EXHIBIT 4.2
SERIES 2002-1 INDENTURE SUPPLEMENT
Dated as of October 24, 2002
to
MASTER INDENTURE
Dated as of October 24, 2002
FIRST NATIONAL MASTER NOTE TRUST,
Issuer,
and
THE BANK OF NEW YORK,
Indenture Trustee on behalf of the Noteholders
FIRST NATIONAL MASTER NOTE TRUST
TABLE OF CONTENTS
Page
ARTICLE I
CREATION OF THE SERIES 2002-1 NOTES..........................................1
ARTICLE II
DEFINITIONS..................................................................1
ARTICLE III
NOTEHOLDER SERVICING FEE
Section 3.01. Servicing Compensation.......................................14
ARTICLE IV
RIGHTS OF NOTEHOLDERS AND ALLOCATION AND APPLICATION OF
COLLECTIONS
Section 4.01. Collections and Allocations..................................14
Section 4.02. Determination of Monthly Interest............................16
Section 4.03. Determination of Monthly Principal...........................18
Section 4.04. Application of Available Finance Charge Collections and Available
Principal Collections........................................18
Section 4.05. Investor Charge-Offs.........................................21
Section 4.06. Reallocated Principal Collections............................21
Section 4.07. Excess Finance Charge Collections............................21
Section 4.08. Excess Principal Collections.................................22
Section 4.09. Certain Series Accounts......................................22
Section 4.10. Reserve Account..............................................24
Section 4.11. Reserved.....................................................26
Section 4.12. Spread Account...............................................26
Section 4.13. Investment Instructions......................................28
Section 4.14. Accumulation Period..........................................28
Section 4.15. Suspension of Accumulation Period............................29
Section 4.16. Determination of LIBOR.......................................31
Section 4.17. Interchange..................................................31
ARTICLE V
DELIVERY OF NOTES; DISTRIBUTIONS; REPORTS TO NOTEHOLDERS
Section 5.01. Delivery and Payment for the Series 2002-1 Notes.............32
Section 5.02. Distributions................................................32
Section 5.03. Reports and Statements to Series 2002-1 Noteholders..........33
ARTICLE VI
SERIES 2002-1 PAY OUT EVENTS................................................34
ARTICLE VII
REDEMPTION; FINAL DISTRIBUTIONS; SERIES TERMINATION
Section 7.01. Optional Redemption of Series 2002-1 Notes;
Final Distributions..........................................35
Section 7.02. Series Termination...........................................37
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Ratification of Indenture; Amendments........................37
Section 8.02. Form of Delivery of the Series 2002-1 Notes..................37
Section 8.03. Counterparts.................................................37
Section 8.04. Governing Law................................................37
Section 8.05. Limitation of Liability......................................37
Section 8.06. Rights of Indenture Trustee..................................37
Section 8.07. Additional Requirements for Registration of and Limitations on
Transfer and Exchange of Notes...............................38
EXHIBIT A-1 FORM OF CLASS A NOTE
EXHIBIT A-2 FORM OF CLASS B NOTE
EXHIBIT A-3 FORM OF CLASS C NOTE
EXHIBIT B FORM OF MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO INDENTURE TRUSTEE
EXHIBIT C FORM OF MONTHLY NOTEHOLDERS' STATEMENT
EXHIBIT D FORM OF MONTHLY SERVICER'S CERTIFICATE
ii
SERIES 2002-1 INDENTURE SUPPLEMENT
SERIES 2002-1 INDENTURE SUPPLEMENT, dated as of October 24, 2002 (the
"Indenture Supplement"), between FIRST NATIONAL MASTER NOTE TRUST, a statutory
trust organized and existing under the laws of the State of Delaware (herein,
"Issuer" or the "Trust"), and THE BANK OF NEW YORK, a New York banking
corporation, not in its individual capacity, but solely as indenture trustee
(herein, together with its successors in the trusts thereunder as provided in
the Master Indenture referred to below, "Indenture Trustee") under the Master
Indenture, dated as of October 24, 2002 (the "Indenture"), between Issuer and
Indenture Trustee (the Indenture, together with this Indenture Supplement, the
"Agreement").
Pursuant to Section 2.11 of the Indenture, Transferor may direct Issuer to
issue one or more Series of Notes. The Principal Terms of this Series are set
forth in this Indenture Supplement to the Indenture.
ARTICLE I
CREATION OF THE SERIES 2002-1 NOTES
There is hereby created and designated a Series of Notes to be issued
pursuant to the Indenture and this Indenture Supplement to be known as "First
National Master Note Trust, Series 2002-1" or the "Series 2002-1 Notes." The
Series 2002-1 Notes shall be issued in three Classes, known as the "Class A
Floating Rate Asset Backed Notes, Series 2002-1," the "Class B Floating Rate
Asset Backed Notes, Series 2002-1," and the "Class C Floating Rate Asset Backed
Notes, Series 2002-1."
Series 2002-1 shall be included in Group One and shall be a Principal
Sharing Series. Series 2002-1 shall be an Excess Allocation Series with respect
to Group One only. Series 2002-1 shall not be subordinated to any other Series
and shall not be a Paired Series.
ARTICLE II..
DEFINITIONS
Whenever used in this Indenture Supplement, the following words and
phrases shall have the following meanings, and the definitions of such terms are
applicable to the singular as well as the plural forms of such terms and the
masculine as well as the feminine and neuter genders of such terms.
"Accumulation Period" means, unless a Pay Out Event shall have occurred
prior thereto, the period commencing at the opening of business on the
Controlled Accumulation Date and ending on the first to occur of (a) the
commencement of the Rapid Amortization Period and (b) the Series Termination
Date.
"Accumulation Period Length" is defined in Section 4.14.
"Accumulation Shortfall" means (a) for the first Distribution Date during
the Accumulation Period, zero; and (b) thereafter, for any Distribution Date
during the Accumulation Period, the excess, if any, of the Controlled Deposit
Amount for the previous Distribution Date over the amount deposited into the
Principal Accumulation Account pursuant to subsection 4.04(c)(i) for the
previous Distribution Date.
"Allocation Percentage" means, with respect to any Monthly Period, the
percentage equivalent of a fraction:
(a) the numerator of which shall be equal to:
(i) for Principal Collections during the Revolving Period,
and for Finance Charge Collections during the Revolving Period and
the Accumulation Period, and for Default Amounts at any time, the
Collateral Amount at the end of the last day of the prior Monthly
Period (or, in the case of the Monthly Period in which the Closing
Date occurs, on the Closing Date); or
(ii) for Finance Charge Collections during the Rapid
Amortization Period and for Principal Collections during the Rapid
Amortization Period and the Accumulation Period, the Collateral
Amount at the end of the last day of the Revolving Period, or, with
respect to Finance Charge Collections, if later, at the end of the
last day of the Accumulation Period;
provided, however, that prior to the occurrence of a Pay Out Event
Transferor may, by written notice to Indenture Trustee, Servicer and each
Rating Agency, reduce the numerator used for purposes of allocating
Principal Collections and Finance Charge Collections to Series 2002-1 at
any time if (x) the Rating Agency Condition shall have been satisfied with
respect to such reduction and (y) Transferor shall have delivered to
Indenture Trustee an Officer's Certificate to the effect that, based on
the facts known to such officer at that time, in the reasonable belief of
Transferor, such designation will not cause a Pay Out Event or an event
that, after the giving of notice or the lapse of time, would cause a Pay
Out Event to occur with respect to Series 2002-1; and provided, further,
that Transferor may designate that the numerator for Finance Charge
Collections during the Rapid Amortization Period will be the Collateral
Amount at the end of the last day of the prior Monthly Period by notice to
Servicer and Indenture Trustee, if the Rating Agency Condition has been
met; and
(b) the denominator of which shall be the greater of (x) the Aggregate
Principal Balance determined as of the close of business on the last day
of the prior Monthly Period and (y) the sum of the numerators used to
calculate the allocation percentages for allocations with respect to
Finance Charge Collections, Principal Collections or Default Amounts, as
applicable, for all outstanding Series and all outstanding Series under
(and as defined in) the Pooling and Servicing Agreement (other than any
Series represented by the Collateral Certificate) on such date of
determination; provided, that if one or more Reset Dates occur in a
Monthly Period, the denominator of the Allocation Percentage for the
portion of the Monthly Period falling on and after such
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Reset Date and prior to any subsequent Reset Date will be
recalculated for such period using amounts determined as of the
close of business on the subject Reset Date.
"Available Finance Charge Collections" means, for any Monthly Period, an
amount equal to the sum of (a) the Investor Finance Charge Collections for such
Monthly Period, plus (b) the Excess Finance Charge Collections allocated to
Series 2002-1 for such Monthly Period, plus (c) Principal Accumulation
Investment Proceeds, if any, with respect to the related Transfer Date, plus (d)
amounts on deposit in the Reserve Account and Spread Account deposited into the
Finance Charge Account on the related Transfer Date to be treated as Available
Finance Charge Collections pursuant to subsections 4.10(b) or (d) and 4.12(g).
"Available Principal Collections" means, for any Monthly Period, an amount
equal to the sum of (a) the Investor Principal Collections for such Monthly
Period, minus (b) the amount of Reallocated Principal Collections with respect
to such Monthly Period which pursuant to Section 4.06 are required to be applied
on the related Distribution Date, plus (c) any Excess Principal Collections,
plus (d) the aggregate amount to be treated as Available Principal Collections
pursuant to subsections 4.04(a)(v) and (vi) for the related Distribution Date.
"Available Reserve Account Amount" means, for any Transfer Date, the
lesser of (a) the amount on deposit in the Reserve Account (after taking into
account any interest and earnings retained in the Reserve Account pursuant to
subsection 4.10(b) on such date, but before giving effect to any deposit to or
withdrawal from the Reserve Account made or to be made on such date) and (b) the
Required Reserve Account Amount for such Transfer Date.
"Available Spread Account Amount" means, for any Transfer Date, an amount
equal to the lesser of (a) the amount on deposit in the Spread Account
(exclusive of Investment Earnings on such date and before giving effect to any
deposit to, or withdrawal from, the Spread Account made or to be made with
respect to such date) and (b) the Required Spread Account Amount, in each case
on such Transfer Date.
"Base Rate" means, for any Monthly Period, the annualized percentage
equivalent of a fraction, (a) the numerator of which is equal to the sum of (i)
the Monthly Interest and (ii) the Noteholder Servicing Fee (calculated by
assuming that Interchange equals or exceeds Servicer Interchange for such
Monthly Period), each with respect to the related Distribution Date, and (b) the
denominator of which is the Collateral Amount plus amounts on deposit in the
Principal Accumulation Account as of the first day of such Monthly Period.
"Class A Default Interest" is defined in subsection 4.02(a).
"Class A Interest Shortfall" is defined in subsection 4.02(a).
"Class A Monthly Interest Payment" is defined in subsection 4.02(a).
"Class A Note Initial Principal Balance" means $332,000,000.
"Class A Note Interest Rate" means a per annum rate of 0.11% in excess of
LIBOR as determined on the LIBOR Determination Date for the applicable Interest
Period.
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"Class A Note Principal Balance" means, on any date of determination, an
amount equal to (a) the Class A Note Initial Principal Balance, minus (b) the
aggregate amount of principal payments made to Class A Noteholders on or prior
to such date.
"Class A Noteholder" means the Person in whose name a Class A Note is
registered in the Note Register.
"Class A Notes" means any one of the Notes executed by Issuer and
authenticated by or on behalf of Indenture Trustee, substantially in the form of
Exhibit A-1.
"Class A Required Amount" means, for any Distribution Date, an amount
equal to the excess of the amounts described in subsection 4.04(a)(i) over the
Available Finance Charge Collections applied to pay such amount pursuant to
subsection 4.04(a).
"Class B Default Interest" is defined in subsection 4.02(b).
"Class B Interest Shortfall" is defined in subsection 4.02(b).
"Class B Monthly Interest Payment" is defined in subsection 4.02(b).
"Class B Note Initial Principal Balance" means $31,000,000.
"Class B Note Interest Rate" means a per annum rate of 0.40% in excess of
LIBOR as determined on the LIBOR Determination Date for the applicable Interest
Period.
"Class B Note Principal Balance" means, on any date of determination, an
amount equal to (a) the Class B Note Initial Principal Balance, minus (b) the
aggregate amount of principal payments made to Class B Noteholders on or prior
to such date.
"Class B Noteholder" means the Person in whose name a Class B Note is
registered in the Note Register.
"Class B Notes" means any one of the Notes executed by Issuer and
authenticated by or on behalf of Indenture Trustee, substantially in the form of
Exhibit A-2.
"Class B Required Amount" means, for any Distribution Date, an amount
equal to the excess of the amount described in subsection 4.04(a)(ii) over the
Available Finance Charge Collections applied to pay such amount pursuant to
subsection 4.04(a).
"Class C Default Interest" is defined in subsection 4.02(c).
"Class C Interest Shortfall" is defined in subsection 4.02(c).
"Class C Monthly Interest Payment" is defined in subsection 4.02(c).
"Class C Note Initial Principal Balance" means $37,000,000.
"Class C Note Interest Rate" means a per annum rate of 1.12% in excess of
LIBOR as determined on the LIBOR Determination Date for the applicable Interest
Period.
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"Class C Note Principal Balance" means, on any date of determination, an
amount equal to (a) the Class C Note Initial Principal Balance, minus (b) the
aggregate amount of principal payments made to Class C Noteholders on or prior
to such date.
"Class C Noteholder" means the Person in whose name a Class C Note is
registered in the Note Register.
"Class C Notes" means any one of the Notes executed by Issuer and
authenticated by or on behalf of Indenture Trustee, substantially in the form of
Exhibit A-3 or Exhibit A-4.
"Closing Date" means October 24, 2002.
"Collateral Amount" means, as of any date of determination, an amount
equal to the result of (a) the Initial Collateral Amount, minus (b) the amount
of principal previously paid to the Series 2002-1 Noteholders (other than any
principal payments made from funds on deposit in the Spread Account), minus (c)
the balance on deposit in the Principal Accumulation Account, minus (d) the
excess, if any, of the aggregate amount of Investor Charge-Offs and Reallocated
Principal Collections over the reimbursements of such amounts pursuant to
subsection 4.04(a)(vi) prior to such date.
"Controlled Accumulation Amount" means, (a) for any Transfer Date with
respect to the Accumulation Period an amount equal to one-twelfth of the
Collateral Amount at the end of the Revolving Period; provided, however, that if
the Accumulation Period Length is determined to be less than 12 months pursuant
to Section 4.14 or 4.15, the Controlled Accumulation Amount shall be equal to
(i) the Initial Collateral Amount divided by (ii) the Accumulation Period
Length; provided, further, that the Controlled Accumulation Amount for any
Transfer Date shall not exceed the Note Principal Balance minus any amount
already on deposit in the Principal Accumulation Account on the Transfer Date.
"Controlled Accumulation Date" means October 1, 2004, or such later date
as is determined in accordance with Sections 4.14 and 4.15.
"Controlled Deposit Amount" means, for any Transfer Date with respect to
the Accumulation Period, an amount equal to the sum of the Controlled
Accumulation Amount for such Transfer Date and any existing Accumulation
Shortfall.
"Covered Amount" means an amount, determined as of each Transfer Date for
any Interest Period, equal to the sum of (a) the product of (i) a fraction the
numerator of which is the actual number of days in such Interest Period and the
denominator of which is 360, times (ii) the Class A Note Interest Rate in effect
with respect to such Interest Period, times (iii) the aggregate amount on
deposit in the Principal Accumulation Account up to the Class A Note Principal
Balance as of the Record Date preceding such Transfer Date, plus (b) the product
of (i) a fraction the numerator of which is the actual number of days in such
Interest Period and the denominator of which is 360, times (ii) the Class B Note
Interest Rate in effect with respect to such Interest Period, times (iii) the
aggregate amount on deposit in the Principal Accumulation Account in excess of
the Class A Principal Balance as of the Record Date preceding such Transfer Date
up to the Class B Principal Balance as of the Record Date preceding such
Transfer Date, plus (c) the product of (i) a fraction the numerator of which is
the actual number of days in such Interest
5
Period and the denominator of which is 360, times (ii) the Class C Note Interest
Rate in effect with respect to such Interest Period, times (iii) the aggregate
amount on deposit in the Principal Accumulation Account in excess of the sum of
the Class A Principal Balance and the Class B Principal Balance as of the Record
Date preceding such Transfer Date.
"Default Amount" means, with respect to any Transfer Date, the aggregate
amount of Principal Receivables (other than Ineligible Receivables) in Accounts
which became Defaulted Accounts during the Related Monthly Period.
"Default Interest" means, for any Distribution Date, Class A Default
Interest, Class B Default Interest and Class C Default Interest for such
Distribution Date.
"Designated Maturity" means, for any LIBOR Determination Date, one month;
provided that LIBOR for the initial Interest Period will be determined by
straight-line interpolation (based on the actual number of days in the initial
Interest Period) between two rates determined in accordance with the definition
of LIBOR, one of which will be determined for a Designated Maturity of one month
and the other of which will be determined for a Designated Maturity of two
months.
"Dilution" means any downward adjustment made by Servicer in the amount of
any Receivable (a) because of a rebate, refund, unauthorized charge, fraudulent
or counterfeit charge or billing error to an accountholder, (b) because such
Receivable was created in respect of merchandise which was refused or returned
by an accountholder, (c) because of a credit pursuant to a debt cancellation or
debt deferral program which is not recovered from Collections or from Insurance
Proceeds or (d) for any other reason other than receiving Collections therefor
or charging off such amount as uncollectible.
"Distribution Account" is defined in subsection 4.09(a).
"Distribution Date" means December 16, 2002 and the 15th day of each
calendar month thereafter, or if such 15th day is not a Business Day, the next
succeeding Business Day.
"Excess Servicing Fee" means, for each Distribution Date following a
Servicer Default and the appointment of a Successor Servicer, an amount equal to
one-twelfth of the product of the Collateral Amount as of the last day of the
preceding Monthly Period and the excess of the market rate servicing fee
percentage determined by Indenture Trustee over the Servicing Fee Percentage.
Indenture Trustee may determine the market rate servicing fee percentage by
soliciting three or more written bids from qualified successors services and
averaging the rates offered in the bids.
