EXHIBIT 4.2
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SERIES [200_-_] INDENTURE SUPPLEMENT
Dated as of [ ], 200[ ]
to
MASTER INDENTURE
Dated as of [ ], 2002
---------------
FIRST NATIONAL MASTER NOTE TRUST,
Issuer,
and
THE BANK OF NEW YORK,
Indenture Trustee on behalf of the Noteholders
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FIRST NATIONAL MASTER NOTE TRUST
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TABLE OF CONTENTS
PAGE
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ARTICLE I
CREATION OF THE SERIES [200_-_] NOTES...........................................................................4
ARTICLE II
DEFINITIONS.....................................................................................................4
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................................................................15
Section 4.03. Determination of Monthly Principal...............................................................16
Section 4.04. Application of Available Finance Charge Collections and Available Principal Collections..........16
Section 4.05. Investor Charge-Offs.............................................................................18
Section 4.06. Reallocated Principal Collections................................................................18
Section 4.07. Excess Finance Charge Collections................................................................19
Section 4.08. Excess Principal Collections.....................................................................19
Section 4.09. Certain Series Accounts..........................................................................19
Section 4.10. Reserve Account..................................................................................20
[Section 4.11. Cash Collateral Account.........................................................................21
Section 4.12. Spread Account...................................................................................22
Section 4.13. Investment Instructions..........................................................................23
Section 4.14. Accumulation Period..............................................................................24
Section 4.15 Suspension of Accumulation Period.................................................................24
[Section 4.16. Determination of Libor.........................................................................25]
Section 4.17 Interchange.......................................................................................25
[Section 4.18. Foreign Accounts...............................................................................26]
[Section 4.19. Pre-Funding Account............................................................................26]
ARTICLE V
DELIVERY OF NOTES; DISTRIBUTIONS; REPORTS TO NOTEHOLDERS
Section 5.01. Delivery and Payment for the Notes...............................................................27
Section 5.02. Distributions....................................................................................27
Section 5.03. Reports and Statements to Noteholders............................................................28
ARTICLE VI
SERIES [200_-_] PAY OUT EVENTS.................................................................................28
ARTICLE VII
REDEMPTION; FINAL DISTRIBUTIONS; SERIES TERMINATION
Section 7.01. Optional Redemption of Series [200_-_] Notes; Final Distributions................................29
2
Section 7.02. Series Termination...............................................................................30
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Ratification of Indenture; Amendments............................................................30
Section 8.02. Form of Delivery of the Series [200_-_] Notes....................................................30
Section 8.03. Counterparts.....................................................................................30
Section 8.04. Governing Law....................................................................................30
Section 8.05. Limitation of Liability..........................................................................30
Section 8.06. Rights of Indenture Trustee......................................................................31
Section 8.07. Additional Requirements for Registration of and Limitations on Transfer and Exchange of Notes....31
EXHIBITS
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 A-4 ALTERNATE FORM OF CLASS C NOTE
EXHIBIT B FORM OF MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO INDENTURE TRUSTEE
EXHIBIT C FORM OF MONTHLY REPORT TO NOTEHOLDERS
EXHIBIT D FORM OF MONTHLY SERVICER'S CERTIFICATE
3
SERIES [200_-_] INDENTURE SUPPLEMENT
SERIES [200_-_] INDENTURE SUPPLEMENT, dated as of [ ], 200[ ] (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 [200_-_] 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 [200_-_]" or the "Series [200_-_] Notes." The
Series [200_-_] Notes shall be issued in three Classes, known as the "Class A
[Floating Rate] Asset Backed Notes, Series [200_-_]," the "Class B [Floating
Rate] Asset Backed Notes, Series [200_-_]," and the "Class C [Floating Rate]
Asset Backed Notes, Series [200_-_]."
[Series [200_-_] shall be included in Group One and shall be a Principal
Sharing Series. Series [200_-_] shall be an Excess Allocation Series with
respect to Group One only. Series [200_-_] shall not be subordinated to any
other Series. Series [200_-_] shall [not] be a Paired Series [with 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;
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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 [200_-_] 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 [200_-_]; 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 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 Cash Collateral Amount" means, with respect to any Transfer
Date, an amount equal to the lesser of (a) the amount on deposit in the Cash
Collateral Account (before giving effect to any deposit to, or withdrawal from,
the Cash Collateral Account made or to be made with respect to such date) and
(b) the Required Cash Collateral Amount for such Transfer 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 [200_-_] 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, [Pre-Funding Account,] [Cash
Collateral Account], [Spread Account] and Excess Funding Account to be treated
as Available Finance Charge Collections on the related Transfer Date pursuant to
subsections 4.10(b) or (d), [4.11], 4.12(c) and [4.18(b)].
"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.
["Cash Collateral Account" is defined in Section 4.11(a).]
"Class A Default Interest" is defined in subsection 4.02(a).
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"Class A Interest Shortfall" is defined in subsection 4.02(a).
["Class [A/B] Expected Principal Payment Date" means [ ].]
"Class A Monthly Interest Payment" is defined in subsection 4.02(a).
"Class A Note Initial Principal Balance" means $[ ].
"Class A Note Interest Rate" means a per annum rate of [ ]% [in excess of
LIBOR as determined on the LIBOR Determination Date for the applicable Interest
Period].
