EXHIBIT 4.1
================================================================================
SERIES 2005-1 SUPPLEMENT
to
SECOND AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of October 24, 2002
by and among
FIRST NATIONAL FUNDING LLC,
Transferor
FIRST NATIONAL BANK OF OMAHA,
Servicer
and
THE BANK OF NEW YORK,
Trustee
First Bankcard Master Credit Card Trust
Series 2005-1 Certificates
$541,500,000 (Maximum) Class A Variable Funding Certificates
$58,500,000 (Maximum) Collateral Interest
Dated as of October 17, 2005
================================================================================
TABLE OF CONTENTS
Page
Section 1. Definitions.....................................................1
Section 2. Designation....................................................21
Section 3. Delivery and Payment for the Class A Certificates..............21
Section 4. Form of Delivery of Class A Certificates.......................21
Section 5. Reassignment and Transfer Terms................................21
Section 6. Article IV of the Agreement....................................22
Section 4.01A. Rights of Certificateholders.........................22
Section 4.03A. Collections and Allocations..........................23
Section 4.03B. Determination of Monthly Interest....................26
Section 4.04. Application of Collections...........................27
Section 4.05. Investor Charge-Offs.................................30
Section 4.06. Reallocated Principal Collections....................30
Section 4.07. Excess Finance Charge Collections....................31
Section 4.08. Shared Principal Collections.........................31
Section 4.09. Certain Series Accounts..............................32
Section 4.10. Extension and Termination............................33
Section 4.11. Adjustments to Investor Interest.....................33
Section 4.12. Spread Account.......................................36
Section 4.13. Investment Instructions..............................38
Section 4.14. Investor Servicing Fee...............................38
Section 4.15. Fees, Increased Costs................................38
Section 4.16. Certificate Interest Rates...........................41
Section 4.17. Interchange..........................................42
Section 4.18. Foreign Accounts.....................................42
Section 4.19. Funding Account......................................42
Section 4.20. Taxes................................................44
Section 7. Article V of the Agreement.....................................45
Section 5.01. Distributions........................................45
Section 5.02. Certificateholders' Statement........................46
Section 8. Series 2005-1 Pay Out Events...................................47
Section 9. Restrictions on Transfer.......................................49
Section 10. Nonpetition....................................................50
Section 11. Miscellaneous Provisions.......................................50
EXHIBITS
EXHIBIT A FORM OF CLASS A CERTIFICATE
EXHIBIT B FORM OF MONTHLY PAYMENT INSTRUCTIONS AND NOTIFICATION TO TRUSTEE
EXHIBIT C FORM OF MONTHLY REPORT TO CERTIFICATEHOLDERS
EXHIBIT D FORM OF MONTHLY SERVICER'S CERTIFICATE
EXHIBIT E FORM OF INVESTOR CERTIFICATION
ii
SERIES 2005-1 SUPPLEMENT
THIS SERIES 2005-1 SUPPLEMENT, dated as of October 17, 2005 (this "Supplement"),
by and among FIRST NATIONAL FUNDING LLC, a Nebraska limited liability company,
as Transferor; FIRST NATIONAL BANK OF OMAHA, a national banking association, as
Servicer, and THE BANK OF NEW YORK, a New York banking corporation, as Trustee
(the "Trustee") under the Agreement referred to below.
Trustee, Transferor and Servicer have entered into the Second Amended and
Restated Pooling and Servicing Agreement dated as of October 24, 2002 (as
further amended from time to time and as supplemented by this Supplement, the
"Agreement").
Section 6.09 of the Agreement provides, among other things, that Transferor and
Trustee may at any time and from time to time enter into a supplement to the
Agreement for the purpose of authorizing the delivery by Trustee to Transferor
for the execution and redelivery to Trustee for authentication of one or more
Series of Certificates.
Pursuant to this Supplement, Transferor and Trustee shall create a new Series of
Investor Certificates and shall specify the Principal Terms thereof.
In the event that any term or provision contained herein shall conflict with or
be inconsistent with any provision contained in the Agreement, the terms and
provisions of this Supplement shall govern.
SECTION 1. DEFINITIONS. All Article, Section or Subsection references
herein shall mean Article, Section or Subsection of the Agreement, except as
otherwise specified herein. All capitalized terms used herein but not otherwise
defined herein shall have the meanings given to such terms in the Agreement.
Each capitalized term defined herein shall relate only to the Series 2005-1
Certificates and no other Series of Certificates issued by the Trust.
"Adjusted Amount" is defined in Section 4.11.
"Adjustment Date" is defined in Section 4.11.
"Affected Party" means any Series 2005-1 Certificateholder, any Participant, any
Support Provider or any Funding Agent.
"Aggregate Investor Interest" means, as of any date of determination, the sum of
the Investor Interests in all Series of Certificates.
"Aggregate Principal Balance" means, as of any time of determination, the sum of
(a) the Aggregate Principal Receivables and (b) the amount on deposit in the
Excess Funding Account (exclusive of any Investment Earnings on such amount).
"Aggregate Principal Receivables" means, as of any date of determination, the
total amount of Principal Receivables as of such date other than Discount Option
Receivables and Receivables in Defaulted Accounts.
"Allocation Percentage" 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
Controlled Amortization Period, and for Default Amounts at any time,
the Average Investor Interest for the prior Monthly Period; or
(ii) for Finance Charge Collections during the Rapid
Amortization Period and for Principal Collections during the Rapid
Amortization Period and the Controlled Amortization Period, the
Investor Interest 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 Controlled Amortization Period;
provided, however, that prior to the occurrence of a Pay Out Event,
Transferor may, by written notice to Trustee, Servicer, the Funding Agent
and each Rating Agency, reduce the numerator used for purposes of
allocating Principal Collections and Finance Charge Collections to Series
2005-1 Certificates 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 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 2005-1
Certificates; and provided, further, that Transferor may designate that
the numerator for Finance Charge Collections during the Rapid Amortization
Period will be the Investor Interest at the end of the last day of the
prior Monthly Period by notice to Servicer, the Funding Agent and 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 Note Series and all outstanding Series
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.
"Alternate Base Rate" means, on any date, the Federal Funds Effective Rate plus
0.50% per annum; provided that after the occurrence and during the continuance
of a Rate Trigger Event, the Alternate Base Rate shall be the Prime Rate plus
2.0% per annum.
"Amortization Period" means the period following the Revolving Period which
shall be the Controlled Amortization Period or the Rapid Amortization Period.
"Applicable Margin" means, with respect to the calculation of a given interest
rate, the number of basis points specified as the margin for such rate in the
Fee Letter.