"Excess Spread Percentage" means Net Yield.
"Expected Principal Payment Date" means October 17, 2005.
"Finance Charge Account" is defined in Section 4.09(a).
"Finance Charge Collections" means Collections of Finance Charge
Receivables.
6
"Finance Charge Shortfall" is defined in Section 4.07.
"Group One" means Series 2002-1, the outstanding PSA Series (other than
any Series represented by the Collateral Certificate) and each other Series
hereafter specified in the related Indenture Supplement to be included in Group
One.
"Initial Collateral Amount" means $400,000,000.
"Interest Period" means, for any Distribution Date, the period from and
including the Distribution Date immediately preceding such Distribution Date
(or, in the case of the first Distribution Date, from and including the Closing
Date) to but excluding such Distribution Date.
"Investment Earnings" means, for any Distribution Date, all interest and
earnings on Permitted Investments included in the Spread Account (net of losses
and investment expenses) during the period commencing on and including the
Distribution Date immediately preceding such Distribution Date and ending on but
excluding such Distribution Date.
"Investor Charge-Offs" is defined in Section 4.05.
"Investor Default Amount" means, with respect to any Monthly Period, an
amount equal to the product of (a) the Default Amount for such Monthly Period
and (b) the Allocation Percentage for Default Amounts for such Monthly Period.
"Investor Finance Charge Collections" means, with respect to any Date of
Processing, an amount equal to the product of (a) the Allocation Percentage for
such Date of Processing and (b) Collections in respect of Finance Charge
Receivables received on such date and, with respect to any Monthly Period, the
aggregate of such sums for each Date of Processing in such Monthly Period.
"Investor Principal Collections" means, with respect to any Date of
Processing, an amount equal to the product of (a) the Allocation Percentage for
such day and (b) Collections in respect of Principal Receivables received on
such Date of Processing and, with respect to any Monthly Period, the aggregate
of such sums for each Date of Processing in such Monthly Period.
"LIBOR" means, for any Interest Period, an interest rate per annum for
such Interest Period determined by Indenture Trustee in accordance with the
provisions of Section 4.16.
"LIBOR Determination Date" means (i) October 22, 2002 for the period from
and including the Closing Date through and including December 15, 2002 and (ii)
the second London Business Day prior to the commencement of each subsequent
Interest Period.
"London Business Day" means any day on which dealings in deposits in
United States dollars are transacted in the London interbank market.
"Monthly Interest" means, for any Distribution Date, the sum of the Class
A Monthly Interest Payment, the Class B Monthly Interest Payment, and the Class
C Monthly Interest Payment for such Distribution Date.
7
"Monthly Period" means the period from and including the first day of the
calendar month preceding a related Distribution Date to and including the last
day of such calendar month; provided that the Monthly Period related to the
December 16, 2002 Distribution Date shall mean the period from and including the
Closing Date to and including the last day of November, 2002.
"Monthly Principal" is defined in Section 4.03.
"Monthly Principal Reallocation Amount" means, for any Monthly Period, an
amount equal to the sum of:
(a) the lower of (i) the Class A Required Amount and (ii) the
greater of (A)(x) the product of (I) 17.00% and (II) the Initial
Collateral Amount minus (y) the amount of unreimbursed Investor
Charge-Offs (after giving effect to Investor Charge-Offs for the related
Monthly Period) and unreimbursed Reallocated Principal Collections (as of
the previous Distribution Date) and (B) zero; and
(b) the lower of (i) the sum of the Class B Required Amount and
the Servicing Fee Required Amount and (ii) the greater of (A)(x) the
product of (I) 9.25% and (II) the Initial Collateral Amount minus (y) the
amount of unreimbursed Investor Charge-Offs (after giving effect to
Investor Charge-Offs for the related Monthly Period) and unreimbursed
Reallocated Principal Collections (as of the previous Distribution Date
and as determined pursuant to clause (a) above) and (B) zero.
"Net Yield" means, with respect to any Monthly Period, Portfolio Yield
with respect to such Monthly Period minus the Base Rate with respect to such
Monthly Period.
"Note Principal Balance" means, on any date of determination, an amount
equal to the sum of the Class A Note Principal Balance, the Class B Note
Principal Balance and the Class C Note Principal Balance.
"Noteholder Servicing Fee" is defined in Section 3.01.
"Paired Series" means a Series that has been paired with Series 2002-1
(which Series may be prefunded or partially prefunded or may be a Variable
Interest) such that a reduction of the Collateral Amount results in (or permits)
an increase of the Collateral Amount of the Paired Series.
"Percentage Allocation" is defined in subsection 4.01(b)(ii)(B).
"Permitted Investments" is defined in Annex A to the Indenture.
"Portfolio Yield" means, for any Monthly Period, the annualized percentage
equivalent of a fraction, (a) the numerator of which is equal to the sum of (i)
the Available Finance Charge Collections (excluding any Excess Finance Charge
Collections and any amounts withdrawn from the Spread Account, except that
Excess Finance Charge Collections from other Series applied for the benefit of
Series 2002-1 Notes may be included if the Rating Agency Condition is met),
minus (ii) the Investor Default Amount and the Uncovered Dilution Amount for
such Monthly
8
Period and (b) the denominator of which is the Collateral Amount plus amounts on
deposit in the Principal Accumulation Account as of the first day of such
Monthly Period.
"Principal Account" is defined in subsection 4.09(a).
"Principal Accumulation Account" is defined in subsection 4.09(a).
"Principal Accumulation Account Balance" means, for any date of
determination, the principal amount, if any, on deposit in the Principal
Accumulation Account on such date of determination.
"Principal Accumulation Investment Proceeds" means, with respect to each
Transfer Date, the investment earnings on funds in the Principal Accumulation
Account (net of investment expenses and losses) for the period from and
including the immediately preceding Transfer Date to but excluding such Transfer
Date.
"Principal Collections" means Collections of Principal Receivables.
"Principal Shortfall" is defined in Section 4.08.
"PSA Series" means a Series under (and as defined in) the Pooling and
Servicing Agreement.
"Qualified Maturity Agreement" means an agreement in which a Qualified
Maturity Agreement Institution agrees to make a deposit into the Principal
Accumulation Account on or before the Expected Principal Payment Date in an
amount equal to the initial Note Principal Balance (reduced by any amount on
deposit in the Principal Accumulation Account).
"Qualified Maturity Agreement Institution" means a counterparty having
short-term debt ratings of no less than "P-1/A-1+" by Moody's and Standard &
Poor's, respectively, or long-term unsecured ratings of no less than "Aa3" by
Moody's and "AA-" by Standard & Poor's.
"Quarterly Net Yield" means, for any Distribution Date, the average of the
Net Yields for each of the three preceding Monthly Periods, and, for purposes of
the December, 2002 and January, 2003 Distribution Dates, the Net Yields for
September and October, 2002 shall be deemed to be 7.15% and 6.75%, respectively.
"Rapid Amortization Period" means the period commencing on the date on
which a Trust Pay Out Event or a Series 2002-1 Pay Out Event is deemed to occur
and ending on the Series Termination Date.
"Rating Agency" means each of Fitch, Moody's and Standard & Poor's.
"Reallocated Principal Collections" means, for any Transfer Date, Investor
Principal Collections applied in accordance with Section 4.06 in an amount not
to exceed the Monthly Principal Reallocation Amount for the related Monthly
Period.
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"Reassignment Amount" means, for any Transfer Date, after giving effect to
any deposits and distributions otherwise to be made on the related Distribution
Date, the sum of (i) the Note Principal Balance on the related Distribution
Date, plus (ii) Monthly Interest for the related Distribution Date and any
Monthly Interest previously due but not distributed to the Series 2002-1
Noteholders, plus (iii) the amount of Default Interest, if any, for the related
Distribution Date and any Default Interest previously due but not distributed to
the Series 2002-1 Noteholders on a prior Distribution Date.
"Reference Banks" means four major banks in the London interbank market
selected by Servicer.
"Required Reserve Account Amount" means, for any Transfer Date on or after
the Reserve Account Funding Date, an amount equal to (a) 0.50% of the Note
Principal Balance or (b) any other amount designated by Transferor; provided,
however, that if such designation is of a lesser amount, Transferor shall (i)
provide Servicer and Indenture Trustee with evidence that the Rating Agency
Condition shall have been satisfied and (ii) deliver to Indenture Trustee a
certificate of an Authorized Officer to the effect that, based on the facts
known to such officer at such time, in the reasonable belief of Transferor, such
designation will not cause a Pay Out Event or an event that, after the giving of
notice or the lapse of time, would cause a Pay Out Event to occur with respect
to Series 2002-1.
"Required Retained Transferor Percentage" means, for purposes of Series
2002-1, 7%.
"Required Spread Account Amount" means, for any date of determination, (a)
prior to the occurrence of a Pay Out Event, the product of (i) the Spread
Account Percentage in effect on such date and (ii) the Initial Collateral
Amount; provided that the Required Spread Account Amount shall not exceed the
Class C Note Principal Balance minus the excess, if any, of the Principal
Accumulation Account Balance over the sum of the Class A Note Principal Balance
and the Class B Note Principal Balance on such date of determination and (b)
after the occurrence of a Pay Out Event, an amount equal to the Class C Note
Principal Balance on such date of determination.
"Reserve Account" is defined in subsection 4.10(a).
"Reserve Account Funding Date" means the Transfer Date designated by
Servicer which occurs not later than the earliest of (a) the Transfer Date with
respect to the Monthly Period which commences three months prior to the
commencement of the Accumulation Period (which commencement shall be subject to
postponement pursuant to Section 4.15); (b) the first Transfer Date for which
the Quarterly Net Yield is less than 2.0%, but in such event the Reserve Account
Funding Date shall not be required to occur earlier than the Transfer Date with
respect to the Monthly Period which commences 12 months prior to the
commencement of the Accumulation Period; (c) the first Transfer Date for which
the Quarterly Net Yield is less than 3.0%, but in such event the Reserve Account
Funding Date shall not be required to occur earlier than the Transfer Date with
respect to the Monthly Period which commences six months prior to the
commencement of the Accumulation Period; and (d) the first Transfer Date for
which the Quarterly Net Yield is less than 4.0%, but in such event the Reserve
Account Funding Date shall not be required to occur earlier than the Transfer
Date with respect to the Monthly Period which
10
commences four months prior to the commencement of the Accumulation Period;
provided, however, that subject to satisfaction of the Rating Agency Condition,
the Reserve Account Funding Date may be any date selected by Servicer; provided,
further, that the Reserve Account Funding Date shall be the Distribution Date
immediately following the date on which a Qualified Maturity Agreement is
terminated if (a) such Qualified Maturity Agreement is terminated because the
provider of such Qualified Maturity Agreement ceases to qualify as a Qualified
Maturity Agreement Institution, (b) such Qualified Maturity Agreement is
terminated prior to the earlier of the Expected Principal Payment Date and the
commencement of the Rapid Amortization Period, (c) such Qualified Maturity
Agreement is terminated after the later of the last day of the September, 2005
Monthly Period and, at the election of Transferor, the date to which the
commencement of the Accumulation Period may be postponed pursuant to Section
4.14 (as determined on the date of such termination) and (d) Transferor does not
obtain a substitute Qualified Maturity Agreement.
"Reserve Account Surplus" means, as of any Transfer Date following the
Reserve Account Funding Date, the amount, if any, by which the amount on deposit
in the Reserve Account exceeds the Required Reserve Account Amount.
"Reserve Draw Amount" means, with respect to each Transfer Date relating
to the Accumulation Period or the first Transfer Date relating to the Rapid
Amortization Period, the amount, if any, by which the Principal Accumulation
Investment Proceeds for such Distribution Date are less than the Covered Amount
determined as of such Transfer Date.
"Reset Date" means:
(a) each Addition Date and each "Addition Date" (as such term is
defined in the Pooling and Servicing Agreement), in each case relating to
Additional Accounts;
(b) each Removal Date and each "Removal Date" (as such term is
defined in the Pooling and Servicing Agreement) on which Principal
Receivables are removed from the Receivables Trust;
(c) each date on which there is an increase in the outstanding
balance of any Variable Interest or any variable funding certificate
issued pursuant to the Pooling and Servicing Agreement; and
(d) each date on which a new Series or Class of Notes is issued
and each date on which a new "Series" or "Class" (each as defined in the
Pooling and Servicing Agreement) of investor certificates is issued by the
Certificate Trust.
"Revolving Period" means the period beginning on the Closing Date and
ending at the close of business on the day immediately preceding the earlier of
the day the Accumulation Period commences or the day the Rapid Amortization
Period commences.
"Series 2002-1" means the Series of Notes the terms of which are specified
in this Indenture Supplement.
"Series 2002-1 Final Maturity Date" means the March 17, 2008 Distribution
Date.
11
"Series 2002-1 Note" means a Class A Note, a Class B Note or a Class C
Note.
"Series 2002-1 Noteholder" means a Class A Noteholder, a Class B
Noteholder or a Class C Noteholder.
"Series 2002-1 Pay Out Event" is defined in Section 6.01.
"Series Allocation Percentage" means, with respect to any Monthly Period,
the percentage equivalent of a fraction, the numerator of which is the numerator
used in determining the Allocation Percentage for Finance Charge Collections for
that Monthly Period and the denominator of which is the sum of the numerators
used in determining the Allocation Percentage for Finance Charge Receivables for
all outstanding Series and PSA Series for such Monthly Period; provided that if
one or more Reset Dates occur in a Monthly Period, the Series Allocation
Percentage will be the percentage equivalent of a fraction, the numerator of
which is an amount equal to the sum of the numerators used in determining the
Allocation Percentage for Finance Charge Collections for Series 2002-1 for
each day during that Monthly Period divided by the total number of days in such
Monthly Period and the denominator of which is an amount equal to the sum of the
numerators used in determining the Allocation Percentages for Finance Charge
Receivables for all outstanding Series and PSA Series for each day during such
Monthly Period divided by the total number of days in such Monthly Period.
"Series Servicing Fee Percentage" means 2% per annum.
"Series Termination Date" means the earliest to occur of (a) the date on
which the Note Principal Balance is paid in full, (b) the date on which the
Collateral Amount is reduced to zero and (c) the Series 2002-1 Final Maturity
Date.
"Servicer Interchange" means, with respect to any Monthly Period, an
amount equal to one-twelfth of the product of (a) 1.00% and (b) the Collateral
Amount as of the last day of the preceding Monthly Period; provided, however,
that Servicer Interchange for the December, 2002 Distribution Date shall be
$580,821.92.
"Servicing Fee Required Amount" means, for any Distribution Date, an
amount equal to the excess of the amount described in subsection 4.04(a)(iii)
over the Available Finance Charge Collections applied to pay such amount
pursuant to subsection 4.04(a).
"Spread Account" is defined in subsection 4.12(a).
"Spread Account Deficiency" means the excess, if any, of the Required
Spread Account Amount over the Available Spread Account Amount.
"Spread Account Percentage" means, for any Distribution Date, the
applicable percentage determined as follows:
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then the Spread
Account
If the Quarterly Net Yield Percentage will
on such Distribution Date is equal:
---------------------------- ---------------
greater than or equal
to: and less than:
5.50% 0.50%
5.25% 5.50% 0.75%
5.00% 5.25% 1.00%
4.75% 5.00% 2.00%
4.50% 4.75% 2.50%
4.00% 4.50% 3.00%
3.50% 4.00% 4.00%
3.00% 3.50% 5.25%
2.00% 3.00% 6.25%
2.00% 6.50%
The Initial Spread Account Percentage shall be 0.50%. The Spread Account
Percentage shall remain at that percentage until (a) further increased to a
higher required percentage as specified above or (b) the Distribution Date on
which the Quarterly Net Yield has increased to a level above that for the then
current Spread Account Percentage on each of the three immediately preceding
Distribution Dates (inclusive of the current Distribution Date), in which case
the Spread Account Percentage shall be decreased to the next lowest percentage
specified above.
"Telerate Page 3750" means the display page currently so designated on the
Bridge Telerate Markets Report (or such page as may replace that page in that
service for the purpose of displaying comparable rates or prices).
"Uncovered Dilution Amount" means an amount equal to the product of (x)
the Series Allocation Percentage for the related Monthly Period times (y) the
aggregate Dilutions occurring during that Monthly Period as to which any deposit
is required to be made to the Excess Funding Account pursuant to Section 3.09(a)
of the Transfer and Servicing Agreement or Section 4.03(c) of the Pooling and
Servicing Agreement but has not been made; provided that, if the Transferor
Interest is greater than zero at the time the deposit referred to in clause (y)
is required to be made, the Uncovered Dilution Amount for such amount to be
deposited shall be deemed to be zero.
Each capitalized term defined herein shall relate to the Series 2002-1
Notes and no other Series of Notes issued by Issuer, unless the context
otherwise requires. All capitalized terms used herein and not otherwise defined
herein have the meanings ascribed to them in Annex A to the Master Indenture.
The interpretive rules specified in Section 1.2 of the Master Indenture
also apply to this Indenture Supplement. If any term or provision contained
herein shall conflict with or be inconsistent with any term or provision
contained in the Master Indenture, the terms and provisions of this Indenture
Supplement shall be controlling.
13
ARTICLE III
NOTEHOLDER SERVICING FEE
SECTION 3.01. SERVICING COMPENSATION. The share of the Servicing Fee
allocable to Series 2002-1 for any Transfer Date (the "Noteholder Servicing
Fee") shall be equal to one-twelfth of the product of (a) the Series Servicing
Fee Percentage and (b) the Collateral Amount as of the last day of the Monthly
Period preceding such Transfer Date; provided, however, that with respect to the
first Transfer Date, the Noteholder Servicing Fee shall be equal to
$1,161,643.84; provided, further, that if Transferor or Indenture Trustee is
Servicer, the Noteholder Servicing Fee shall be reduced by the amount, if any,
by which the Servicer Interchange for such Monthly Period exceeds the amount of
Interchange included as Collections of Finance Charge Receivables allocable to
the Series 2002-1 Notes with respect to such Monthly Period pursuant to Section
4.17 of this Indenture Supplement. The remainder of the Servicing Fee shall be
paid by the Holders of the Transferor Interest or the Noteholders of other
Series (as provided in the related Indenture Supplements) and in no event shall
Issuer, Indenture Trustee or the Series 2002-1 Noteholders be liable for the
share of the Servicing Fee to be paid by the Holders of the Transferor Interest
or the Noteholders of any other Series.
