registrar and Successor Servicer, if it
becomes Successor Servicer pursuant to Section 7.02 of the Transfer and
Servicing Agreement, the rights and protections afforded to Indenture
Trustee pursuant to this Article VI shall also be afforded to such Paying
Agent and Transfer Agent and Registrar and Successor Servicer, if it
becomes Successor Servicer pursuant to Section 7.02 of the Transfer and
Servicing Agreement.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Notes, except the certificate of
authentication of Indenture Trustee, shall be taken as the statements of Issuer,
and Indenture Trustee assumes no responsibility for their correctness. Neither
Indenture Trustee nor any of its agents makes any representation as to the
validity or sufficiency of the Indenture, the Notes, or any related document.
Indenture Trustee shall not be accountable for the use or application by Issuer
of the proceeds from the Notes.
SECTION 6.05. DEALINGS WITH ISSUER. Indenture Trustee, any Paying Agent or
Transfer Agent and Registrar that is not also Indenture Trustee and any other
agent of Issuer, each in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with Issuer (including
arranging for purchases of Permitted Investments) with the same rights it would
have if it were not Indenture Trustee, Paying Agent, Transfer Agent and
Registrar or such other agent.
SECTION 6.06. MONEY HELD IN TRUST. Money held by Indenture Trustee in
trust hereunder need not be segregated from other funds held by Indenture
Trustee in trust hereunder except to the extent required herein or required by
law. Indenture Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed upon in writing by Indenture
Trustee and Issuer.
38
SECTION 6.07. COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION. Servicer
shall pay to Indenture Trustee from time to time reasonable compensation for all
services rendered by Indenture Trustee and the Authenticating Agent under this
Agreement (which compensation shall not be limited by any law on compensation of
a trustee of an express trust). Servicer shall reimburse Indenture Trustee for
all reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of Indenture Trustee's agents, counsel, accountants and experts. Issuer
shall direct Servicer to indemnify, defend and hold harmless, and Servicer shall
indemnify Indenture Trustee and its officers, directors, employees and agents
against any and all loss, liability, expense, damage or claim (including the
fees of either in-house counsel or outside counsel) incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder and under any other Transaction Document, including any claim arising
from any failure by Issuer or Transferor to pay when due any sales, excise,
transfer or personal taxes relating to the Receivables. Indenture Trustee shall
notify Servicer promptly of any claim for which it may seek indemnity. Failure
by Indenture Trustee to so notify Servicer of a claim of which a Responsible
Officer has received written notice shall not relieve Servicer of its
obligations hereunder unless such loss, liability or expense could have been
avoided with such prompt notification and then only to the extent of such loss,
expense or liability which could have been so avoided. Servicer shall defend any
claim against Indenture Trustee. Indenture Trustee may have separate counsel
and, if it does, Servicer shall pay the fees and expenses of such counsel.
Servicer will not be liable for any settlement of any claim or action effected
without its prior written consent, which will not be unreasonably withheld.
Neither Issuer nor Servicer need reimburse any expense or indemnify against any
loss, liability or expense determined by a court of competent jurisdiction to
have been caused by Indenture Trustee through Indenture Trustee's own fraud,
willful misconduct or negligence.
Servicer's payment obligations to Indenture Trustee pursuant to this
Section 6.07 shall survive the discharge of the Indenture or earlier resignation
or removal of Indenture Trustee. When Indenture Trustee incurs expenses after
the occurrence of an Event of Default specified in Section 5.02(c) or 5.02(d)
with respect to Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or similar law.
To secure Servicer's and Issuer's payment obligations in this Section
6.07, Indenture Trustee shall have a lien prior to the Notes on all money or
property held or collected by Indenture Trustee, in its capacity as Indenture
Trustee, except money or property held in trust to pay principal of, or interest
on, the Notes.
SECTION 6.08. REPLACEMENT OF INDENTURE TRUSTEE. No resignation or removal
of Indenture Trustee and no appointment of a successor Indenture Trustee shall
become effective until the acceptance of appointment by the successor Indenture
Trustee pursuant to this Section 6.08. Indenture Trustee may resign at any time
by giving thirty (30) days written notice to Issuer and the Rating Agencies. The
Holders of Notes representing more than 66 2/3% of the Outstanding Amount of all
Series may remove Indenture Trustee by so notifying Indenture Trustee in writing
and may appoint a successor Indenture Trustee. Issuer shall remove Indenture
Trustee upon written notice if:
39
(a) Indenture Trustee fails to comply with Section 6.11;
(b) Indenture Trustee is adjudged a bankrupt or insolvent;
(c) a receiver of Indenture Trustee or of its property shall be
appointed, or any public officer takes charge of Indenture Trustee or its
property or its affairs for the purpose of rehabilitation, conservation or
liquidation; or
(d) Indenture Trustee otherwise becomes legally unable to act.
If Indenture Trustee resigns or is removed or if a vacancy exists in the office
of Indenture Trustee for any reason (Indenture Trustee in such event being
referred to herein as the retiring Indenture Trustee), Issuer shall promptly
appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee, Servicer and to Issuer. Thereupon
the resignation or removal of the retiring Indenture Trustee shall become
effective, and the successor Indenture Trustee shall have all the rights, powers
and duties of Indenture Trustee under the Indenture. The successor Indenture
Trustee shall mail a notice of its succession to Noteholders. The retiring
Indenture Trustee shall promptly transfer all property held by it as Indenture
Trustee to the successor Indenture Trustee, subject to the payment of any and
all amounts then due and owing to Indenture Trustee.
If a successor Indenture Trustee does not take office within sixty (60)
days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, Issuer or the Holders of Notes representing more than 25% of
the Outstanding Amount of all Series may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
If Indenture Trustee fails to comply with Section 6.11, any Noteholder may
petition any court of competent jurisdiction for the removal of Indenture
Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of Indenture Trustee pursuant to this
Section 6.08, Issuer's obligations under Section 6.07 shall continue for the
benefit of the retiring Indenture Trustee.
Issuer shall notify the Rating Agencies of any replacement of Indenture
Trustee pursuant to this Section 6.08.
SECTION 6.09. SUCCESSOR INDENTURE TRUSTEE BY MERGER. If Indenture Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Indenture Trustee; provided that such
corporation or banking association shall be otherwise qualified and eligible
under Section 6.11. Indenture Trustee shall provide the Rating Agencies prior
written notice of any such transaction.
In case at the time such successor or successors by merger, conversion,
consolidation or transfer to Indenture Trustee shall succeed to the trusts
created by the Indenture any of the Notes
40
shall have been authenticated but not delivered, any such successor to Indenture
Trustee may adopt the certificate of authentication of any predecessor Indenture
Trustee and deliver such Notes so authenticated; and in case at that time any of
the Notes shall not have been authenticated, any successor to Indenture Trustee
may authenticate such Notes in the name of the successor to Indenture Trustee;
and in all such cases such certificates shall have the full force which it is
anywhere in the Notes or in the Indenture provided that the certificate of
Indenture Trustee shall have.
SECTION 6.10. APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE
INDENTURE TRUSTEE.
(a) Notwithstanding any other provisions of the Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Collateral may at the time be located, Indenture
Trustee shall have the power and may execute and deliver all instruments
to appoint one or more Persons to act as a co-trustee or co-trustees, or
separate trustee or separate trustees, of all or any part of the
Collateral, and to vest in such Person or Persons, in such capacity and
for the benefit of the Noteholders, such title to the Collateral, or any
part hereof, and, subject to the other provisions of this Section 6.10,
such powers, duties, obligations, rights and trusts as Indenture Trustee
may consider necessary or desirable. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.08.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon Indenture Trustee shall be conferred or imposed upon
and exercised or performed by Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately
without Indenture Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act
or acts are to be performed Indenture Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of
title to the Collateral or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder;
(iii) Indenture Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee; and
(iv) Indenture Trustee shall not be liable for any act or
failure to act on the part of any separate trustee or co-trustee.
(c) Any notice, request or other writing given to Indenture Trustee
shall be deemed to have been given to each of the then separate trustees
and co-trustees, as
41
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to the Indenture and the
conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly
with Indenture Trustee or separately, as may be provided therein, subject
to all the provisions of the Indenture, specifically including every
provision of the Indenture relating to the conduct of, affecting the
liability of, or affording protection to, Indenture Trustee. Every such
instrument shall be filed with Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
Indenture Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect of the Indenture on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by Indenture Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
SECTION 6.11. ELIGIBILITY; DISQUALIFICATION. Indenture Trustee shall at
all times satisfy the requirements of TIA Section 310(a). Indenture Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition and either its long-term
unsecured debt shall be rated at least Baa3 by Moody's and BBB- by Standard &
Poor's or its short-term debt shall be rated at least P-2 by Moody's and A-2 by
Standard & Poor's. Indenture Trustee shall comply with TIA Section 310(b);
provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities of
Issuer are outstanding if the requirements for such exclusion set forth in TIA
Section 310(b)(1) are met.
SECTION 6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST. Indenture Trustee
shall comply with TIA Section 311(a), excluding any creditor relationship listed
in TIA Section 311(b). An Indenture Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13. REPRESENTATIONS AND COVENANTS OF INDENTURE TRUSTEE.
Indenture Trustee represents, warrants and covenants that:
(a) Indenture Trustee is a New York banking corporation duly
organized and validly existing under the laws of the State of New York;
(b) Indenture Trustee has full power and authority to deliver and
perform the Indenture and has taken all necessary action to authorize the
execution, delivery and performance by it of the Indenture and other
Transaction Documents to which it is a party; and
(c) Each of the Indenture and the other Transaction Documents to
which it is a party has been duly executed and delivered by Indenture
Trustee and constitutes its legal, valid and binding obligation in
accordance with its terms.
SECTION 6.14. CUSTODY OF THE COLLATERAL. Indenture Trustee shall hold such
of the Collateral as consists of instruments, deposit accounts, negotiable
documents, money, goods,
42
letters of credit, and advices of credit in the State of New York.
Indenture Trustee shall hold such of the Collateral as constitutes
investment property through a securities intermediary, which securities
intermediary shall agree with Indenture Trustee that (a) such investment
property shall at all times be credited to a securities account of
Indenture Trustee, (b) such securities intermediary shall treat Indenture
Trustee as entitled to exercise the rights that comprise each financial
asset credited to such securities account, (c) all property credited to
such securities account shall be treated as a financial asset, (d) such
securities intermediary shall comply with entitlement orders originated by
Indenture Trustee without the further consent of any other person or
entity, (e) such securities intermediary will not agree with any person or
entity other than Indenture Trustee to comply with entitlement orders
originated by such other person or entity, (f) such securities accounts
and the property credited thereto shall not be subject to any lien,
security interest, or right of set-off in favor of such securities
intermediary or anyone claiming through it (other than Indenture Trustee)
and (g) such agreement shall be governed by the laws of the State of New
York. Terms used in the preceding sentence that are defined in the New
York UCC and not otherwise defined herein shall have the meaning set forth
in the New York UCC. Except as permitted by this Section 6.14 and except
through the Paying Agent for brief periods to the extent reasonably
necessary for the Paying Agent to perform its duties hereunder, Indenture
Trustee shall not hold any part of the Trust Estate through an agent or a
nominee.
ARTICLE VII
NOTEHOLDERS' LIST AND REPORTS BY
INDENTURE TRUSTEE AND ISSUER
SECTION 7.01. ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
NOTEHOLDERS. Issuer will furnish or cause to be furnished to Indenture Trustee
(a) upon each transfer of a Note, a list, in such form as Indenture Trustee may
reasonably require, of the names, addresses and taxpayer identification numbers
of the Noteholders as they appear on the Note Register as of such Record Date,
and (b) every six months and at such other times as Indenture Trustee may
request in writing, within ten (10) days after receipt by Issuer of any such
request, a list of similar form and content as of a date not more than ten (10)
days prior to the time such list is furnished; provided, however, that for so
long as Indenture Trustee is Transfer Agent and Registrar, Indenture Trustee
shall furnish to Issuer such list in the same manner prescribed in clause (b)
above.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS.
(a) Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Noteholders
contained in the most recent list furnished to Indenture Trustee as
provided in Section 7.01 and the names, addresses and taxpayer
identification numbers of the Noteholders received by Indenture Trustee in
its capacity as Transfer Agent and Registrar. Indenture Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt
of a new list so furnished.
(b) Noteholders may communicate, pursuant to TIA Section 312(b),
with other Noteholders with respect to their rights under the Indenture or
under the Notes.
43
(c) Issuer, Indenture Trustee and Transfer Agent and Registrar shall
have the protection of TIA Section 312(c).
SECTION 7.03. REPORTS BY ISSUER.
(a) Issuer shall:
(i) file with Indenture Trustee, within fifteen (15) days
after Issuer is required to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which Issuer may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time
by the Commission such additional information, documents and reports
with respect to compliance by Issuer with the conditions and
covenants of the Indenture as may be required from time to time by
such rules and regulations; and
(iii) supply to Indenture Trustee (and Indenture Trustee shall
transmit by mail to all Noteholders described in TIA Section 313(c))
such summaries of any information, documents and reports required to
be filed by Issuer pursuant to clauses (i) and (ii) of this Section
7.03(a) as may be required by rules and regulations prescribed from
time to time by the Commission.
(b) Unless Issuer otherwise determines, the fiscal year of Issuer
shall end on December 31 of each year.
(c) Delivery of such reports, information and documents to Indenture
Trustee is for informational purposes only, and Indenture Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including Issuer's compliance with any of the covenants
hereunder.
SECTION 7.04. REPORTS BY INDENTURE TRUSTEE. If required by TIA
Section 313(a), within sixty (60) days after each March 31 beginning with March
31, 2003, Indenture Trustee shall mail to each Noteholder as required by TIA
Section 313(c) a brief report dated as of such date that complies with TIA
Section 313(a). Indenture Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall be
filed by Indenture Trustee with the Commission and each stock exchange, if any,
on which the Notes are listed. Issuer shall notify Indenture Trustee if and when
the Notes are listed on any stock exchange or delisted therefrom.