"Applicable Pass-Through Rate" means
2
(a) with respect to the Class A Certificates, (i) with respect to any Monthly
Period during which the Class A Certificates are held for the benefit of a CP
Vehicle only, the CP Rate for such CP Vehicle for such Monthly Period, (ii) with
respect to any Monthly Period during which the Class A Certificates are held for
the benefit of a CP Vehicle and the Support Providers, the weighted average of
(A) the CP Rate for such CP Vehicle for such Monthly Period (weighted on the
basis of the average daily principal amount of such Class A Certificates held
for the benefit of such CP Vehicle) and (B) the applicable Bank Rate (weighted
on the basis of the average daily principal amount of such Class A Certificates
held for the benefit of the Support Providers), (iii) with respect to any
Monthly Period during which the Class A Certificates are held for the benefit of
the Support Providers only, the applicable Bank Rate, plus (iv) in each case,
the Class A Program Fee Rate, as set forth in the Fee Letter; and
(b) with respect to the Collateral Interest, the applicable Bank Rate, plus the
CI Program Fee Rate, as set forth in the Fee Letter.
"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 from other Excess
Allocation Series allocated to Series 2005-1 Certificates for such Monthly
Period, plus (c) amounts on deposit in the Spread Account deposited into the
Finance Charge Account on the related Transfer Date to be treated as Available
Finance Charge Collections for such Transfer Date pursuant to subsections
4.12(c) or (g).
"Available Funding Account Amount" means, for any date of determination, an
amount equal to the lesser of (a) the amount on deposit in the Funding Account
(exclusive of Investment Earnings and before giving effect to any deposit to, or
withdrawal from, the Funding Account made or to be made with respect to such
date) and (b) the Designated Funding Account Amount, in each case on such date
of determination.
"Available Principal Collections" means, for any Monthly Period, an amount equal
to (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 allocated to Series
2005-1 pursuant to Section 4.08, plus (d) the aggregate amount to be treated as
Available Principal Collections pursuant to subsections 4.04(a)(vi), (vii),
(viii) and (ix) for the related Distribution 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.
"Average" means, with respect to any defined term and period, (a) the weighted
average of such term based on the aggregate of the values for such term for each
day during the applicable period, divided by (b) the number of days in such
period.
"Bank Rate" means, for any Monthly Period, an interest rate per annum equal to
the applicable LIBOR plus the Applicable Margin; provided, however, that the
Bank Rate shall equal the Alternate Base Rate:
3
(a) after the occurrence and during the continuance of a Rate
Trigger Event or an event described in subsection 4.15(e) of this
Supplement; or
(b) during any Monthly Period with respect to any portion of the
Series 2005-1 Certificates (i) held by the related Support Providers (in
the case of the Class A Certificates) or the Collateral Interest Holder
(in the case of the Collateral Interest) for less than the entire Monthly
Period or (ii) as to which the Funding Agent did not receive notice or
determine, by noon (New York City time) on the third Business Day
preceding the first day of such Monthly Period, that such portion of the
Series 2005-1 Certificates would be held by the related Support Providers
(in the case of the Class A Certificates) or the Collateral Interest
Holder (in the case of the Collateral Interest).
"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 the Facility Fee for such Monthly Period, (ii) all amounts payable
pursuant to subsection 4.15(c), plus any other amounts payable as part of the
Senior Cost Amount for the Series 2005-1 Certificates for such Monthly Period,
and (iii) the Investor 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 Average Invested Amount for such Monthly Period.
"Benchmark Amount" means, for any Distribution Date,
(a) with respect to the Class A Certificates, the sum of (i) the Class A
Facility Fee for the Related Monthly Period plus (ii) the greater of:
(A) the product of (x) the sum of the applicable Bank Rate (calculated
without giving effect to the proviso in the definition thereof), plus the
Class A Program Fee Rate, (y) a fraction the numerator of which is the
actual number of days in the Related Monthly Period and the denominator of
which is 360, and (z) the Average Class A Invested Amount during the
Related Monthly Period; and
(B) the product of (x) the applicable CP Rate, plus the Class A Program
Fee Rate, (y) a fraction the numerator of which is the actual number of
days in the Related Monthly Period and the denominator of which is 360 and
(z) the Average Class A Invested Amount during the Related Monthly Period;
and
(b) with respect to the Collateral Interest, the sum of (i) the CI Facility Fee
for the Related Monthly Period, plus (ii) the product of (A) the applicable Bank
Rate, plus the CI Program Fee Rate, (B) a fraction the numerator of which is the
actual number of days in the Related Monthly Period and the denominator of which
is 360 and (C) the Average Collateral Interest Invested Amount during the
Related Monthly Period.
"Broken Funding Cost" means for any portion of the Investor Interest which: (i)
has its principal reduced under Section 4.11 without compliance by the
Transferor with the notice requirements hereunder or (ii) does not become
subject to reduction following the delivery of any notice of reduction pursuant
to Section 4.11(a) or (iii) is assigned to a Support Provider or terminated
prior to the date on which it was originally scheduled to end: an amount equal
to the excess, if any, of (A) the Monthly Interest that would have accrued
during the remainder of the Monthly Periods
4
or tranche periods for Commercial Paper determined by the Funding Agent to
relate to such portion of the Investor Interest subsequent to the date of such
reduction, assignment or termination (or in respect of clause (ii) above, the
date such reduction was designated to occur pursuant to the notice) if such
reduction, assignment or termination had not occurred or such notice had not
been delivered, over (B) the income, if any, actually received during the
remainder of such period by the holder of such portion of the Investor Interest
from investing the funds received or retained as a result of such event. All
Broken Funding Costs shall be due and payable hereunder upon demand.
"Business Day" means any day other than a Saturday, a Sunday or a day on which
banking institutions in New York, New York, Chicago, Illinois, Charlotte, North
Carolina, Wilmington, Delaware or Omaha, Nebraska are authorized or obligated by
law or executive order to be closed, The Depository Trust Company of New York is
open for business and, if the applicable Business Day relates to any computation
or payment to be made with respect to LIBOR, any day on which dealings and
dollar deposits are carried on in the London interbank market.
"Cap Increase Event" shall mean the occurrence of any of the following: (a) at
the option of the Funding Agent, any representation or warranty under a
Transaction Document proves to have been materially incorrect when made and is
not cured within thirty days (unless waived in writing by the Funding Agent)
after receipt of notice thereof from a Funding Agent, (b) a Rate Trigger Event
(whether occurring before or after the commencement of the Controlled
Amortization Period), (c) an event described in Section 9.02(a) of the
Agreement, (d) the transfer to a Successor Servicer of servicing rights under
this Supplement, without the consent of the Funding Agent; (e) the notification
by any Rating Agency that the purchase and continued ownership of Class A
Certificates by a CP Vehicle would lead to a reduction or withdrawal of the
rating of the commercial paper issued by such a CP Vehicle by such Rating
Agency; (f) the Scheduled Payment Date; (g) a Change of Control, (h) entry of a
judgment against Servicer or Transferor involving a liability of $20,000,000 or
more in the aggregate (to the extent not paid or fully covered by insurance
provided by a carrier who has acknowledged coverage and has the ability to
perform), if such judgment is not vacated, discharged or stayed or bonded
pending appeal within 30 days from the entry thereof, (i) the reduction of the
Invested Amount due to either Investor Charge-Offs or Reallocated Principal
Collections, (j) a notice of lien is filed against Servicer under Section 412(n)
of the Code or Section 302(f) of ERISA or (k) if FNBO is Servicer, the reduction
of the long-term counterparty rating of Servicer below Ba1 by Moody's or below
BB+ by Standard & Poor's or the withdrawal of the long-term counterparty rating
of Servicer by either of such agencies.