ARTICLE IV
RIGHTS OF NOTEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
SECTION 4.01. COLLECTIONS AND ALLOCATIONS.
(a) ALLOCATIONS. Finance Charge Collections, Principal Collections
and Receivables in Defaulted Accounts shall be allocated and distributed
to Series 2002-1 as set forth in this Article.
(b) ALLOCATIONS TO THE SERIES 2002-1 NOTEHOLDERS. On each Date of
Processing, Servicer shall allocate to the Series 2002-1 Noteholders the
following amounts as set forth below:
(i) Allocations of Finance Charge Collections. Servicer
shall allocate to the Series 2002-1 Noteholders an amount equal to
the product of (A) the Allocation Percentage and (B) the aggregate
Finance Charge Collections processed on such Date of Processing and
shall deposit such amount into the Finance Charge Account in
accordance with Section 8.04 of the Indenture and subsection
4.01(c).
(ii) Allocations of Principal Collections. Servicer shall
allocate to the Series 2002-1 Noteholders the following amounts as
set forth below:
(A) Allocations During the Revolving Period.
(1) During the Revolving Period an amount equal
to the product of the Allocation Percentage and the
aggregate amount of
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Principal Collections processed on each Date of
Processing, shall be allocated to the Series 2002-1
Noteholders and, first, if any other Principal Sharing
Series is outstanding and in its accumulation period or
amortization period, retained in the Principal Account
for application, to the extent necessary, as Excess
Principal Collections to other Principal Sharing Series
on the related Distribution Date, second, deposited to
the Excess Funding Account to the extent necessary so
that the Transferor Interest is not less than the
Minimum Transferor Interest and, third, paid to the
Holders of the Transferor Interest.
(2) With respect to each Monthly Period falling
in the Revolving Period, to the extent that Collections
of Principal Receivables allocated to the Series 2002-1
Noteholders pursuant to this subsection 4.01(b)(ii) are
paid to Transferor, Transferor shall make an amount
equal to the Reallocated Principal Collections for the
related Transfer Date available on that Transfer Date
for application in accordance with Section 4.06.
(B) Allocations During the Accumulation Period. During
the Accumulation Period an amount equal to the product of the
Allocation Percentage and the aggregate amount of Principal
Collections processed on each Date of Processing (the product
for any such date is hereinafter referred to as a "Percentage
Allocation") shall be allocated to the Series 2002-1
Noteholders and deposited into the Principal Account in
accordance with Section 8.04 of the Indenture and subsection
4.01(c).
(C) Allocations During the Rapid Amortization Period.
During the Rapid Amortization Period, an amount equal to the
product of the Allocation Percentage and the aggregate amount
of Principal Collections processed on each Date of Processing
shall be allocated to the 2002-1 Noteholders and deposited
into the Principal Account until applied as provided herein;
provided, however, that after the date on which an amount of
such Principal Collections equal to the Note Principal Balance
has been deposited into the Principal Account such amount
shall be, first, if any other Principal Sharing Series is
outstanding and in its accumulation period or amortization
period, retained in the Principal Account for application, to
the extent necessary, as Excess Principal Collections to other
Principal Sharing Series on the related Distribution Date,
second, deposited in the Excess Funding Account to the extent
necessary so that the Transferor Interest is not less than the
Minimum Transferor Interest and, third, paid to the holders of
the Transferor Interest.
(c) During any period when Servicer is permitted by Section 4.03
of the Pooling and Servicing Agreement or Section 8.04 of the Indenture to
make a single monthly deposit to the Collection Account, amounts allocated
to the Noteholders pursuant to Sections 4.01(a) and (b) with respect to
any Monthly Period need not be
15
deposited into the Collection Account or any Series Account prior to the
related Transfer Date, and, when so deposited, (x) may be deposited net of
any amounts required to be distributed to Transferor and, if FNBO is
Servicer, Servicer, and (y) shall be deposited into the Finance Charge
Account (in the case of Collections of Finance Charge Receivables) and the
Principal Account (in the case of Collections of Principal Receivables
(not including any Excess Principal Collections allocated to Series 2002-1
pursuant to Section 4.03(e) of the Pooling and Servicing Agreement or
Section 8.05 of the Indenture)). The exception to the daily deposit
requirements provided by the second paragraph of Section 8.04(a) of the
Indenture shall not be available during any Monthly Period during the
Rapid Amortization Period, or at any time that the Transferor Interest is
less than the Minimum Transferor Interest, or at any time that the
Available Spread Account Amount is less than the Required Spread Account
Amount, and provided, further, that for purposes of this sentence, the
amount of Collections of Principal Receivables required to be deposited or
distributed on the related Transfer Date during the Accumulation Period
shall include an amount equal to the Controlled Deposit Amount and the
amount of Collections of Finance Charge Receivables required to be
deposited or distributed on the related Distribution Date shall include an
amount equal to the sum of:
(i) an amount equal to 125% of the Monthly Interest that was
payable on the previous Distribution Date; plus
(ii) the Noteholder Servicing Fee due on the related
Distribution Date; plus
(iii) an amount equal to 150% of the Investor Default Amount
for the previous Distribution Date.
(d) On any date, Servicer may withdraw from the Collection Account
or any Series Account any amounts inadvertently deposited in such account
that should have not been so deposited.
SECTION 4.02. DETERMINATION OF MONTHLY INTEREST.
(a) The amount of monthly interest ("Class A Monthly Interest
Payment") distributable from the Distribution Account with respect to the
Class A Notes on any Distribution Date shall be an amount equal to the
product of (i) (A) a fraction, the numerator of which is the actual number
of days in the related Interest Period and the denominator of which is
360, times (B) the Class A Note Interest Rate in effect with respect to
the related Interest Period and (ii) the Class A Note Principal Balance as
of the close of business on the last day of the preceding Monthly Period
(or, with respect to the initial Distribution Date, the Class A Note
Initial Principal Balance).
On the Determination Date preceding each Distribution Date, Servicer
shall determine the excess, if any (the "Class A Interest Shortfall"), of
(x) the aggregate amount accrued pursuant to this Section 4.02(a) as of
the prior Distribution Date over (y) the amount actually transferred from
the Distribution Account for payment of such
16
amount. If the Class A Interest Shortfall for any Distribution Date is
greater than zero, on each subsequent Distribution Date until such Class A
Interest Shortfall is fully paid, an additional amount ("Class A Default
Interest") equal to the product of (i) (A) a fraction, the numerator of
which is the actual number of days in the related Interest Period and the
denominator of which is 360, times (B) the Class A Note Interest Rate in
effect with respect to the related Interest Period and (ii) such Class A
Interest Shortfall (or the portion thereof which has not been paid to the
Class A Noteholders) shall be payable as provided herein with respect to
the Class A Notes. Notwithstanding anything to the contrary herein, Class
A Default Interest shall be payable or distributed to the Class A
Noteholders only to the extent permitted by applicable law.
(b) The amount of monthly interest ("Class B Monthly Interest
Payment") distributable from the Distribution Account with respect to the
Class B Notes on any Distribution Date shall be an amount equal to the
product of (i) (A) a fraction, the numerator of which is the actual number
of days in the related Interest Period and the denominator of which is
360, times (B) the Class B Note Interest Rate in effect with respect to
the related Interest Period and (ii) the Class B Note Principal Balance as
of the close of business on the last day of the preceding Monthly Period
(or, with respect to the initial Distribution Date, the Class B Note
Initial Principal Balance).
On the Determination Date preceding each Distribution Date, Servicer
shall determine the excess, if any (the "Class B Interest Shortfall"), of
(x) the aggregate amount accrued pursuant to this Section 4.02(b) as of
the prior Distribution Date over (y) the amount of funds actually
transferred from the Distribution Account for payment of such amount. If
the Class B Interest Shortfall for any Distribution Date is greater than
zero, on each subsequent Distribution Date until such Class B Interest
Shortfall is fully paid, an additional amount ("Class B Default Interest")
equal to the product of (i) (A) a fraction, the numerator of which is the
actual number of days in the related Interest Period and the denominator
of which is 360, times (B) the Class B Note Interest Rate in effect with
respect to the related Interest Period and (ii) such Class B Interest
Shortfall (or the portion thereof which has not been paid to the Class B
Noteholders) shall be payable as provided herein with respect to the Class
B Notes. Notwithstanding anything to the contrary herein, Class B Default
Interest shall be payable or distributed to the Class B Noteholders only
to the extent permitted by applicable law.
(c) The amount of monthly interest ("Class C Monthly Interest
Payment") distributable from the Distribution Account with respect to the
Class C Notes on any Distribution Date shall be an amount equal to the
product of (i) (A) a fraction, the numerator of which is the actual number
of days in the related Interest Period and the denominator of which is
360, times (B) the Class C Note Interest Rate in effect with respect to
the related Interest Period and (ii) the Class C Note Principal Balance as
of the close of business on the last day of the preceding Monthly Period
(or, with respect to the initial Distribution Date, the Class C Note
Initial Principal Balance).
On the Determination Date preceding each Distribution Date, Servicer
shall determine the excess, if any (the "Class C Interest Shortfall"), of
(x) the aggregate amount accrued pursuant to this Section 4.02(c) as of
the prior Distribution Date over
17
(y) the amount of funds actually transferred from the Distribution Account
for payment of such amount. If the Class C Interest Shortfall for any
Distribution Date is greater than zero, on each subsequent Distribution
Date until such Class C Interest Shortfall is fully paid, an additional
amount ("Class C Default Interest") equal to the product of (i) (A) a
fraction, the numerator of which is the actual number of days in the
related Interest Period and the denominator of which is 360, times (B) the
Class C Note Interest Rate in effect with respect to the related Interest
Period and (ii) such Class C Interest Shortfall (or the portion thereof
which has not been paid to the Class C Noteholders) shall be payable as
provided herein with respect to the Class C Notes. Notwithstanding
anything to the contrary herein, Class C Default Interest shall be payable
or distributed to the Class C Noteholders only to the extent permitted by
applicable law.
SECTION 4.03. DETERMINATION OF MONTHLY PRINCIPAL. The amount of monthly
principal to be transferred from the Principal Account with respect to the Notes
on each Transfer Date (the "Monthly Principal"), beginning with the Transfer
Date in the month following the month in which the Accumulation Period or, if
earlier, the Rapid Amortization Period, begins, shall be equal to the least of
(i) the Available Principal Collections on deposit in the Principal Account with
respect to such Transfer Date, (ii) for each Transfer Date with respect to the
Accumulation Period, the Controlled Deposit Amount for such Transfer Date, (iii)
the Collateral Amount (after taking into account any adjustments to be made on
such Distribution Date pursuant to Sections 4.05 and 4.06) prior to any deposit
into the Principal Accumulation Account on such Transfer Date, and (iv) the Note
Principal Balance, minus any amount already on deposit in the Principal
Accumulation Account on such Transfer Date.
SECTION 4.04. APPLICATION OF AVAILABLE FINANCE CHARGE COLLECTIONS AND
AVAILABLE PRINCIPAL COLLECTIONS. On or before each Transfer Date, Servicer shall
instruct Indenture Trustee in writing (which writing shall be substantially in
the form of Exhibit B) to withdraw and Indenture Trustee, acting in accordance
with such instructions, shall withdraw on such Transfer Date or related
Distribution Date, as applicable, to the extent of available funds, the amount
required to be withdrawn from the Finance Charge Account, the Principal Account,
the Principal Funding Account and the Distribution Account as follows:
(a) On each Transfer Date, an amount equal to the Available
Finance Charge Collections with respect to the related Distribution Date
will be distributed or deposited in the following priority:
(i) an amount equal to Class A Monthly Interest Payment for
such Distribution Date, plus any Class A Interest Shortfall, plus
the amount of any Class A Default Interest for such Distribution
Date, plus the amount of any Class A Default Interest previously due
but not distributed to Class A Noteholders on a prior Distribution
Date shall be deposited by Servicer or Indenture Trustee into the
Distribution Account;
(ii) an amount equal to Class B Monthly Interest Payment for
such Distribution Date, plus any Class B Interest Shortfall, plus
the amount of any Class B Default Interest for such Distribution
Date, plus the amount of any Class B Default Interest previously due
but not distributed to Class B Noteholders
18
on a prior Distribution Date shall be deposited by Servicer or
Indenture Trustee into the Distribution Account;
(iii) if Servicer is a Person other than FNBO or an Affiliate
of FNBO, an amount equal to the Noteholder Servicing Fee for such
Transfer Date, plus the amount of any Noteholder Servicing Fee
previously due but not distributed to Servicer on a prior Transfer
Date, shall be distributed to Servicer;
(iv) an amount equal to Class C Monthly Interest Payment for
such Distribution Date, plus any Class C Interest Shortfall, plus
the amount of any Class C Default Interest for such Distribution
Date, plus the amount of any Class C Default Interest previously due
but not distributed to the Class C Noteholders on a prior
Distribution Date shall be deposited by Servicer or Indenture
Trustee into the Distribution Account;
(v) an amount equal to the Investor Default Amount and any
Uncovered Dilution Amount for such Distribution Date shall be
treated as a portion of Available Principal Collections for such
Distribution Date and, during the Accumulation Period or the Rapid
Amortization Period, deposited into the Principal Account on the
related Transfer Date;
(vi) an amount equal to the sum of the aggregate amount of
Investor Charge-Offs and the amount of Reallocated Principal
Collections which have not been previously reimbursed pursuant to
this subsection (vi) shall be treated as a portion of Available
Principal Collections for such Distribution Date;
(vii) an amount equal to the excess, if any, of the Required
Spread Account Amount over the Available Spread Account Amount shall
be deposited into the Spread Account;
(viii) if Servicer is FNBO or an Affiliate of FNBO, an amount
equal to the Noteholder Servicing Fee for such Transfer Date, plus
the amount of any Noteholder Servicing Fee previously due but not
distributed to Servicer on a prior Transfer Date, shall be
distributed to Servicer;
(ix) on each Transfer Date from and after the Reserve Account
Funding Date, but prior to the date on which the Reserve Account
terminates as described in subsection 4.10(f), an amount up to the
excess, if any, of the Required Reserve Account Amount over the
Available Reserve Account Amount shall be deposited into the Reserve
Account; and
(x) the balance, if any, will constitute a portion of Excess
Finance Charge Collections for such Distribution Date.
(b) On each Transfer Date with respect to the Revolving Period, an
amount equal to the Available Principal Collections for the related
Monthly Period shall be treated as Excess Principal Collections and
applied in accordance with Section 8.05 of the Indenture.
19
(c) On each Transfer Date with respect to the Accumulation Period
or the Rapid Amortization Period, an amount equal to the Available
Principal Collections for the related Monthly Period shall be distributed
or deposited in the following order of priority:
(i) during the Accumulation Period, an amount equal to the Monthly
Principal for such Transfer Date shall be deposited into the
Principal Accumulation Account;
(ii) during the Rapid Amortization Period, an amount equal to the
Monthly Principal for such Transfer Date shall be deposited into the
Distribution Account on such Transfer Date and on each subsequent
Transfer Date for payment to the Class A Noteholders on the related
Distribution Date until the Class A Note Principal Balance has been
paid in full;
(iii) during the Rapid Amortization Period, after giving effect to
the distribution referred to in clause (ii) above, an amount equal
to the Monthly Principal remaining, if any, shall be deposited into
the Distribution Account on such Transfer Date and on each
subsequent Transfer Date for payment to the Class B Noteholders on
the related Distribution Date until the Class B Note Principal
Balance has been paid in full;
(iv) during the Rapid Amortization Period, after giving effect to
the distributions referred to in clauses (ii) and (iii) above, an
amount equal to the Monthly Principal remaining, if any, shall be
deposited into the Distribution Account on such Transfer Date and on
each subsequent Transfer Date for payment to the Class C Noteholders
on the related Distribution Date until the Class C Note Principal
Balance has been paid in full; and
(v) in the case of each of the Accumulation Period and the Rapid
Amortization Period, the balance of such Available Principal
Collections remaining after application in accordance with clauses
(i) through (iv) above shall be treated as Excess Principal
Collections and applied in accordance with Section 8.05 of the
Indenture.
(d) On each Distribution Date, Indenture Trustee shall pay in
accordance with Section 5.02 to the Class A Noteholders from the
Distribution Account, the amount deposited into the Distribution Account
pursuant to Section 4.04(a)(i) on the preceding Transfer Date, to the
Class B Noteholders from the Distribution Account, the amount deposited
into the Distribution Account pursuant to Section 4.04(a)(ii) and to the
Class C Noteholders from the Distribution Account, the amount deposited
into the Distribution Account pursuant to Section 4.04(a)(iv).
(e) On the earlier to occur of (i) the first Transfer Date with
respect to the Rapid Amortization Period and (ii) the Transfer Date
immediately preceding the Expected Principal Payment Date, Indenture
Trustee, acting in accordance with instructions from Servicer, shall
withdraw from the Principal Accumulation Account and
20
deposit into the Distribution Account amounts necessary to pay first, to
the Class A Noteholders, until paid in full, second, to the Class B
Noteholders, until paid in full, and, if the Rapid Amortization Period has
commenced, any remainder to the Class C Noteholders, the amounts deposited
into the Principal Accumulation Account pursuant to subsections
4.04(c)(i). On the Class C Expected Principal Payment Date, if the Rapid
Amortization Period has not commenced, Indenture Trustee, acting in
accordance with instructions from Servicer, shall withdraw from the
Principal Accumulation Account and deposit into the Distribution Account
for payment to the Class C Noteholders the amounts deposited into the
Principal Accumulation Account pursuant to subsection 4.04(c)(i) on the
related Transfer Date. Indenture Trustee, acting in accordance with the
instructions of Servicer, shall in accordance with Section 5.02 pay from
the Distribution Account to the Class A Noteholders, the Class B
Noteholders and the Class C Noteholders, as applicable, the amounts
deposited for the account of such Noteholders into the Distribution
Account pursuant to this subsection 4.04(e).