"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
[sum of (a)] Available Finance Charge Collections applied to pay such amount
pursuant to subsection 4.04(a), [and (b) any amount withdrawn from the Cash
Collateral Account and applied to pay such amount pursuant to subsection
4.11(c).]
"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 $[ ].
"Class B Note Interest Rate" means a per annum rate of [ ]% [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
[sum of (a)] Available Finance Charge Collections applied to pay such amount
pursuant to subsection 4.04(a), [and (b) any amount withdrawn from the Cash
Collateral Account and applied to pay such amount pursuant to subsection
4.11(c).]
"Class C Default Interest" is defined in subsection 4.02(c).
["Class C Expected Principal Payment Date" means [ ].]
"Class C Interest Shortfall" is defined in subsection 4.02(c).
"Class C Monthly Interest Payment" is defined in subsection 4.02(c).
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"Class C Note Initial Principal Balance" means $[ ].
"Class C Note Interest Rate" means a per annum rate of [ ]% [in excess of
LIBOR as determined on the LIBOR Determination Date for the applicable Interest
Period].
"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 Note Purchase Agreement" means the Note Purchase Agreement,
dated as of [ ], 200[ ], between First National Bank of Omaha, Transferor, and
the initial purchaser of the Class C Notes.]
"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 [ ], 200[ ].
"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 [200_-_] 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-[ ] 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 [ ] 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 such Transfer Date.
"Controlled Accumulation Date" means [ ], 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 [30] [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 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.
7
["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 [ ] 15, 200[ ] 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 successor servicers and
averaging the rates offered in the bids.]
"Excess Spread Percentage" means Net Yield.
["Expected Principal Payment Date" means [ ], 2[ ].]
"Finance Charge Account" is defined in Section 4.09(a).
"Finance Charge Collections" means Collections of Finance Charge
Receivables.
"Finance Charge Shortfall" is defined in Section 4.07.
["Foreign Account" means an Account, which as of the Cut Off Date (or,
with respect to Additional Accounts, as of the relevant Addition Date) was an
Eligible Account, but subsequent to such date the Obligor of which has provided,
as its most recent billing address, an address which is not located in the
United States or its territories or possessions.]
["Funding Period" means the period commencing on the Closing Date and
ending upon the first to occur of (x) the commencement of the Rapid Amortization
Period, (y) the date on which the Collateral Amount equals the Note Principal
Balance and (z) [___________], 200[__].]
"Group One" means Series [200_-_], 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 $[ ].
["Initial Pre-Funded Amount" means $[____________].]
"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.
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"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) [ ], 200[ ] for the period from and
including the Closing Date through and including [ ], 200[ ] and (ii) the second
London Business Day prior to the commencement of the second and 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.
"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 [ ]
200[ ] Distribution Date shall mean the period from and including the Closing
Date to and including the last day of [ ] 200[ ].
"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) [ ]% 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) [ ]% 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 [200_-_]
(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.
9
"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 [Cash Collateral Account,] [the
Spread Account,] [or] [the Pre-Funding Account,] except that Excess Finance
Charge Collections from other Series applied for the benefit of Series [200_-_]
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
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.
["Pre-Funded Amount" means, as of any date of determination, the amount on
deposit in the Pre-Funding Account (net of all interest and other investment
income).]
["Pre-Funding Account" is defined in subsection 4.19(a).]
["Pre-Funding Investment Proceeds" means, with respect to each Transfer
Date, the investment earnings on funds in the Pre-Funding Account (net of
investment expenses and losses) for the period from and including the
immediately preceding Transfer Date (or, in the case of the first Transfer Date,
from and including the Closing Date) to but excluding such Transfer Date.]
"Principal Account" is defined in Section 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 [Class A/B] 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 [excluding the Class C
Note Initial Principal Balance]) [and a further deposit into the Principal
Accumulation Account on the Class C Expected Principal Payment Date in an amount
equal to the Class C Note Initial Principal Balance.]
"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 [ ] 200[ ] and [ ] 200[ ] Distribution Dates, the Net Yields for [ ] and [ ]
200[ ] shall be deemed to be [ ]% and [ ]%, respectively.
"Rapid Amortization Period" means the period commencing on the date on
which a Trust Pay Out Event or a Series [200_-_] Pay Out Event is deemed to
occur and ending on the Series Termination Date.
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"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.
"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 [200 - ]
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 [200_-_] Noteholders on a prior Distribution Date.
["Reference Banks" means four major banks in the London interbank market
selected by Servicer.]
["Required Cash Collateral Amount" means, for any Transfer Date, the
greatest of (a) an amount equal to [ ]% of the Collateral Amount (after taking
into account deposits to the Principal Accumulation Account on such Transfer
Date and payments to be made on the related Distribution Date), (b) $[ ] and (c)
for any Transfer Date occurring on or after the commencement of the Rapid
Amortization Period, an amount equal to [ ]% of the Collateral Amount as of the
close of business on the last day of the Revolving Period; provided that the
Required Cash Collateral Amount will never exceed the Note Principal Balance,
minus the Principal Accumulation Account Balance (after taking into account
deposits to the Principal Accumulation Account on such Transfer Date and
payments to be made on the related Distribution Date); and provided, further,
that Transferor may reduce the Required Cash Collateral Amount at any time if
Indenture Trustee has been provided evidence that the Rating Agency Condition
has been satisfied.]
["Required Draw Amount" is defined in subsection 4.11(c).]