"Certificate Purchase Agreement" means the Certificate Purchase Agreement dated
as of October 17, 2005 among Transferor, Servicer, the CP Vehicles and JPMorgan
Chase Bank, N.A., as APA Bank and as Funding Agent.
"Change of Control" means (a) (i) the acquisition by a Person or two or more
Persons acting in concert, other than where such Person or two or more Persons,
as the case may be, are members of the Lauritzen Group, of beneficial ownership
of (directly or indirectly, by contract or otherwise), or (ii) the entering into
a contract or arrangement by any Person or two or more Persons acting in
concert, other than where such Person or two or more Persons, as the case may
be, are members of the Lauritzen Group, that upon consummation, will result in
its or their acquisition of (or control over), voting stock of First National of
Nebraska, Inc. ("FNNI") (or any other securities convertible into such voting
stock) representing 51% or more of the combined
5
voting power of all voting stock of FNNI or (b) FNNI, directly or, with respect
to RPA Seller or Transferor, indirectly through one or more subsidiaries, shall
fail to own RPA Seller, Transferor or Servicer and have the right to vote 99% of
the outstanding voting stock of RPA Seller, Transferor or Servicer, as the case
may be, determined on a fully diluted basis after giving effect to the
conversion and exercise of all outstanding warrants, options and other
securities of RPA Seller, Transferor or Servicer, as the case may be, that are
convertible into or exercisable for voting stock of RPA Seller, Transferor or
Servicer, as the case may be.
"CI Charge-Offs" has the meaning specified in subsection 4.05(b).
"CI Default Interest" has the meaning specified in subsection 4.03B(b).
"CI Facility Fee" means, with respect to any Monthly Period, the fee specified
as such in the Fee Letter.
"CI Facility Fee Rate" means the rate per annum used to calculate the CI
Facility Fee under the Fee Letter.
"CI Interest Shortfall" shall have the meaning specified in subsection 4.03B(b).
"CI Investor" shall have the meaning assigned in the Loan Agreement.
"CI Monthly Interest Payment" means the monthly interest distributable in
respect of the Collateral Interest, as calculated in accordance with subsection
4.03B(b).
"CI Monthly Principal" means, for any Distribution Date with respect to an
Amortization Period on or after the Distribution Date on which the Class A
Invested Amount has been paid in full, an amount equal to the least of (a)
Available Principal Collections (after application of such funds pursuant to
Section 4.04(c)(i)), (b) for each Distribution Date with respect to the
Controlled Amortization Period on or prior to the Scheduled Payment Date, the
Controlled Distribution Amount plus any CI Monthly Principal for a prior Monthly
Period not paid, and (c) the Collateral Interest on such Distribution Date.
"CI Program Fee" means, with respect to any Monthly Period, the fee specified as
such in the Fee Letter.
"CI Program Fee Rate" means the rate per annum used to calculate the CI Program
Fee under the Fee Letter.
"Class A Certificateholder" means the Person in whose name a Class A Certificate
is registered in the Certificate Register.
"Class A Certificates" means any one of the Certificates authorized pursuant to
Section 2 of this Supplement executed by Transferor and authenticated by or on
behalf of Trustee, substantially in the form of Exhibit A.
"Class A Charge-Offs" has the meaning specified in subsection 4.05(a).
"Class A Default Interest" has the meaning specified in subsection 4.03B(a).
"Class A Facility Fee" means, with respect to any Monthly Period, the fee
specified as such in the Fee Letter.
"Class A Facility Fee Rate" means the rate per annum used to calculate the Class
A Facility Fee under the Fee Letter.
6
"Class A Interest" means, on any date of determination, an amount equal to (a)
$451,250,000, plus any increase and minus any decrease made in accordance with
Section 4.11, minus (b) the aggregate amount of Class A Monthly Principal
payments made to the Class A Certificateholders on or prior to such date of
determination, minus (c) the excess, if any, of the aggregate amount of Class A
Charge-Offs over amounts reimbursed pursuant to subsection 4.04(a)(vii) prior to
such date of determination; provided, however, that the Class A Interest may not
be reduced below zero.
"Class A Interest Shortfall" shall have the meaning specified in subsection
4.03B(a).
"Class A Invested Amount" means, on any date of determination, an amount equal
to (a) $451,250,000, plus any increase and minus any decrease made in accordance
with Section 4.11, minus (b) the aggregate amount of Class A Monthly Principal
payments made to the Class A Certificateholders on or prior to such date of
determination, excluding any payment counted in clause (a).
"Class A Monthly Interest Payment" means the monthly interest distributable in
respect of the Class A Certificates as calculated in accordance with subsection
4.03B(a).
"Class A Monthly Principal" means, for any Distribution Date with respect to an
Amortization Period, an amount equal to the least of (a) Available Principal
Collections for such Distribution Date, (b) for each such Distribution Date with
respect to the Controlled Amortization Period on or prior to the Scheduled
Payment Date, the Controlled Distribution Amount plus any Class A Monthly
Principal for a prior Monthly Period not paid, and (c) the Class A Interest on
such Distribution Date.
"Class A Program Fee" means, with respect to any Monthly Period, the fee
specified as such in the Fee Letter.
"Class A Program Fee Rate" means the rate per annum used to calculate the Class
A Program Fee under the Fee Letter.
"Class A Required Amount" means, for any Distribution Date, an amount equal to
the excess of the amount described in subsection 4.04(a)(i) and (ii) over the
Available Finance Charge Collections applied to pay such amount pursuant to
subsection 4.04(a).
"Class A Scheduled Payment Date" means the twelfth Distribution Date after the
commencement of the Controlled Amortization Period.
"Closing Date" means October 17, 2005.
"Collateral Certificate" has the meaning specified in the Indenture.
"Collateral Interest" means, on any date of determination, an amount equal to
(a) $48,750,000, plus any increase and minus any decrease made in accordance
with Section 4.11, minus (b) the aggregate amount of CI Monthly Principal
payments made to the Collateral Interest Holder on or prior to such date of
determination (excluding any payment counted in clause (a)), minus (c) the
excess, if any, of the aggregate amount of CI Charge-Offs over amounts
reimbursed pursuant to Section 4.04(a)(viii), minus (d) the excess, if any, of
the aggregate amount of Reallocated Principal Collections over the amounts
reimbursed pursuant to Section 4.04(a)(ix); provided, however, that the
Collateral Interest may not be reduced below zero.