SECTION 4.05. INVESTOR CHARGE-OFFS. On each Determination Date, Servicer
shall calculate the Investor Default Amount and any Uncovered Dilution Amount
for the related Distribution Date. If, on any Distribution Date, the sum of the
Investor Default Amount and any Uncovered Dilution Amount for such Distribution
Date exceeds the sum of the amount of Available Finance Charge Collections
allocated with respect thereto pursuant to subsection 4.04(a)(v) with respect to
such Distribution Date, the Collateral Amount will be reduced (but not below
zero) by the amount of such excess (such reduction, an "Investor Charge-Off").
SECTION 4.06. REALLOCATED PRINCIPAL COLLECTIONS. On each Transfer Date,
Servicer shall apply, or shall instruct Indenture Trustee in writing to apply,
Reallocated Principal Collections with respect to that Transfer Date, to fund
any deficiency pursuant to and in the priority set forth in subsections
4.04(a)(i), (ii) and (iii), after giving effect to any withdrawal from the
Spread Account pursuant to Section 4.12(g) to cover such payments. On each
Transfer Date, the Collateral Amount shall be reduced by the amount of
Reallocated Principal Collections for such Transfer Date.
SECTION 4.07. EXCESS FINANCE CHARGE COLLECTIONS. Series 2002-1 shall be an
Excess Allocation Series with respect to Group One only. For this purpose, each
outstanding series of certificates issued by First Bankcard Master Credit Card
Trust (other than series represented by the Collateral Certificate) shall be
deemed to be a Series in Group One. Subject to Section 8.06 of the Indenture,
Excess Finance Charge Collections with respect to the Excess Allocation Series
in Group One for any Transfer Date will be allocated to Series 2002-1 in an
amount equal to the product of (x) the aggregate amount of Excess Finance Charge
Collections with respect to all the Excess Allocation Series in Group One for
such Distribution Date and (y) a fraction, the numerator of which is the Finance
Charge Shortfall for Series 2002-1 for such Distribution Date and the
denominator of which is the aggregate amount of Finance Charge Shortfalls for
all the Excess Allocation Series in Group One for such Distribution Date. The
"Finance Charge Shortfall" for Series 2002-1 for any Distribution Date will be
equal to the excess, if any, of (a) the full amount required to be paid, without
duplication, pursuant to subsections 4.04(a)(i) through (x) on such Distribution
Date over (b) the Available Finance Charge Collections with respect to such
Distribution Date (excluding any portion thereof attributable to Excess Finance
21
Charge Collections). Following a Servicer Default and the appointment of a
Successor Servicer, Excess Finance Charge Collections remaining after their
application to cover Finance Charge Shortfalls for Group One, shall be paid to
the Successor Servicer to pay any unpaid Excess Servicing Fees prior to any
distribution to Transferor pursuant to Section 8.06 of the Indenture.
SECTION 4.08. EXCESS PRINCIPAL COLLECTIONS. Subject to Section 4.03(e) of
the Pooling and Servicing Agreement and Section 8.05 of the Indenture, Excess
Principal Collections allocable to Series 2002-1 on any Transfer Date will be
equal to the product of (x) the aggregate amount of Excess Principal Collections
with respect to all Principal Sharing Series for such Transfer Date and (y) a
fraction, the numerator of which is the Principal Shortfalls for Series 2002-1
for such Transfer Date and the denominator of which is the aggregate amount of
Principal Shortfall for all the Series which are Principal Sharing Series for
such Transfer Date. For this purpose, each outstanding series of certificates
issued by First Bankcard Master Credit Card Trust (other than any series
represented by the Collateral Certificate) shall be deemed to be a Principal
Sharing Series. The "Principal Shortfall" for Series 2002-1 will be equal to (a)
for any Transfer Date with respect to the Revolving Period, zero, (b) for any
Transfer Date with respect to the Accumulation Period, the excess, if any, of
the Controlled Deposit Amount with respect to such Transfer Date over the amount
of Available Principal Collections for such Transfer Date (excluding any portion
thereof attributable to Excess Principal Collections) and (c) for any Transfer
Date with respect to the Rapid Amortization Period, the excess, if any, of the
Collateral Amount with respect to such Transfer Date over the amount of
Available Principal Collections for such Transfer Date (excluding any portion
thereof attributable to Excess Principal Collections). Excess Principal
Collections remaining on any Transfer Date after payment of Principal Shortfalls
for all Series in Group I, and after any application of Excess Principal
Collections as principal with respect to any Variable Interest or variable
funding certificates in such Group will be distributed to the Holder of the
Transferor Interest or deposited in the Excess Funding Account in accordance
with subsection 4.03(e) of the Pooling and Servicing Agreement or Section 8.05
of the Indenture, as applicable.
SECTION 4.09. CERTAIN SERIES ACCOUNTS.
(a) Indenture Trustee shall establish and maintain with a
Qualified Institution, which may be Indenture Trustee, in the name of the
Trust, on behalf of the Trust, for the benefit of the Noteholders, four
segregated trust accounts with such Qualified Institution (the "Finance
Charge Account", the "Principal Account," the "Principal Accumulation
Account" and the "Distribution Account"), each bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Series 2002-1 Noteholders. Indenture Trustee shall possess
all right, title and interest in all funds on deposit from time to time in
the Finance Charge Account, the Principal Account, the Principal
Accumulation Account and the Distribution Account and in all proceeds
thereof. The Finance Charge Account, the Principal Account, the Principal
Accumulation Account and the Distribution Account shall be under the sole
dominion and control of Indenture Trustee for the benefit of the Series
2002-1 Noteholders. If at any time the institution holding the Finance
Charge Account, the Principal Account, the Principal Accumulation Account
and the Distribution Account ceases to be a Qualified Institution,
Transferor shall notify Indenture Trustee in writing, and Indenture
Trustee upon being notified (or Servicer on its behalf) shall, within ten
(10) Business Days, establish a new Finance
22
Charge Account, a new Principal Account, a new Principal Accumulation
Account and a new Distribution Account meeting the conditions specified
above with a Qualified Institution, and shall transfer any cash or any
investments to such new Finance Charge Account, new Principal Account, new
Principal Accumulation Account and new Distribution Account. Indenture
Trustee, at the written direction of Servicer, shall (i) make withdrawals
from the Finance Charge Account, the Principal Account, the Principal
Accumulation Account and the Distribution Account from time to time, in
the amounts and for the purposes set forth in this Indenture Supplement,
and (ii) on each Transfer Date (from and after the commencement of the
Accumulation Period) prior to the termination of the Principal
Accumulation Account, make deposits into the Principal Accumulation
Account in the amounts specified in, and otherwise in accordance with,
subsection 4.04(c)(i). Indenture Trustee at all times shall maintain
accurate records reflecting each transaction in the Finance Charge
Account, the Principal Account, the Principal Accumulation Account and the
Distribution Account, so long as such accounts are established and
maintained with Indenture Trustee.
(b) Funds on deposit in the Finance Charge Account, the Principal
Account, the Principal Accumulation Account and the Distribution Account,
from time to time shall be invested and reinvested at the written
direction of Servicer by Indenture Trustee in Permitted Investments that
will mature so that such funds will be available for withdrawal on or
prior to the following Transfer Date. The Indenture Trustee shall not be
held liable for the performance of any Permitted Investments made in
accordance with the terms hereof.
On each Transfer Date with respect to the Accumulation Period and on
the first Transfer Date with respect to the Rapid Amortization Period,
Indenture Trustee, acting at Servicer's direction given on or before such
Transfer Date, shall transfer from the Principal Accumulation Account to
the Finance Charge Account the Principal Accumulation Investment Proceeds
on deposit in the Principal Accumulation Account for application as
Available Finance Charge Collections in accordance with Section 4.04.
Principal Accumulation Investment Proceeds (including reinvested
interest) shall not be considered part of the amounts on deposit in the
Principal Accumulation Account for purposes of this Indenture Supplement.
On each Distribution Date, all interest and earnings (net of losses
and investment expenses) on funds on deposit in the Principal Account, the
Finance Charge Account and the Distribution Account shall be deposited by
Indenture Trustee in a separate deposit account with a Qualified
Institution in the name of Servicer, or a Person designated in writing by
Servicer, which shall not constitute a part of the Trust, or shall
otherwise be turned over by Indenture Trustee to Servicer.
(c) The Finance Charge Account, the Principal Account, the
Principal Accumulation Account, the Distribution Account, the Reserve
Account and the Spread Account are hereby designated as the Series
Accounts for the Series 2002-1 Notes.
23
(d) Indenture Trustee shall hold such of the Permitted Investments
of funds in any Series Account as consists of instruments, deposit
accounts, negotiable documents, money, goods, letters of credit, and
advices of credit in the State of New York. Indenture Trustee shall hold
such of the Permitted Investments 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 subsection 4.09(d), Indenture Trustee shall
not hold Permitted Investments through an agent or nominee.
(e) No Permitted Investment in any Series Account 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.
SECTION 4.10. RESERVE ACCOUNT.
(a) Indenture Trustee shall establish and maintain with a
Qualified Institution, which may be Indenture Trustee in the name of the
Trust, on behalf of the Trust, for the benefit of the Series 2002-1
Noteholders, a segregated trust account (the "Reserve Account"), bearing a
designation clearly indicating that the funds deposited therein are held
for the benefit of the Series 2002-1 Noteholders. Indenture Trustee shall
possess all right, title and interest in all funds on deposit from time to
time in the Reserve Account and in all proceeds thereof. The Reserve
Account shall be under the sole dominion and control of Indenture Trustee
for the benefit of the Series 2002-1 Noteholders. If at any time the
institution holding the Reserve Account ceases to be a Qualified
Institution, Transferor shall notify Indenture Trustee, and Indenture
Trustee upon being notified (or Servicer on its behalf) shall, within ten
(10) Business Days, establish a new Reserve Account meeting the conditions
specified above with a Qualified Institution, and shall transfer any cash
or any investments to such new Reserve Account. Indenture Trustee, at the
written direction of Servicer, shall (i) make withdrawals from the Reserve
Account from time to time in an amount up to the Available Reserve Account
Amount at such time, for the purposes set forth in this Indenture
Supplement, and (ii) on each Transfer Date (from and after the Reserve
Account Funding Date) prior to termination of the
24
Reserve Account, make a deposit into the Reserve Account in the amount
specified in, and otherwise in accordance with, subsection 4.04(a)(ix).
(b) Funds on deposit in the Reserve Account shall be invested at
the written direction of Servicer by Indenture Trustee in Permitted
Investments. Funds on deposit in the Reserve Account on any Transfer Date,
after giving effect to any withdrawals from the Reserve Account on such
Transfer Date, shall be invested in such investments that will mature so
that such funds will be available for withdrawal on or prior to the
following Transfer Date.
On each Transfer Date, all interest and earnings (net of losses and
investment expenses) accrued since the preceding Transfer Date on funds on
deposit in the Reserve Account shall be retained in the Reserve Account
(to the extent that the Available Reserve Account Amount is less than the
Required Reserve Account Amount) and the balance, if any, shall be
deposited into the Finance Charge Account and included in Available
Finance Charge Collections for such Transfer Date. For purposes of
determining the availability of funds or the balance in the Reserve
Account for any reason under this Indenture Supplement, except as
otherwise provided in the preceding sentence, investment earnings on such
funds shall be deemed not to be available or on deposit.
(c) On or before each Transfer Date with respect to the
Accumulation Period and on or before the first Transfer Date with respect
to the Rapid Amortization Period, Servicer shall calculate the Reserve
Draw Amount; provided, however, that such amount will be reduced to the
extent that funds otherwise would be available for deposit in the Reserve
Account under Section 4.04(a)(ix) with respect to such Transfer Date.
(d) If for any Transfer Date the Reserve Draw Amount is greater
than zero, the Reserve Draw Amount, up to the Available Reserve Account
Amount, shall be withdrawn from the Reserve Account on such Transfer Date
by Indenture Trustee (acting in accordance with the written instructions
of Servicer) and deposited into the Finance Charge Account for application
as Available Finance Charge Collections for such Transfer Date.
(e) If the Reserve Account Surplus on any Transfer Date, after
giving effect to all deposits to and withdrawals from the Reserve Account
with respect to such Transfer Date, is greater than zero, Indenture
Trustee, acting in accordance with the written instructions of Servicer,
shall withdraw from the Reserve Account an amount equal to such Reserve
Account Surplus and (i) deposit such amounts in the Spread Account, to the
extent that funds on deposit in the Spread Account are less than the
Required Spread Account Amount, and (ii) distribute any such amounts
remaining after application pursuant to subsection 4.10(e)(i) to the
Holders of the Transferor Interest.
(f) Upon the earliest to occur of (i) the termination of the Trust
pursuant to Article VIII of the Trust Agreement, (ii) the first Transfer
Date relating to the Rapid Amortization Period and (iii) the Transfer Date
immediately preceding the Expected Principal Payment Date, Indenture
Trustee, acting in accordance with the written
25
instructions of Servicer, after the prior payment of all amounts owing to
the Series 2002-1 Noteholders that are payable from the Reserve Account as
provided herein, shall withdraw from the Reserve Account all amounts, if
any, on deposit in the Reserve Account and (A) deposit such amounts in the
Spread Account, to the extent that funds on deposit in the Spread Account
are less than the Required Spread Account Amount, and (B) distribute any
such amounts remaining after application pursuant to subsection 4.10(f)(A)
to the Holders of the Transferor Interest. The Reserve Account shall
thereafter be deemed to have terminated for purposes of this Indenture
Supplement. Funds on deposit in the Reserve Account at any time that the
Accumulation Period is suspended pursuant to Section 4.15 shall remain on
deposit until applied in accordance with subsection 4.10(d), (e) or (f).
SECTION 4.11. RESERVED.
SECTION 4.12. SPREAD ACCOUNT.
(a) On or prior to the Closing Date, Indenture Trustee shall
establish and maintain with a Qualified Institution, which may be
Indenture Trustee in the name of the Trust, on behalf of the Trust, for
the benefit of the Class C Noteholders and the Holder of the Transferor
Interest, a segregated trust account (the "Spread Account"), bearing a
designation clearly indicating that the funds deposited therein are held
for the benefit of the Class C Noteholders and Transferor. Except as
otherwise provided in this Section 4.12, Indenture Trustee shall possess
all right, title and interest in all funds on deposit from time to time in
the Spread Account and in all proceeds thereof. The Spread Account shall
be under the sole dominion and control of Indenture Trustee for the
benefit of the Class C Noteholders and the Holder of the Transferor
Interest. If at any time the institution holding the Spread Account ceases
to be a Qualified Institution, Servicer shall notify Indenture Trustee,
and Indenture Trustee upon being notified (or Servicer on its behalf)
shall, within ten (10) Business Days (or such longer period as to which
the Rating Agencies may consent) establish a new Spread Account meeting
the conditions specified above with a Qualified Institution and shall
transfer any cash or any investments to such new Spread Account. Indenture
Trustee, at the written direction of Servicer, shall (i) make withdrawals
from the Spread Account from time to time in an amount up to the Available
Spread Account Amount at such time, for the purposes set forth in this
Indenture Supplement, and (ii) on each Transfer Date prior to termination
of the Spread Account, make a deposit into the Spread Account in the
amount specified in, and otherwise in accordance with, subsection 4.12(f).
(b) Funds on deposit in the Spread Account shall be invested at
the written direction of Servicer by Indenture Trustee in Permitted
Investments. Funds on deposit in the Spread Account on any Transfer Date,
after giving effect to any withdrawals from and deposits to the Spread
Account on such Transfer Date, shall be invested in such investments that
will mature so that such funds will be available for withdrawal on or
prior to the following Transfer Date.
On each Transfer Date (but subject to subsections 4.12(c), 4.12(d)
and 4.12(f)), the Investment Earnings, if any, accrued since the preceding
Transfer Date on funds on
26
deposit in the Spread Account shall be paid to the Holders of the
Transferor Interest by Indenture Trustee upon written direction of
Servicer. For purposes of determining the availability of funds or the
balance in the Spread Account for any reason under this Indenture
Supplement (subject to subsections 4.12(c), 4.12(d) and 4.12(f)), all
Investment Earnings shall be deemed not to be available or on deposit;
provided that after the maturity of the Series 2002-1 Notes has been
accelerated as a result of an Event of Default, all Investment Earnings
shall be added to the balance on deposit in the Spread Account and treated
like the rest of the Available Spread Account Amount.
(c) If, on any Transfer Date, the aggregate amount of Available
Finance Charge Collections pursuant to subsection 4.04(a)(iv) is less than
the aggregate amount required to be deposited pursuant to subsection
4.04(a)(iv), Indenture Trustee, at the written direction of Servicer,
shall withdraw from the Spread Account the amount of such deficiency up to
the Available Spread Account Amount and, if the Available Spread Account
Amount is less than such deficiency, Investment Earnings credited to the
Spread Account, and deposit such amount in the Distribution Account for
payment to the Class C Noteholders in respect of interest on the Class C
Notes.
(d) On the earlier of Series 2002-1 Final Maturity Date and the
date on which the Class A Note Principal Balance and the Class B Note
Principal Balance have been paid in full, after applying any funds on
deposit in the Spread Account as described in subsection 4.12(c),
Indenture Trustee at the written direction of Servicer shall withdraw from
the Spread Account an amount equal to the lesser of (i) the Class C Note
Principal Balance (after any payments to be made pursuant to subsection
4.04(c) on such date) and (ii) the Available Spread Account Amount and, if
the Available Spread Account Amount is not sufficient to reduce the Class
C Note Principal Balance to zero, Investment Earnings credited to the
Spread Account up to the amount required to reduce the Class C Note
Principal Balance to zero, and Indenture Trustee upon the written
direction of Servicer or Servicer shall deposit such amounts into the
Distribution Account for distribution to the Class C Noteholders in
accordance with subsection 5.02(e).
(e) On any day following the occurrence of an Event of Default
with respect to Series 2002-1 and acceleration of the maturity of the
Series 2002-1 Notes pursuant to Section 5.03 of the Indenture, Servicer
shall withdraw from the Spread Account an amount equal to the Available
Spread Account Amount and Indenture Trustee or Servicer shall deposit such
amounts into the Distribution Account for distribution to the Class C
Noteholders until the Class C Note Principal Balance is paid in full, to
the Class A Noteholders until the Class A Note Principal Balance is paid
in full, and to the Class B Noteholders until the Class B Note Principal
Balance is paid in full, in that order of priority, in accordance with
Section 5.02, to fund any shortfalls in amounts owed to such Noteholders.