44
ARTICLE VIII
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 8.01. COLLECTION OF MONEY. Except as otherwise expressly provided
herein and in the related Indenture Supplement, Indenture Trustee may demand
payment or delivery of, and shall receive and collect, directly and without
intervention or assistance of any fiscal agent or other intermediary, all money
and other property payable to or receivable by Indenture Trustee pursuant to the
Indenture. Indenture Trustee shall hold all such money and property received by
it in trust for the Noteholders and shall apply it as provided in the Indenture
and the applicable Indenture Supplement. Except as otherwise expressly provided
in the Indenture, if any default occurs in the making of any payment or
performance under the Transfer and Servicing Agreement or any other Transaction
Document, Indenture Trustee may, and upon the written request of the Holders of
Notes representing more than 50% of the Outstanding Amount of the affected
Series shall, subject to Sections 6.01(e) and 6.03(d), take such action as may
be appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim a Pay Out Event or a Default or Event of Default
under the Indenture and to proceed thereafter as provided in Article V.
SECTION 8.02. RIGHTS OF NOTEHOLDERS. The Collateral shall secure Issuer's
obligations to pay to the Holders of the Notes of each Series a portion of
Collections allocable to the Noteholders of such Series pursuant to the
Indenture and the related Indenture Supplement, funds and other property
credited to the Collection Account and the Excess Funding Account (or any
subaccount thereof) allocable to the Noteholders of such Series pursuant to the
Indenture and such Indenture Supplement, funds and other property credited to
any related Series Account and funds available pursuant to any related
Enhancement, it being understood that, except as specifically set forth in the
Indenture Supplement with respect thereto, the Notes of any Series or Class
shall not be secured by any interest in any Series Account or Enhancement
pledged for the benefit of any other Series or Class.
SECTION 8.03. ESTABLISHMENT OF COLLECTION ACCOUNT AND EXCESS FUNDING
ACCOUNT. On and after the Certificate Trust Termination Date, Servicer, for the
benefit of the Holders, shall establish and maintain in the name of Indenture
Trustee a segregated trust account with a Qualified Institution (the "Collection
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Holders. On and after the Certificate
Trust Termination Date, Servicer, for the benefit of the Holders, shall also
establish and maintain in the name of Indenture Trustee, a segregated trust
account with a Qualified Institution, which may be a subaccount of the
Collection Account, bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Holders (the "Excess Funding
Account"). The Collection Account and the Excess Funding Account shall initially
be established with Indenture Trustee. Indenture Trustee shall possess all
right, title and interest in all funds on deposit from time to time in the
Collection Account and the Excess Funding Account and in all proceeds thereof
for the benefit of the Holders. The Collection Account and the Excess Funding
Account shall be under the sole dominion and control of Indenture Trustee for
the benefit of the Holders. Except as expressly provided in the Indenture,
Indenture Trustee agrees that it shall have no right of set-off or banker's lien
against, and no right to otherwise deduct from, any funds held in the Collection
Account or the Excess Funding Account for any amount owed to it by Issuer, any
45
Holder or any Enhancement Provider. If at any time the institution with which
the Collection Account or the Excess Funding Account is maintained ceases to be
a Qualified Institution, Indenture Trustee (or Servicer on its behalf) shall
within 10 Business Days (or such longer period, not to exceed 30 calendar days,
as to which the Rating Agency Condition is satisfied) of receipt by a
Responsible Officer of Trustee of written notice or actual knowledge of such
change, establish a new account meeting the conditions specified above and
transfer any cash or any investments from the affected account to such new
account, and from the date such new account is established, it shall be the
"Collection Account" or the "Excess Funding Account," as the case may be. So
long as FNBO remains as Servicer, it is hereby authorized to withdraw from the
Collection Account any funds not required by the Indenture or the applicable
Indenture Supplement to be deposited into the Collection Account.
Funds on deposit in the Collection Account and the Excess Funding Account
shall, at the direction of Servicer, be invested by Indenture Trustee in
Permitted Investments selected by Servicer, except that funds on deposit in
either such account on any Transfer Date need not be invested through the
immediately following Distribution Date. All such Permitted Investments shall be
held by Indenture Trustee for the benefit of the Holders. Indenture Trustee
shall maintain for the benefit of the Holders possession of the negotiable
instruments or securities, if any, evidencing such Permitted Investments.
Investments of funds representing Collections collected during any Monthly
Period shall be invested in Permitted Investments that will mature so that all
funds will be available at the close of business on the Transfer Date following
such Monthly Period. No Permitted Investment shall be disposed of prior to its
maturity unless Servicer so directs and either (i) such disposal will not result
in a loss of all or part of the principal portion of such Permitted Investment
or (ii) prior to the maturity of such Permitted Investment, a default occurs in
the payment of principal, interest or any other amount with respect to such
Permitted Investment. On each Transfer Date, (i) all interest and other
investment earnings (net of losses and investment expenses) on funds on deposit
in the Collection Account shall be remitted to the Servicer, and (ii) all
interest and other investment earnings (net of losses and investment expenses)
on funds on deposit in the Excess Funding Account shall be treated as
Collections of Finance Charge Receivables with respect to the last day of the
related Monthly Period, except as otherwise specified in any Indenture
Supplement. For purposes of determining the availability of funds or the
balances in the Collection Account or the Excess Funding Account for any reason
under this Agreement, all investment earnings net of investment expenses and
losses on such funds shall be deemed not to be available or on deposit. In no
event shall Indenture Trustee be liable for the selection of investments or for
investment losses incurred thereon. Indenture Trustee shall have no liability in
respect of losses incurred as a result of the liquidation of any such investment
prior to its stated maturity or the failure of the party directing such
investment to provide timely written investment direction. Indenture Trustee
shall have no obligation to invest or reinvest any amounts held hereunder in the
absence of such written investment direction.
Funds on deposit in the Excess Funding Account will be withdrawn and paid
to Transferor on any day to the extent that the Transferor Interest exceeds the
Minimum Transferor Interest on such day. Notwithstanding the foregoing, no funds
shall be withdrawn from the Excess Funding Account for distribution to
Transferor on any day on which the aggregate Principal Receivables in the Trust
are less than the Minimum Aggregate Principal Receivables. On any Transfer Date
on which one or more Series is in an Amortization Period, Servicer shall
determine the aggregate amounts of Principal Shortfall, if any, with respect to
each such Series
46
that is a Principal Sharing Series (after giving effect to the
allocation and payment provisions in the Indenture Supplement with respect to
each such Series), and Servicer shall instruct Indenture Trustee to withdraw
such amount from the Excess Funding Account (up to an amount equal to the lesser
of (x) the amount on deposit in the Excess Funding Account after application of
the preceding sentence on that day and (y) the amount, if any, by which the
Transferor Interest would be less than zero if there were no funds on deposit in
the Excess Funding Account on that day) on such Transfer Date and allocate such
amount among each such Series as specified for Excess Principal Collections in
each related Indenture Supplement.
SECTION 8.04. COLLECTIONS AND ALLOCATIONS. From and after the Certificate
Trust Termination Date:
(a) Servicer shall apply, or instruct Indenture Trustee to apply,
all funds on deposit in the Collection Account as described in this
Article VIII and in each Indenture Supplement. Except as otherwise
provided below and in each Indenture Supplement, Servicer shall deposit
Collections into the Collection Account no later than the second Business
Day following the Date of Processing of such Collections.
Subject to the express terms of any Indenture Supplement, but
notwithstanding anything else in the Indenture to the contrary, if FNBO
remains Servicer and (x) for so long as FNBO maintains a short term debt
rating of A-1 or better by S&P, P-1 or better by Moody's, if rated by
Fitch, F1 or better by Fitch, and, if rated by any other Rating Agency,
the equivalent rating by that Rating Agency (or such other rating below
A-1, P-1 or such equivalent rating, as the case may be, which is
satisfactory to each Rating Agency, if any), (y) with respect to
Collections allocable to any Series, any other conditions specified in the
related Indenture Supplement are satisfied or (z) FNBO has provided to
Indenture Trustee a letter of credit, surety bond or other similar
arrangement covering collection risk of Servicer and in each case
acceptable to each Rating Agency (as evidenced by a letter from each
Rating Agency to the effect that the Rating Agency Condition has been
satisfied), if any, Servicer need not make the daily deposits of
Collections into the Collection Account as provided in the preceding
paragraph, but may make a single deposit in the Collection Account in
immediately available funds not later than 12:00 noon, New York City time,
on the related Transfer Date. Subject to the express terms of any
Indenture Supplement, but notwithstanding anything else in the Indenture
to the contrary, with respect to any Monthly Period, whether the Servicer
is required to make deposits of Collections pursuant to the first or
second paragraph of this subsection 8.03(a), (1) the Servicer will only be
required to deposit Collections into the Collection Account up to the
aggregate amount of Collections required to be deposited into any Series
Account or, without duplication, distributed on or prior to the related
Distribution Date to Noteholders or to any Enhancement Provider pursuant
to the terms of any Indenture Supplement or agreement whereby the
Enhancement is provided, and (2) if at any time prior to such Distribution
Date the amount of Collections deposited in the Collection Account exceeds
such required amount, the Servicer will be permitted to withdraw the
excess from the Collection Account for distribution to the Transferor or
payments pursuant to Section 3.02 of the Transfer and Servicing Agreement.
(b) On each Date of Processing, Collections of Finance Charge
Receivables and of Principal Receivables shall be allocated to each Series
of Notes in accordance with
47
the related Indenture Supplement. On each Determination Date, Receivables
in Defaulted Accounts will be allocated to each Series of Notes in
accordance with the related Indenture Supplement.
(c) Throughout the existence of Issuer, unless otherwise stated in
any Indenture Supplement, on each Date of Processing, Servicer shall
allocate to Transferor an amount equal to the product of (i) the
Transferor Percentage and (ii) the aggregate amount of Collections
allocated to Principal Receivables and Finance Charge Receivables,
respectively, on that Date of Processing; provided that, if the Transferor
Interest (determined after giving effect to any transfer of Principal
Receivables to the Trust on such date), is less than or equal to the
Minimum Transferor Interest, Servicer shall not allocate to Transferor any
such amounts that otherwise would be allocated to Transferor, but shall
instead deposit such funds in the Excess Funding Account. Unless otherwise
stated in any Indenture Supplement, neither Servicer nor Transferor need
deposit any amounts allocated to Transferor pursuant to the foregoing into
the Collection Account and shall pay, or be deemed to pay, such amounts,
as collected, to Transferor.
The payments to be made to Transferor, pursuant to this Section
8.04(c) do not apply to deposits to the Collection Account or other
amounts that do not represent Collections, including payment of the
purchase price for Receivables pursuant to Section 2.04(f) or 7.01 of the
Transfer and Servicing Agreement, proceeds from the sale, disposition or
liquidation of Receivables pursuant to Section 5.05 or payment of the
purchase price for the Notes of a specific Series pursuant to the related
Indenture Supplement.
SECTION 8.05. EXCESS PRINCIPAL COLLECTIONS. From and after the Certificate
Trust Termination Date, on each Distribution Date, Excess Principal Collections
from each Group shall be allocated to each outstanding Series in such Group pro
rata based on the Principal Shortfall, if any, for each such Series in such
Group, and then, at the option of Transferor, any remainder may be applied as
principal with respect to any Variable Interest in such Group. The Servicer
shall pay any remaining Excess Principal Collections on any Business Day to the
Holders of the Transferor Interest, provided that if the Transferor Interest as
determined on such Business Day (after giving effect to any Principal
Receivables transferred to the Trust on such date) does not exceed the Minimum
Transferor Interest on such date, then such remaining Excess Principal
Collections shall be deposited in the Excess Funding Account to be held and/or
distributed as provided in Section 8.03.
SECTION 8.06. EXCESS FINANCE CHARGE COLLECTIONS. From and after the
Certificate Trust Termination Date, on each Transfer Date, (a) for each Group,
Servicer shall allocate the aggregate amount for all outstanding Series in such
Group of the amounts which the related Indenture Supplements specify are to be
treated as "Excess Finance Charge Collections" for such Transfer Date to each
Series in such Group, pro rata, in proportion to the Finance Charge Shortfalls,
if any, with respect to each such Series and (b) Servicer shall on the related
Distribution Date withdraw (or shall instruct Indenture Trustee in writing to
withdraw) from the Collection Account and pay to Transferor an amount equal to
the excess, if any, of (x) the aggregate amount for all outstanding Series in a
Group of the amounts which the related Indenture Supplements specify are to be
treated as "Excess Finance Charge Collections" for such Distribution Date over
(y) the aggregate amount for all outstanding Series in such Group which
48
the related Indenture Supplements specify are "Finance Charge Shortfalls," for
such Distribution Date.
SECTION 8.07. RELEASE OF COLLATERAL; ELIGIBLE LOAN DOCUMENTS.
(a) Upon the written direction of Issuer, Indenture Trustee may, and
when required by the provisions of the Indenture shall, execute
instruments to release property from the lien of the Indenture, or convey
Indenture Trustee's interest in the same, in a manner and under
circumstances which are not inconsistent with the provisions of the
Indenture. No party relying upon an instrument executed by Indenture
Trustee as provided in this Article VIII shall be bound to ascertain
Indenture Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any monies.
(b) In order to facilitate the servicing of the Receivables by
Servicer, Indenture Trustee upon Issuer Order shall authorize Servicer to
execute in the name and on behalf of Indenture Trustee instruments of
satisfaction or cancellation, or of partial or full release or discharge,
and other comparable instruments with respect to the Receivables (and
Indenture Trustee shall execute any such documents prepared by Servicer on
written request of Servicer), subject to the obligations of Servicer under
the Transfer and Servicing Agreement.