"Collateral Interest Holder" means the entity so designated in the Loan
Agreement.
7
"Collateral Interest Invested Amount" means, on any date of determination, an
amount equal to (a) $48,750,000, plus any increase and minus any decrease made
in accordance with Section 4.11, minus (b) the aggregate amount of CI Monthly
Principal payments made to the Collateral Interest Holder on or prior to such
date of determination (excluding any payment counted in clause (a)).
"Commercial Paper" means the rated commercial paper issued by the CP Vehicle.
"Controlled Amortization Date" means the earliest of (a) October 1, 2010, or (b)
such later date as is determined in accordance with Section 4.10, or (c) the
first day of the month of the first full Monthly Period after the end of the
Negotiation Period pursuant to Section 5.11 of the Certificate Purchase
Agreement or Section 5.12 of the Loan Agreement, as applicable.
"Controlled Amortization Period" means, unless a Pay Out Event shall have
occurred prior thereto, the period commencing at the opening of business on the
Controlled Amortization Date and ending on the first to occur of (a) the
commencement of the Rapid Amortization Period and (b) the Series Termination
Date.
"Controlled Distribution Amount" means, for any Transfer Date with respect to
the Controlled Amortization Period an amount equal to one-twelfth of the
Invested Amount at the end of the Revolving Period; provided that upon an
adjustment pursuant to Section 4.11(a), the Controlled Distribution Amount for
any Monthly Period occurring in whole or in part after such date shall be
adjusted to an amount equal to (a) the Invested Amount as adjusted on such
Adjustment Date divided by (b) a number equal to twelve minus the number of
complete Monthly Periods which have occurred from the Controlled Amortization
Date to such Adjustment Date.
"CP Cost" means, for each day and each CP Vehicle, the sum of (i) discount or
yield accrued on Pooled Commercial Paper of the CP Vehicle on such day, plus
(ii) any and all accrued commissions in respect of placement agents and
Commercial Paper dealers, and issuing and paying agent fees incurred, in respect
of such Pooled Commercial Paper for such day, plus (iii) other costs associated
with funding small or odd-lot amounts with respect to all receivable purchase
facilities which are funded by Pooled Commercial Paper for such day, minus (iv)
any accrual of income net of expenses received on such day from investment of
collections received under all receivable purchase facilities funded
substantially with Pooled Commercial Paper, minus (v) any payment received on
such day net of expenses in respect of Broken Funding Costs or similar costs or
expenses related to the prepayment of any interest held by the CP Vehicle
pursuant to the terms of any receivable purchase facilities funded substantially
with Pooled Commercial Paper. In addition to the foregoing costs, if Transferor
shall request any increase in the Investor Interest during any period of time
determined by the Funding Agent in its sole discretion to result in
incrementally higher costs applicable to such increase, the portion of the
Investor Interest associated with any such increase shall, during such period,
be deemed to be funded by the CP Vehicle in a special pool (which may include
capital associated with other receivable purchase facilities) for purposes of
determining such additional CP Costs applicable only to such special pool and
charged each day during such period against such portion of the Investor
Interest.
"CP Rate" means, as to the Class A Certificates funded by a CP Vehicle through
the issuance of Commercial Paper, the per annum rate equivalent to the CP Costs
related to the issuance of Pooled Commercial Paper by the CP Vehicle; provided
the CP Rate shall be the Alternate Base Rate after the occurrence and during the
continuation of a Rate Trigger Event.
8
"CP Vehicle" means (a) in the singular form, any of Falcon Asset Securitization
Corporation and its successors and assigns under the Certificate Purchase
Agreement and Jupiter Securitization Corporation and its successors and assigns
under the Certificate Purchase Agreement, and (b) in the plural form, Falcon
Asset Securitization Corporation and its successors and assigns under the
Certificate Purchase Agreement and Jupiter Securitization Corporation and its
successors and assigns under the Certificate Purchase Agreement.
"Credit Agreement" means and includes any agreement entered into by any Credit
Bank providing for the issuance of one or more letters of credit for the account
of a CP Vehicle, the issuance of one or more surety bonds for which the CP
Vehicle is obligated to reimburse the applicable Credit Bank for any drawings
thereunder, the sale by the CP Vehicle to any Credit Bank of receivables or
other financial assets purchased by the CP Vehicle (or portions thereof) and/or
the making of loans and/or other extensions of credit to the CP Vehicle in
connection with its commercial paper program, together with any cash collateral
agreement, letter of credit, surety bond or other agreement or instrument
executed and delivered in connection therewith (but excluding any Liquidity
Agreement).
"Credit Bank" means and includes any financial institution or other Person
(other than any customer of a CP Vehicle or any Liquidity Bank as such) (i) now
or hereafter extending credit or a purchase commitment to or for the account of
a CP Vehicle or issuing a letter of credit, surety bond or other instrument, in
each case to support any obligations arising under or in connection with such CP
Vehicle's commercial paper program and (ii) which has provided to Trustee a
Certificate in the form of Exhibit E hereto if such Person is acquiring an
interest in the Class A Certificates.
"Default Interest" means, for any Distribution Date, Class A Default Interest
and CI Default Interest for such Distribution Date.
"Designated Funding Account Amount" means, for any date of determination, (a) if
a notice of decrease has been given pursuant to Section 4.11 and the Adjustment
Date has not yet occurred, the sum of (i) the total amount required to pay
principal to Certificateholders in connection with such decrease and (ii) the
amount, if any, payable to the Funding Agent, for the account of the CP
Vehicles, the Support Providers and the CI Investor, pursuant to Section
4.11(a)(i) and Section 4.15(d)(i) in connection with the decrease, (b) if notice
of increase has been given and the Adjustment Date has not yet occurred, the
total amount required to fund the Spread Account to the required level in
connection with such increase, plus, in either case, (c) such additional amounts
as may be designated from time to time by Transferor, by notice given to
Servicer and Trustee, in connection with a possible increase or decrease
pursuant to Section 4.11 for which a notice has not yet been given.
"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 Obligor, (b) because such Receivable
was created in respect of merchandise which was refused or returned by an
Obligor, (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).
9
"Distribution Date" means December 15, 2005 and the fifteenth day of each
calendar month thereafter or, if such day is not a Business Day, the next
succeeding Business Day.
"Enhancement" means the Collateral Interest.
"Enhancement Provider" means the Collateral Interest Holder.
"Event of Default" has the meaning specified in the Indenture.
"Excess Allocation Series" means each Series and Note Series designated in the
related Supplement or Indenture Supplement to be included in Group One.
"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 Investor Interest as of the last day of the
preceding Monthly Period and the excess of the market rate servicing fee
percentage determined by Trustee over the Series Servicing Fee Percentage plus,
if Trustee is the Successor Servicer, an amount equal to the amount of the
reduction to the applicable Investor Servicing Fee pursuant to the second
proviso in Section 3.01 which is attributable to the fact that Interchange
included in Collections of Finance Charge Receivables for the related Monthly
Period is less than Servicer Interchange for such Monthly Period. 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.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Facility Fee" means, with respect to any Monthly Period, the Class A Facility
Fee and the CI Facility Fee for such Monthly Period.