"Required Reserve Account Amount" means, for any Transfer Date on or after
the Reserve Account Funding Date, an amount equal to (a) [ ]% 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 [200_-_].
"Required Retained Transferor Percentage" means, for purposes of Series
[200_-_], [ ]%.
"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 [ ] 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 [ ]%, 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 [ ] months prior to the
commencement of the Accumulation Period; (c) the first Transfer Date for which
the Quarterly Net Yield is less than [ ]%, 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 [ ] months prior to the
commencement of the Accumulation Period; and (d) the first Transfer Date for
which the Quarterly Net Yield is less than [ ]%, 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 [ ] 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 (w) such Qualified
Maturity Agreement is terminated because the provider of such
11
Qualified Maturity Agreement ceases to qualify as a Qualified Maturity Agreement
Institution, (x) such Qualified Maturity Agreement is terminated prior to the
earlier of the [Class A/B] Expected Principal Payment Date [and the Class C
Expected Principal Payment Date] and the commencement of the Rapid Amortization
Period, (y) such Qualified Maturity Agreement is terminated after the later of
the last day of the [ , 200 ] 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 (z)
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 [200_-_]" means the Series of Notes the terms of which are
specified in this Indenture Supplement.
"Series [200_-_] Final Maturity Date" means the [ ] 200[ ] Distribution
Date.
"Series [200_-_] Note" means a Class A Note, a Class B Note or a Class C
Note.
"Series [200_-_] Noteholder" means a Class A Noteholder, a Class B
Noteholder or a Class C Noteholder.
"Series [200_-_] 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 [200_-_] 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.
12
"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 [200_-_] 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 [ ] 200[ ] Distribution Date shall be $[ ].
"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 [(a)] the Available Finance Charge Collections applied to pay such amount
pursuant to subsection 4.04(a) [and (b) any amount withdrawn from the Cash
Collateral Account and applied to pay such amount pursuant to subsection
4.11(c).]
"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" [is defined in the Class C Note Purchase
Agreement] [means, for any Distribution Date, the applicable percentage
determined as follows:
If the Quarterly Net Yield then the Spread
on such Distribution Date is Account
Percentage will
equal:
greater than or equal
to: and less than:
- --------------------------------------------------------------------------------
[ ]% [ ]%
[ ]% [ ]% [ ]%
[ ]% [ ]% [ ]%
[ ]% [ ]% [ ]%
[ ]% [ ]% [ ]%
[ ]% [ ]% [ ]%
[ ]% [ ]% [ ]%
[ ]% [ ]% [ ]%
[ ]% [ ]% [ ]%
[ ]% [ ]%
The Initial Spread Account Percentage shall be [ ]%. 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 [200 - ]
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.
13
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.
ARTICLE III
NOTEHOLDER SERVICING FEE
SECTION 3.01. SERVICING COMPENSATION. The share of the Servicing Fee
allocable to Series [200_-_] 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 $[ ];
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
[200_-_] 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 [200_-_] 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) Finance Charge Collections, Principal Collections and
Receivables in Defaulted Accounts shall be allocated and distributed to
Series [200_-_] as set forth in this Article.
(b) On each Date of Processing, Servicer shall allocate to the
Series [200_-_] Noteholders the following amounts as set forth below:
(i) Allocations of Finance Charge Collections. Servicer shall
allocate to the Series [200_-_] 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 [200_-_] 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 Principal Collections processed on each Date of Processing,
shall be allocated to the Series [200_-_] 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 [200_-_] 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.
14
(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 [200_-_] 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 [200_-_] 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 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 [200_-_] 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 [ ]% 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 [________]% 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 [30] [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 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 [30] [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
15
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 [30] [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 [30] [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 [30] [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 (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 [30] [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:
16
(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 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) [(A) an amount equal to the excess, if any, of the
Required Cash Collateral Amount over the Available Cash Collateral
Amount shall be deposited into the Cash Collateral Account and then
(B)] 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;
(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) 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;
(x) [an amount equal to any other payments owed to the Class C
Noteholders under the Class C Note Purchase Agreement shall be paid
to the Class C Noteholders]; and
(xi) 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.
17
(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 Class A/B Expected Principal Payment Date,
Indenture Trustee, acting in accordance with instructions from Servicer,
shall withdraw from the Principal Accumulation Account and 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 [and
the amount withdrawn from the Cash Collateral Account] allocated with respect
thereto pursuant to subsection 4.04(a)(v) [and 4.11(c), respectively,] 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 Cash
Collateral Account 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.
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SECTION 4.07. EXCESS FINANCE CHARGE COLLECTIONS. [Series [200_-_] 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. Excess Finance Charge Collections with
respect to the Excess Allocation Series in Group One for any Transfer Date will
be allocated to Series [200_-_] 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
[200_-_] 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 [200_-_] 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 (xi) 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 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. Excess Finance Charge Collections with respect to Group One shall be
allocated to Series [200_-_] in accordance with this Section 4.07, without
regard to whether the RaFing Agency Condition has been met for purposes of the
definition of "Portfolio Yield".
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 [200_-_] 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 [200_-_]
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 [200_-_] 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 [200_-_] 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 [200_-_]
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 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 and 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
19
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 Cash Collateral
Account,] [the Pre-Funding Account,] the Reserve Account and the Spread
Account are hereby designated as the Series Accounts for the Series [200_-
_] Notes.