(f) If on any Transfer Date, after giving effect to all
withdrawals from the Spread Account, the Available Spread Account Amount
is less than the Required Spread Account Amount then in effect, Available
Finance Charge Collections shall be deposited into the Spread Account
pursuant to subsection 4.04(a)(vii) up to the amount of the Spread Account
Deficiency and, if such Available Finance Charge Collections are less
27
than such Spread Account Deficiency, investment earnings on funds on
deposit in the Spread Account shall be held and not distributed pursuant
to subsection 4.12(b) until such Spread Account Deficiency is reduced to
zero through subsequent deposits pursuant to subsection 4.04(a)(vii).
(g) If, after giving effect to all deposits to and withdrawals
from the Spread Account with respect to any Transfer Date, the amount on
deposit in the Spread Account exceeds the Required Spread Account Amount,
Indenture Trustee acting in accordance with the instructions of Servicer,
shall treat such excess as additional Available Finance Charge
Collections. On the date on which the Class C Note Principal Balance has
been paid in full, after making any payments to the Noteholders required
pursuant to subsections 4.12(c), (d) and (e), Indenture Trustee, at the
written direction of Servicer, shall withdraw from the Spread Account all
amounts then remaining in the Spread Account and pay such amounts to the
holders of the Transferor Interest.
SECTION 4.13. INVESTMENT INSTRUCTIONS. Any investment instructions
required to be given to Indenture Trustee pursuant to the terms hereof must be
given to Indenture Trustee no later than 11:00 a.m., New York City time, on the
date such investment is to be made. In the event Indenture Trustee receives such
investment instruction later than such time, Indenture Trustee may, but shall
have no obligation to, make such investment. In the event Indenture Trustee is
unable to make an investment required in an investment instruction received by
Indenture Trustee after 11:00 a.m., New York City time, on such day, such
investment shall be made by Indenture Trustee on the next succeeding Business
Day. In no event shall Indenture Trustee be liable for any investment not made
pursuant to investment instructions received after 11:00 a.m., New York City
time, on the day such investment is requested to be made.
SECTION 4.14. ACCUMULATION PERIOD. The Accumulation Period is scheduled to
commence at the beginning of business on October 1, 2004; provided that if the
Accumulation Period Length (determined as described below) on any Determination
Date on or after the July 2004 Determination Date is less than 12 months, the
date on which the Accumulation Period actually commences will be changed to the
first Business Day of the month that is the number of whole months prior to the
month in which the Expected Principal Payment Date occurs equal to the
Accumulation Period Length (so that, as a result of such election, the number of
Monthly Periods in the Accumulation Period will equal the Accumulation Period
Length); provided that (i) the length of the Accumulation Period will not be
less than one month, (ii) such determination of the Accumulation Period Length
shall be made on each Determination Date on and after the July 2004
Determination Date but prior to the commencement of the Accumulation Period, and
any postponement of the Accumulation Period shall be subject to the subsequent
lengthening of the Accumulation Period to the Accumulation Period Length
determined on any subsequent Determination Date, but the Accumulation Period
shall in no event commence prior to the Controlled Accumulation Date, and (iii)
notwithstanding any other provision of this Indenture Supplement to the
contrary, no postponement of the commencement of the Accumulation Period shall
be made after a Pay Out Event shall have occurred and be continuing with respect
to any other Series. The "Accumulation Period Length" will mean a number of
whole months such that the amount available for distribution of principal on the
Series 2002-1 Notes on the Expected Principal Payment Date is expected to equal
or exceed the sum of the Class A Note Principal Balance, the Class B Note
Principal Balance and the Class C Note Principal Balance, assuming
28
for this purpose that (1) the payment rate with respect to Principal Collections
remains constant at the lowest level of such payment rate during the 12
preceding Monthly Periods (or such lower payment rate as Servicer may select),
(2) the total amount of Principal Receivables in the Trust (and the principal
amount on deposit in the Excess Funding Account, if any) remains constant at the
level on such date of determination, (3) no Pay Out Event with respect to any
Series will subsequently occur and (4) no additional Series (other than any
Series being issued on such date of determination) will be subsequently issued.
Servicer shall calculate the Accumulation Period Length on each Determination
Date on and after the July 2004 Determination Date as necessary to determine
whether the Accumulation Period is postponed and to set the Reserve Account
Funding Date. If the calculation results in a postponement, Servicer shall
provide notice to Indenture Trustee, Transferor, Issuer and each Rating Agency.
Any notice by Servicer confirming the postponement of the Accumulation Period
pursuant to this Section 4.14 shall specify (i) the Accumulation Period Length,
(ii) the commencement date of the Accumulation Period and (iii) the Controlled
Accumulation Amount with respect to each Monthly Period during the Accumulation
Period. The method for determining the Accumulation Period Length may be changed
if the Rating Agency Condition is met.
SECTION 4.15. SUSPENSION OF ACCUMULATION PERIOD.
(a) Servicer may elect to suspend the commencement of the
Accumulation Period with prior notice to the Rating Agencies, at any time
prior to the Distribution Date preceding the Expected Principal Payment
Date. The commencement of the Accumulation Period shall be suspended upon
delivery by Servicer to Indenture Trustee of (i) an Officer's Certificate
stating that Servicer has elected to suspend the commencement of the
Accumulation Period and that all conditions precedent to such suspension
set forth in this Section 4.15 have been satisfied, (ii) a copy of an
executed Qualified Maturity Agreement and (iii) an Opinion of Counsel
addressed to Indenture Trustee as to the due authorization, execution and
delivery and the validity and enforceability of such Qualified Maturity
Agreement. Issuer does hereby transfer, assign, set-over, and otherwise
convey to Indenture Trustee for the benefit of the Series 2002-1
Noteholders, without recourse, all of its rights under any Qualified
Maturity Agreement obtained in accordance with this Section 4.15 and all
proceeds thereof. Such property shall constitute part of the Trust Estate
and Collateral for all purposes of the Indenture. The foregoing transfer,
assignment, set-over and conveyance does not constitute and is not
intended to result in a creation or an assumption by Indenture Trustee or
any Noteholder of any obligation of Issuer or any other Person in
connection with a Qualified Maturity Agreement or under any agreement or
instrument relating thereto.
Indenture Trustee hereby acknowledges its acceptance, to the extent
validly transferred, assigned, set-over or otherwise conveyed to Indenture
Trustee, for the benefit of the Series 2002-1 Noteholders, of all of the
rights previously held by Issuer under any Qualified Maturity Agreement
obtained by Issuer and all proceeds thereof, and declares that it shall
hold such rights upon the trust set forth herein and in the Agreement, and
subject to the terms hereof and thereof, for the benefit of the Series
2002-1 Noteholders.
(b) Each Qualified Maturity Agreement shall obligate the provider
to deposit into the Principal Accumulation Account on or before the
Expected Principal Payment
29
Date an amount equal to the initial Note Principal Balance (reduced by any
amount on deposit in the Principal Accumulation Account); provided,
however, that Issuer may instead elect to fund all or a portion of such
deposits with the proceeds of the issuance of a new Series or with the
Available Principal Collections with respect to such Transfer Date. The
amounts so deposited shall be applied on the Expected Principal Payment
Date pursuant to subsection 4.04(c) as if the commencement of the
Accumulation Period had not been suspended.
(c) Each Qualified Maturity Agreement shall terminate at the close
of business on the Expected Principal Payment Date; provided, however,
that Servicer may terminate a Qualified Maturity Agreement prior to such
Distribution Date, with notice to each Rating Agency, if (i) the Available
Reserve Account Amount equals the Required Reserve Account Amount and (ii)
one of the following events occurs: (A) Issuer obtains a substitute
Qualified Maturity Agreement, (B) the provider of the Qualified Maturity
Agreement ceases to qualify as a Qualified Institution and Issuer is
unable to obtain a substitute Qualified Maturity Agreement or (C) a Pay
Out Event occurs. In addition, if the available Reserve Account Amount
equals the Required Reserve Account Amount, Servicer may terminate a
Qualified Maturity Agreement prior to the later of (1) the date on which
the Accumulation Period was scheduled to begin, before giving effect to
the suspension of the Accumulation Period, and (2) the date to which the
commencement of the Accumulation Period is postponed pursuant to Section
4.14 (as determined on the Determination Date preceding the date of such
termination), in which case the commencement of the Accumulation Period
shall be determined as if the commencement had not been postponed. In the
event that the provider of a Qualified Maturity Agreement ceases to
qualify as a Qualified Institution, Servicer shall use its best efforts to
obtain a substitute Qualified Maturity Agreement, unless a substitute
Qualified Maturity Agreement is not required for any of the reasons listed
in this subsection (c).
(d) If a Qualified Maturity Agreement is terminated prior to the
earlier of the Expected Principal Payment Date and the commencement of the
Rapid Amortization Period and Issuer does not obtain a substitute
Qualified Maturity Agreement, the Accumulation Period shall commence on
the latest of (i) the beginning of business on October 1, 2004, (ii) the
date to which the commencement of the Accumulation Period is postponed
pursuant to Section 4.14 (as determined on the date of such termination)
and (iii) the first day of the Monthly Period following the date of such
termination. The Issuer shall notify the Rating Agencies if it intends to
terminate a Qualified Maturity Agreement prior to the Expected Principal
Payment Date.
(e) The Issuer does hereby transfer, assign, set-over, and
otherwise convey to the Indenture Trustee for the benefit of the Series
2002-1 Noteholders, without recourse, all of its rights under any
Qualified Maturity Agreement obtained in accordance with this Section 4.15
and all proceeds thereof. Such property shall constitute part of the Trust
Estate for all purposes of the Indenture. The foregoing transfer,
assignment, set-over and conveyance does not constitute and is not
intended to result in a creation or an assumption by Indenture Trustee or
any Noteholder of any obligation of the Issuer or any other Person in
connection with a Qualified Maturity Agreement or under any agreement or
instrument relating thereto.
30
Indenture Trustee hereby acknowledges its acceptance, to the extent
validly transferred, assigned, set-over or otherwise conveyed to Indenture
Trustee, for the benefit of the Series 2002-1 Noteholders, of all of the
rights previously held by Issuer under any Qualified Maturity Agreement
obtained by Issuer and all proceeds thereof, and declares that it shall
hold such rights upon the trust set forth herein and in the Agreement, and
subject to the terms hereof and thereof, for the benefit of the Series
2002-1 Noteholders.
SECTION 4.16. DETERMINATION OF LIBOR.
(a) On each LIBOR Determination Date in respect of an Interest
Period, Indenture Trustee shall determine LIBOR on the basis of the rate
for deposits in United States dollars for a period of the Designated
Maturity which appears on Telerate Page 3750 as of 11:00 a.m., London
time, on such date. If such rate does not appear on Telerate Page 3750,
the rate for that LIBOR Determination Date shall be determined on the
basis of the rates at which deposits in United States dollars are offered
by the Reference Banks at approximately 11:00 a.m., London time, on that
day to prime banks in the London interbank market for a period of the
Designated Maturity. Indenture Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate.
If at least two (2) such quotations are provided, the rate for that
Interest Period shall be the arithmetic mean of the quotations. If fewer
than two (2) quotations are provided as requested, the rate for that
Interest Period will be the arithmetic mean of the rates quoted by major
banks in New York City, selected by Servicer, at approximately 11:00 a.m.,
New York City time, on that day for loans in United States dollars to
leading European banks for a period of the Designated Maturity.
(b) The Class A Note Interest Rate, Class B Note Interest Rate and
Class C Note Interest Rate applicable to the then current and the
immediately preceding Interest Periods may be obtained by telephoning
Indenture Trustee at its corporate trust office at (312) 827-8500 or such
other telephone number as shall be designated by Indenture Trustee for
such purpose by prior written notice by Indenture Trustee to each Series
2002-1 Noteholder from time to time.
(c) On each LIBOR Determination Date, Indenture Trustee shall send
to Servicer by facsimile transmission, notification of LIBOR for the
following Interest Period.
SECTION 4.17. INTERCHANGE. On or prior to each Determination Date,
Transferor shall cause FNBO to notify Servicer of the amount of Interchange to
be included as Collections of Finance Charge Receivables allocable to the Series
2002-1 Notes with respect to the Related Monthly Period, which amount shall be
equal to the product of:
(a) the total amount of Interchange paid or payable to FNBO with
respect to such Related Monthly Period;
(b) a fraction the numerator of which is the volume during the
Related Monthly Period of sales net of cash advances on the Accounts and
the denominator of
31
which is the amount of sales net of cash advances during the Related
Monthly Period on all VISA and MasterCard accounts owned by FNBO; and
(c) the Allocation Percentage for Finance Charge Collections with
respect to such Related Monthly Period.
On each Transfer Date, Transferor shall pay to Servicer, and Servicer shall
deposit into the Finance Charge Account, in immediately available funds, an
amount equal to the Interchange to be so included as Collections of Finance
Charge Receivables allocable to the Series 2002-1 Notes with respect to the
Related Monthly Period. Transferor hereby assigns, sets over, conveys, pledges
and grants a security interest and lien to Indenture Trustee for the benefit of
the Series 2002-1 Noteholders its security interest in Interchange and the
proceeds of Interchange, as set forth in this Section 4.17. In connection with
the foregoing grant of a security interest, this Indenture Supplement shall
constitute a security agreement under applicable law. To the extent that an
Indenture Supplement for a related Series, other than Series 2002-1, assigns,
sets over, conveys, pledges or grants a security interest in Interchange
allocable to the Trust, all Notes of any such Series (except that any Series may
be subordinated to the Series 2002-1 Notes to the extent specified in any such
Indenture Supplement) and the Series 2002-1 Notes shall rank pari passu and be
equally and ratably entitled in accordance with their respective allocation
percentages for Finance Charge Collections as provided herein to the benefits of
such Interchange without preference or priority on account of the actual time or
times of authentication and delivery, all in accordance with the terms and
provisions of this Indenture Supplement and other related Indenture Supplements.
ARTICLE V
DELIVERY OF NOTES; DISTRIBUTIONS; REPORTS TO NOTEHOLDERS
SECTION 5.01. DELIVERY AND PAYMENT FOR THE SERIES 2002-1 NOTES. Issuer
shall execute and issue, and Indenture Trustee shall authenticate, the Series
2002-1 Notes in accordance with Section 2.03 of the Indenture. Indenture Trustee
shall deliver the Series 2002-1 Notes to or upon the written order of Issuer
when so authenticated.
SECTION 5.02. DISTRIBUTIONS.
(a) On each Distribution Date, Indenture Trustee shall distribute
to each Class A Noteholder of record on the related Record Date (other
than as provided in Section 11.02 of the Indenture) such Class A
Noteholder's pro rata share of the amounts on deposit in the Distribution
Account (including amounts withdrawn from the Spread Account (at the times
and in the amounts specified in Section 4.12)) that are allocated and
available on such Distribution Date and that are payable to the Class A
Noteholders pursuant to this Indenture Supplement.
(b) On each Distribution Date, Indenture Trustee shall distribute
to each Class B Noteholder of record on the related Record Date (other
than as provided in Section 11.02 of the Indenture) such Class B
Noteholder's pro rata share of the amounts on deposit in the Distribution
Account (including amounts withdrawn from the Spread
32
Account (at the times and in the amounts specified in Section 4.12)) that
are allocated and available on such Distribution Date and that are payable
to the Class B Noteholders pursuant to this Indenture Supplement.
(c) On each Distribution Date, Indenture Trustee shall distribute
to each Class C Noteholder of record on the related Record Date (other
than as provided in Section 11.02 of the Indenture) such Class C
Noteholder's pro rata share of the amounts on deposit in the Distribution
Account (including amounts withdrawn from the Spread Account (at the times
and in the amounts specified in Section 4.12)) that are allocated and
available on such Distribution Date and that are payable to the Class C
Noteholders pursuant to this Indenture Supplement.
(d) The distributions to be made pursuant to this Section 5.02 are
subject to the provisions of Sections 6.01 and 7.01 of the Transfer and
Servicing Agreement, Section 11.02 of the Indenture and Section 7.01 of
this Indenture Supplement.
(e) Except as provided in Section 11.02 of the Indenture with
respect to a final distribution, distributions to 2002-1 Noteholders
hereunder shall be made by (i) check mailed to each Series 2002-1
Noteholder (at such Noteholder's address as it appears in the Note
Register), except that for any Series 2002-1 Notes registered in the name
of the nominee of a Clearing Agency, such distribution shall be made by
wire transfer of immediately available funds and (ii) without presentation
or surrender of any Series 2002-1 Note or the making of any notation
thereon.
SECTION 5.03. REPORTS AND STATEMENTS TO SERIES 2002-1 NOTEHOLDERS.
(a) On each Distribution Date, Indenture Trustee shall forward to
each Series 2002-1 Noteholder a statement substantially in the form of
Exhibit C prepared by Servicer.
(b) Not later than the second Business Day preceding each
Distribution Date, Servicer shall deliver to Owner Trustee, Indenture
Trustee and each Rating Agency (i) a statement substantially in the form
of Exhibit B prepared by Servicer and (ii) a certificate of an Authorized
Officer substantially in the form of Exhibit D; provided that Servicer may
amend the form of Exhibit B from time to time, with the prior written
consent of Indenture Trustee.
(c) A copy of each statement or certificate provided pursuant to
paragraph (a) or (b) may be obtained by any Series 2002-1 Noteholder by a
request in writing to Servicer.
(d) On or before January 31 of each calendar year, beginning with
January 31, 2002, Indenture Trustee shall furnish or cause to be furnished
to each Person who at any time during the preceding calendar year was a
Series 2002-1 Noteholder, a statement prepared by Servicer containing the
information which is required to be contained in the statement to Series
2002-1 Noteholders, as set forth in paragraph (a) above, aggregated for
such calendar year or the applicable portion thereof during which such
Person was a Series 2002-1 Noteholder, together with other information as
is required to be provided
33
by an issuer of indebtedness under the Code. Such obligation of Indenture
Trustee shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by Servicer
pursuant to any requirements of the Code as from time to time in effect.