"Federal Funds Effective Rate" means, for any period, a fluctuating interest
rate per annum for each day during such period equal to (a) the weighted average
of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the preceding Business Day) by the
Federal Reserve Bank of New York in the Composite Closing Quotations for U.S.
Government Securities; or (b) if such rate is not so published for any day which
is a Business Day, the average of the quotations at approximately 10:30 a.m.
(Chicago time) for such day on such transactions received by the Funding Agent
from three federal funds brokers of recognized standing selected by it.
"Fee Letter" means the letter or letters dated as of the date hereof from
Transferor addressed to the Funding Agent, as amended from time to time, with
respect to fees for the Class A Certificates and the Collateral Interest, as
applicable.
"Finance Charge Account" is defined in Section 4.09(a).
"Finance Charge Collections" means Collections of Finance Charge Receivables.
"Finance Charge Shortfall" has the meaning specified in Section 4.07.
"Fitch" means Fitch Ratings.
"FNBO" means First National Bank of Omaha, its successors and assigns.
"Foreign Account" means an Account, which as of the Cut Off Date (as defined in
the Agreement 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
10
recent billing address, an address which is not located in the United States or
its territories or possessions.
"Funding Account" is defined in Section 4.19.
"Funding Account Deficiency" means the excess, if any, of the Designated Funding
Account Amount over the Available Funding Account Amount.
"Funding Agent" means JPMorgan Chase Bank, N.A., its successors and assigns, as
funding agent for the Class A Certificateholders, the Collateral Interest Holder
and the Support Providers, provided, however, that at all times there shall only
be one Funding Agent.
"Governmental Authority" means (a) any person specified as such in the
Agreement, and (b) for purposes of Section 4.15, the Financial Accounting
Standards Board, the International Accounting Standards Board, any comparable
entity setting accounting standards applicable to an Affected Party, or any
successor to any of the foregoing.
"Group One" means Series 2005-1 and each other Excess Allocation Series.
"Increase Amount" is defined in Section 4.11(a).
"Indenture" means the Master Indenture, dated as of October 24, 2002, between
First National Master Note Trust, as Issuer and The Bank of New York, as
Indenture Trustee.
"Indenture Supplement" means any supplement to the Indenture.
"Indenture Transferor" means the party identified as the "Transferor" in the
Indenture.
"Invested Amount" means, at any time, the sum of the Class A Invested Amount and
the Collateral Interest Invested Amount.
"Investment Earnings" means, for any Distribution Date, all interest and
earnings on Permitted Investments included in the Spread Account or the Funding
Account, as applicable, (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.
"Investment Letter" has the meaning specified in the Loan Agreement.
"Investor Certificates" means the Class A Certificates and the Collateral
Interest, Series 2005-1.
"Investor Charge Offs" means, collectively, the Class A Charge Offs and the
Collateral Interest Charge Offs, as specified in Section 4.05.
"Investor Default Amount" means, as 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 such Monthly Period.
"Investor Finance Charge Collections" means, with respect to any Date of
Processing, an amount equal to the sum of the product of (a) the Allocation
Percentage for such Date of Processing and (b) Finance Charge Collections
received on each such date and, with respect to any Monthly Period, the
aggregate of such sums for each Date of Processing in such Monthly Period.
"Investor Interest" means, when used with respect to any date, an amount equal
to the sum of (a) the Class A Interest and (b) the Collateral Interest as of
such date.
11
"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) Principal Collections 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.
"Investor Servicing Fee" has the meaning specified in Section 4.14.
"Lauritzen Group" means any of Bruce R. Lauritzen, Kimball Lauritzen, Elizabeth
D. Lauritzen, Lauritzen Corporation, or any "group" (within the meaning of
Section 13(d)(3) of the Exchange Act) "controlled, controlled by or under common
control with" any of them or their "affiliates" or "associates" (as each of such
terms are defined in Rule 12b-2 under the Exchange Act).
"LIBOR" means the rate per annum equal to (a) the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars appearing on
Reuters Screen FRBD as of 1l:00 a.m. (London time) two Business Days prior to
the first day of the relevant Monthly Period, and having a maturity equal to
such Monthly Period, provided that, (i) if Reuters Screen FRBD is not available
to the Funding Agent for any reason, the applicable LIBOR for the relevant
Monthly Period shall instead be the applicable British Bankers' Association
Interest Settlement Rate for deposits in U.S. dollars as reported by any other
generally recognized financial information service as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Monthly Period, and
having a maturity equal to such Monthly Period, and (ii) if no such British
Bankers' Association Interest Settlement Rate is available to the Funding Agent,
the applicable LIBOR for the relevant Monthly Period shall instead be the rate
determined by the Funding Agent to be the rate at which JPMorgan Chase Bank,
N.A. offers to place deposits in U.S. dollars with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Monthly Period, in the approximate amount to
be funded at LIBOR and having a maturity equal to such Monthly Period, divided
by (b) one minus the maximum aggregate reserve requirement (including all basic,
supplemental, marginal or other reserves) which is imposed against the Funding
Agent in respect of Eurocurrency liabilities, as defined in Regulation D of the
Board of Governors of the Federal Reserve System as in effect from time to time
(expressed as a decimal), applicable to such Monthly Period. LIBOR shall be
rounded, if necessary, to the next higher 1/16 of 1%.
"Liquidity Adjustment" shall mean, in connection with any potential Liquidity
Event, the replacement of the affected Support Provider by the applicable CP
Vehicle and the Funding Agent with a commercial bank satisfactory to such CP
Vehicle and the Funding Agent having a commercial paper or short-term deposit
rating equal to or greater than that required by the rating agencies rating such
CP Vehicle's Commercial Paper.
"Liquidity Agreement" means, with respect to a CP Vehicle, any agreement entered
into by such CP Vehicle with a Liquidity Bank providing for the sale by such CP
Vehicle of a Class A Certificate or any interest therein (or portion thereof),
or the making of loans or other extensions of credit to such CP Vehicle secured
by security interests in such Class A Certificate, or interest therein (or
portion thereof), to support all or part of such CP Vehicle's payment
obligations under its Commercial Paper or to provide an alternate means of
funding such CP Vehicle's investments in accounts receivable or other financial
assets arising out of or in connection with a Class A Certificate or under its
Commercial Paper, in each case as amended, supplemented or otherwise modified
from time to time.
12
"Liquidity Bank" means and includes each financial institution that is, or may
become, party to a Liquidity Agreement, as purchaser or lender thereunder, and
which has provided to the Trustee a Certificate in the form of Exhibit E hereto.