(c) Indenture Trustee shall, at such time as there are no Notes
outstanding, release and transfer, without recourse, all of the Collateral
that secured the Notes (other than any cash held for the payment of the
Notes pursuant to Section 4.02). Indenture Trustee shall release property
from the lien of the Indenture pursuant to this Section 8.07(c) only upon
receipt of an Issuer Order accompanied by an Officer's Certificate, an
Opinion of Counsel and (if required by the TIA) Independent Certificates
in accordance with TIA Section 314(c) and 314(d)(1) meeting the applicable
requirements of Section 12.01.
(d) Notwithstanding anything to the contrary in the Indenture, the
Transfer and Servicing Agreement and the Trust Agreement, immediately
prior to the release of any portion of the Collateral or any funds on
deposit in the Series Accounts pursuant to the Indenture, Indenture
Trustee shall at the written request of Issuer remit to Transferor for its
own account any funds that, upon such release, would otherwise be remitted
to Issuer.
SECTION 8.08. OPINION OF COUNSEL. Indenture Trustee shall receive at least
seven (7) days notice when requested by Issuer to take any action pursuant to
Section 8.07(a), accompanied by copies of any instruments involved, and
Indenture Trustee shall also be provided with, as a condition to such action, an
Opinion of Counsel stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of the provisions of the Indenture;
provided, however, that such Opinion of Counsel shall not be required to express
an opinion as to the fair value of the Collateral. Indenture Trustee and counsel
rendering any such opinion may conclusively rely, without
49
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to Indenture Trustee in connection with any such
action.
ARTICLE IX
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS
Distributions shall be made to, and reports shall be provided to,
Noteholders as set forth in the applicable Indenture Supplement. The identity of
the Noteholders with respect to distributions and reports shall be determined
according to the immediately preceding Record Date.
ARTICLE X
SUPPLEMENTAL INDENTURES
SECTION 10.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
(a) Without the consent of the Holders of any Notes but with prior
notice to each Rating Agency with respect to the Notes of all Series rated
by such Rating Agency, Issuer and Indenture Trustee, when authorized by an
Issuer Order, at any time and from time to time, may enter into one or
more indentures supplemental hereto (which shall conform to the provisions
of the TIA as in force at the date of the execution thereof), in form
satisfactory to Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of the Indenture, or better to assure,
convey and confirm unto Indenture Trustee any property subject or
required to be subjected to the lien of the Indenture, or to subject
to the lien of the Indenture additional property;
(ii) to evidence the succession, in compliance with Section
3.11, of another person to Issuer, and the assumption by any such
successor of the covenants of Issuer contained herein and in the
Notes;
(iii) to add to the covenants of Issuer, for the benefit of
the Holders of the Notes, or to surrender any right or power herein
conferred upon Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under the Indenture or in any supplemental
indenture; provided that such action shall not adversely affect the
interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor indenture trustee with respect
to the Notes and to add to
50
or change any of the provisions of the Indenture as shall be
necessary to facilitate the administration of the trusts hereunder
by more than one indenture trustee, pursuant to the requirements of
Article VI;
(vii) to modify, eliminate or add to the provisions of the
Indenture to such extent as shall be necessary to effect the
qualification of the Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to the Indenture such
other provisions as may be expressly required by the TIA; or
(viii) to provide for the issuance of one or more new Series
of Notes, in accordance with the provisions of Section 2.11.
Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) Issuer and Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any Noteholders of any Series then
Outstanding but upon satisfaction of the Rating Agency Condition with
respect to the Notes of all Series, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, the
Indenture or of modifying in any manner the rights of the Holders of the
Notes under the Indenture; provided, however that Transferor shall have
delivered to the Owner Trustee and Indenture Trustee an Officer's
Certificate, dated the date of any such action, stating that all
requirements for such amendments contained in the Indenture have been met
and Transferor reasonably believes that such action will not have an
Adverse Effect. Additionally, notwithstanding the preceding sentence,
Issuer and Indenture Trustee, when authorized by an Issuer Order, may,
without the consent of any Noteholders of any Series then Outstanding or
the Enhancement Providers for any Series, enter into an indenture or
indentures supplemental hereto to add, modify or eliminate such provisions
as may be necessary or advisable in order to enable all or a portion of
Issuer (A) to qualify as, and to permit an election to be made to cause
Issuer to be treated as, a "financial asset securitization investment
trust" as described in the provisions of Section 860L of the Code, and (B)
to avoid the imposition of state or local income or franchise taxes
imposed on Issuer's property or its income; provided, however, that (1)
Transferor shall have delivered to Indenture Trustee and the Owner Trustee
an Officer's Certificate to the effect that the proposed amendments meet
the requirements set forth in this Section 10.01(b), (2) the Rating Agency
Condition shall have been satisfied and (3) each of the Owner Trustee and
the Indenture Trustee shall have consented to such amendment if it affects
their respective rights, duties, protections, indemnities, immunities or
obligations hereunder.
SECTION 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS. Issuer
and Indenture Trustee, when authorized by an Issuer Order, also may, upon
satisfaction of the Rating Agency Condition and with the consent of the Holders
of Notes representing more than 66-2/3% of the principal balance of the
Outstanding Notes of each adversely affected Series, by Act of such Holders
delivered to Issuer and Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, changing in any
manner or
51
eliminating any of the provisions of the Indenture or of modifying in any manner
the rights of such Noteholders under the Indenture; provided, however that no
such supplemental indenture shall, without the consent of the Holder of each
outstanding Note affected thereby:
(a) change the due date of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest
rate specified thereon or the redemption price with respect thereto or
change any place of payment where, or the coin or currency in which, any
Note or any interest thereon is payable;
(b) impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V, to the payment of any such amount due
on the Notes on or after the respective due dates thereof (or, in the case
of redemption, on or after the Redemption Date);
(c) reduce the percentage of the Outstanding Notes of any Series the
consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any
waiver of compliance with certain provisions of the Indenture or certain
defaults hereunder and their consequences as provided for in the
Indenture;
(d) reduce the percentage of the Outstanding Notes of any Series,
the consent of the Holders of which is required to direct Indenture
Trustee to sell or liquidate the Collateral if the proceeds of such sale
would be insufficient to pay the principal amount and accrued but unpaid
interest on the outstanding Notes of such Series;
(e) decrease the percentage of the Outstanding Notes required to
amend the sections of the Indenture which specify the applicable
percentage of the Outstanding Notes of any Series necessary to amend the
Indenture or any Transaction Documents which require such consent;
(f) modify or alter the provisions of the Indenture prohibiting the
voting of Notes held by Issuer, any other Obligor on the Notes, the
Transferor or any affiliate thereof; or
(g) permit the creation of any Lien ranking prior to or on a parity
with the lien of the Indenture with respect to any part of the Collateral
for any Notes or, except as otherwise permitted or contemplated herein,
terminate the Lien of the Indenture on any such Collateral at any time
subject hereto or deprive the Holder of any Note of the security provided
by the Lien of the Indenture.
Satisfaction of the Rating Agency Condition shall not be required with
respect to the execution of any supplemental indenture pursuant to this Section
10.02 for which the consent of all of the affected Noteholders is required;
provided that prior notice of any such supplemental indenture shall be given to
each Rating Agency.
It shall not be necessary for any Act of Noteholders under this Section
10.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
52
Promptly after the execution by Issuer and Indenture Trustee of any
supplemental indenture pursuant to this Section 10.02, Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates written notice setting forth in general terms the substance of
such supplemental indenture. Any failure of Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 10.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article X or the modification thereby of the trusts created by
the Indenture, Indenture Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by the
Indenture and stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture or
modification constitutes the legal, valid and binding obligation of Issuer in
accordance with its terms. Indenture Trustee may, but shall not be obligated to,
enter into any such supplemental indenture that affects Indenture Trustee's own
rights, duties, liabilities or immunities under the Indenture or otherwise.
SECTION 10.04. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture under this Article X, the Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of the
Indenture for all purposes, and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby. This Section 10.04
does not apply to Indenture Supplements.
SECTION 10.05. CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of the
Indenture and every supplemental indenture executed pursuant to this Article X
shall conform to the requirements of the TIA as then in effect so long as the
Indenture shall then be qualified under the TIA.
SECTION 10.06. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article X may, and if required by Indenture Trustee shall, bear
a notation in form approved by Indenture Trustee as to any matter provided for
in such supplemental indenture. If Issuer shall so determine, new Notes so
modified as to conform, in the opinion of Indenture Trustee and Issuer, to any
such supplemental indenture may be prepared and executed by Issuer and
authenticated and delivered by Indenture Trustee in exchange for the outstanding
Notes.
ARTICLE XI
TERMINATION
SECTION 11.01. TERMINATION OF ISSUER. Issuer and the respective
obligations and responsibilities of Indenture Trustee created hereby (other than
the obligation of Indenture Trustee to make payments to Noteholders as
hereinafter set forth) shall terminate, except with respect to the duties
described in Section 11.02(b), as provided in the Trust Agreement.
53
SECTION 11.02. FINAL DISTRIBUTION.
(a) Servicer shall give Indenture Trustee and the Rating Agencies at
least thirty (30) days prior written notice of the Distribution Date on
which the Noteholders of any Series or Class may surrender their Notes for
payment of the final distribution on and cancellation of such Notes (or,
in the event of a final distribution resulting from the application of
Section 2.06 or 7.01 of the Transfer and Servicing Agreement or Section
5.05, notice of such Distribution Date promptly after Servicer has
determined that a final distribution will occur, if such determination is
made less than thirty (30) days prior to such Distribution Date). Such
notice shall be accompanied by an Officer's Certificate setting forth the
information specified in Section 3.05 of the Transfer and Servicing
Agreement covering the period during the then-current calendar year
through the date of such notice. Not later than the fifth day of the month
in which the final distribution in respect of such Series or Class is
payable to Noteholders, Indenture Trustee shall provide notice to
Noteholders of such Series or Class specifying (i) the date upon which
final payment of such Series or Class will be made upon presentation and
surrender of Notes of such Series or Class at the office or offices
therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such payment date is not
applicable, payments being made only upon presentation and surrender of
such Notes at the office or offices therein specified (which in the case
of Bearer Notes shall be outside the United States). Indenture Trustee
shall give such notice to Transfer Agent and Registrar and Paying Agent at
the time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of any
Series or Class (or the termination of Issuer), except as otherwise
provided in this paragraph, all funds then on deposit in the Collection
Account and any Series Account allocated to such Noteholders shall
continue to be held in trust for the benefit of such Noteholders, and
Paying Agent or Indenture Trustee shall pay such funds to such Noteholders
upon surrender of their Notes, if certificated (and any excess shall be
paid in accordance with the terms of any applicable Enhancement Agreement
and the applicable Indenture Supplement). If all such Noteholders shall
not surrender their Notes for cancellation within six (6) months after the
date specified in the notice from Indenture Trustee described in paragraph
(a), Indenture Trustee shall give a second notice to the remaining such
Noteholders to surrender their Notes for cancellation and receive the
final distribution with respect thereto (which surrender and payment, in
the case of Bearer Notes, shall be outside the United States). If within
one year after the second notice all such Notes shall not have been
surrendered for cancellation, Indenture Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining such Noteholders concerning surrender of their Notes, and the
cost thereof shall be paid out of the funds in the Collection Account or
any Series Account held for the benefit of such Noteholders. Indenture
Trustee and, upon the written request of Servicer, Paying Agent shall pay
to Issuer any monies held by them for the payment of principal or interest
that remains unclaimed for two (2) years. After payment to Issuer,
Noteholders entitled to the money must look to Issuer for payment as
general creditors unless an applicable abandoned property law designates
another Person.
54
SECTION 11.03. ISSUER'S TERMINATION RIGHTS. Upon the termination of Issuer
pursuant to the terms of the Trust Agreement and upon the written direction of
Issuer, Indenture Trustee shall assign and convey to the Holders of the
Transferor Interest or any of their designees, without recourse, representation
or warranty, all right, title and interest of Issuer in the Receivables, whether
then existing or thereafter created, all Recoveries related thereto all monies
due or to become due and all amounts received or receivable with respect thereto
(including all moneys then held in the Collection Account or any Series Account)
and all proceeds thereof, except for amounts held by Indenture Trustee pursuant
to Section 11.02(b). Indenture Trustee shall execute and deliver such
instruments of transfer and assignment, in each case without recourse, as shall
be reasonably requested in writing by the Holders of the Transferor Interest to
vest in the Holders of the Transferor Interest or any of their designees all
right, title and interest which Indenture Trustee had in the Collateral and such
other property.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. COMPLIANCE CERTIFICATES AND OPINIONS ETC.
(a) Upon any application or request by Issuer to Indenture Trustee
to take any action under any provision of the Indenture, Indenture Trustee
shall be entitled to request that Issuer furnish to Indenture Trustee (i)
an Officer's Certificate stating that all conditions precedent, if any,
provided for in the Indenture relating to the proposed action have been
complied with (ii) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied
with and (iii) (if required by the TIA) an Independent Certificate from a
firm of certified public accountants meeting the applicable requirements
of this Section 12.01, except that, in the case of any such application or
request as to which the furnishing of such documents is specifically
required by any provision of the Indenture, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in the Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
55
(b) (i) Prior to the deposit of any Collateral or other
property or securities with Indenture Trustee that is to be made the
basis for the release of any property or securities subject to the
lien of the Indenture, Issuer shall, in addition to any obligation
imposed in subsection 12.01(a) or elsewhere in the Indenture,
furnish to Indenture Trustee an Officer's Certificate certifying or
stating the opinion of each person signing such certificate as to
the fair value (within ninety (90) days of such deposit) to Issuer
of the Collateral or other property or securities to be so
deposited.