ARTICLE VI
SERIES 2002-1 PAY OUT EVENTS
If any one of the following events shall occur with respect to the Series
2002-1 Notes:
(a) failure on the part of Transferor or the "Transferor" under
the Pooling and Servicing Agreement (i) to make any payment or deposit
required to be made by it by the terms of the Pooling and Servicing
Agreement, the Collateral Series Supplement, the Transfer and Servicing
Agreement, the Indenture or this Indenture Supplement on or before the
date occurring five (5) Business Days after the date such payment or
deposit is required to be made therein or herein or (ii) duly to observe
or perform in any material respect any other of its covenants or
agreements set forth in the Transfer and Servicing Agreement, the Pooling
and Servicing Agreement, Collateral Series Supplement, the Indenture or
this Indenture Supplement, which failure has a material adverse effect on
the Series 2002-1 Noteholders which continues unremedied for a period of
sixty (60) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to Transferor by
Indenture Trustee, or to Transferor and Indenture Trustee by Holders of
Series 2002-1 Notes evidencing more than 25% of the Note Principal Balance
and which continues to materially and adversely affect the interest of the
Series 2002-1 Noteholders;
(b) any representation or warranty made by Transferor or the
"Transferor" under the Pooling and Servicing Agreement or the Transfer and
Servicing Agreement, or any supplement to either of them, shall prove to
have been incorrect in any material respect when made or when delivered,
which continues to be incorrect in any material respect for a period of
sixty (60) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to Transferor by
Indenture Trustee, or to Transferor and Indenture Trustee by Holders of
Series 2002-1 Notes evidencing more than 25% of the Note Principal Balance
and as a result of which the interests of the Noteholders are materially
and adversely affected and continue to be materially and adversely
affected for such period; provided, however, that a Series 2002-1 Pay Out
Event pursuant to this subsection (b) of Article VI shall not be deemed to
have occurred hereunder if Transferor has accepted reassignment of the
related Receivable, or all of such Receivables, if applicable, during such
period in accordance with the provisions of the Transfer and Servicing
Agreement or the Pooling and Servicing Agreement;
(c) a failure by Transferor or the "Transferor" under the Pooling
and Servicing Agreement to convey Receivables in Additional Accounts to
the Receivables Trust within five (5) Business Days after the day on which
it is required to convey such Receivables pursuant to subsection 2.06(a)
of the Transfer and Servicing Agreement or
34
subsection 2.06(a) of the Pooling and Servicing Agreement, respectively,
provided that such failure shall not give rise to a Pay Out Event if,
prior to the date on which such conveyance was required to be completed,
Transferor causes a reduction in the invested amount of any Variable
Interest or any variable funding certificate issued under the Pooling and
Servicing Agreement to occur, so that, after giving effect to that
reduction, the Transferor Interest is not less than the Minimum Transferor
Interest and the Aggregate Principal Receivables are not less than the
Minimum Aggregate Principal Receivables;
(d) any Servicer Default or any "Servicer Default" under the
Pooling and Servicing Agreement shall occur that would have a material
adverse effect on the Series 2002-1 Noteholders;
(e) the Portfolio Yield averaged over three consecutive Monthly
Periods is less than the Base Rate averaged over such period;
(f) the Class A Note Principal Balance, the Class B Note Principal
Balance or the Class C Note Principal Balance shall not be paid in full on
the Expected Principal Payment Date;
(g) without limiting the foregoing, the occurrence of an Event of
Default with respect to Series 2002-1 and acceleration of the maturity of
the Series 2002-1 Notes pursuant to Section 5.03 of the Indenture; or
(h) prior to the Certificate Trust Termination Date, the
occurrence of a Trust Pay Out Event as defined in the Pooling and
Servicing Agreement and specified in Section 9.01 of that Agreement;
then, in the case of any event described in subsection (a), (b) or (d), after
the applicable grace period, if any, set forth in such subparagraphs, either
Indenture Trustee or the holders of Series 2002-1 Notes evidencing more than 50%
of the aggregate unpaid principal amount of Series 2002-1 Notes by notice then
given in writing to Transferor and Servicer (and to Indenture Trustee if given
by the Series 2002-1 Noteholders) may declare that a "Series Pay Out Event" with
respect to Series 2002-1 (a "Series 2002-1 Pay Out Event") has occurred as of
the date of such notice, and, in the case of any event described in subsection
(c), (e), (f), (g) or (h) a Series 2002-1 Pay Out Event shall occur without any
notice or other action on the part of Indenture Trustee or the Series 2002-1
Noteholders immediately upon the occurrence of such event.
ARTICLE VII
REDEMPTION;
FINAL DISTRIBUTIONS; SERIES TERMINATION
SECTION 7.01. OPTIONAL REDEMPTION OF SERIES 2002-1 NOTES; FINAL
DISTRIBUTIONS.
(a) On any day occurring on or after the date on which the
outstanding principal balance of the Series 2002-1 Notes is reduced to 10%
or less of the initial Note Principal Balance of the Series 2002-1 Notes,
Servicer shall have the option to direct
35
Transferor to redeem the Series 2002-1 Notes, at a purchase price equal to
(i) if such day is a Distribution Date, the Reassignment Amount for such
Distribution Date or (ii) if such day is not a Distribution Date, the
Reassignment Amount for the Distribution Date following such day.
(b) Servicer shall give Indenture Trustee at least thirty (30)
days' prior written notice of the date on which Servicer intends to direct
Transferor to make such optional redemption. Not later than 12:00 noon,
New York City time, on such day Transferor shall deposit into the Finance
Charge Account and Principal Account, as applicable, in immediately
available funds the excess of the Reassignment Amount over the amount, if
any, on deposit in the Principal Accumulation Account. Such redemption
option is subject to payment in full of the Reassignment Amount. Following
such deposit into the Finance Charge Account and Principal Account in
accordance with the foregoing, the Collateral Amount for Series 2002-1
shall be reduced to zero and the Series 2002-1 Noteholders shall have no
further security interest in the Receivables. The Reassignment Amount
shall be distributed as set forth in subsection 7.01(d).
(c) The amount to be paid by Transferor with respect to Series
2002-1 in connection with a reassignment of Receivables to Transferor
pursuant to Section 2.04(e) of the Transfer and Servicing Agreement or
Section 2.04(e) of the Pooling and Servicing Agreement shall equal the
Reassignment Amount for the Distribution Date related to the Reassignment
Date.
(d) With respect to (a) the Reassignment Amount deposited into the
Finance Charge Account and Principal Account pursuant to this Section 7.01
or (b) the proceeds of any sale of Receivables pursuant to Section
5.05(a)(iii) of the Indenture with respect to Series 2002-1, Indenture
Trustee shall, in accordance with the written direction of Servicer, not
later than 12:00 noon, New York City time, on the related Distribution
Date, make distributions of the following amounts (in the priority set
forth below and, in each case, after giving effect to any deposits and
distributions otherwise to be made on such date) in immediately available
funds: (i) (x) the Class A Note Principal Balance on such Distribution
Date will be distributed to the Class A Noteholders and (y) an amount
equal to the sum of (A) Class A Monthly Interest Payment for such
Distribution Date, (B) any Class A Interest Shortfall for such
Distribution Date and (C) the amount of Class A Default Interest, if any,
for such Distribution Date and any Class A Default Interest previously due
but not distributed to the Class A Noteholders on any prior Distribution
Date, will be distributed to the Class A Noteholders, (ii) (x) the Class B
Note Principal Balance on such Distribution Date will be distributed to
the Class B Noteholders and (y) an amount equal to the sum of (A) Class B
Monthly Interest Payment for such Distribution Date, (B) any Class B
Interest Shortfall for such Distribution Date and (C) the amount of Class
B Default Interest, if any, for such Distribution Date and any Class B
Default Interest previously due but not distributed to the Class B
Noteholders on any prior Distribution Date, will be distributed to the
Class B Noteholders, (iii) (x) the Class C Note Principal Balance on such
Distribution Date will be distributed to the Class C Noteholders and (y)
an amount equal to the sum of (A) Class C Monthly Interest Payment for
such Distribution Date, (B) any Class C Interest Shortfall for such
Distribution Date, (C) the amount of Class C Default Interest, if any, for
such
36
Distribution Date and any Class C Default Interest previously due but not
distributed to the Class C Noteholders on any prior Distribution Date and
(iv) any excess shall be released to Issuer.
SECTION 7.02. SERIES TERMINATION. On the Series 2002-1 Final Maturity
Date, the unpaid principal amount of the Series 2002-1 Notes shall be due and
payable, and the right of the Series 2002-1 Noteholders to receive payments from
Issuer will be limited solely to the right to receive payments pursuant to
Section 5.05 of the Indenture.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.01. RATIFICATION OF INDENTURE; AMENDMENTS. As supplemented by
this Indenture Supplement, the Indenture is in all respects ratified and
confirmed and the Indenture as so supplemented by this Indenture Supplement
shall be read, taken and construed as one and the same instrument. This
Indenture Supplement may be amended only by a Supplemental Indenture entered in
accordance with the terms of Section 10.01 or 10.02 of the Indenture. For
purposes of the application of Section 10.02 to any amendment of this Indenture
Supplement, the Series 2002-1 Noteholders shall be the only Noteholders whose
vote shall be required.
SECTION 8.02. FORM OF DELIVERY OF THE SERIES 2002-1 NOTES. The Class A
Notes, the Class B Notes and the Class C Notes shall be Book-Entry Notes and
shall be delivered as Registered Notes to The Bank of New York, as agent for
DTC, [Clearstream, and] Euroclear Bank S.A./N.V. as provided in Sections 2.01,
2.03 and 2.12 of the Indenture.
SECTION 8.03. COUNTERPARTS. This Indenture Supplement may be executed in
two or more counterparts, and by different parties on separate counterparts,
each of which shall be an original, but all of which shall constitute one and
the same instrument.
SECTION 8.04. GOVERNING LAW. THIS INDENTURE SUPPLEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEBRASKA, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 8.05. LIMITATION OF LIABILITY. Notwithstanding any other provision
herein or elsewhere, this Agreement has been executed and delivered by
Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of the Trust, in no event shall Wilmington Trust
Company, in its individual capacity, have any liability in respect of the
representations, warranties, or obligations of Issuer hereunder or under any
other document, as to all of which recourse shall be had solely to the assets of
Issuer, and for all purposes of this Agreement and each other document, Owner
Trustee (as such or in its individual capacity) shall be subject to, and
entitled to the benefits of, the terms and provisions of the Trust Agreement.
SECTION 8.06. RIGHTS OF INDENTURE TRUSTEE. Indenture Trustee shall have
herein the same rights, protections, indemnities and immunities as specified in
the Master Indenture.
37
SECTION 8.07. ADDITIONAL REQUIREMENTS FOR REGISTRATION OF AND LIMITATIONS
ON TRANSFER AND EXCHANGE OF NOTES. All transfers will be subject to the transfer
restrictions set forth on the Notes.
[Signature page follows]
38
IN WITNESS WHEREOF, the undersigned have caused this Indenture Supplement
to be duly executed and delivered by their respective duly authorized officers
on 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 BANK OF OMAHA,
as Servicer
By /s/ Matthew W. Lawver
----------------------------
Name Matthew W. Lawver
--------------------------
Title Senior Vice President
-------------------------
FIRST NATIONAL FUNDING LLC,
as Transferor
By /s/ Jean L. Koenck
----------------------------
Name Jean L. Koenck
--------------------------
Title Senior Vice President
-------------------------
INDENTURE SUPPLEMENT SIGNATURE PAGE
39
EXHIBIT A-1
FORM OF CLASS A FLOATING RATE ASSET BACKED NOTE, SERIES 2002-1
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT
IT WILL NOT AT ANY TIME INSTITUTE AGAINST FIRST BANKCARD MASTER CREDIT CARD
TRUST, A COMMON LAW TRUST ORGANIZED UNDER THE LAWS OF NEBRASKA ("FBMCCT"), FIRST
NATIONAL FUNDING CORPORATION, A NEBRASKA BUSINESS CORPORATION ("FNFC"),
TRANSFEROR OR ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY
INSTITUTION IN INSTITUTING AGAINST FBMCCT, FNFC, TRANSFEROR OR ISSUER, 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 OBLIGATION RELATING TO THE NOTES, THE
INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS A NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS A NOTES AS
INDEBTEDNESS OF ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND
FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY,
INCOME.
THE HOLDER OF THIS CLASS A NOTE SHALL BE DEEMED TO REPRESENT AND WARRANT
THAT EITHER (I) IT IS NOT ACQUIRING THE NOTE WITH THE PLAN ASSETS OF AN
"EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), WHICH IS SUBJECT TO TITLE I
OF ERISA, A "PLAN" AS DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), AN ENTITY DEEMED TO HOLD THE PLAN ASSETS OF ANY
OF THE FOREGOING BY REASON OF INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR PLAN IN
SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
SECTION 4975 OF THE CODE (EACH SUCH ENTITY A
"BENEFIT PLAN"); OR (II) THE ACQUISITION AND HOLDING OF THE CLASS A NOTE WILL
NOT GIVE RISE TO A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA
OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY
SUBSTANTIALLY SIMILAR APPLICABLE LAW).
A1-2
REGISTERED $ *
No. R- CUSIP NO.
FIRST NATIONAL MASTER NOTE TRUST
CLASS A FLOATING RATE ASSET BACKED NOTE, SERIES 2002-1
First National Master Note Trust (herein referred to as "Issuer"), a
Delaware statutory trust governed by a Trust Agreement dated as of October [ ],
2002 , for value received, hereby promises to pay to Cede & Co., or registered
assigns, subject to the following provisions, the principal sum of _________
DOLLARS, or such greater or lesser amount as determined in accordance with the
Indenture, on the March 17, 2008 Distribution Date, except as otherwise provided
below or in the Indenture. Issuer will pay interest on the unpaid principal
amount of this Note at the Class A Note Interest Rate on each Distribution Date
until the principal amount of this Note is paid in full. Interest on this Note
will accrue for each Distribution Date from and including the most recent
Distribution Date on which interest has been paid to but excluding such
Distribution Date or, for the initial Distribution Date, from and including the
Closing Date to but excluding such Distribution Date. Interest will be computed
on the basis of a 360-day year and the actual number of days elapsed. Principal
of this Note shall be paid in the manner specified in the Indenture Supplement
referred to on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by or on
behalf of Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
This Note has been executed by Wilmington Trust Company, not in its
individual capacity, but solely in its capacity as Owner Trustee of the Issuer,
in no event shall Wilmington Trust Company, in its individual capacity, have any
liability in respect of the obligations of Issuer hereunder or under any other
document, as to all of which recourse shall be had solely to the assets of
Issuer, and for all purposes of this Note and each other document, Owner Trustee
(as such or in its individual capacity) shall be subject to, and entitled to the
benefits of, the terms and provisions of the Trust Agreement.
- ----------
* Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
A1-3
IN WITNESS WHEREOF, Issuer has caused this Class A Note to be duly
executed.
FIRST NATIONAL MASTER NOTE TRUST,
as Issuer
By Wilmington Trust Company, not
in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By
------------------------------
Name
----------------------------
Title
---------------------------
Dated: , 200[ ]
-------------------- ---
A1-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes described in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Indenture Trustee
By
------------------------------
Authorized Signatory
Dated
---------------------------
A1-5
FIRST NATIONAL MASTER NOTE TRUST
CLASS A FLOATING RATE ASSET BACKED NOTE, SERIES 2002-1
SUMMARY OF TERMS AND CONDITIONS
This Class A Note is one of a duly authorized issue of Notes of Issuer,
designated as First National Master Note Trust, Series 2002-1 (the "Series
2002-1 Notes"), issued under a Master Indenture dated as of October 24, 2002
(the "Master Indenture"), between Issuer and The Bank of New York, as indenture
trustee (the "Indenture Trustee"), as supplemented by the Indenture Supplement
dated as of October 24, 2002 (the "Indenture Supplement"), and representing the
right to receive certain payments from Issuer. The term "Indenture," unless the
context otherwise requires, refers to the Master Indenture as supplemented by
the Indenture Supplement. The Notes are subject to all of the terms of the
Indenture. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in or pursuant to the Indenture. In the event
of any conflict or inconsistency between the Indenture and this Note, the
Indenture shall control.
The Class B Notes and the Class C Notes will also be issued under the
Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will look
solely to the property of Issuer allocated to the payment of this Note for
payment hereunder and that neither Owner Trustee nor Indenture Trustee is liable
to the Noteholders for any amount payable under the Notes or the Indenture or,
except in the case of Indenture Trustee as expressly provided in the Indenture,
subject to any liability under the Indenture.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of Indenture Trustee.
THIS CLASS A NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
ISSUER, FIRST NATIONAL BANK OF OMAHA, FIRST NATIONAL FUNDING CORPORATION, FIRST
NATIONAL FUNDING LLC, OR ANY OF THEIR AFFILIATES, AND IS NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Issuer, Transferor, Indenture Trustee and any agent of Issuer, Transferor
or Indenture Trustee shall treat the person in whose name this Class A Note is
registered as the owner hereof for all purposes, and neither Issuer, Transferor,
Indenture Trustee nor any agent of Issuer, Transferor or Indenture Trustee shall
be affected by notice to the contrary.
THIS CLASS A NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEBRASKA, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A1-6
ASSIGNMENT
Social Security or other identifying number of assignee
----------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________ (name and address of assignee) the within certificate
and all rights thereunder, and hereby irrevocably constitutes and appoints
____________________ attorney, to transfer said certificate on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: **
---------------------------------- -----------------------------
Signature Guaranteed:
- ----------
** The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A1-7
EXHIBIT A-2
FORM OF CLASS B FLOATING RATE ASSET BACKED NOTE, SERIES 2002-1
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT
IT WILL NOT AT ANY TIME INSTITUTE AGAINST FIRST BANKCARD MASTER CREDIT CARD
TRUST, A COMMON LAW TRUST ORGANIZED UNDER THE LAWS OF NEBRASKA ("FBMCCT"), FIRST
NATIONAL FUNDING CORPORATION, A NEBRASKA BUSINESS CORPORATION ("FNFC"),
TRANSFEROR OR ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY
INSTITUTION IN INSTITUTING AGAINST FBMCCT, FNFC, TRANSFEROR OR ISSUER, 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 OBLIGATION RELATING TO THE NOTES, THE
INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS B NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS B NOTES AS
INDEBTEDNESS OF ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND
FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY,
INCOME.