"Liquidity Event" shall mean, unless a Liquidity Adjustment with respect to the
affected Support Provider is effected before such day, the earlier of (a) the
day on which any portion of the commitment of any Support Provider under any
Support Agreement shall be terminated or shall otherwise cease to be in full
force and effect and (b) at the option of the Funding Agent, the forty-fifth day
following the earliest date on which a Support Provider is downgraded to a level
less than that required by the rating agencies rating the applicable CP
Vehicle's Commercial Paper.
"Loan Agreement" means the Loan Agreement, dated as of the date hereof, among
Trustee, Transferor, Servicer and the Collateral Interest Holder, as amended
from time to time.
"Majority Certificateholders" means the Holders of more than 50% of the Class A
Certificates and more than 50% of the Collateral Interest.
"Maximum Class A Interest" means (a) as of the Closing Date, $541,500,000 and
(b) thereafter, such lesser amount as shall be determined pursuant to subsection
4.11(b).
"Maximum Collateral Interest" means (a) as of the Closing Date, $58,500,000 and
(b) thereafter, such lesser amount as shall be determined pursuant to Section
4.11(b).
"Maximum Investor Interest" means (a) as of the Closing Date, $600,000,000 and
(b) thereafter, such lesser amount as shall be determined pursuant to subsection
4.11(b). The Maximum Investor Interest shall be allocated to the Class A
Certificates and the Collateral Interest as described in Section 4.11(d).
"Monthly Interest" means, for any Distribution Date, the sum of the Class A
Monthly Interest Payment and the CI Monthly Interest Payment for such
Distribution Date.
"Monthly Period" has the meaning specified in the Agreement except that the
first Monthly Period with respect to the Series 2005-1 Certificates shall begin
on and include the Closing Date and end on November 30, 2005.
"Monthly Principal Reallocation Amount" means, for any Monthly Period, an amount
equal to the lower of (i) the Class A Required Amount and (ii) the greater of
(A)(x) the product of (I) 9.75% and (II) the Investor Interest at the beginning
of such Monthly Period (or, during an Amortization Period, the Investor Interest
at the end of the last day of the Revolving Period, minus any reductions made
pursuant to Section 4.11 after the end of the Revolving Period) 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.
"Negotiation Period" has the meaning specified in the Loan Agreement or the
Certificate Purchase Agreement, as applicable.
"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 Series" means any series of notes issued pursuant to the Indenture and a
related Indenture Supplement.
13
"Note Trust" has the meaning specified in the Indenture.
"Paired Series" means a Series that has been paired with Series 2005-1 (which
Series may be prefunded or partially prefunded or may be a variable interest)
such that a reduction of the Investor Interest results in (or permits) an
increase of the collateral amount of the Paired Series.
"Participant" has the meaning specified in the Loan Agreement.
"Pooled Commercial Paper" means Commercial Paper notes of a CP Vehicle subject
to any particular pooling arrangement by the CP Vehicle, but excluding
Commercial Paper issued by the CP Vehicle of a tenor and in an amount
specifically requested by any Person in connection with any agreement effected
by the CP Vehicle.
"Portfolio Yield" means, for any Monthly Period, the annualized percentage
equivalent of a fraction, (a) the numerator of which is equal to (i) the
Available Finance Charge Collections (excluding any Excess Finance Charge
Collections and any amounts withdrawn from the Spread Account, except that
Excess Finance Charge Collections from other Series applied for the benefit of
Series 2005-1 Certificates may be included with the prior written consent of the
Funding Agent), minus (ii) the Investor Default Amount and the Uncovered
Dilution Amount for such Monthly Period and (b) the denominator of which is the
Average Investor Interest for such Monthly Period.
"Prime Rate" means the prime rate of interest announced by the Funding Agent
from time to time, changing when and as said prime rate changes (such rate not
necessarily being the lowest or best rate charged by the Funding Agent).
"Principal Account" is defined in subsection 4.09(a).
"Principal Collections" means Collections of Principal Receivables.
"Principal Shortfall" has the meaning specified in Section 4.08.
"Private Holder" shall mean, without duplication (i) each holder of a right to
receive interest or principal in respect of any direct or indirect interest in
the Trust, including any financial instrument or contract the value of which is
determined in whole or part by reference to the Trust (including by reference to
the Trust's assets, income of the Trust or distributions made by the Trust), and
each partner, beneficiary or shareholder of any such holder that is a
partnership, grantor trust or S corporation, respectively, for federal income
tax purposes, (ii) any other person that Transferor reasonably determines would
be a partner with respect to the Trust for purposes of determining the number of
partners in the Trust under U.S. Treasury Regulations Section 1.7704-1(h)(1)(ii)
(including by reason of Section 1.7704-1(h)(3)), if the Trust were a partnership
for federal income tax purposes, or (iii) any holder (and each partner,
beneficiary or shareholder of any such holder that is a partnership, grantor
trust or S corporation, respectively, for federal income tax purposes) of (A)
the Transferor Interest or any interest therein, (B) the interest of Servicer,
(C) the Collateral Interest, and in each case any similar interests in the Trust
represented by any other Class of any Series of Certificates, and any interest
described in Section 12.01(b) of the Agreement; provided, however, that
notwithstanding the foregoing, a Private Holder shall not include (x) the
beneficial owner of any interest in the Trust with respect to which Trustee has
received an Opinion of Counsel to the effect that such interest will be treated
as debt for federal income tax purposes that is not convertible or exchangeable
into an interest in the Trust or the Trust's income or equivalent value, (y) any
beneficial owner of any interest in a Private Holder (including any partner of a
partnership, beneficiary of a grantor trust,
14
or shareholder of an S corporation, in each case for federal income tax
purposes) with respect to which Trustee has received an Opinion of Counsel to
the effect that such beneficial owner would not be treated as a partner in the
Trust under U.S. Treasury Regulations Section 1.7704-1(h)(1)(ii) (including by
reason of Section 1.7704-1(h)(3) thereof) if the Trust were a partnership for
federal income tax purposes, or (z) any beneficial owner of any interest in a CI
Investor or a Participant, provided that all representations made in the
Investment Letter by such CI Investor or Participant are true. In no event will
a Private Holder holding more than one direct or indirect interest in the Trust
be treated as more than one Private Holder.
"Pro Rata Share" means (a) with respect to the Class A Interest, 90.25%, and (b)
with respect to the Collateral Interest, 9.75%.
"QIB" means a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act.
"Quarterly Net Yield" means, for any Distribution Date, the average of the Net
Yields for each of the three preceding Monthly Periods, and, for purposes of the
December, 2005 and January, 2006 Distribution Dates, the Net Yields for August
and September, 2005 shall be deemed to be 6.53% and 4.39%, respectively.
"Rapid Amortization Period" means the period commencing on the date on which a
Trust Pay Out Event, a Series 2005-1 Pay Out Event or a Liquidity Event is
deemed to occur and ending on the Series Termination Date.
"Rate Determination Date" means, for each Monthly Period, the second Business
Day preceding such Monthly Period.