(ii) Whenever Issuer is required to furnish to Indenture
Trustee an Officer's Certificate certifying or stating the opinion
of any signer thereof as to the matters described in clause (i)
above, Issuer shall also deliver to Indenture Trustee (if required
by the TIA) an Independent Certificate as to the same matters, if
the fair value of Issuer of the securities to be so deposited and of
all other such securities made the basis of any such withdrawal or
release since the commencement of the then current fiscal year of
Issuer, as set forth in the certificates delivered pursuant to
clause (i) above and this clause (ii), is 10% or more of the
Outstanding Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited if the fair
value thereof to Issuer as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any
Receivables in Removed Accounts and Defaulted Accounts, whenever any
property or investment property is to be released from the lien of
the Indenture, Issuer shall also furnish to Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within ninety
(90) days of such release) of the property or securities proposed to
be released and stating that in the opinion of such person the
proposed release will not impair the security under the Indenture in
contravention of the provisions hereof.
(iv) Whenever Issuer is required to furnish to Indenture
Trustee an Officer's Certificate certifying or stating the opinion
of any signer thereof as to the matters described in clause (iii)
above, Issuer shall also furnish to Indenture Trustee (if required
by the TIA) an Independent Certificate as to the same matters if the
fair value of the property or securities and of all other property,
other than Receivables in Removed Accounts and Defaulted Accounts,
or securities released from the lien of the Indenture since the
commencement of the then current calendar year, as set forth in the
certificates required by clause (iii) above and this clause (iv),
equals 10% or more of the Outstanding Amounts of the Notes, but such
certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding any other provision of this Section 12.01,
Issuer may (A) collect, liquidate, sell or otherwise dispose of
Receivables as and to the extent permitted or required by the
Transaction Documents and (B) make cash
56
payments out of the Series Accounts as and to the extent permitted
or required by the Transaction Documents.
SECTION 12.02. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of a Responsible Officer of Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate of a Responsible Officer or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of
Servicer, Transferor, Issuer or Administrator, stating that the information with
respect to such factual matters is in the possession of Servicer, a Transferor,
Issuer or Administrator, unless such Responsible Officer or counsel has actual
knowledge that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two (2) or more
applications, requests, consents, certificates, statements, opinions or other
instruments under the Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in the Indenture, in connection with any application or
certificate or report to Indenture Trustee, it is provided that Issuer shall
deliver any document as a condition of the granting of such application, or as
evidence of Issuer's compliance with any term hereof, it is intended that the
truth and accuracy, at the time of the granting of such application or at the
effective date of such certificate or report (as the case may be), of the facts
and opinions stated in such document shall in such case be conditions precedent
to the right of Issuer to have such application granted or to the sufficiency of
such certificate or report. The foregoing shall not, however, be construed to
affect Indenture Trustee's right to conclusively rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 12.03. ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by the Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by
their agents duly appointed in writing and satisfying any requisite
percentages as to minimum number or dollar value of outstanding principal
amount represented by such Noteholders; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to Indenture Trustee, and, where
it is hereby expressly required, to Issuer. Such instrument or instruments
(and the action embodied therein and evidenced
57
thereby) are herein sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of the Indenture and conclusive in favor of Indenture
Trustee and Issuer, if made in the manner provided in this Section 12.03.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder
(and any transferee thereof) of every Note issued upon the registration
thereof in exchange therefor or in lieu thereof, in respect of anything
done, omitted or suffered to be done by Indenture Trustee or Issuer in
reliance thereon, whether or not notation of such action is made upon such
Note.
SECTION 12.04. NOTICES, ETC. TO INDENTURE TRUSTEE AND ISSUER. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Noteholders
or other documents provided or permitted by the Indenture or any Indenture
Supplement to be made upon, given or furnished to, or filed with:
(a) Indenture Trustee by any Noteholder or by Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing, by facsimile transmission, or by courier or overnight
delivery, or by other means acceptable to Indenture Trustee to or with
Indenture Trustee at its Corporate Trust Office; or
(b) Issuer by Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if in writing and mailed,
first-class postage prepaid, to Issuer addressed to it and received by it
c/o Owner Trustee at the Corporate Trust Office, or at any other address
previously furnished in writing to Indenture Trustee by Issuer. A copy of
each notice to Issuer shall be sent in writing and mailed, first-class
postage prepaid, to Administrator at First National Bank of Omaha, 1620
Dodge Street, Stop Code 3198, Omaha, Nebraska 68197-3198, Attn.:
President.
Any notice required by the Indenture or any other Transaction Document to
be given to any other Person shall be given in writing, unless otherwise
specifically provided.
SECTION 12.05. NOTICES TO NOTEHOLDERS; WAIVER. Where the Indenture or any
Indenture Supplement provides for notice to Noteholders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by registered or certified mail or first class postage
prepaid or national overnight courier service to each Noteholder affected by
such event, at its address as it appears on the Note Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice which is mailed in the manner
herein provided shall conclusively be presumed to have been duly given.
58
Where the Indenture or any Indenture Supplement provides for notice in any
manner, such notice may be waived in writing by any Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Noteholders shall be filed with
Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In the event that, by reason of the suspension of regular mail service as
a result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of the Indenture or any Indenture Supplement,
then any manner of giving such notice as shall be satisfactory to Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
Where the Indenture or any Indenture Supplement provides for notice to any
Rating Agency, failure to give such notice shall not affect any other rights or
obligations created hereunder and shall not under any circumstance constitute a
Default or Event of Default.
SECTION 12.06. ALTERNATE PAYMENT AND NOTICE PROVISIONS. Notwithstanding
any provision of the Indenture or any of the Notes to the contrary, Issuer, with
the prior written consent of Indenture Trustee, may enter into any agreement
with any Holder of a Note providing for a method of payment, or notice by
Indenture Trustee or any Paying Agent to such Holder, that is different from the
methods provided for in the Indenture for such payments or notices. Issuer will
furnish to Indenture Trustee a copy of each such agreement and Indenture Trustee
will cause payments to be made and notices to be given in accordance with such
agreements.
SECTION 12.07. CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in the Indenture by any of the provisions of the TIA, such required
provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by the Indenture) are a part of and govern the Indenture,
whether or not physically contained herein.
SECTION 12.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 12.09. SUCCESSORS AND ASSIGNS. All covenants and agreements in the
Indenture by Issuer shall bind its successors and assigns, whether so expressed
or not.
SECTION 12.10. SEPARABILITY. In case any provision in the Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 12.11. BENEFITS OF INDENTURE. Nothing in the Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, Servicer, Transferor
and Enhancement Providers, any benefit.
SECTION 12.12. LEGAL HOLIDAYS. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or the
59
Indenture) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date on
which nominally due, and no interest shall accrue for the period from and after
any such nominal date.
SECTION 12.13. GOVERNING LAW. THE INDENTURE AND EACH NOTE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY CONFLICT THE LAWS OF THE STATE OF
NEBRASKA WITHOUT REFERENCE TO ITS CHOICE OF LAW PROVISIONS AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
SECTION 12.14. COUNTERPARTS. The Indenture may be executed in any number
of counterparts (and by different parties on separate counterparts), each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 12.15. ISSUER OBLIGATION. No recourse may be taken, directly or
indirectly, with respect to the obligations of Issuer on the Notes or under the
Indenture or any certificate or other writing delivered in connection herewith
or therewith, against (i) Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in Issuer, (iii)
Servicer, (iv) FNBO or any of its Affiliates, (v) Administrator or (vi) First
Bankcard Master Credit Card Trust, or any of their respective owners,
beneficiaries, agents, officers, directors, employees, agents, successors or
assigns, except as any such Person may have expressly agreed (it being
understood that Indenture Trustee and the Owner Trustee have no such obligations
in their individual capacity) and except that any such owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. The Notes will represent obligations
solely of Issuer and will not be insured or guaranteed by Servicer, FNBO or any
of its Affiliates, Administrator, Owner Trustee, Indenture Trustee or any other
Person or Governmental Authority (other than an Enhancement Provider, if any, as
specified in the applicable Indenture Supplement). For all purposes of the
Indenture, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles V, VI and VII of the Trust Agreement.
SECTION 12.16. NO PETITION. Indenture Trustee, by entering into the
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they will not at any time institute against Issuer, Transferor or
Certificate Trust, or solicit or join or cooperate with or encourage any
institution against Issuer, Transferor or Certificate Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, the Indenture or any
of the Transaction Documents. The foregoing shall not limit the rights of
Indenture Trustee to file any claim in or otherwise take any action with respect
to any insolvency proceeding that was instituted against Issuer by any Person
other than Indenture Trustee.
SECTION 12.17. LIMITED RECOURSE. Issuer and each Noteholder by accepting a
Note acknowledge and agree that such Note represents indebtedness of Issuer and
does not represent an interest in any assets (other than the Trust Estate) of
Transferor (including by virtue of any deficiency claim in respect of
obligations not paid or otherwise satisfied from the Trust Estate
60
and proceeds thereof). Each Noteholder further acknowledges and agrees that no
adequate remedy at law exists for a breach of this Section 12.17 and the terms
of this Section 12.17 may be enforced by an action for specific performance.
61
IN WITNESS WHEREOF, Issuer and Indenture Trustee have caused the Indenture
to be duly executed by their respective officers thereunto duly authorized, all
as of the day and year first above written.
FIRST NATIONAL MASTER NOTE TRUST,
as Issuer
By Wilmington Trust Company, not in its
individual capacity, but solely as
Owner Trustee
By /s/ James P. Lawler
------------------------------------
Name James P. Lawler
----------------------------------
Title Vice President
---------------------------------
THE BANK OF NEW YORK, as Indenture
Trustee
By /s/ Robert D. Foltz
------------------------------------
Name Robert D. Foltz
----------------------------------
Title Agent
---------------------------------
Acknowledged and Accepted:
FIRST NATIONAL FUNDING LLC, as
Transferor
By First National Funding Corporation,
its Managing Member
By /s/ Jean L. Koenck
----------------------------------
Name Jean L. Koenck
--------------------------------
Title Senior Vice President
-------------------------------
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By /s/ Matthew W. Lawver
----------------------------------
Name Matthew W. Lawver
--------------------------------
Title Senior Vice President
-------------------------------
MASTER INDENTURE SIGNATURE PAGE
62
ANNEX A
DEFINITIONS
"Account" means each VISA and MasterCard credit card account (i)
designated as an "Account" pursuant to (and as defined in) the Pooling and
Servicing Agreement on or prior to the Certificate Trust Termination Date or
(ii) designated as an Additional Account pursuant to the Transfer and Servicing
Agreement. The term "Account" excludes any Account all the Receivables in which
are either reassigned or assigned to Transferor or its designee or Servicer in
accordance with the Pooling and Servicing Agreement or the Transfer and
Servicing Agreement, and any inactive Accounts which in accordance with the
Credit Card Guidelines have been removed from the computer records of the
Transferor. The term "Account" includes each account into which an Account is
transferred (a "Transferred Account") so long as (a) such transfer is made in
accordance with the Credit Card Guidelines and (b) such Transferred Account can
be traced or identified, by reference to or by way of the Account Schedule
delivered to the Owner Trustee pursuant to Section 2.01 or 2.06(d) of the
Transfer and Servicing Agreement, as an account into which an Account has been
transferred. The term "Account" includes any Additional Account only from and
after its Addition Date and includes any Removed Account only prior to its
Removal Date.
"Account Schedule" means a computer file or microfiche list containing a
true and complete list of Accounts, identified by account number and setting
forth the Receivable balance as of (a) the month-end immediately preceding the
Certificate Trust Termination Date (for the Account Schedule delivered on the
Certificate Trust Termination Date) or (b) the related Addition Date (for any
supplement to the Account Schedule delivered in connection with any designation
of Additional Accounts).
"Acquiring Person" is defined in Section 3.10(b) of the Indenture.
"Act" is defined in Section 12.03(a) of the Indenture.
"Addition" means the designation of additional Eligible Accounts to be
included as Accounts pursuant to Section 2.06(a), (b) or (c) of the Transfer and
Servicing Agreement.
"Addition Date" means the date as of which any Additional Accounts are
included as Accounts, as specified in the related Assignment.
"Additional Account" is defined in (a) Section 2.06 of the Pooling and
Servicing Agreement for additions made prior to the Certificate Trust
Termination Date and (b) Section 2.06 of the Transfer and Servicing Agreement
for additions made on or after the Certificate Trust Termination Date.
"Administration Agreement" means the Administration Agreement, dated as of
October 24, 2002 between the Issuer and the Administrator.
"Administrator" means FNBO, its capacity as administrator under the
Administration Agreement, and any successor in that capacity.
"Adverse Effect" means, with respect to any action, that such action will
(a) result in the occurrence of a Pay Out Event or an Event of Default or (b)
materially and adversely affect the amount or timing of distributions to be made
to the Noteholders of any Series or Class pursuant to the Transaction Documents.
"Affiliate" means, as to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For this purpose, "control" means the power to direct the management and
policies of a Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and "controlling" and "controlled"
have correlative meanings.
"Aggregate Principal Balance" means, as of any time of determination, the
sum of (a) the Aggregate Principal Receivables and (b) the amount on deposit in
the Excess Funding Account (exclusive of any investment earnings on such
amount).
"Aggregate Principal Receivables" means, as of any date of determination,
the total amount of Principal Receivables as of such date other than Discount
Option Receivables and Receivables in Defaulted Accounts.
"Allocation Percentage" is defined, for any Series, with respect to
Principal Receivables, Finance Charge Receivables and Receivables in Defaulted
Accounts, in the related Indenture Supplement.
"Amortization Period" means, as to any Series or any Class within a
Series, any period specified in the related Indenture Supplement during which a
share of principal collections is set aside or applied to repay the outstanding
principal amount of that Series (excluding repayments of a Variable Interest
during its revolving period).
"Annual Membership Fee" has the meaning specified in the Credit Card
Agreement applicable to each Account for annual membership fees or similar
terms.