THE HOLDER OF THIS CLASS B NOTE SHALL BE DEEMED TO REPRESENT AND WARRANT
THAT EITHER (I) IT IS NOT ACQUIRING THE NOTE WITH THE PLAN ASSETS OF AN
"EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), WHICH IS SUBJECT TO TITLE I
OF ERISA, A "PLAN" AS DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), AN ENTITY DEEMED TO HOLD THE PLAN ASSETS OF ANY
OF THE FOREGOING BY REASON OF INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR PLAN IN
SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
SECTION 4975 OF THE CODE (EACH SUCH ENTITY A "BENEFIT PLAN"); OR (II) THE
ACQUISITION AND HOLDING OF THE CLASS B NOTE
WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY
SUBSTANTIALLY SIMILAR APPLICABLE LAW).
A2-2
REGISTERED $ *
No. R- CUSIP NO.
FIRST NATIONAL MASTER NOTE TRUST
CLASS B FLOATING RATE ASSET BACKED NOTE, SERIES 2002-1
First National Master Note Trust (herein referred to as "Issuer"), a
Delaware statutory trust governed by a Trust Agreement dated as of October 16,
2002, for value received, hereby promises to pay to Cede & Co., or registered
assigns, subject to the following provisions, the principal sum of DOLLARS, or
such greater or lesser amount as determined in accordance with the Indenture, on
the March 17, 2008 Distribution Date, except as otherwise provided below or in
the Indenture. Issuer will pay interest on the unpaid principal amount of this
Note at the Class B Note Interest Rate on each Distribution Date until the
principal amount of this Note is paid in full. Interest on this Note will accrue
for each Distribution Date from and including the most recent Distribution Date
on which interest has been paid to but excluding such Distribution Date or, for
the initial Distribution Date, from and including the Closing Date to but
excluding such Distribution Date. Interest will be computed on the basis of a
360-day year and the actual number of days elapsed. Principal of this Note shall
be paid in the manner specified in the Indenture Supplement referred to on the
reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by or on
behalf of Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
This Note has been executed by Wilmington Trust Company, not in its
individual capacity, but solely in its capacity as Owner Trustee of the Issuer,
in no event shall Wilmington Trust Company, in its individual capacity, have any
liability in respect of the obligations of Issuer hereunder or under any other
document, as to all of which recourse shall be had solely to the assets of
Issuer, and for all purposes of this Note and each other document, Owner Trustee
(as such or in its individual capacity) shall be subject to, and entitled to the
benefits of, the terms and provisions of the Trust Agreement.
THIS CLASS B NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND PAYMENTS
ON THE CLASS A NOTES TO THE EXTENT SPECIFIED IN THE INDENTURE SUPPLEMENT.
- ----------
* Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
A2-3
IN WITNESS WHEREOF, Issuer has caused this Class B Note to be duly
executed.
FIRST NATIONAL MASTER NOTE TRUST,
as Issuer
By Wilmington Trust Company, not
in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By
------------------------------
Name
----------------------------
Title
---------------------------
Dated: , 200[ ]
-------------------- ---
A2-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes described in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Indenture Trustee
By
------------------------------
Authorized Signatory
Dated
---------------------------
A2-5
FIRST NATIONAL MASTER NOTE TRUST
CLASS B FLOATING RATE ASSET BACKED NOTE, SERIES 2002-1
SUMMARY OF TERMS AND CONDITIONS
This Class B Note is one of a duly authorized issue of Notes of Issuer,
designated as First National Master Note Trust, Series 2002-1 (the "Series
2002-1 Notes"), issued under a Master Indenture dated as of October 24, 2002
(the "Master Indenture"), between Issuer and The Bank of New York, as indenture
trustee (the "Indenture Trustee"), as supplemented by the Indenture Supplement
dated as of October 24, 2002 (the "Indenture Supplement"), and representing the
right to receive certain payments from Issuer. The term "Indenture," unless the
context otherwise requires, refers to the Master Indenture as supplemented by
the Indenture Supplement. The Notes are subject to all of the terms of the
Indenture. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in or pursuant to the Indenture. In the event
of any conflict or inconsistency between the Indenture and this Note, the
Indenture shall control.
The Class A Notes and the Class C Notes will also be issued under the
Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will look
solely to the property of Issuer allocated to the payment of this Note for
payment hereunder and that neither Owner Trustee nor Indenture Trustee is liable
to the Noteholders for any amount payable under the Notes or the Indenture or,
except in the case of Indenture Trustee as expressly provided in the Indenture,
subject to any liability under the Indenture.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of Indenture Trustee.
THIS CLASS B NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
ISSUER, FIRST NATIONAL BANK OF OMAHA, FIRST NATIONAL FUNDING CORPORATION, FIRST
NATIONAL FUNDING LLC, OR ANY OF THEIR AFFILIATES, AND IS NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Issuer, Transferor, Indenture Trustee and any agent of Issuer, Transferor
or Indenture Trustee shall treat the person in whose name this Class B Note is
registered as the owner hereof for all purposes, and neither Issuer, Transferor,
Indenture Trustee nor any agent of Issuer, Transferor or Indenture Trustee shall
be affected by notice to the contrary.
THIS CLASS B NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEBRASKA, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A2-6
ASSIGNMENT
Social Security or other identifying number of assignee
-----------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto (name and address of assignee) the within certificate
and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney, to transfer said certificate on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: **
---------------------------------- -----------------------------
Signature Guaranteed:
- ----------
** The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A2-7
EXHIBIT A-3
FORM OF CLASS C FLOATING RATE ASSET BACKED NOTE, SERIES 2002-1
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT
IT WILL NOT AT ANY TIME INSTITUTE AGAINST FIRST BANKCARD MASTER CREDIT CARD
TRUST, A COMMON LAW TRUST ORGANIZED UNDER THE LAWS OF NEBRASKA ("FBMCCT"), FIRST
NATIONAL FUNDING CORPORATION, A NEBRASKA BUSINESS CORPORATION ("FNFC"),
TRANSFEROR OR ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY
INSTITUTION IN INSTITUTING AGAINST FBMCCT, FNFC, TRANSFEROR OR ISSUER, 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 OBLIGATION RELATING TO THE NOTES, THE
INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS C NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS C NOTES AS
INDEBTEDNESS OF ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND
FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY,
INCOME.
THE HOLDER OF THIS CLASS C NOTE SHALL BE DEEMED TO REPRESENT AND WARRANT
THAT EITHER (I) IT IS NOT ACQUIRING THE NOTE WITH THE PLAN ASSETS OF AN
"EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), WHICH IS SUBJECT TO TITLE I
OF ERISA, A "PLAN" AS DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), AN ENTITY DEEMED TO HOLD THE PLAN ASSETS OF ANY
OF THE FOREGOING BY REASON OF INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR PLAN IN
SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
SECTION 4975 OF THE CODE (EACH SUCH ENTITY A "BENEFIT PLAN"); OR (II) THE
ACQUISITION AND HOLDING OF THE CLASS C NOTE
WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY
SUBSTANTIALLY SIMILAR APPLICABLE LAW).
A3-2
REGISTERED $ *
No. R- CUSIP NO.
FIRST NATIONAL MASTER NOTE TRUST
CLASS C FLOATING RATE ASSET BACKED NOTE, SERIES 2002-1
First National Master Note Trust (herein referred to as "Issuer"), a
Delaware statutory trust governed by a Trust Agreement dated as of October 16,
2002, for value received, hereby promises to pay to Cede & Co., or registered
assigns, subject to the following provisions, the principal sum of DOLLARS,
or such greater or lesser amount as determined in accordance with the Indenture,
on the March 17, 2008 Distribution Date, except as otherwise provided below or
in the Indenture. Issuer will pay interest on the unpaid principal amount of
this Note at the Class C Note Interest Rate on each Distribution Date until the
principal amount of this Note is paid in full. Interest on this Note will accrue
for each Distribution Date from and including the most recent Distribution Date
on which interest has been paid to but excluding such Distribution Date or, for
the initial Distribution Date, from and including the Closing Date to but
excluding such Distribution Date. Interest will be computed on the basis of a
360-day year and the actual number of days elapsed. Principal of this Note shall
be paid in the manner specified in the Indenture Supplement referred to on the
reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by or on
behalf of Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
This Note has been executed by Wilmington Trust Company, not in its
individual capacity, but solely in its capacity as Owner Trustee of the Issuer,
in no event shall Wilmington Trust Company, in its individual capacity, have any
liability in respect of the obligations of Issuer hereunder or under any other
document, as to all of which recourse shall be had solely to the assets of
Issuer, and for all purposes of this Note and each other document, Owner Trustee
(as such or in its individual capacity) shall be subject to, and entitled to the
benefits of, the terms and provisions of the Trust Agreement.
THIS CLASS C NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND PAYMENTS
ON THE CLASS A NOTES AND THE CLASS B NOTES TO THE EXTENT SPECIFIED IN THE
INDENTURE SUPPLEMENT.
- ----------
* Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
A3-3
IN WITNESS WHEREOF, Issuer has caused this Class C Note to be duly
executed.
FIRST NATIONAL MASTER NOTE TRUST,
as Issuer
By Wilmington Trust Company, not
in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By
------------------------------
Name
----------------------------
Title
---------------------------
Dated: , 200[ ]
-------------------- ---
A3-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class C Notes described in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Indenture Trustee
By
------------------------------
Authorized Signatory
Dated
---------------------------
A3-5
FIRST NATIONAL MASTER NOTE TRUST
CLASS C FLOATING RATE ASSET BACKED NOTE, SERIES 2002-1
SUMMARY OF TERMS AND CONDITIONS
This Class C Note is one of a duly authorized issue of Notes of Issuer,
designated as First National Master Note Trust, Series 2002-1 (the "Series
2002-1 Notes"), issued under a Master Indenture dated as of October 24, 2002
(the "Master Indenture"), between Issuer and The Bank of New York, as indenture
trustee (the "Indenture Trustee"), as supplemented by the Indenture Supplement
dated as of October 24, 2002 (the "Indenture Supplement"), and representing the
right to receive certain payments from Issuer. The term "Indenture," unless the
context otherwise requires, refers to the Master Indenture as supplemented by
the Indenture Supplement. The Notes are subject to all of the terms of the
Indenture. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in or pursuant to the Indenture. In the event
of any conflict or inconsistency between the Indenture and this Note, the
Indenture shall control.
The Class A Notes and the Class B Notes will also be issued under the
Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will look
solely to the property of Issuer allocated to the payment of this Note for
payment hereunder and that neither Owner Trustee nor Indenture Trustee is liable
to the Noteholders for any amount payable under the Notes or the Indenture or,
except in the case of Indenture Trustee as expressly provided in the Indenture,
subject to any liability under the Indenture.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of Indenture Trustee.
THIS CLASS C NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
ISSUER, FIRST NATIONAL BANK OF OMAHA, FIRST NATIONAL FUNDING CORPORATION, FIRST
NATIONAL FUNDING LLC, OR ANY OF THEIR AFFILIATES, AND IS NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Issuer, Transferor, Indenture Trustee and any agent of Issuer, Transferor
or Indenture Trustee shall treat the person in whose name this Class C Note is
registered as the owner hereof for all purposes, and neither Issuer, Transferor,
Indenture Trustee nor any agent of Issuer, Transferor or Indenture Trustee shall
be affected by notice to the contrary.
THIS CLASS C NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEBRASKA, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A3-6
ASSIGNMENT
Social Security or other identifying number of assignee
----------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto (name and address of assignee) the within certificate and all
-----------
rights thereunder, and hereby irrevocably constitutes and appoints
attorney, to transfer said certificate on the books kept for
- ------------------
registration thereof, with full power of substitution in the premises.
Dated: **
---------------------------------- -----------------------------
Signature Guaranteed:
- ----------
** The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A3-7
EXHIBIT B
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO INDENTURE TRUSTEE
FIRST NATIONAL MASTER NOTE TRUST
SERIES 2002-1
The undersigned, a duly authorized representative of First National Bank
of Omaha ("FNBO"), as Servicer pursuant to the Transfer and Servicing Agreement,
dated as of October 24, 2002 (the "Transfer and Servicing Agreement") between
FNBO, as Servicer, First National Funding LLC, as transferor ("Transferor") and
First National Master Note Trust, as issuer ("Issuer"), does hereby certify as
follows:
A. Capitalized terms used in this Certificate have their
respective meanings set forth in the Master Indenture dated as of October
24, 2002 (the "Indenture") between Issuer and The Bank of New York, as
indenture trustee ("Indenture Trustee") as supplemented by the 2002-1
Indenture Supplement dated as of October 24, 2002 between Issuer and
Indenture Trustee (as amended and supplemented, the "Indenture
Supplement").
B. FNBO is Servicer.
C. The undersigned is an Authorized Officer of Servicer.
I. INSTRUCTION TO MAKE A WITHDRAWAL
[From the aggregate Collections wired to the Indenture Trustee with
respect to the Related Monthly Period on the Transfer Date, the Indenture
Trustee shall make deposits to the Series Accounts for Series 2002-1 as follows:
To the Finance Charge Account $
------------------
To the Principal Account $
------------------
[TO BE USED IF SERVICER IS PERMITTED TO MAKE MONTHLY DEPOSITS PURSUANT TO
THE POOLING AND SERVICING AGREEMENT OR THE TRANSFER AND SERVICING
AGREEMENT, AS APPLICABLE.]
Pursuant to Section 4.04, Servicer does hereby instruct Indenture Trustee
(i) to make a withdrawal from the Finance Charge Account (or other Series
Account as specified below) on , 200 , which date is a Transfer Date
under the Indenture Supplement, in an aggregate amount (equal to the Available
Finance Charge Collections) as set forth below in respect of the following
amounts and (ii) to apply the proceeds of such withdrawal in accordance with
subsection 4.04(a):
A. Pursuant to subsection 4.04(a)(i):
Class A Monthly Interest Payment for the
preceding Interest Period..................... $
------------------
Class A Interest Shortfall due to
Class A Noteholders........................... $
------------------
Class A Default Interest for such
Distribution Date............................. $
------------------
Class A Default Interest previously due but
not distributed to Class A Noteholders........ $
------------------
B. Pursuant to subsection 4.04(a)(ii):
Class B Monthly Interest Payment for the
preceding Interest Period..................... $
------------------
Class B Interest Shortfall due to
Class B Noteholders........................... $
------------------
Class B Default Interest for such
Distribution Date............................. $
------------------
Class B Default Interest previously due but
not distributed to Class B Noteholders........ $
------------------
C. Pursuant to subsection 4.04(a)(iii) if
Servicer is not FNBO or an Affiliate of FNBO:
Noteholder Servicing Fee for such
Distribution Date, plus the amount of any
Noteholder Servicing Fee previously due but
not distributed to Servicer on a prior
Distribution Date............................. $
------------------
D. Pursuant to subsection 4.04(a)(iv):
Class C Monthly Interest Payment for the
preceding Interest Period..................... $
------------------
Class C Interest Shortfall due to
Class C Noteholders........................... $
------------------
Class C Default Interest for such
Distribution Date............................. $
------------------
B-2
Class C Default Interest previously due but
not distributed to Class C Noteholders........ $
------------------
E. Pursuant to subsection 4.04(a)(v):
Investor Default Amount to be treated as
Available Principal Collections............... $
------------------
Uncovered Dilution Amount for such
Distribution Date to be treated as Available
Principal Collections......................... $
------------------
F. Pursuant to subsection 4.04(a)(vi):
Investor Charge Offs and the amount of
Reallocated Principal Collections not
previously reimbursed to be treated as
Available Principal Collections $
------------------
G. Pursuant to subsection 4.04(a)(vii):
Amounts to be deposited into the Spread
Account $
------------------
H. Pursuant to subsection 4.04(a)(viii):
Noteholder Servicing Fee for such
Distribution Date, plus the amount of any
Noteholder Servicing Fee previously due but
not distributed to Servicer on a prior
Distribution Date............................. $
------------------
I. Pursuant to subsection 4.04(a)(ix):
Amount to be deposited into the Reserve
Account $
------------------
J. Pursuant to subsection 4.04(a)(x):
The balance will constitute Excess Finance
Charge Collections for such Distribution Date $
------------------
K. Excess Finance Charge Collections available
and required to support other Series in
Group One $
------------------
B-3
L. Excess Finance Charge Collections available
to cover Excess Servicing Fee $
------------------
Pursuant to Section 4.04(b) and (c), Servicer does hereby instruct
Indenture Trustee (i) to make a withdrawal from the Principal Account (or other
Series Account specified below) on , 200 , which date is a Transfer Date
under the Indenture Supplement, in an aggregate amount (equal to the Available
Principal Collections) as set forth below in respect of the following amounts
and (ii) to apply the proceeds of such withdrawal in accordance with Section
4.04(b) and (c):
A. Pursuant to subsection 4.04(b):
During the Revolving Period, amount equal to
the Available Principal Collections to be
treated as Excess Principal Collections and
applied in accordance with Section 8.05 of
the Indenture................................. $
------------------
B. Pursuant to subsection 4.04(c)(i):
During the Accumulation Period, Monthly
Principal for such Transfer Date to be
deposited into the Principal Accumulation
Account....................................... $
------------------
C. Pursuant to subsection 4.04(c)(ii):
During the Rapid Amortization Period,
Monthly Principal for such Transfer Date to
be deposited to the Distribution Account for
payment to the Class A Noteholders on the
Distribution Date until an aggregate amount
equal to the Class A Note Principal Balance
has been so deposited......................... $
------------------
D. Pursuant to subsection 4.04(c)(iii):
During the Rapid Amortization Period, after
giving effect to Clause (C) above, if any
remaining Monthly Principal, to be deposited
to the Distribution Account for payment to
the Class B Noteholders on the Distribution
Date until an aggregate amount equal to the
Class B Note Principal Balance has been so
deposited..................................... $
------------------
B-4
E. Pursuant to subsection 4.04(c)(iv):
During the Rapid Amortization Period, after
giving effect to Clause (D) above, if any
remaining Monthly Principal, to be deposited
to the Distribution Account for payment to
the Class C Noteholders, on the Distribution
Date until an aggregate amount equal to the
Class C Note Principal Balance has been so
deposited..................................... $
------------------
F. Pursuant to subsection 4.04(c)(v):
Available Principal Collections, if any,
remaining after giving effect to Clauses (B)
through (E) above, to be treated as Excess
Principal Collections......................... $
------------------
Pursuant to Section 4.06, Servicer does hereby instruct Indenture Trustee
(i) to make a withdrawal from the Principal Account on , 200 which date
is a Distribution Date under the Indenture Supplement, in an aggregate amount
(equal to the Available Principal Collections) as set forth below in respect of
the following amounts and (ii) to apply the proceeds of such withdrawal in
accordance with Section 4.06:
Reallocated Principal Collections, up to the
amount required to fund any deficiency
pursuant to and in the priority set forth
subsections 4.04(a)(i), (ii) and (iii) of the
Indenture Supplement (after application of
amounts available from the Spread Account) to
be deposited to the Distribution Account for
payment to the Class A and Class B Noteholders
or distributed to the Servicer................ $
------------------
Pursuant to Section 4.09, Servicer does hereby instruct Indenture Trustee
to transfer from the Principal Accumulation Account to the Finance Charge
Account, the Principal Accumulation Investment Proceeds on deposit in the
Principal Accumulation Account for application as Available Finance Charge
Collections in the following amount and to deposit interest and earnings on the
funds on deposit in the Principal Account, the Finance Charge Account and the
Distribution Account to an account designated by Servicer:
From Principal Accumulation Account
to the Finance Charge Account $
---------
B-5
Earnings on Principal Account, Finance
Charge Account and Distribution Account
to the order of Servicer $
---------
Pursuant to Section 4.10, Servicer does hereby instruct Indenture Trustee
to withdraw from the Reserve Account an amount equal to any Reserve Account
Surplus to be deposited into the Spread Account in accordance with Section
4.10(e), in the following amount.