"Rate Trigger Event" means a Pay Out Event, an Event of Default or a Servicer
Default.
"Rating Agency Condition" means, with respect to any action or condition, (a)
when used in reference to all Series and Note Series, the notifications
specified in the definition of "Rating Agency Condition" in the Agreement and
(b) when used with reference to the Series 2005-1 Certificates, that the Funding
Agent shall have consented to in writing to such action or condition. The Series
2005-1 Certificates will not be rated on the Closing Date.
"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 (a) the Invested Amount on the related Distribution Date, plus
(b) Monthly Interest for the related Distribution Date and any Monthly Interest
previously due but not distributed to the Series 2005-1 Certificateholders, plus
(c) the amount of Default Interest, if any, for the related Distribution Date
and any Default Interest previously due but not distributed to the Series 2005-1
Certificateholders on a prior Distribution Date, plus (d) the amounts due
pursuant to Section 4.15 for the related Distribution Date and any amounts
previously due under such section but not paid on a prior Distribution Date plus
(e) all other amounts payable by Transferor to the Funding Agent, the Series
2005-1 Certificateholders, the Support Providers or any other Person under or in
connection with this Supplement, the Certificate Purchase Agreement, the Loan
Agreement and the Fee Letter.
15
"Reduction Amount" is defined in Section 4.11(a)(v).
"Regulatory Change" means, as to any Affected Party, any change in (or the
adoption, implementation, change in phase-in or commencement of effectiveness
of) (a) any federal, state or foreign law applicable to such Affected Party or
(b) any regulation, directive, requirement or request applicable to such
Affected Party by any Governmental Authority or monetary, fiscal or other
similar authority with jurisdiction over the Affected Party. Without limiting
the foregoing, if the issuance of FASB Interpretation No. 46, or any other
change in accounting standards or the issuance of any other pronouncement,
release or interpretation, causes or requires the consolidation of all or a
portion of the assets and liabilities of a CP Vehicle, the Trust or Transferor
with the assets and liabilities of any Support Provider, such event shall
constitute a Regulatory Change.
"Required Spread Account Amount" means, for any date of determination, the
greater of (a) the product of (i) the Spread Account Percentage in effect on
such date and (ii) the Invested Amount and (b) the applicable Spread Account
Floor; provided, however, that the Required Spread Account Amount will not be
reduced during the Controlled Amortization Period; and, provided, further, that
after the occurrence of a Pay Out Event or a Cap Increase Event or the
commencement of the Rapid Amortization Period, the Required Spread Account
Amount shall be an amount equal to the Invested Amount.
"Reset Date" means:
(a) each Addition Date and each "Addition Date" (as such term is
defined in the Indenture), in each case relating to Additional Accounts;
(b) each Removal Date and each "Removal Date" (as such term is
defined in the Indenture) on which Principal Receivables are removed from
the Trust;
(c) each Adjustment Date and each other date on which there is an
increase in the outstanding balance of any Note Series issued pursuant to
the Indenture or any other Series issued pursuant to the Agreement; and
(d) each date on which a new Series is issued by the Trust pursuant
to the Agreement and each date on which a new Note Series is issued
pursuant to Indenture.
"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 Controlled Amortization Period commences or the day the Rapid Amortization
Period commences.
"Scheduled Payment Date" means the twelfth Distribution Date after the
commencement of the Controlled Amortization Period.
"Senior Cost Amount" means, with respect to any Transfer Date, (a) for the Class
A Certificates (other than amounts included in Class A Monthly Principal and
amounts already deposited to the Distribution Account pursuant to subsection
4.04(a)(i) for such Transfer Date) payable to an Affected Party with respect to
the Class A Certificates under this Supplement or under any Fee Letter or the
Certificate Purchase Agreement, to the extent that such amounts do not, in the
aggregate, exceed one-twelfth of 0.50% of the Class A Interest and (b) for the
Collateral Interest, amounts (other than amounts included in CI Monthly
Principal and amounts already deposited to
16
the Distribution Account pursuant to subsection 4.04(a)(iv) for such Transfer
Date) payable to an Affected Party with respect to the Collateral Interest under
this Supplement or under any Fee Letter or the Loan Agreement, to the extent
that such amounts do not, in the aggregate, exceed one-twelfth of 0.50% of the
Collateral Interest.
"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 Note 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 2005-1
Certificates 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 Note Series for each
day during such Monthly Period divided by the total number of days in such
Monthly Period.
"Series Servicing Fee Percentage" means 2.00% per annum.
"Series Termination Date" means the earliest to occur of (a) the date on which
the Invested Amount is paid in full and (b) the Series 2005-1 Final Maturity
Date.
"Series 2005-1" means the Series of the First Bankcard Master Credit Card Trust
represented by the Class A Certificates and the Collateral Interest.
"Series 2005-1 Certificateholder" means the Holder of any Class A Certificate
and the Collateral Interest Holder.
"Series 2005-1 Certificates" means the Class A Certificates and the Collateral
Interest.
"Series 2005-1 Final Maturity Date" means the earliest to occur of (a) the
Distribution Date following the Distribution Date on which the Series 2005-1
Certificates are paid in full, (b) the forty-first Distribution Date following
the end of the Revolving Period and (c) the termination of the Trust.
"Series 2005-1 Pay Out Event" has the meaning specified in Section 8 of this
Supplement.
"Servicer Interchange" means, with respect to any Monthly Period, an amount
equal to one-twelfth of the product of (a) 1.50% and (b) the Investor Interest
as of the last day of the preceding Monthly Period; provided, however, that
Servicer Interchange for the December, 2005 Distribution Date shall be $937,500.
"Servicing Fee Required Amount" means, for any Distribution Date, an amount
equal to the excess of the amount described in subsection 4.04(a)(ii) over the
Available Finance Charge Collections applied to pay such amount pursuant to
subsection 4.04(a).
"Spread Account" has the meaning specified 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.
17
"Spread Account Floor" means (a) on the Closing Date, an amount equal to
$15,000,000, and (b) thereafter, an amount equal to the product of the then
applicable Spread Account Percentage multiplied by the highest Invested Amount
during the prior twelve (12) Monthly Periods.
"Spread Account Percentage" means, for any Distribution Date or the date of any
increase under Section 4.11, the applicable percentage determined as follows:
- -----------------------------------------------------------------------
If the Quarterly Net Yield
on such Distribution Date is
- -----------------------------------------------------------------------
then the Spread
Account
greater than Percentage will
or equal to: and less than: equal:
- -----------------------------------------------------------------------
5.50% N/A 0.50%
- -----------------------------------------------------------------------
5.25% 5.50% 0.75%
- -----------------------------------------------------------------------
5.00% 5.25% 1.00%
- -----------------------------------------------------------------------
4.75% 5.00% 2.00%
- -----------------------------------------------------------------------
4.50% 4.75% 2.50%
- -----------------------------------------------------------------------
4.00% 4.50% 3.00%
- -----------------------------------------------------------------------
3.50% 4.00% 4.00%
- -----------------------------------------------------------------------
3.00% 3.50% 5.25%
- -----------------------------------------------------------------------
2.00% 3.00% 6.25%
- -----------------------------------------------------------------------
N/A 2.00% 6.50%
- -----------------------------------------------------------------------
The initial Spread Account Percentage shall be 3.00%. The Spread Account
Percentage shall remain unchanged until (a) it is 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 effective
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.