"Applicants" is defined in Section 2.09 of the Indenture.
"Assignment" is defined in Section 2.06 of the Transfer and Servicing
Agreement.
"Authorized Newspaper" means any newspaper or newspapers of general
circulation in the Borough of Manhattan, The City of New York (and in such other
cities as shall be specified in the Supplements, if any) printed in the English
language (and, with respect to any Series or Class, if and so long as the Notes
of such Series or Class are listed on the Luxembourg Stock Exchange and such
exchange shall so require, in Luxembourg, printed in any language satisfying the
requirements of such exchange) and customarily published on each business day at
such place, whether or not published on Saturdays, Sundays or holidays.
"Authorized Officer" means:
(a) with respect to the Issuer, any officer of the Owner Trustee who
is authorized to act for the Owner Trustee in matters relating to the
Issuer and who is identified on the list of Authorized Officers
(containing the specimen signature of each
A-2
such Person) delivered by the Owner Trustee to the Indenture Trustee on
the Initial Closing Date (as such list may be modified or supplemented
from time to time thereafter) and any Vice President or more senior
officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by
the Administrator pursuant to the Administration Agreement and who is
identified on the list of Authorized Officers (containing the specimen
signatures of such officers) delivered by the Administrator to the
Indenture Trustee on the Initial Closing Date (as such list may be
modified or supplemented from time to time thereafter);
(b) with respect to the Transferor, any officer of the Transferor
who is authorized to act for the Transferor in matters relating to the
Transferor and who is identified on the list of Authorized Officers
(containing the specimen signature of each such Person) delivered by the
Transferor to the Indenture Trustee on the Initial Closing Date (as such
list may be modified or supplemented from time to time thereafter); and
(c) with respect to the Servicer, any officer of the Servicer who is
authorized to act for the Servicer in matters relating to the Servicer and
who is identified on the list of Authorized Officers (containing the
specimen signature of each such Person) delivered by the Servicer to the
Indenture Trustee on the Initial Closing Date (as such list may be
modified or supplemented from time to time thereafter).
"Average Principal Receivables" means, for any period, an amount equal to
the sum of the Aggregate Principal Receivables at the end of each day during
such period, divided by the number of days in such period.
"Base Rate" is defined, with respect to any Series, in the related
Indenture Supplement.
"Bearer Note" is defined in Section 2.01 of the Indenture.
"BIF" means the Bank Insurance Fund administered by the FDIC.
"Book-Entry Notes" means beneficial interests in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency or
Foreign Clearing Agency as described in Section 2.13 of the Indenture.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Chicago, Illinois, Wilmington,
Delaware or Omaha, Nebraska (or, with respect to any Series, any additional city
specified in the related Supplement) are authorized or obligated by law or
executive order to be closed.
"Business Trust Statute" or "Statutory Trust Act" means Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq.
"Cash Advance Fees" has the meaning specified in the Credit Card Agreement
applicable to each Account for cash advance fees or similar terms.
"Certificateholder" is defined in the Pooling and Servicing Agreement.
A-3
"Certificate of Trust" means the Certificate of Trust in the form attached
to the Trust Agreement as Exhibit A, which has been filed for the Issuer
pursuant to Section 3810(a) of the Business Trust Statute.
"Certificate Trust" means First Bankcard Master Credit Card Trust.
"Certificate Trust Termination Date" means the date on which the
Certificate Trust is terminated and all of the Trust Assets held by the
Certificate Trust are transferred to the Issuer.
"Certificate Trust Trustee" means the trustee under the Pooling and
Servicing Agreement.
"Class" means, with respect to any Series, any one of the classes of Notes
of that Series.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Clearstream" means Clearstream Banking, societe anonyme, a professional
depository incorporated under the laws of Luxembourg.
"Closing Date" means, with respect to any Series, the closing date
specified in the related Indenture Supplement.
"Code" means the Internal Revenue Code of 1986. "Collateral" is defined in
the Granting Clause of the Indenture.
"Collateral Amount" is defined, with respect to any Series, in the related
Indenture Supplement.
"Collateral Certificate" means the certificate, representing an undivided
interest in the assets held in the Certificate Trust, issued pursuant to the
Pooling and Servicing Agreement and the Collateral Series Supplement, dated as
of October 24, 2002, to the Pooling and Servicing Agreement.
"Collateral Series Supplement" means the supplement to the Pooling and
Servicing Agreement, executed and delivered in connection with the original
issuance of the Collateral Certificate pursuant to Section 6.03 of the Pooling
and Servicing Agreement.
"Collection Account" is defined in Section 8.03(a) of the Indenture.
"Collections" means all payments (including Insurance Proceeds and
recoveries, net of expense of collection, on Defaulted Accounts) received by the
Servicer or Transferor in respect of the Receivables, in the form of cash,
checks, wire transfers, ATM transfers or other form of
A-4
payment in accordance with the Credit Card Agreement in effect from time to time
on any 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 of recoveries, net of
expenses of collection, on Defaulted Accounts shall be deemed to be Collections
of Finance Charge Receivables. Interest and other investment earnings (net of
losses and investment expenses) on funds on deposit in the Excess Funding
Account will be deemed Collections of Finance Charge Receivables, as set forth
in Section 4.02(e) of the Pooling and Servicing Agreement prior to the
Certificate Trust Termination Date and, thereafter, as set forth in Section 8.03
of the Indenture. Collections with respect to any Monthly Period shall include
the amount of Interchange (if any) allocable to any Series of Investor
Certificates or any Series of Notes, pursuant to the applicable Supplement (as
defined in the Pooling and Servicing Agreement) or Indenture Supplement, with
respect to such Monthly Period (to the extent received by the Receivables Trust
and deposited on the Transfer Date following such Monthly Period in accordance
with the Pooling and Servicing Agreement prior to the Certificate Trust
Termination Date and thereafter in accordance with the Transfer and Servicing
Agreement), to be applied as if such Collections were Finance Charge Receivables
for all purposes. The amount of Collections by check which is dishonored by the
drawee bank of such check shall be subtracted from the Collections of Principal
Receivables in the Monthly Period in which the dishonor occurs.
"Commission" means the Securities and Exchange Commission.
"Conveyance Papers" is defined in Section 4.01(a)(iii) of the Receivables
Purchase Agreement.
"Corporate Trust Office" means
(a) for the Indenture Trustee, the principal office at which at any
particular time its corporate trust business shall be administered, which
office at date of the execution of the Indenture is located at 2 North
LaSalle Street, Suite 1020, Chicago, Illinois 60602, or at such other
address as the Indenture Trustee may designate from time to time by notice
to the Noteholders and the Transferor, or the principal corporate trust
office of any successor Indenture Trustee (the address of which the
successor Indenture Trustee will notify the Noteholders and the
Transferor);
(b) for the Owner Trustee, the principal office at which at any
particular time its corporate trust business shall be administered, which
office at date of the execution of the Indenture is located at Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Corporate Trust Administration.
"Coupon" is defined in Section 2.01 of the Indenture.
"Credit Adjustment" is defined in the Section 3.02 of the Receivables
Purchase Agreement.
"Credit Card Agreement" means, as to any Account, the agreements between
FNBO and the related Obligor that govern the Account.
A-5
"Credit Card Guidelines" means the written policies and procedures of FNBO
relating to the operation of its credit card business, including written
policies and procedures for determining the creditworthiness of credit card
customers, the extension of credit to credit card customers and the maintenance
of credit card accounts and collection of credit card receivables, as such
policies and procedures may be amended from time to time.
"Credit Card Originator" means (i) FNBO or FNBSD, as applicable, and (ii)
with respect to Financial Institution Accounts, the originator of such Accounts.
"Daily Report" is defined in Section 3.04(a) of the Transfer and Servicing
Agreement.
"Date of Processing" means, as to any transaction, the date on which the
transaction is first recorded on Servicer's computer master file of VISA and
MasterCard accounts (without regard to the effective date of such recordation).
"Debtor" means the party designated in the Specified Agreement as the
"Debtor" for purposes of the Perfection Representations and Warranties.
"Debtor Relief Laws" means Title 11 of the United States Code and all
other applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, suspension of payments,
readjustment of debt, marshalling of assets or similar debtor relief laws of the
United States, any state or any foreign country from time to time in effect,
affecting the rights of creditors generally.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Defaulted Account" means each Account with respect to which, in
accordance with the Credit Card Guidelines or the Servicer's customary and usual
servicing procedures for servicing credit card receivables comparable to the
Receivables, the Servicer has charged off the Receivables in such Account as
uncollectible. An Account shall become a Defaulted Account on the day on which
such Receivables are recorded as charged off as uncollectible on the Servicer's
computer master file of VISA and MasterCard accounts. Notwithstanding any other
provision hereof, any Receivables in a Defaulted Account that are Ineligible
Receivables shall be treated as Ineligible Receivables rather than Receivables
in Defaulted Accounts.
"Definitive Notes" means Notes in definitive, fully registered form.
"Delinquent" shall mean as to any Account (other than a Defaulted
Account), the failure to have received the minimum monthly payment on the
respective due date of such payment, and "Delinquency" shall mean the
continuation of such failure beyond such due date.
"Demand Note" is defined in Section 2.09 of the Transfer and Servicing
Agreement.
"Determination Date" means, unless otherwise specified in any Indenture
Supplement with respect to the related Series, the fourth Business Day preceding
each Transfer Date.
A-6
"Discount Option Receivables" means, on any Date of Processing on and
after the date on which the Transferor's exercise of its discount option
pursuant to Section 2.08 of the Pooling and Servicing Agreement (prior to the
Certificate Trust Termination Date) or Section 2.08 of the Transfer and
Servicing Agreement (after the Certificate Trust Termination Date) takes effect,
the sum of (a) the aggregate Discount Option Receivables at the end of the prior
Date of Processing (which amount, prior to the date on which the Transferor's
exercise of its discount option takes effect, shall be zero) plus (b) any new
Discount Option Receivables created on such Date of Processing minus (c) any
Discount Option Receivables Collections received on such Date of Processing.
Discount Option Receivables created on any Date of Processing shall mean the
product of the amount of any Principal Receivables created on such Date of
Processing (without giving effect to Discount Option Receivables) and the then
applicable Discount Percentage.
"Discount Option Receivables Collections" means on any Date of Processing
on and after the date on which Transferor's exercise of its discount option
pursuant to Section 2.08 of the Pooling and Servicing Agreement (prior to the
Certificate Trust Termination Date) or Section 2.08 of the Transfer and
Servicing Agreement (after the Certificate Trust Termination Date) takes effect,
the product of (a) a fraction the numerator of which is the amount of Discount
Option Receivables and the denominator of which is the sum of the Principal
Receivables plus the Discount Option Receivables, in each case (for both
numerator and denominator) on the last day of the prior Monthly Period and (b)
Collections of Principal Receivables (without giving effect to Discount Option
Receivables) on such Date of Processing.
"Discount Percentage" is defined (i) prior to the Certificate Trust
Termination Date, in Section 2.08 of the Pooling and Servicing Agreement and
(ii) thereafter, in Section 2.08 of the Transfer and Servicing Agreement.
"Distribution Date" means, unless otherwise specified in any Indenture
Supplement for the related Series, the fifteenth day of the calendar month
following the Closing Date for such Series and the fifteenth day of each month
thereafter, or, if such fifteenth day is not a Business Day, the next succeeding
Business Day.
"Document Delivery Date" means the Addition Date in the case of Additional
Accounts and the Removal Date in the case of Removed Accounts.
"Dollars," "$" or "U.S. $" means United States dollars.
"Draft Fees" has the meaning specified in the Credit Card Agreement
applicable to each Account for any draft fees or similar terms.
"DTC" means The Depository Trust Company.
"Effective Date" is defined in the Pooling and Servicing Agreement.
"Eligible Account" means (a) with respect to "Accounts" designated
pursuant to (and as defined in) the Pooling and Servicing Agreement prior to the
Certificate Trust Termination Date, Accounts which are "Eligible Accounts" under
(and as defined in) the Pooling and Servicing Agreement and (b) each Additional
Account which, as of the related Addition Date:
A-7
(a) was in existence, maintained or initially opened at least six
months prior to its selection for inclusion in the Trust;
(b) is payable in Dollars;
(c) the Obligor of which is not the U.S. government or any state or
local governmental entity and has provided, as its most recent billing
address, an address located in the United States or its territories or
possessions, except that up to 1% (or any higher percentage as to which
the Rating Agency Condition has been satisfied) of the Aggregate Principal
Receivables as of the most recently ended Monthly Period may have obligors
who have provided billing addresses outside of those jurisdictions;
(d) which FNBO has not classified on its electronic records as
counterfeit, canceled, fraudulent, stolen or lost;
(e) which has either been originated by FNBO or is a Financial
Institutions Account;
(f) the Receivables of which FNBO has not charged off by in its
customary and usual manner for charging off such Receivables as of the
relevant Addition Date;
(g) which was originated in the ordinary course of business;
(h) which is not more than 30 days Delinquent;
(i) which is free and clear of all liens that are equal or prior to
the interest of the Receivables Trust Trustee;
(j) that is not subject to any agreement by FNBO restricting its
ability to alter the terms of the account or granting to a third party a
right to acquire the account upon the occurrence of specified events; and
(k) as to any Series, meets any additional requirements set forth in
the respective Indenture Supplement for such Series.
Notwithstanding the foregoing, Eligible Accounts may include accounts, the
receivables in which have been written off, or as to which FNBO believes the
related Obligor is bankrupt and certain receivables that have been identified by
the Obligor as having been incurred as a result of fraudulent use of credit
cards or credit cards that have been reported to FNBO as lost or stolen, so long
as (1) the balance of all receivables included in such accounts is reflected on
the books and records of the Servicer (and is treated for purposes of the
Transaction Documents) as "zero" and (2) charging privileges with respect to all
such accounts have been canceled and are not reinstated.