(d) Indenture Trustee shall hold such of the Permitted Investments
of funds in any Series Account (including the Reserve Account, Spread
Account [Cash Collateral Account and Pre-Funding 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(c),
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 [200_-_] 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 [200_-_] 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 [200_-_] Noteholders. If at any time the
institution holding the Reserve Account ceases to be a Qualified
20
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 Reserve Account meeting the
conditions specified above with a Qualified Institution, and shall
transfer any cash and 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
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 Class A/B Expected Principal Payment Date,
Indenture Trustee, acting in accordance with the written instructions of
Servicer, after the prior payment of all amounts owing to the Series
[200_-_] 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. CASH COLLATERAL 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 [200_-_] Noteholders, a
segregated trust account (the "Cash Collateral Account"), bearing a
designation clearly indicating that the funds deposited therein are held
for the benefit of the Series [200_-_] Noteholders. Indenture Trustee
shall possess all right, title and interest in all funds on deposit from
time to time in the Cash Collateral Account and in all proceeds thereof.
The Cash Collateral Account shall be under the sole dominion and control
of Indenture Trustee for the benefit of the Series [200_-_] Noteholders.
If at any time the institution holding the Cash Collateral
21
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 Cash Collateral Account meeting the conditions specified
above with a Qualified Institution, and shall transfer any cash and any
investments to such new Cash Collateral Account.
(b) On the Closing Date, Transferor shall deposit $[ ] in
immediately available funds into the Cash Collateral Account. Funds on
deposit in the Cash Collateral Account shall be invested at the written
direction of Servicer by Indenture Trustee in Permitted Investments. Funds
on deposit in the Cash Collateral Account on any Transfer Date, after
giving effect to any withdrawals from the Cash Collateral 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 Cash Collateral Account shall be retained in the Cash
Collateral Account (to the extent that the Available Cash Collateral
Amount is less than the Required Cash Collateral 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 Cash
Collateral Account for any reason under this Indenture Supplement, except
as otherwise provided in the preceding sentence, interest and earnings on
such funds shall be deemed not to be available or on deposit.
(c) On each Determination Date, Servicer shall calculate the amount
(the "Required Draw Amount") by which the sum of the amounts required to
be distributed or deposited pursuant to subsections 4.04(a)(i) through (v)
with respect to the related Transfer Date exceeds the amount of Available
Finance Charge Collections with respect to the related Monthly Period. If
the Required Draw Amount for any Transfer Date is greater than zero,
Servicer shall give written notice to Indenture Trustee of such positive
Required Draw Amount on the related Determination Date. On the related
Transfer Date, the Required Draw Amount, if any, up to the Available Cash
Collateral Amount, shall be withdrawn from the Cash Collateral Account and
distributed to fund any deficiency pursuant to subsections 4.04(a)(i)
through (v) (in the order of priority set forth in Section 4.04(a)).
(d) If, after giving effect to all deposits to and withdrawals from
the Cash Collateral Account with respect to any Transfer Date, the amount
on deposit in the Cash Collateral Account exceeds the Required Cash
Collateral Amount, Indenture Trustee acting in accordance with the
instructions of Servicer, shall withdraw an amount equal to such excess
from the Cash Collateral Account 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 such
amounts remaining after application pursuant to subsection 4.11(d) to
Transferor.]
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 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 the Holder of the
Transferor Interest. 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 in writing, 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 and 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). The Issuer will [make no] deposit
into the Spread Account on the Closing Date [an amount equal to the
Required Spread Account Amount.]
(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
22
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 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 [200_-_] 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 [and the amount, if any, withdrawn from the
Cash Collateral Account available for deposit into the Distribution
Account] pursuant to subsection[s] 4.04(a)(iv) [and 4.11(c),
respectively,] 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 (i) 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, the
Indenture Trustee shall also withdraw Investment Earnings credited to the
Spread Account in an amount so that the total amount withdrawn equals such
deficiency, and (ii) 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 [200_-_] 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 amount so withdrawn is not sufficient to reduce the
Class C Note Principal Balance to zero, shall also withdraw Investment
Earnings credited to the Spread Account up to the amount required to
reduce the Class C Note Principal Balance to zero. Indenture Trustee, upon
the written direction of 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 [200_-_] and acceleration of the maturity of the Series
[200_-_] 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 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
23
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 [_______], 200[_]; provided that if the
Accumulation Period Length (determined as described below) on any Determination
Date on or after the [______________] Determination Date is less than [__]
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 [Class A/B] 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 [___________] month[s], (ii) such
determination of the Accumulation Period Length shall be made on each
Determination Date on and after the [________, 20__] 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 [Class A Notes
and the Class B Notes] [the Series 200_-_ Notes] on the [Class A/B] Expected
Principal Payment Date is expected to equal or exceed the sum of the Class A
Note Principal Balance [and the] Class B Note Principal Balance [and the Class C
Note Principal Balance], assuming 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 [___] 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 [_______]
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 written 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 written notice to the Rating Agencies, at
any time prior to the Distribution Date preceding the [Class A/B] 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 [200_-_] 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 [200_-_] 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
[200_-_] Noteholders.