$
---------------------
Pursuant to Section 4.12, Servicer does hereby instruct Indenture Trustee
to withdraw from the Spread Account an amount equal to a deficiency in Class C
Monthly Interest Payment up to the Available Spread Account Amount, in the
following amount.
$
---------------------
II. INSTRUCTIONS TO MAKE CERTAIN PAYMENTS
Pursuant to Section 5.02, Servicer does hereby instruct Indenture Trustee
or Paying Agent, as the case may be, to pay in accordance with Section 5.02 from
the Distribution Account or the Principal Accumulation Account, as applicable,
on , which date is a Distribution Date under the Indenture Supplement,
the following amounts:
A. Pursuant to subsection 5.02(a):
(1) Class A Noteholder's pro rata share of the
amounts on deposit in the Distribution
Account that are allocated and available on
such Distribution Date to pay interest on
the Class A Notes pursuant to the Indenture
Supplement.................................... $
------------------
(2) Class A Noteholder's pro rata share of the
amounts on deposit in the Distribution
Account that are allocated and available on
such Distribution Date to pay principal of
the Class A Notes pursuant to the Indenture
Supplement.................................... $
------------------
B. Pursuant to subsection 5.02(b):
(1) Class B Noteholder's pro rata share of the
amounts on deposit in the Distribution
Account that are allocated and available on
such Distribution Date to pay interest on
the Class B Notes pursuant to the Indenture
Supplement.................................... $
------------------
B-6
(2) Class B Noteholder's pro rata share of the
amounts on deposit in the Distribution
Account that are allocated and available on
such Distribution Date to pay principal of
the Class B Notes pursuant to the Indenture
Supplement.................................... $
------------------
C. Pursuant to subsection 5.02(c):
(1) Class C Noteholder's pro rata share of the
amounts on deposit in the Distribution
Account that are allocated and available on
such Distribution Date to pay interest of
the Class C Notes pursuant to the Indenture
Supplement, including amounts withdrawn from
the Spread Account............................ $
------------------
(2) Class C Noteholder's pro rata share of the
amounts on deposit in the Distribution
Account that are allocated and available on
such Distribution Date to pay principal on
the Class C Notes pursuant to the Indenture
Supplement.................................... $
------------------
B-7
IN WITNESS WHEREOF, the undersigned has duly executed this certificate
this day of , 200 .
--------------- ----------------------------- --
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By
------------------------------
Name
----------------------------
Title
---------------------------
B-8
EXHIBIT C
FORM OF MONTHLY REPORT TO NOTEHOLDERS
FIRST NATIONAL MASTER NOTE TRUST SERIES 2002-1
MONTHLY PERIOD ENDING:
The undersigned, a duly authorized representative of First National Bank of
Omaha ("FNBO"), as Servicer pursuant to the Transfer and Servicing Agreement
dated as of October 24, 2002 (as amended, the "Transfer and Servicing
Agreement") by and between FNBO, as Servicer, First National Funding LLC, as
Transferor, and First National Master Note Trust, as Issuer, does hereby certify
as follows:
(a) The rights of the Issuer under the Transfer and Servicing Agreement have
been assigned to The Bank of New York, as Indenture Trustee, under the Master
Indenture dated as of October 24, 2002 (the "Indenture"), by and between Issuer
and the Indenture Trustee, and acknowledged by Transferor and Servicer, as
supplemented by the Series 2002-1 Indenture Supplement, dated as of October 24,
2002, by and between Issuer and Indenture Trustee, and acknowledged by
Transferor and Servicer (the "Supplement"). Capitalized terms used in this
Certificate have their respective meanings set forth in the Transfer and
Servicing Agreement. References herein to certain sections and subsections are
references to the respective sections and subsections of the Transfer and
Servicing Agreement. This Certificate is delivered pursuant to Section 3.04 of
the Transfer and Servicing Agreement and Article VIII and IX of the Indenture.
(b) FNBO is the Servicer under the Transferor and Servicing Agreement.
(c) The undersigned is a Servicing Officer.
(d) The date of this Certificate is the Determination Date relating to the
Distribution Date (the "Distribution Date").
- ---------------------
(e) To the knowledge of the undersigned, there are no Liens on any Receivables
in the Trust except as described below:
[If applicable, insert "None".]
(f) To the knowledge of the undersigned, no Series 2002-1 Pay Out Event and no
Trust Pay Out Event has occurred except as described below:
[If applicable, insert "None"]
(g) As of the date hereof the Available Spread Account Amount equals the
Required Spread Account Amount and, if the Reserve Account Funding Date has
occurred, the Available Reserve Account Amount equals the Required Reserve
Account Amount.
A. INFORMATION REGARDING THE PERFORMANCE OF THE RECEIVABLES
1. Principal Receivables
(a) Beginning of Monthly Period Principal Receivables
-------------
(b) End of Monthly Period Principal Receivables
-------------
(c) Average Principal Receivables
-------------
2. End of Monthly Period Trust Receivables
-------------
3. Delinquent Balances
Delinquency Aggregate Account Percentage of
Category Balance Total Receivables
- --------------------------------------------------------------------------------
(a)30 to 59 days
----------------------------------------
(b)60 to 89 days
----------------------------------------
(c)90 to 119 days
----------------------------------------
(d)120 to 149 days
----------------------------------------
(e)150 or more days
----------------------------------------
Total:
----------------------------------------
4. Aggregate amount of Collections
-------------
(a) Total Collections
-------------
(b) Total Collections of Principal Receivables
-------------
(c) Total Collections of Finance Charge Receivables
-------------
(d) Aggregate Allocation Percentages for Outstanding
Series
-------------
(e) Aggregate Allocation Percentage of Collections of
Principal Receivables
-------------
(f) Aggregate Allocation Percentage of Collections of
Finance Charge Receivables
-------------
5. Aggregate amount of Principal Receivables in Accounts
which became Defaulted Accounts during the Monthly
Period
-------------
6. Calculation of Interchange allocable to the Issuer
for the Monthly Period
-------------
(a) Sales net of cash advances during the Monthly
Period on all FNBO MasterCard and VISA(1)
accounts
-------------
(b) Sales net of cash advances during the Monthly
Period on Accounts designated to the Receivables
Trust
-------------
- ----------
(1) MasterCard and VISA are registered trademarks of MasterCard International
Incorporated and of VISA USA, Inc., respectively.
C-2
(c) Total amount of Interchange paid or payable to
FNBO with respect to the Monthly Period
-------------
(d) Amount of Interchange allocable to the
Receivables Trust with respect to the Monthly
Period ([c]/[b/a])
-------------
(e) Servicer Interchange amount (1% of Collateral
Amount at end of prior Monthly Period)
-------------
(f) Adjustment to Noteholder Servicing Fee (excess of
(e) over (f))
-------------
7. The aggregate amount of Collections of Finance Charge
Receivables for the Receivables Trust for the Monthly
Period
(a) Interchange
-------------
(b) Recoveries
-------------
(c) Finance Charges and Fees
-------------
(d) Discount Receivables
-------------
Total
-------------
8. Aggregate Uncovered Dilution Amount for the Monthly
Period
-------------
B. INFORMATION REGARDING THE SERIES 2002-1 NOTES
1. Collateral Amount at the close of business on the
prior Distribution Date
-------------
(a) Reductions due to Investor Charge-Offs (including
Uncovered Dilution Amounts) to be made on the
related Distribution Date
-------------
(b) Reimbursements to be made on the related
Distribution Date from Available Finance Charge
Collections
-------------
(c) Collateral Amount at the close of business on the
Distribution Date
-------------
2. Note Principal Balance at the close of business on
the Distribution Date during the Monthly Period
(a) Class A Note Principal Balance
-------------
(b) Class B Note Principal Balance
-------------
(c) Class C Note Principal Balance
-------------
Total Note Principal Balance
-------------
3. Allocation Percentages for the Monthly Period
(a) Principal Collections
-------------
(b) Finance Charge Collections
-------------
(c) Default Amounts
-------------
4. Investor Principal Collections processed during the
Monthly Period and allocated to the Series
-------------
C-3
5. Excess Principal Collections available from other
Group I Series allocated to the Series
-------------
6. Aggregate amounts treated as Available Principal
Collections pursuant to subsections 4.04(a)(v) and
(vi) of the related Indenture Supplement
-------------
7. Reallocated Principal Collections (up to the Monthly
Principal Reallocation Amount) applied pursuant to
Section 4.06 of the related Indenture Supplement
-------------
8. AVAILABLE PRINCIPAL COLLECTIONS (4+5+6-7)
-------------
9. Principal Accumulation Investment Proceeds
-------------
10. Investor Finance Charge Collections (including
Interchange and Recoveries) processed during the
Monthly Period
-------------
11. Excess Finance Charge Collections from Group I
allocated to the Series
-------------
12. Reserve Account withdrawals pursuant to Section
4.10(b) or (d) of the related Indenture Supplement
-------------
13. Excess amounts from Spread Account to be treated as
Available Finance Charge Collections pursuant to
Section 4.12(g) of the related Indenture Supplement
-------------
14. AVAILABLE FINANCE CHARGE COLLECTIONS (9+10+11+12+13)
-------------
15. Distributions of principal and interest to
Noteholders on the Distribution Date:
(a) Class A Noteholders
-------------
(b) Class B Noteholders
-------------
(c) Class C Noteholders
-------------
16. Distributions of principal to Noteholders on the
Distribution Date:
(a) Class A Noteholders
-------------
(b) Class B Noteholders
-------------
(c) Class C Noteholders
-------------
17. Distributions of interest to Noteholders on the
Distribution Date:
(a) Class A Noteholders
-------------
(b) Class B Noteholders
-------------
(c) Class C Noteholders
-------------
C-4
18. The aggregate amount of all Principal Receivables in
Accounts which became Defaulted Accounts during the
Monthly Period which were allocated to the Series
(a) Default Amount
-------------
(b) Allocation Percentage (B.3.(c) above)
-------------
Total Investor Default Amount (axb)
-------------
19. The aggregate amount of Uncovered Dilution Amount
allocated to the Series for the Monthly Period
(a) Dilutions not covered by Transferor
-------------
(b) Series Allocation Percentage (as defined in the
related Indenture Supplement)
-------------
(c) Total Uncovered Dilution Amount
-------------
20. The aggregate amount of Investor Charge-Offs
(including any Uncovered Dilution Amount not covered
by the Transferor) for the Monthly Period
-------------
21. Noteholder Servicing Fee for the Monthly Period
payable to the Servicer (after adjustment for
Servicer Interchange shortfall, if any)
-------------
22. Ratings of the Class A Notes
Moody's
-------------
S&P
-------------
Fitch
-------------
23. Ratings of the Class B Notes
Moody's
-------------
S&P
-------------
Fitch
-------------
24. Ratings of the Class C Notes
Moody's
-------------
S&P
-------------
Fitch
-------------
25. Note Interest Rate for the Monthly Period
(a) Class A Note Interest Rate
-------------
(b) Class B Note Interest Rate
-------------
(c) Class C Note Interest Rate
-------------
C. QUARTERLY NET YIELD
1. Base Rate for the Monthly Period
-------------
2. Portfolio Yield for the Monthly Period
-------------
3. Net Yield for the Monthly Period (Portfolio Yield
MINUS Base Rate)
-------------
C-5
4. Quarterly Net Yield for the related Distribution Date
-------------
D. INFORMATION REGARDING THE PRINCIPAL ACCUMULATION ACCOUNT
1. Opening Principal Accumulation Account Balance on the
Distribution Date for the Monthly Period
-------------
2. Controlled Deposit Amount to be deposited to the
Principal Accumulation Account on the Distribution
Date for the Monthly Period
(a) Controlled Accumulation Amount
-------------
(b) Accumulation Shortfall
-------------
(c) Controlled Deposit Amount (a+b)
-------------
3. Amounts withdrawn from the Principal Accumulation
Account for distribution to Noteholders on the
related Distribution Date
(a) Distribution in reduction of the Class A Notes
-------------
(b) Distribution in reduction of the Class B Notes
-------------
(c) Distribution in reduction of the Class C Notes
-------------
4. Principal Accumulation Account ending balance after
deposit/withdrawal on the Distribution Date for the
Monthly Period
-------------
E. INFORMATION REGARDING THE SPREAD ACCOUNT
1. Opening Available Spread Account Amount on the
Distribution Date for the Monthly Period
-------------
2. Aggregate amount required to be withdrawn pursuant to
Section 4.12(c) of the related Indenture Supplement
for distribution to Class C Noteholders pursuant to
Section 4.04(a)(iv) of the related Indenture
Supplement
-------------
3. Aggregate amount required to be withdrawn pursuant to
Section 4.12(d) of the related Indenture Supplement
for distribution in reduction of the Class C Note
Principal Balance
-------------
4. Spread Account Percentage for the Distribution Date
for the Monthly Period
-------------
5. Closing Required Spread Account Amount for the
Distribution Date for the Monthly Period
-------------
6. Amount on deposit in Spread Account after required
withdrawals on the Distribution Date for the Monthly
Period (1-(2+3))
-------------
C-6
7. Spread Account Deficiency, if any (5 MINUS 6)
-------------
8. Amounts deposited pursuant to Section 4.04(a)(vii) or
4.10(e) of the related Indenture Supplement
-------------
9. Remaining Spread Account Deficiency, if any (7 minus 8)
-------------
F. INFORMATION REGARDING THE RESERVE ACCOUNT
1. Reserve Account Funding Date
-------------
2. Opening Available Reserve Account Amount on the
Distribution Date for the Monthly Period
-------------
3. Aggregate amount required to be withdrawn pursuant to
Section 4.10(d) of the related Indenture Supplement
for inclusion in Available Finance Charge
Collections:
(a) Covered Amount
-------------
(b) Principal Accumulation Investment Proceeds
-------------
(c) Reserve Draw Amount (a MINUS b)
-------------
4. Required Reserve Account Amount
-------------
5. Reserve Account Surplus (4-(2-3))
-------------
G. INFORMATION REGARDING ACCUMULATION PERIOD
(REQUIRED ON AND AFTER DISTRIBUTION DATE)
1. Accumulation Period Length (months)
-------------
C-7
IN WITNESS thereof, the undersigned has duly executed and delivered this
Certificate the day of , .
----------- ------------------------------ ------------
FIRST NATIONAL BANK OF OMAHA,
Servicer
By
----------------------------------
Name
--------------------------------
Title
-------------------------------
C-8
EXHIBIT D
FORM OF MONTHLY SERVICER'S CERTIFICATE
FIRST NATIONAL BANK OF OMAHA
FIRST NATIONAL MASTER NOTE TRUST, SERIES 2002-1
The undersigned, a duly authorized representative of First National Bank
of Omaha ("FNBO"), as Servicer pursuant to the Transfer and Servicing Agreement,
dated as of October 24, 2002 (as amended and supplemented, the "Transfer and
Servicing Agreement"), among First National Funding LLC, as Transferor, First
National Bank of Omaha, as Servicer and First National Master Note Trust, as
Issuer, does hereby certify as follows:
1. Capitalized terms used in this Certificate have their respective
meanings set forth in the Transfer and Servicing Agreement or the Master
Indenture dated as of October 24, 2002 (as amended or supplemented, the "Master
Indenture"), between Issuer and The Bank of New York, as indenture trustee
("Indenture Trustee") as supplemented by the Series 2002-1 Indenture Supplement,
dated as of October 24, 2002, between Issuer and Indenture Trustee (as amended
and supplemented, the "Indenture Supplement") and together with the Master
Indenture, the "Indenture"), as applicable.
2. FNBO is, as of the date hereof, Servicer under the Transfer and
Servicing Agreement.
3. The undersigned is an Authorized Officer of Servicer.
4. This Certificate relates to the Distribution Date occurring on
, 200 .
- ------------------------- ---
5. As of the date hereof, to the best knowledge of the undersigned,
Servicer has performed in all material respects all of its obligations under the
Transfer and Servicing Agreement and the Indenture through the Monthly Period
preceding such Distribution Date [or, if there has been a default in the
performance of any such obligation, set forth in detail the (i) nature of such
default, (ii) the action taken by Servicer, if any, to remedy such default and
(iii) the current status of each such default]; if applicable, insert "None".
6. As of the date hereof, to the best knowledge of the undersigned, no
Pay Out Event occurred on or prior to such Distribution Date.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate this day of , 20 .
----- ---------------------------------- -----
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By
------------------------------
Name
----------------------------
Title
---------------------------
D-2