"Eligible Deposit Account" means either (a) a segregated account with a
Qualified Institution or (b) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States, any one of the states thereof, or the District of Columbia (or any
domestic branch of a foreign bank), and acting as a trustee for funds
A-8
deposited in such account, so long as any of the securities of such depository
institution shall have a credit rating from each of Moody's, S&P and, if rated
by Fitch, Fitch in one of its generic credit rating categories that signifies
investment grade.
"Eligible Receivable" means each Receivable:
(a) which has arisen under an Eligible Account;
(b) which was created in compliance, in all material respects, with
all Requirements of Law applicable to the Credit Card Originator and
pursuant to a Credit Card Agreement which complies, in all material
respects, with all Requirements of Law applicable to the Credit Card
Originator;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by the Credit Card
Originator in connection with the creation of such Receivable or the
execution, delivery and performance by the Credit Card Originator of the
Credit Card Agreement pursuant to which such Receivable was created, have
been duly obtained, effected or given and are in full force and effect as
of such date of creation;
(d) as to which, upon the transfer of such Receivable to the Trust,
the Trust will have good and marketable title thereto, free and clear of
all Liens other than Liens permitted pursuant to subsection 2.05(b) of the
Transfer and Servicing Agreement;
(e) which is the legal, valid and binding payment obligation of the
Obligor thereon, enforceable against such obligor in accordance with its
terms, except as such enforceability may be limited by applicable Debtor
Relief Laws or by general principles of equity (whether considered in a
suit at law or in equity);
(f) which constitutes an "account" under and as defined in Article 9
of the UCC;
(g) as to which, at the time of its transfer to the Receivables
Trust, Transferor has not taken any action which, or failed to take any
action the omission of which, would, at the time of transfer to the
Receivables Trust, impair the rights therein of the Receivables Trust
Trustee or the Holders;
(h) that, at the time of its transfer to the Receivables Trust, has
not been waived or modified except as would be permitted in accordance
with subsections 3.03(h) and 3.03(i) of the Pooling and Servicing
Agreement and the Transfer and Servicing Agreement, as applicable;
(i) that, at the time of its transfer to the Receivables Trust, is
not subject to any right of rescission, setoff, counterclaim or any other
defense of the Obligor (including the defense of usury), other than
defenses arising out of Debtor Relief Laws and by general principles of
equity (whether considered in a suit at law or equity) or in
A-9
connection with Credit Adjustments pursuant to Section 3.02 of the
Receivables Purchase Agreement;
(j) as to which, at the time of its transfer to the Receivables
Trust, the Transferor has satisfied all obligations to be fulfilled at the
time it is transferred to the Receivables Trust; and
(k) as to any Series, which meets any additional requirements set
forth in the respective Supplement for such Series.
"Eligible Servicer" means the Indenture Trustee, a wholly owned subsidiary
of the Indenture Trustee or an entity that, at the time of its appointment as
Servicer: (a) is servicing a portfolio of consumer open end credit card accounts
or other consumer open end credit accounts; (b) is legally qualified and has the
capacity to service the Accounts; (c) is qualified (or licensed) to use the
software that is then being used to service the Accounts or obtains the right to
use, or has its own, software which is adequate to perform its duties under the
Transfer and Servicing Agreement; (d) has, in the reasonable judgment of the
Indenture Trustee, the ability to professionally and competently service a
portfolio of similar accounts; and (e) has a net worth of at least $50,000,000
as of the end of its most recent fiscal quarter.
"Enhancement" means the rights and benefits provided to the Noteholders of
any Series or Class pursuant to any letter of credit, surety bond, cash
collateral account, guaranty, collateral interest, spread account, guaranteed
rate agreement, maturity guaranty facility, tax protection agreement, interest
rate swap agreement, interest rate cap agreement or other contract or agreement
for the benefit of the Noteholders of such Series. The subordination of any
Class to another Class, or a cross support feature which requires collections on
Receivables allocated to one Series to be paid as principal and/or interest with
respect to another Series shall be deemed to be an Enhancement for the Class or
Series benefiting from the subordination or cross support feature.
"Enhancement Agreement" means any agreement, instrument or document
governing any Enhancement or pursuant to which any Enhancement is issued or
outstanding.
"Enhancement Provider" means the Person or Persons providing any
Enhancement, other than the Noteholders of any Class which is subordinated to,
or otherwise supports, another Class.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Event of Default" is defined in Section 5.02 of the Indenture.
"Excess Allocation Series" means a Series that, pursuant to the Indenture
Supplement therefor, is entitled to receive certain excess Collections of
Finance Charge Receivables, as more specifically set forth in such Indenture
Supplement. If so specified in the Indenture Supplement for a Series included in
a Group, such Series may be an Excess Allocation Series only for the Series in
such Group.
"Excess Finance Charge Collections" means Collections of Finance Charge
Receivables allocated to a Series which are not required to fund payments or
deposits to or for the benefit of
A-10
Holders of such Series on the related Distribution Date, as determined in
accordance with the terms of the applicable Indenture Supplement.
"Excess Funding Account" is defined in Section 8.03 of the Indenture.
"Excess Funding Amount" means the amount on deposit in the Excess Funding
Account, exclusive of interest (including reinvested interest) and other
investment income and earnings on funds on deposit in the Excess Funding
Account.
"Excess Principal Collections" means Collections of Principal Receivables
allocated to a Series which are not required to fund payments to or for the
benefit of Holders of such Series on the related Distribution Date, as
determined in accordance with the terms of the applicable Indenture Supplement.
"Exchange Act" means the Securities Exchange Act of 1934.
"Existing Assets" means (i) the Transferor Interest (as defined in the
Pooling and Servicing Agreement), (ii) the Receivables existing at the opening
of business on the Effective Date and arising from the Accounts, (iii) all
Related Assets with respect to such Receivables, (iv) all right, title and
interest of RPA Seller (in its capacity as Transferor (as defined in the Pooling
and Servicing Agreement) but not as Servicer (as defined in the Pooling and
Servicing Agreement)) under the Existing PSA and the other Transaction Documents
(as defined in the Pooling and Servicing Agreement), including any loan
agreements and Supplements executed in connection with any Series of Investor
Certificates and (v) all right, title and interest of RPA Seller, in its
capacity as Transferor under (and as defined in) the Pooling and Servicing
Agreement to any funds on deposit in any Series Account (as defined in the
Pooling and Servicing Agreement) maintained for the benefit of any Series or
Class of Investor Certificates.
"Existing PSA" is defined in the Pooling and Servicing Agreement.
"Expenses" is defined in Section 7.02 of the Trust Agreement.
"FDIA" means the Federal Deposit Insurance Act, 12 U.S.C. Section 1811 et
seq.
"FDIC" means the Federal Deposit Insurance Corporation.
"Finance Charge Receivables" means (i) Receivables created in respect of
the Periodic Finance Charges, Annual Membership Fees, fees for insufficient fund
checks received in payment on Accounts, overlimit fees, Cash Advance Fees, Late
Fees and other similar fees and charges, including Special Fees to the extent
such Special Fees are categorized as Finance Charge Receivables; (ii) Discount
Option Receivables; and (iii) Collections consisting of recoveries, net of
expenses of collection, on Receivables in Defaulted Accounts. Finance Charge
Receivables with respect to any Monthly Period shall include the amount of
Interchange (if any) allocable to any Series pursuant to any Indenture
Supplement with respect to such Monthly Period (to the extent received and
deposited into the Collection Account or any Series Account, as the case may be,
on the Transfer Date following such Monthly Period).
A-11
"Financial Institutions Accounts" means revolving credit card accounts
acquired by FNBO from third-party financial institutions.
"Finance Charge Shortfalls" is defined, as to any Series, in the related
Indenture Supplement.
"Fitch" means Fitch, Inc.
"FNBO" means First National Bank of Omaha, a national banking association.
"FNBSD" means First National Bank South Dakota, a national banking
association.
"Foreign Clearing Agency" means Clearstream and the Euroclear Bank
S.A./N.V.
"GAAP" means generally accepted accounting principles in the United States
of America in effect from time to time.
"Global Note" is defined in Section 2.16 of the Indenture.
"Governmental Authority" means the United States of America, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Grant" means to mortgage, pledge, bargain, warrant, alienate, remise,
release, convey, assign, transfer, create, and grant a lien upon and a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to the Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including if available the
immediate and continuing right to claim for, collect, receive and give receipt
for principal and interest payments in respect of the Collateral and all other
moneys payable thereunder, to give and receive notices and other communications,
to make waivers or other agreements, to exercise all rights and options, to
bring Proceedings in the name of the Granting party or otherwise and generally
to do and receive anything that the Granting party is or may be entitled to do
or receive thereunder or with respect thereto.
"Group" means, with respect to any Series, the group of Series, if any, in
which the related Indenture Supplement specifies such Series is to be included.
"Holder" means a Noteholder or a Person in whose name the Transferor
Interest is registered.
"Indemnified Parties" is defined in Section 7.02 of the Trust Agreement.
"Indenture" means the Master Indenture, dated as of October 24, 2002,
between the Issuer and the Indenture Trustee.
"Indenture Supplement" means, with respect to any Series, a supplement to
the Indenture, executed and delivered in connection with the original issuance
of the Notes of such Series
A-12
pursuant to Section 2.12 of the Indenture, and an amendment to the Indenture
executed pursuant to Sections 10.01 or 10.02 of the Indenture.
"Indenture Trustee" means The Bank of New York, in its capacity as trustee
under the Indenture, its successors in interest and any successor indenture
trustee under the Indenture.
"Independent" means, when used with respect to any specified Person, that
the Person (a) is in fact independent of the Issuer, any other obligor upon the
Notes, the Transferor and any Affiliate of any of the foregoing Persons, (b)
does not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Transferor or any Affiliate
of any of the foregoing Persons and (c) is not connected with the Issuer, any
such other obligor, the Transferor or any Affiliate of any of the foregoing
Persons as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be delivered
to the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 12.01 of the Indenture,
made by an Independent appraiser or other expert appointed by an Issuer Order,
and such opinion or certificate shall state that the signer has read the
definition of "Independent" in the Indenture and that the signer is Independent
within the meaning thereof.
"Independent Director" is defined in Section 2.05(o)(vii) of the Transfer
and Servicing Agreement.
"Indirect Participant" means other Persons such as securities brokers and
dealers, banks and trust companies that clear or maintain a custodial
relationship with a participant of DTC, either directly or indirectly.
"Ineligible Receivables" is defined in Section 2.04(d) of the Transfer and
Servicing Agreement.
"Initial Closing Date" means October 24, 2002.
"Initial Collateral Amount," with respect to any Series, is defined in the
related Indenture Supplement.
"Insolvency Event" means, with respect to any Person, that such person
shall consent or fail to object to the appointment of a bankruptcy trustee or
conservator, receiver or liquidator in any bankruptcy proceeding or other
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to such Person or relating to all or
substantially all of such Person's property, or the commencement of an action
seeking a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a bankruptcy trustee or
conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up, insolvency, bankruptcy, reorganization, conservatorship,
receivership or liquidation of such entity's affairs, or notwithstanding an
objection by such Person any such action shall have remained undischarged or
unstayed for a period of sixty (60) days or upon entry of any order or decree
providing for such relief; or such Person shall admit in writing its inability
to pay its debts
A-13
generally as they become due, file, or consent or fail to object (or object
without dismissal of any such filing within sixty (60) days of such filing) to
the filing of, a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization, receivership or conservatorship statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations.
"Insurance Proceeds" means any amounts recovered pursuant to any credit
insurance policies or debt cancellation or debt deferral programs covering any
Obligor with respect to Receivables under such Obligor's Account, including
amounts recovered through reserves established in connection with such programs.
"Interchange" means interchange fees payable to FNBO, in its capacity as
credit card issuer, through VISA USA, Inc. and MasterCard International
Incorporated.
"Interest Payment Date" means December 16, 2002, and the fifteenth day of
each calendar month thereafter, or if the fifteenth is not a Business Day, the
next succeeding Business Day.
"Investment Company Act" means the Investment Company Act of 1940.
"Investor Certificate" is defined in the Pooling and Servicing Agreement.
"Investor Charge Off" has, with respect to each Series, the meaning
specified in the related Indenture Supplement.
"Investor Default Amount" has, with respect to any Series, the meaning
stated in the related Indenture Supplement.
"Involuntary Removal" is defined in Section 2.07(a) of the Transfer and
Servicing Agreement.
"Issuer" means the First National Master Note Trust, which is established
by the Trust Agreement.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"Late Fees" means the fees specified in the Credit Card Agreement
applicable to each Account for late fees with respect to such Account.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, participation or equity interest, deposit arrangement, encumbrance,
lien (statutory or other), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement under the UCC (other than any such financing statement
filed for informational purposes only) or comparable law of any jurisdiction to
evidence any of the foregoing, excluding any lien or filing pursuant to the
Indenture; and excluding any assignment
A-14
or transfer pursuant to Section 3.04 of the Trust Agreement, Section 7.02 of the
Pooling and Servicing Agreement or Section 7.02 of the Transfer and Servicing
Agreement.
"Majority Holders" means the Holders of Notes evidencing more than 50% of
the Outstanding Amount of all Notes Outstanding or of a particular Series, as
applicable.