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(b) Each Qualified Maturity Agreement shall obligate the provider to
deposit into the Principal Accumulation Account on or before the [Expected
Principal Payment Date an amount equal to the initial Note Principal
Balance (reduced by any amount on deposit in the Principal Accumulation
Account)] [Class A/B Expected Principal Payment Date an amount equal to
the initial Note Principal Balance (excluding the Class C Note Initial
Principal Balance and reduced by any amount on deposit in the Principal
Accumulation Account) and a further deposit into the Principal
Accumulation Account on or before the Class C Expected Principal Payment
Date in an amount equal to the Class C Note Principal Balance]; 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 [Class A/B] Expected
Principal Payment Date [and the Class C Expected Principal Payment Date,
respectively,] pursuant to subsection 4.04(c) as if the commencement of
the Accumulation Period had not been suspended. The Qualified Maturity
Agreement may require that during the period when the Accumulation Period
is suspended, upon the occurrence of certain events, Available Principal
Collections will be deposited into the Principal Accumulation Account.
(c) Each Qualified Maturity Agreement shall terminate at the close
of business on the [Class A/B] 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, (C) a Pay
Out Event occurs or (D) an event which may be declared to be a Pay Out
Event occurs, whether or not it is declared. 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 [Class A/B] [Class C] 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
[_____________], 20[__], (ii) the date to which the commencement of the
Accumulation Period is postponed pursuant to Section 4.l4 (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 [Class A/B] [Class C] Expected Principal Payment Date.
[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 [200_-_] 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.]
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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
[200_-_] 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 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 [200_-_] 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 [200_-_] 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 [200_-_], 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 [200_-_] Notes to the extent specified in any such
Indenture Supplement) and the Series [200_-_] 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.
[SECTION 4.18. FOREIGN ACCOUNTS. So long as any Series [200_-_] Notes are
Outstanding, notwithstanding the proviso in clause (c) of the definition of
Eligible Accounts in the Pooling and Servicing Agreement and in Annex A to the
Indenture, Receivables arising in Foreign Accounts shall constitute Eligible
Receivables for all purposes except that they may not be counted for purposes of
determining compliance with the tests for the Minimum Transferor Interest and
the Minimum Aggregate Principal Receivables.]
[SECTION 4.19. PRE-FUNDING ACCOUNT.
(a) Indenture Trustee shall establish and maintain with a Qualified
Institution, in the name of Issuer, on behalf of Issuer, for the benefit
of the Series [200_-_] Noteholders, a segregated trust account (the
"Pre-Funding Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Series [200_-_]
Noteholders. Indenture Trustee shall possess all right, title and interest
in all funds on deposit from time to time in the Pre-Funding Account and
in all proceeds thereof. The Pre-Funding Account shall be under the sole
dominion and control of Indenture Trustee for the benefit of the Series
[200_-_] Noteholders. If at any time the institution holding the
Pre-Funding Account ceases to be a Qualified Institution, Servicer 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 Pre-Funding Account meeting the conditions specified above
with a Qualified Institution, and shall transfer any cash or any
investments to such new Pre-Funding Account.
(b) Transferor shall on the Closing Date deposit into the
Pre-Funding Account the Initial Pre-Funded Amount from the proceeds of the
sale of the Series [200_-_] Notes. On the Business Day preceding each
Transfer Date, Indenture Trustee, acting in accordance with written
instructions from Servicer, shall withdraw from the Pre-Funding Account
and deposit into the Collection Account all interest and other investment
income on the Pre-Funded Amount with respect to the prior Monthly Period.
Such investment income shall be deemed to be Finance Charge Collections
allocated to Series [200_-_]. Interest (including reinvested interest) and
other investment income on funds on deposit in the Pre-Funding Account
shall not be considered part of the Pre-Funded Amount for purposes of this
Indenture Supplement.
(c) Funds on deposit in the Pre-Funding Account shall be invested at
the written direction of Servicer by Indenture Trustee in Permitted
Investments. Funds on deposit in the Pre-Funding Account on the Closing
Date and thereafter shall be invested in Permitted Investments that will
mature so that such funds will be available for withdrawal on or prior to
the Business Day preceding the next increase in the Collateral Amount
pursuant to subsection 4.19(e) or, if earlier, on the next succeeding
Transfer Date.
26
(d) If the Pre-Funded Amount exceeds zero at the end of the Funding
Period, on the first Distribution Date on or after the last day of the
Funding Period, Servicer shall apply or shall cause Indenture Trustee to
apply the Pre-Funded Amount to the payment by Indenture Trustee of
principal on the Notes [on a pro rata basis based on the Class A Note
Principal Balance, the Class B Note Principal Balance and the Class C Note
Principal Balance.]
(e) On each Distribution Date during the Funding Period, the
Collateral Amount shall increase to the extent that the Transferor
Interest will not be less than the Minimum Transferor Interest on such
date (in each case after giving effect to all changes to occur on that
date, including the change resulting from the operation of this Section
4.19); provided, however, that the Collateral Amount shall in no event
exceed the Note Principal Balance. Upon any increase in the Collateral
Amount pursuant to this Section 4.19, Servicer shall instruct Indenture
Trustee in writing to withdraw from the Pre-Funding Account and pay to
Transferor no later than the next succeeding Business Day an amount equal
to the amount of such increase in the Collateral Amount.]