"Maximum Addition Amount" means, with respect to any Addition Date after
the Certificate Trust Termination Date, (1) an aggregate principal balance as of
such Addition Date of eligible Additional Accounts not in excess of either (a)
the product of (i) 15% and (ii) the Aggregate Principal Receivables determined
as of the first day of the third preceding Monthly Period minus the Aggregate
Principal Receivables in all of the Accounts that have been designated as
Additional Accounts since the first day of the third preceding Monthly Period
(measured for each such Additional Account as of the date such Additional
Account was added to the Trust), or (b) the product of (i) 20% and (ii) the
aggregate amount of Principal Receivables determined as of the first day of the
calendar year in which such Addition Date occurs minus the aggregate amount of
Principal Receivables in all of the Accounts that have been designated as
Additional Accounts since the first day of such calendar year (measured, for
each such Additional Account, as of the date each such Additional Account was
added to the Trust); and (2) a total number of Additional Accounts not in excess
of either (a) the product of (i) 15% and (ii) the total number of Accounts in
the Trust determined as of the first day of the third preceding Monthly Period
minus the total number of Accounts that have been designated as Additional
Accounts since the first day of the third preceding Monthly Period, or (b) the
product of (i) 20% and (ii) the total number of Accounts in the Trust determined
as of the first day of the calendar year in which such Addition Date occurs
minus the total number of Accounts that have been designated as Additional
Accounts since the first day of such calendar year.
"Minimum Aggregate Principal Receivables" means, as of any date of
determination, the sum of the numerators used at such date to calculate the
Allocation Percentages with respect to Principal Receivables for all Series
outstanding on such date (except for any Series to be excluded pursuant to the
related Indenture Supplement), less the amount on deposit in the Excess Funding
Account as of the date of determination.
"Minimum Transferor Interest" means, as of any date of determination after
the Certificate Trust Termination Date, the product of (a) the Aggregate
Principal Receivables and (ii) 7% or, if less, the highest of the Required
Retained Transferor Percentages specified in the Indenture Supplement for any
outstanding Series.
"Monthly Period" means, as to each Distribution Date, the immediately
preceding calendar month, unless otherwise defined in any Indenture Supplement.
"Monthly Servicing Fee" is defined in Section 3.02 of the Transfer and
Servicing Agreement.
"Moody's" means Moody's Investors Service, Inc.
"New Issuance" is defined in Section 2.12(a) of the Indenture.
A-15
"Note" means one of the Notes issued by the Issuer pursuant to the
Indenture and an Indenture Supplement, substantially in the form attached to the
related Indenture Supplement.
"Note Interest Rate" means, as of any particular date of determination and
with respect to any Series or Class, the interest rate as of such date specified
therefor in the related Indenture Supplement.
"Note Owner" means, with respect to a Book-Entry Note, the Person who is
the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an Indirect Participant,
in accordance with the rules of such Clearing Agency).
"Note Principal Balance" means, as of any particular date of determination
and with respect to any Series or Class, the amount specified in the related
Indenture Supplement.
"Note Register" is defined in Section 2.05 of the Indenture.
"Note Trust" means First National Master Note Trust.
"Noteholder" means the Person in whose name a Note is registered on the
Note Register and, if applicable, the holder of any Global Note, or Coupon, as
the case may be, or such other Person deemed to be a "Noteholder" or "Holder" in
any related Indenture Supplement.
"Noteholder Servicing Fee" is defined in Section 3.02 of the Transfer and
Servicing Agreement.
"Notes" means all Series of Notes issued by the Issuer pursuant to the
Indenture and the applicable Indenture Supplements.
"Notice Date" is defined in Section 2.06(c) of the Transfer and Servicing
Agreement.
"Notices" is defined in Section 9.04(a) of the Transfer and Servicing
Agreement.
"Obligor" means, as to any Account, the Person or Persons obligated to
make payments on such Account, including any guarantor.
"Officer's Certificate" means a certificate delivered to the Indenture
Trustee or Owner Trustee signed by the Chairman of the Board, President, any
Vice President or the Treasurer or any Assistant Treasurer of Transferor or
Servicer, as the case may be.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for, or an employee of, the Person providing the opinion, and who shall
be reasonably acceptable to the Indenture Trustee.
"Other Assets" is defined in Section 12.17 of the Indenture.
A-16
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under the Indenture except:
(a) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee
or any Paying Agent in trust for the Holders of such Notes (provided,
however, that if such Notes are to be redeemed, notice of such redemption
has been duly given pursuant to the Indenture or provision therefor,
satisfactory to the Indenture Trustee, has been made); and
(c) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to the Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a protected purchaser;
provided that in determining whether the Holders of Notes representing the
requisite Outstanding Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Notes owned by the Issuer, any
other obligor upon the Notes, the Transferor, the Servicer or any Affiliate of
any of the foregoing Persons shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Indenture Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes that a Responsible Officer of the
Indenture Trustee actually knows to be so owned shall be so disregarded. Notes
so owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Notes and that the pledgee is not
the Issuer, any other obligor upon the Notes, the Transferor, the Servicer or
any Affiliate of any of the foregoing Persons. In making any such determination,
the Indenture Trustee may conclusively rely on the representations of the
pledgee and shall not be required to undertake any independent investigation.
"Outstanding Amount" means the aggregate principal amount of all Notes
Outstanding, or of all Notes Outstanding of a Series, as applicable, at the date
of determination.
"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity but solely in its capacity as owner trustee under the Trust Agreement,
its successors in interest and any successor owner trustee under the Trust
Agreement.
"Paying Agent" means any paying agent appointed pursuant to Section 2.08
of the Indenture and shall initially be the Indenture Trustee; provided that if
the Indenture Supplement for a Series so provides, a separate or additional
Paying Agent may be appointed with respect to such Series.
"Pay Out Event" means, as to any Series, a Trust Pay Out Event or each
event, if any, specified in the relevant Indenture Supplement as a Pay Out Event
for that Series.
"Perfection Representations and Warranties" means the representations and
warranties set forth below:
A-17
1. General. The Specified Agreement creates a valid and continuing
security interest (as defined in the applicable UCC) in the Receivables
and the proceeds thereof in favor of the Secured Party, which, (a) in the
case of existing Receivables and the proceeds thereof, is enforceable upon
execution of the Specified Agreement against creditors of and purchasers
from Debtor, or with respect to then existing Receivables in Additional
Accounts, as of the applicable Addition Date, and which will be
enforceable with respect to Receivables hereafter and thereafter created
and the proceeds thereof upon such creation, in each case as such
enforceability may be limited by applicable Debtor Relief Laws, now or
hereafter in effect, and by general principles of equity (whether
considered in a suit at law or in equity) and (b) upon filing of the
financing statements described in clause 4 below and, in the case of
Receivables hereafter created, upon the creation thereof, will be prior to
all other Liens (other than Liens permitted pursuant to clause 3 below).
2. General. The Receivables constitute "accounts" within the meaning
of UCC Section 9-102.
3. Creation. Immediately prior to the conveyance of the Receivables
pursuant to the Specified Agreement, Debtor owns and has good and
marketable title to, or has a valid security interest in, the Receivables
free and clear of any Lien, claim or encumbrance of any Person; provided
that nothing in this clause 3 shall prevent or be deemed to prohibit
Debtor from suffering to exist upon any of the Receivables any Liens for
any taxes if such taxes shall not at the time be due and payable or if
Transferor or RPA Seller, as applicable, shall currently be contesting the
validity thereof in good faith by appropriate proceedings and shall have
set aside on its books adequate reserves with respect thereto.
4. Perfection. Debtor has caused or will have caused, within ten
days of the Initial Closing Date, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions
under applicable law in order to perfect the security interest granted to
the Secured Party under the Specified Agreement in the Receivables arising
in the Accounts included in the Existing Assets, and (if any additional
filing is so necessary) within 10 days of the applicable Addition Date, in
the case of such Receivables arising in Additional Accounts.
5. Priority. Other than the security interest granted to the Secured
Party pursuant to the Specified Agreement, Debtor has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any
of the Receivables. Debtor has not authorized the filing of and is not
aware of any financing statements against Debtor that include a
description of collateral covering the Receivables other than any
financing statement (i) relating to the security interest granted to
Secured Party under the Specified Agreement, (ii) that has been
terminated, or (iii) that has been granted pursuant to the terms of the
Transaction Documents.
"Periodic Finance Charges" has the meaning specified in the Credit Card
Agreement applicable to each Account for finance charges (due to periodic rate)
or any similar term.
A-18
"Permitted Assignee" means any Person who, if it were to purchase
Receivables (or interests therein) in connection with a sale thereof pursuant to
Sections 5.05(a) and 5.16 of the Indenture, would not cause the Issuer to be
taxable as a publicly traded partnership for federal income tax purposes.
"Permitted Investments" means, unless otherwise provided in the Indenture
Supplement with respect to any Series (a) negotiable instruments or securities
represented by instruments in bearer or registered form which evidence (i)
obligations of or fully guaranteed as to timely payment of principal and
interest by the United States of America; (ii) time deposits or certificates of
deposit of any depository institution or trust company incorporated under the
laws of the United States of America or any state thereof and subject to
supervision and examination by federal or state banking or depository
institution authorities; provided, however, that at the time of the investment
or contractual commitment to invest therein, the certificates of deposit or
short-term deposits of such depository institution or trust company shall have a
credit rating from Moody's and Standard & Poor's of "P-1" and "A-1+,"
respectively; (iii) commercial paper having, at the time of the Trust's
investment or contractual commitment to invest therein, a rating from Moody's
and Standard and Poor's of "P-1" and "A-1+," respectively; (iv) bankers
acceptances issued by any depository institution or trust company described in
clause (a)(ii) above; and (v) investments in money market or common trust funds
rated "AAA-m" or "AAA-mg" by Standard & Poor's and "Aaa" by Moody's or otherwise
approved in writing by each Rating Agency; (b) demand deposits in the name of
the Receivables Trust or the Indenture Trustee in any depository institution or
trust company referred to in clause (a)(ii) above; and (c) any other investment
if each Rating Agency confirms in writing that such investment will not
adversely affect its then current rating of the Notes.
"Person" means any legal person, including any individual, corporation,
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization, governmental entity or other entity
of similar nature.
"Pooling and Servicing Agreement" means the Second Amended and Restated
Pooling and Servicing Agreement, originally dated as of August 1, 1995, amended
and restated as of June 26, 1997 and amended and restated a second time as of
October 24, 2002, among First National Funding LLC, as successor Transferor,
FNBO, as Servicer, and The Bank of New York, as successor Trustee.
"Portfolio Reassignment Price" means the amount payable by Purchaser to
the Receivables Trust Trustee pursuant to Section 2.04(e) of the Transfer and
Servicing Agreement with respect to Receivables previously sold pursuant to the
Receivables Purchase Agreement.
"Portfolio Yield" is defined, as to any Series, in the related Indenture
Supplement.
"Principal Receivable" means all Receivables other than Finance Charge
Receivables. In calculating the aggregate amount of Principal Receivables on any
day, the amount of Principal Receivables shall not include Receivables in
Defaulted Accounts or Discount Option Receivables and shall be reduced by the
aggregate amount of credit balances in the Accounts on such day. Any Receivables
which the Transferor is unable to transfer as provided in
A-19
Section 2.05(d) of the Transfer and Servicing Agreement shall not be included in
calculating the aggregate amount of Principal Receivables.
"Principal Sharing Series" means a Series that, pursuant to the Indenture
Supplement therefor, is entitled to receive Excess Principal Collections.
"Principal Shortfall" is defined, as to any Series, in the related
Indenture Supplement.
"Principal Terms" means, with respect to any Series, (a) the name or
designation; (b) the initial principal amount (or method for calculating such
amount) and the Collateral Amount; (c) the Note Interest Rate for each Class of
Notes of such Series (or method for the determination thereof); (d) the payment
date or dates and the date or dates from which interest shall accrue; (e) the
method for allocating Collections to Holders of such Series; (f) the designation
of any Series Accounts and the terms governing the operation of any such Series
Accounts; (g) the Series Servicing Fee Percentage; (h) the terms of any form of
Enhancement with respect thereto; (i) the terms on which the Notes of such
Series may be exchanged for Notes of another Series, repurchased by the
Transferor or remarketed to other investors; (j) the Series Termination Date;
(k) the number of Classes of Notes of such Series and, if more than one Class,
the rights and priorities of each such Class; (l) if the Notes of such Series
will be issuable in temporary or permanent global form, the depositary for such
global note or notes, the terms and conditions, if any, upon which such global
note or notes may be exchanged, in whole or in part, for Definitive Notes, and
the manner in which any interest payable on a temporary or global note will be
paid; (m) if the Notes of such Series may be issued in bearer form, any
limitations imposed thereon; (n) the priority of such Series with respect to any
other Series; (o) whether such Series will be part of a Group; (p) whether such
Series will be a Principal Sharing Series; (q) whether such Series will be an
Excess Allocation Series; (r) the Distribution Date; (s) the legal final
maturity date on which the rights of the Noteholders of such Series to receive
payments from the Issuer will terminate, which shall not be later than the
Scheduled Trust Termination Date; (t) whether such Series will or may act as a
paired series with another existing Series and, if so, the Series with which it
will be paired; and (u) the Required Retained Transferor Percentage for such
Series.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
"Purchase Price" is defined in Section 3.01(a) of the Receivables Purchase
Agreement.
"Purchaser" means First National Funding LLC, as purchaser, under the
Receivables Purchase Agreement.
"Purchaser Tangible Equity" means, at any date of determination, an amount
equal to:
(a) the Transferor Interest, plus
(b) the aggregate amount on deposit in all cash collateral accounts
or spread accounts established for the benefit of any Series or Class of
Notes or any series or class of Investor Certificates; minus
A-20
(c) the outstanding balance of the Subordinated Note; plus
(d) the "Purchaser Tangible Equity" or other similar amounts for any
other transactions to which the Purchaser is a party.