ARTICLE V
DELIVERY OF NOTES; DISTRIBUTIONS;
REPORTS TO NOTEHOLDERS
SECTION 5.01. DELIVERY AND PAYMENT FOR THE NOTES. Issuer shall execute and
issue, and Indenture Trustee shall authenticate, the Series [200_-_] Notes in
accordance with Section 2.03 of the Indenture. Indenture Trustee shall deliver
the Series [200_-_] 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 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 [200_-_] Noteholders
hereunder shall be made by (i) check mailed to each Series [200_-_]
Noteholder (at such Noteholder's address as it appears in the Note
Register), except that for any Series [200_-_] Notes registered in the
name of the nominee of a Clearing Agency [and for the Class C Notes], such
distribution shall be made by wire transfer of immediately available funds
and (ii) without presentation or surrender of any Series [200_-_] Note or
the making of any notation thereon.
SECTION 5.03. REPORTS AND STATEMENTS TO NOTEHOLDERS.
(a) On each Distribution Date, Indenture Trustee shall forward to
each Series [200_-_] Noteholder a statement substantially in the form of
Exhibit C prepared by Servicer.
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(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 [200_-_] Noteholder by
a request in writing to Servicer.
(d) On or before January 31 of each calendar year, beginning with
January 31, 200[ ], Indenture Trustee shall furnish or cause to be
furnished to each Person who at any time during the preceding calendar
year was a Series [200_-_] Noteholder, a statement prepared by Servicer
containing the information which is required to be contained in the
statement to Series [200_-_] 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 [200_-_] Noteholder, together with
other information as is required to be provided 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 [200_-_] PAY OUT EVENTS
If any one of the following events shall occur with respect to the Series
[200_-_] 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 [200_-_] 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 [200_-_] Notes evidencing more than 25% of the Note Principal
Balance and which continues to materially and adversely affect the
interest of the Series [200_-_] 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 [200_-_] 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
[200_-_] 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 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 [200_-_] Noteholders;
28
(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 or the Class B Note
Principal Balance shall not be paid in full on the Class A/B Expected
Principal Payment Date or the Class C Note Principal Balance shall not be
paid in full on the Class C Expected Principal Payment Date, respectively]
[the 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 [200_-_] and acceleration of the maturity
of the Series [200_-_] 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 [200_-_] Notes evidencing more than
50% of the aggregate unpaid principal amount of Series [200_-_] Notes by notice
then given in writing to Transferor and Servicer (and to Indenture Trustee if
given by the Series [200_-_] Noteholders) may declare that a "Series Pay Out
Event" with respect to Series [200_-_] (a "Series [200_-_] 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 [200_-_] Pay Out Event shall
occur without any notice or other action on the part of Indenture Trustee or the
Series [200_-_] Noteholders immediately upon the occurrence of such event.
ARTICLE VII
REDEMPTION;
FINAL DISTRIBUTIONS; SERIES TERMINATION
SECTION 7.01. OPTIONAL REDEMPTION OF SERIES [200_-_] NOTES; FINAL
DISTRIBUTIONS.
(a) On any day occurring on or after the date on which the outstanding
principal balance of the Series [200_-_] Notes is reduced to 10% or less of
the initial Note Principal Balance of the Series [200_-_] Notes, Servicer
shall have the option to direct Transferor to redeem the Series [200_-_]
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. This option shall not be exercisable if the purchase
price (reduced by the amount on deposit in the Principal Accumulation
Account available for distribution to Noteholders) exceeds the lesser of the
estimated fair value, or the par value plus accrued interest, of a portion
of the Receivables in Eligible Accounts then designated to the Receivables
Trust equal to the Collateral Amount.
(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 [200_-_] shall be reduced to
zero and the Series [200_-_] 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 [200_-_]
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 [200_-_], 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
29
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 Distribution Date and any Class C Default Interest previously due but
not distributed to the Class C Noteholders on any prior Distribution Date
[and (D) any other amounts owed to the Class C Noteholders under the Class
C Note Purchase Agreement will be distributed to the Class C Noteholders]
and (iv) any excess shall be released to Issuer.
SECTION 7.02. SERIES TERMINATION. On the Series [200_-_] Final Maturity
Date, the unpaid principal amount of the Series [200_-_] Notes shall be due and
payable, and the right of the Series [200_-_] 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 [200_-_] Noteholders shall be the only Noteholders whose
vote shall be required.
SECTION 8.02. FORM OF DELIVERY OF THE SERIES [200_-_] NOTES. The Class A
Notes [and] [the Class B Notes] [and the Class C Notes] shall be Book-Entry
Notes and shall be delivered as Registered Notes to [ ] as provided in Sections
2.01, 2.03 and 2.12 of the Indenture. [The Class C Notes shall be Definitive
Notes and shall be registered in the Note Register in the name of the initial
purchaser of the Class C Notes identified in the Class C Note Purchase
Agreement.]
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.
SECTION 8.07. ADDITIONAL REQUIREMENTS FOR REGISTRATION OF AND LIMITATIONS
ON TRANSFER AND EXCHANGE OF NOTES. (a) All transfers will be subject to the
transfer restrictions set forth on the Notes, [and (b) the Class C Notes will be
subject to limitations on transfer and exchange set forth in the Class C Note
Purchase Agreement].
30
[Signature page follows]
31
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
---------------------------------
Name
-------------------------------
Title
------------------------------
THE BANK OF NEW YORK, as Indenture
Trustee
By
---------------------------------
Name
-------------------------------
Title
------------------------------
Acknowledged and Accepted:
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By
--------------------------------
Name
------------------------------
Title
-----------------------------
FIRST NATIONAL FUNDING LLC,
as Transferor
By
--------------------------------
Name
------------------------------
Title
-----------------------------
INDENTURE SUPPLEMENT SIGNATURE PAGE
32
EXHIBIT A-1
FORM OF CLASS A [FLOATING RATE] ASSET BACKED NOTE, SERIES [200_-_]
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).