"Qualified Institution" means (i) a depository institution or trust
company (which may include Indenture Trustee, Owner Trustee, Servicer or an
Affiliate of Servicer) organized under the laws of the United States of America
or any one of the states thereof or the District of Columbia and with deposit
insurance provided by BIF or SAIF; provided, however, that at all times the
certificates of deposit, short-term deposits or commercial paper or the
long-term unsecured debt obligations (other than such obligation whose rating is
based on collateral or on the credit of a Person other than such institution or
trust company) of such depository institution or trust company shall have a
credit rating from Moody's and Standard & Poor's of not less than "P-1" and
"A-1+," respectively, in the case of the certificates of deposit, short-term
deposits or commercial paper, or a rating from Moody's of not less than "Aa3"
and from Standard & Poor's of not less than "AAA" in the case of the long-term
unsecured debt obligations, or (ii) a depository institution, which may include
the Servicer or the Indenture Trustee, which is acceptable to each Rating
Agency, as evidenced by a letter from such Rating Agency.
"Rating Agency" means, as to each Series and as of any date of
determination, the rating agency or agencies, if any, specified in the related
Indenture Supplement and rating such Series as of such date of determination.
"Rating Agency Condition" means, with respect to any action, the
notification in writing by each Rating Agency for each Outstanding Series that
has rated such Series at Transferor's request, that such action will not result
in a reduction or withdrawal of its then existing rating.
"Reassignment" is defined in Section 2.07(a) of the Transfer and Servicing
Agreement.
"Reassignment Date" is defined in Section 2.04(e) of the Transfer and
Servicing Agreement.
"Receivable" means any amount owing by the Obligors under Accounts,
including amounts due in connection with the sale of goods and services, cash
advances, access checks, Annual Membership Fees, Cash Advance Fees, Periodic
Finance Charges, Late Fees, fees for insufficient funds checks given in payment
on the Accounts, overlimit fees and Special Fees, if any. A Receivable shall be
deemed to have been created at the end of the day on the Date of Processing of
such Receivable. Receivables in Accounts which become Defaulted Accounts shall
not be shown on Servicer's records as amounts payable (and shall cease to be
included as Receivables) on the day on which the underlying Account becomes a
Defaulted Account.
"Receivables Purchase Agreement" means the Receivables Purchase Agreement
dated as of October 24, 2002, between FNBO, as Seller, and First National
Funding LLC, as purchaser.
"Receivables Trust" means (a) prior to the Certificate Trust Termination
Date, the Certificate Trust and (b) on and after the Certificate Trust
Termination Date, the Issuer.
A-21
"Receivables Trust Trustee" means (a) prior to the Certificate Trust
Termination Date, the Certificate Trust Trustee and (b)after the Certificate
Trust Termination Date, the Indenture Trustee.
"Record Date" means, with respect to any Distribution Date, the last day
of the preceding Monthly Period, unless otherwise specified for a Series in the
related Indenture Supplement.
"Recoveries" means all amounts received by Servicer with respect to
Principal Receivables in Accounts that have previously become Defaulted Accounts
and with respect to Finance Charge Receivables that have been charged off as
uncollectible (including Insurance Proceeds).
"Redemption Date" means, with respect to any Series, the date or dates
specified for redemption of the Notes of such Series in the related Indenture
Supplement.
"Registered Notes" is defined in Section 2.01 of the Indenture.
"Related Assets" means, with respect to any Receivable, all monies due or
to become due with respect thereto, all Collections, all Recoveries, all
Insurance Proceeds, all rights, remedies, powers and privileges with respect to
such Receivables, and all proceeds of the foregoing.
"Related Monthly Period" means the Monthly Period immediately preceding a
Monthly Period in which a specified Distribution Date, Determination Date or
Transfer Date occurs.
"Removal Date" is defined in Section 2.07(a) of the Transfer and Servicing
Agreement.
"Removal Notice Date" is defined in Section 2.07(a) of the Transfer and
Servicing Agreement.
"Removed Accounts" is defined in Section 2.07(a) of the Transfer and
Servicing Agreement.
"Required Purchaser Tangible Equity" means, at any date of determination,
the sum of:
(a) the product of (i) the Transferor Interest, multiplied by (ii)
the higher of (A) 3% and (B) the highest required enhancement percentage
then in effect for any outstanding Class of Notes or Investor Certificates
that was rated BBB (or an equivalent rating) by any of Moody's, S&P or
Fitch at the time of its issuance, which shall be calculated as the
quotient (expressed as a percentage) of (x) the amount of Enhancement
(including any cash collateral account, the subordination of other Classes
of Notes or the subordination of other interests in the Receivables) that
is available or junior to such Class in covering Investor Charge Offs
allocated to the related Series, divided by (y) the Initial Collateral
Amount for the Series of Notes or Investor Certificates of which such
Class is a part; plus
(b) the aggregate amount on deposit in all cash collateral accounts
or spread accounts established for the benefit of any Series or Class of
Notes or any series or class of Investor Certificates, plus
A-22
(c) the "Required Purchaser Tangible Equity" or other similar
amounts for any other transactions to which the Purchaser is a party.
"Required Retained Transferor Percentage" means, for any Series, the
percentage specified in the related Indenture Supplement or if not specified,
4%.
"Requirements of Law" means, as to any Person, the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local (including usury laws, the federal Truth in
Lending Act and Regulation Z and Regulation B of the Board of Governors of the
Federal Reserve System).
"Responsible Officer" means:
(i) with respect to the Issuer, the Chairman or any Vice Chairman of
the Board of Directors or Trustees of the Administrator; the Chairman or
Vice Chairman of the Executive or Standing Committee of the Board of
Directors or Trustees of the Administrator; and the President, any
Executive Vice President, Senior Vice President, Vice President, any
Assistant Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Cashier, any Assistant or Deputy
Cashier, the Controller and any Assistant Controller or any other officer
of the Administrator customarily performing functions similar to those
performed by any of the above-designated officers;
(ii) with respect to the Indenture Trustee, any officer assigned to
the Corporate Trust Office, including any vice president, assistant vice
president, assistant treasurer, or any other officer of the Indenture
Trustee customarily performing functions similar to those performed by any
of the above designated officers and having direct responsibility for the
administration of the applicable Transaction Documents, and also, with
respect to a particular matter, any other officer, to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject;
(iii) with respect to the Owner Trustee, any officer within the
Corporate Trust Office of the Owner Trustee with direct responsibility for
the administration of the Trust, or any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with
the particular subject; and
(iv) with respect to any Person other than the Issuer, the Indenture
Trustee or the Owner Trustee, an officer or employee of such Person
corresponding to any officer or employee described in clause (iii) above.
"RPA Seller" means First National Bank of Omaha, as Seller, under the
Receivables Purchase Agreement.
"Rule 144A" means Rule 144A under the Securities Act.
"SAIF" means the Savings Association Insurance Fund administered by the
FDIC.
A-23
"S&P" or "Standard & Poor's" means Standard & Poor's Ratings Service, a
division of the McGraw Hill Companies, Inc.
"Secured Party" means the party designated in the Specified Agreement as
the "Secured Party" for purposes of the Perfection Representations and
Warranties.
"Securities Act" means the Securities Act of 1933.
"Series" means any series of Notes, which may include within any such
Series a Class or Classes of Notes subordinate to another such Class or Classes
of Notes.
"Series Account" means any deposit, trust, escrow or similar account
maintained for the benefit of the Noteholders of any Series or Class, as
specified in any Indenture Supplement.
"Series Servicing Fee Percentage" is defined, as to any Series, in the
related Indenture Supplement.
"Series Termination Date" means, with respect to any Series, the
termination date for such Series specified in the related Indenture Supplement.
"Service Transaction Fees" has the meaning specified in the Credit Card
Agreement applicable to each Account for any service transaction fees or similar
terms.
"Service Transfer" is defined in Section 7.01 of the Transfer and
Servicing Agreement.
"Servicer" means FNBO, in its capacity as Servicer pursuant to the
Transfer and Servicing Agreement, and, after any Service Transfer, the Successor
Servicer.
"Servicer Default" (a) prior to the Certificate Trust Termination Date, is
defined in Section 10.01 of the Pooling and Servicing Agreement and (b) on and
after the Certificate Trust Termination Date, is defined in Section 7.01 of the
Transfer and Servicing Agreement.
"Servicer Letter of Credit" means a letter of credit supporting the
Servicer's obligations regarding Collections which is delivered to the Trustee
in accordance with Section 4.03(a)(ii) of the Transfer and Servicing Agreement.
"Servicing Officer" means any officer of Servicer involved in, or
responsible for, the administration and servicing of the Receivables whose name
appears on a list of servicing officers furnished to Indenture Trustee by
Servicer, as such list may from time to time be amended.
"Settlement Statement" is defined in Section 3.03 of the Receivables
Purchase Agreement.
"Special Fees" means Receivables which are Draft Fees, Service Transaction
Fees, lost card fees, statement request fees, copy request fees, foreign ATM
fees, balance transfer fees, check fees, stop payment fees, skip payment fees,
return payment fees and any other fees which are not now but from time to time
may be assessed on the Accounts. On or after the date on
A-24
which any of such Special Fees begin to be assessed on the Accounts, the
Transferor may designate in an Officer's Certificate whether such Special Fees
shall be treated as Receivables.
"Specified Agreement" means the agreement specified in a Transaction
Document as the "Specified Agreement" for purposes of the Perfection
Representations and Warranties.
"Subordinated Note" means a note substantially in the form of Exhibit B to
the Receivables Purchase Agreement evidencing borrowings made by Purchaser from
RPA Seller pursuant to the Receivables Purchase Agreement.
"Subordinated Note Maturity Date" is defined in Section 3.01(c) of the
Receivables Purchase Agreement.
"Subordinated Note Rate" is defined in Section 3.01(c) of the
Receivables Purchase Agreement.
"Successor Servicer" is defined in Section 7.02(a) of the Transfer and
Servicing Agreement.
"Supplemental Conveyance" is defined in Section 2.02(e) of the Receivables
Purchase Agreement.
"Supplemental Interest" is defined in Section 3.04 of the Trust Agreement.
"Surviving Person" is defined in Section 3.10(a) of the Indenture.
"Tax Opinion" means, with respect to any action, an Opinion of Counsel to
the effect that, for Federal income tax purposes, (a) such action will not
adversely affect the tax characterization as debt of Notes of any outstanding
Series or Class with respect to which an Opinion of Counsel was delivered at the
time of their issuance that such Notes would be characterized as debt, (b) such
actions will not cause the Trust to be classified, for federal income tax
purposes, as an association (or publicly traded partnership) taxable as a
corporation, (c) such action will not cause or constitute an event in which gain
or loss would be recognized by any Noteholder and (d) if such Opinion of Counsel
is delivered in connection with the issuance of a new Series of Notes, such
Notes will constitute indebtedness for Federal income tax purposes.
"Termination Notice" is defined in Section 7.01 of the Transfer and
Servicing Agreement.
"TIA" means the Trust Indenture Act.
"Transaction Documents" means the Master Indenture, Indenture Supplements,
Transfer and Servicing Agreement, Receivables Purchase Agreement, Trust
Agreement, Administration Agreement, and, until the Certificate Trust
Termination Date, the Pooling and Servicing Agreement and the Collateral Series
Supplement, and any other documents related to this transaction.
A-25
"Transfer Agent and Registrar" is defined in Section 2.05 of the Indenture
and shall initially be the Indenture Trustee.
"Transfer Agreement" means (a) prior to the Certificate Trust Termination
Date, the Pooling and Servicing Agreement and (b) after the Certificate Trust
Termination Date, the Transfer and Servicing Agreement.
"Transfer and Servicing Agreement" means the Transfer and Servicing
Agreement, dated as of October 24, 2002, between the Transferor, the Servicer
and the Issuer.
"Transfer Date" means the Business Day immediately preceding each
Distribution Date.
"Transferor" means First National Funding LLC, a Nebraska limited
liability company.
"Transferor Interest" means, on any date of determination, the result of
(a) the Aggregate Principal Receivables on such day, plus the principal amount
on deposit in the Excess Funding Account on such day, minus (b) the sum of the
Collateral Amounts with respect to all Series then outstanding plus (c) the
principal amount on deposit in the Principal Accounts (as defined in the various
Indenture Supplements) for each Series, to the extent not deducted in
calculating the Collateral Amount for the related Series and shall also mean the
interest of Transferor or its assigns in the Issuer and the Receivables which
entitles Transferor or its permitted assigns to receive funds allocated by
reference to the Transferor Interest under the terms, and at the times,
specified in the Transaction Documents.
"Transferor Percentage" means as to Finance Charge Receivables,
Receivables in Defaulted Accounts and Principal Receivables, 100% less the sum
of the applicable Allocation Percentages for all outstanding Series.
"Transferor Retained Note" means any Note in any Class of Notes that is
designated as a "Transferor Retained Class" in any Indenture Supplement.
"Transferred Account" is defined in the definition of "Account."
"Trust" means the First National Master Note Trust.
"Trust Agreement" means the Trust Agreement relating to the Trust, dated
as of October 16, 2002, between the Transferor and the Owner Trustee.
"Trust Assets" is defined in Section 2.01 of the Transfer and Servicing
Agreement.
"Trust Estate" means all right, title and interest of the Issuer in and to
the property and rights assigned to the Issuer pursuant to Section 2.05 of the
Trust Agreement and Section 2.01 of the Transfer and Servicing Agreement, all
monies, investment property, instruments and other property on deposit from time
to time in the Collection Account, the Series Accounts and the Excess Funding
Account and all other property of the Issuer from time to time, including any
rights of the Owner Trustee and the Issuer pursuant to the Transaction
Documents.
"Trust Indenture Act" means the Trust Indenture Act of 1939.
A-26
"Trust Pay Out Event" is defined, with respect to each Series, in Section
5.01 of the Indenture.
"Trust Termination Date" is defined in Section 8.01 of the Trust
Agreement.
"UCC" means the Uniform Commercial Code, as in effect in the State of
Nebraska and in any other State where the filing of a financing statement is
required to perfect Transferor's or the Trust's interest in the Receivables and
the proceeds thereof or in any other specified jurisdiction.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"Variable Interest" means any Note that is designated as a variable
funding note in the related Indenture Supplement.
A-27