33
$ *
REGISTERED --------------------
No. R- CUSIP NO.
---------- --------
FIRST NATIONAL MASTER NOTE TRUST
CLASS A [FLOATING RATE] ASSET BACKED NOTE, SERIES [200_-_]
First National Master Note Trust (herein referred to as "Issuer"), a
Delaware statutory trust governed by a Trust Agreement dated as of [ ], 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
[ ] 200[ ] 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
[of twelve 30-day months.] [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.
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[ ]
------------- ----
- ------------
* Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
34
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
---------------------
35
FIRST NATIONAL MASTER NOTE TRUST
CLASS A [FLOATING RATE] ASSET BACKED NOTE, SERIES [200_-_]
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 [200_-_] (the "Series
[200_-_] Notes"), issued under a Master Indenture dated as of [ ], 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 [ ], 200[ ] (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.
36
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.
37
EXHIBIT A-2
FORM OF CLASS B [FLOATING RATE] ASSET BACKED NOTE, SERIES [200_-_]
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).
38
REGISTERED $ *
----------------
No. R- CUSIP NO.
-------- ------
FIRST NATIONAL MASTER NOTE TRUST
CLASS B [FLOATING RATE] ASSET BACKED NOTE, SERIES [200_-_]
First National Master Note Trust (herein referred to as "Issuer"), a Delaware
statutory trust governed by a Trust Agreement dated as of [ ], 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
[ ] 200[ ] 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
[of twelve 30-day months.] [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.
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[ ]
--------- ----
- ------------
* Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
39
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
---------------------------------------
40
FIRST NATIONAL MASTER NOTE TRUST
CLASS B [FLOATING RATE] ASSET BACKED NOTE, SERIES [200_-_]
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 [200_-_] (the "Series
[200_-_]Notes"), issued under a Master Indenture dated as of [ ], 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 [ ], 200[ ] (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.
41
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.
42
EXHIBIT A-3
FORM OF CLASS C [FLOATING RATE] ASSET BACKED NOTE, SERIES [200_-_]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE
SECURITIES ACT. NO RESALE OR OTHER TRANSFER OF THIS NOTE MAY BE MADE EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY
APPLICABLE PROVISIONS UNDER STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT
TO CERTAIN CONDITIONS SET FORTH IN A NOTE PURCHASE AGREEMENT RELATING HERETO.
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).
43
REGISTERED $ *
--------------
No. R- CUSIP NO.
-------- ------
FIRST NATIONAL MASTER NOTE TRUST
CLASS C [FLOATING RATE] ASSET BACKED NOTE, SERIES [200_-_]
First National Master Note Trust (herein referred to as "Issuer"), a Delaware
statutory trust governed by a Trust Agreement dated as of [ ], 2002, for value
received, hereby promises to pay to ____________, 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
[ ] 200[ ] 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
[of twelve 30-day months.] [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 AND CLASS B NOTES TO THE EXTENT SPECIFIED IN THE INDENTURE
SUPPLEMENT.
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[ ]
--------- ----
- ------------
* Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
44
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
---------------------------------------
45
FIRST NATIONAL MASTER NOTE TRUST
CLASS C [FLOATING RATE] ASSET BACKED NOTE, SERIES [200_-_]
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 [200_-_] (the "Series
[200_-_] Notes"), issued under a Master Indenture dated as of [ ], 2002 (the
"Master Indenture"), between Issuer and The Bank of New York, as indenture
trustee ("Indenture Trustee"), as supplemented by the Indenture Supplement dated
as of [ ], 200[ ] (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.
46
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.
47
EXHIBIT A-4
FORM OF CLASS C [FLOATING RATE] ASSET BACKED NOTE, SERIES [200_-_]
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).
48
REGISTERED $ *
----------------
No. R- CUSIP NO.
-------- ------
FIRST NATIONAL MASTER NOTE TRUST
CLASS C [FLOATING RATE] ASSET BACKED NOTE, SERIES [200_-_]
First National Master Note Trust (herein referred to as "Issuer"), a Delaware
statutory trust governed by a Trust Agreement dated as of [ ], 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 [ ] 200[ ] 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
[of twelve 30-day months.] [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.
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[ ]
--------- ----
- ------------
* Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
49
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
---------------------------------------
50
FIRST NATIONAL MASTER NOTE TRUST
CLASS C [FLOATING RATE] ASSET BACKED NOTE, SERIES [200_-_]
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 [200_-_] (the "Series
[200_-_]Notes"), issued under a Master Indenture dated as of [ ], 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 [ ], 200[ ] (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.
51
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.
52
EXHIBIT B
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO INDENTURE TRUSTEE
FIRST NATIONAL MASTER NOTE TRUST
SERIES [200_-_]
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 [ ], 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 [ ], 2002 (the
"Indenture") between Issuer and The Bank of New York, as indenture trustee
("Indenture Trustee") as supplemented by the [200_-_] Indenture Supplement
dated as of [ ], 200[ ] 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 [200_-_] 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............................ $____________
53
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.................................... $____________
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 [Cash
Collateral Account] [and 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.............................. $____________
54
I. Pursuant to subsection 4.04(a)(ix):
Amount to be deposited into the Reserve Account ..... $____________
J. [Pursuant to subsection 4.04(a)(x):
Additional amounts to be paid to the Class C
Noteholders] ........................................ $____________
K. Pursuant to subsection 4.04(a)(xi):
The balance will constitute Excess Finance Charge
Collections for such Distribution Date .............. $____________
L. Excess Finance Charge Collections available and
required to support other Series in Group One........ $____________
[M. 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 into 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............. $____________
55
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 into 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 in 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 funds on deposit in
the Principal Account, the Finance Charge Account and the Distribution Account
to an account designated by the Servicer:
From Principal Accumulation Account to Finance $____________
Charge Account
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 4.11, Servicer does hereby instruct Indenture Trustee to
withdraw from the Cash Collateral Account an amount equal to the excess of the
Available Cash Collateral Amount over the Required Cash Collateral Amount to be
deposited into the Finance Charge Account for application as Available Finance
Charge Collections in accordance with Section 4.11(b), 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.
56
$____________
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................................ $____________
(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............................ $____________
57
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
___________day of _____________________, 200__.
FIRST NATIONAL BANK OF OMAHA, as
Servicer
By ____________________________
Name __________________________
Title _________________________
58
EXHIBIT C
FORM OF MONTHLY REPORT TO NOTEHOLDERS
FIRST NATIONAL MASTER NOTE TRUST SERIES [ ]
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 _____________ (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 [_________], 2002 (the "Indenture"), by and between Issuer
and the Indenture Trustee, and acknowledged by Transferor and Servicer, as
supplemented by the Series [_____] Indenture Supplement, dated as of
[_____________], 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 [ ] 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[, the amount on deposit in the Cash Collateral
Account equals the Required Cash Collateral 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 ____________
59
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 ____________
(c) Total amount of Interchange paid or payable to
FNBO with respect to the Monthly Period ____________
(d) Amount of Interchange allocable to Series
[200_-_] with respect to the Monthly Period
([c] multiplied by [b/a] multiplied by the
Allocation Percentage for Finance Charge
Collections) ____________
(e) Servicer Interchange amount (1% of Collateral
Amount at end of prior Monthly Period). ____________
(f) Adjustment to Noteholder Servicing Fee (excess
of (e) over (d)) ____________
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 ____________
_____________________
(1) MasterCard and VISA are registered trademarks of MasterCard International
Incorporated and of VISA USA, Inc., respectively.
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(d) Discount Receivables ____________
Total ____________
8. Aggregate Uncovered Dilution Amount for the Monthly
Period
B. INFORMATION REGARDING THE SERIES [ ] 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 ____________
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 ____________
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12. Reserve Account withdrawals pursuant to Section
[4.10(b) or (d)] of the related Indenture Supplement ____________
13. Excess amounts from [Cash Collateral Account] [and
Spread Account] to be treated as Available Finance
Charge Collections pursuant to Sections [4.11(b) and
(c) and] [4.12(g)] of the 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 ____________
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) ____________
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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 (see "Portfolio
Yield" definition, which is adjusted for Investor
Default Amount and Uncovered Dilution Amount) ____________
3. Net Yield for the Monthly Period (Portfolio Yield
MINUS Base Rate) ____________
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 ____________
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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)) ____________
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) ____________
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[H. AGGREGATE OPENING AND CLOSING BALANCE ON DEPOSIT AND
WITHDRAWALS FROM ANY OTHER ENHANCEMENT ACCOUNTS
1. Opening Balance ____________
2. Withdrawals pursuant to Section [ ] of the related
Indenture Supplement ____________
3. Closing Balance] ____________
[I. PRE-FUNDING ACCOUNT]
1. Opening Balance ____________
2. Withdrawals pursuant to Section 4.18 of the related
Indenture Supplement ____________
3. Closing Balance ____________
4. Balance to be distributed as principal to Noteholders
(following end of Funding Period) ____________
[J. INFORMATION REGARDING THE CASH COLLATERAL ACCOUNT]
1. Opening Available Cash Collateral Amount on the
Distribution Date for the Monthly Period ____________
2. Required Draw Amount required to be withdrawn pursuant
to Section 4.12(c) of the related Indenture Supplement ____________
3. Required Cash Collateral Amount ____________
4. Deposits pursuant to Section 4.04(vii) of the related
Indenture Supplement ____________
5. Closing Available Cash Collateral Amount ____________
[K. OTHER ENHANCEMENT]
1. Aggregate amount of drawings on any other Enhancement
for the Series ____________
2. Amount available under other Enhancement for the
Series ____________
IN WITNESS thereof, the undersigned has duly executed and
delivered this Certificate the _______ day of _________,
_______. ____________
FIRST NATIONAL BANK OF OMAHA, Servicer
By ____________________________________
Name __________________________________
Title _________________________________
65
EXHIBIT D
FORM OF MONTHLY SERVICER'S CERTIFICATE
FIRST NATIONAL BANK OF OMAHA
FIRST NATIONAL MASTER NOTE TRUST, SERIES [200_-_]
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 [ ], 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 [ ], 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 [200_-_] Indenture Supplement, dated as of [ ], 200[
], 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, Servicer
By ____________________________________
Name __________________________________
Title _________________________________
66