"Support Agreement" means a Credit Agreement or a Liquidity Agreement.
"Support Provider" means a Credit Bank or a Liquidity Bank.
"Transaction Documents" means (a) each document designated as such in the
Agreement, the Indenture, the Indenture Supplements for each Note Series and
each Supplement for Certificates issued after the Closing Date), and (b) the
Certificate Purchase Agreement, the Loan Agreement and the Fee Letter.
"Uncovered Dilution Amount" means, for any Distribution Date, an amount equal to
the product of (a) the Series Allocation Percentage for the related Monthly
Period times (b) the aggregate Dilutions occurring during the Monthly Period as
to which any deposit is required to be made to the Excess Funding Account
pursuant to Section 4.03(c) of the Agreement but has not been
18
made; provided, that, if the Transferor Interest is greater than zero at the
time such deposit is required to be made, the Uncovered Dilution Amount shall be
deemed to be zero; provided, further, that if the Transferor Interest is zero at
the time such deposit is required to be made, for purposes of calculating the
Uncovered Dilution Amount, the amount in clause (b) shall be reduced by an
amount equal to the amount by which the Transferor Interest has been reduced by
the Dilutions referred to in clause (b).
Each capitalized term defined herein shall relate to the Series 2005-1
Certificates and no other Series of Certificates or Notes Series, unless the
context otherwise requires. The interpretive rules specified in Section 1.02 of
the Agreement also apply to this Supplement. If any term or provision contained
herein shall conflict with or be inconsistent with any term or provision
contained in the Agreement, the terms and provisions of this Supplement shall be
controlling. Except as otherwise noted, references to all outstanding Series and
Note Series shall not be deemed to include the Collateral Certificate.
SECTION 2. DESIGNATION. There is hereby created a Series of Investor
Certificates to be issued pursuant to the Agreement and this Supplement to be
known generally as the "Series 2005-1 Certificates" which Series shall be
included in Group One. The Series 2005-1 Certificates shall not be subordinated
to any other Series. The Series 2005-1 Certificates shall not be a Paired
Series. The Series 2005-1 Certificates shall include the "Series 2005-1 Class A
Variable Funding Certificates" (the "Class A Certificates").
In addition, there is hereby created a second class of uncertificated interests
in the Trust which, except as expressly provided herein, shall be deemed to be
Investor Certificates for all purposes under the Agreement (except for the
second clause (D) in Section 6.09(b)) and this Supplement, which shall be known
as the "Collateral Interest, Series 2005-1" and which shall be subordinated to
the Class A Certificates as provided herein. The Collateral Interest is
Enhancement for the Class A Certificates, and the Collateral Interest Holder
shall have the rights of an Enhancement Provider under (and shall be a
third-party beneficiary of) the Agreement.
SECTION 3. DELIVERY AND PAYMENT FOR THE CLASS A CERTIFICATES. Transferor
shall execute and deliver the Class A Certificates to Trustee for authentication
in accordance with Section 6.01 of the Agreement. Trustee shall deliver the
Class A Certificates, authenticated in accordance with Section 6.02 of the
Agreement, when the purchase price for the Class A Certificates has been paid,
and in accordance with Section 6.09 of the Agreement.
SECTION 4. FORM OF DELIVERY OF CLASS A CERTIFICATES. Class A Certificates
shall be physically delivered as Registered Certificates and shall not be
Book-Entry Certificates.
SECTION 5. REASSIGNMENT AND TRANSFER TERMS.
(a) Servicer may, but shall not be obligated to, cause a final distribution to
be made in respect of the Series 2005-1 Certificates on any Distribution Date on
which the Investor Interest has been reduced to 10% or less of the Maximum
Investor Interest by depositing the Reassignment Amount in accordance with the
requirements of Section 12.02 of the Agreement. This option shall not be
exercisable if the Reassignment Amount exceeds the lesser of the estimated fair
value, or the par value plus accrued interest, of the undivided ownership
interest in the Receivables in Eligible Accounts represented by the Series
2005-1 Certificates. To the
19
extent permitted by FAS 140, Servicer's rights under this Section may be
exercised by any of its Affiliates, which may include Transferor.
(b) Servicer shall give Trustee at least thirty (30) days' prior written notice
of the date on which Servicer intends to cause such final distribution. 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 Reassignment Amount. Such 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 Investor Interest shall be reduced to zero, and the Series 2005-1
Certificateholders shall have no further ownership interest in the Receivables.
The Reassignment Amount shall be distributed as set forth in subsection (d)
below.
(c) The amount to be paid by Transferor with respect to Series 2005-1 in
connection with a reassignment of Receivables to Transferor pursuant to Section
2.04(e) of the Pooling and Servicing Agreement shall equal the Reassignment
Amount for the Distribution Date related to the reassignment.
(d) With respect to the Reassignment Amount deposited into the Finance Charge
Account and Principal Account pursuant to this Section 6, 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 Invested Amount on
such Distribution Date will be distributed to the Funding Agent for distribution
to the Class A Certificateholders and (y) an amount equal to the sum of (A)
Class A Monthly Interest Payment and the Class A Facility Fee for such
Distribution Date, (B) any Class A Interest Shortfalls not yet paid 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 yet distributed, will be
distributed to the Funding Agent for distribution to the Class A
Certificateholders, (ii) (x) the Collateral Interest Invested Amount on such
Distribution Date will be distributed to the Funding Agent for distribution to
the Collateral Interest Holder and (y) an amount equal to the sum of (A) CI
Monthly Interest Payment and the CI Facility Fee for such Distribution Date, (B)
any CI Interest Shortfalls not yet paid and (C) the amount of CI Default
Interest, if any, for such Distribution Date and any CI Default Interest
previously due but not yet distributed, will be distributed to the Funding Agent
for distribution to the Collateral Interest Holder, (iii) all other amounts
payable by Transferor to the Funding Agent, the Series 2005-1
Certificateholders, the Support Providers or any other Person under or in
connection with this Supplement, the Certificate Purchase Agreement, the Loan
Agreement and the Fee Letter shall be paid pursuant to the applicable Agreement,
and (iv) any excess, if any, shall be released to Transferor.
SECTION 6. ARTICLE IV OF THE AGREEMENT. For purposes of Series 2005-1
only, Article IV of the Agreement is amended to add the following sections:
"SECTION 4.01A. RIGHTS OF CERTIFICATEHOLDERS. The Investor Certificates shall
represent undivided interests in the Trust, consisting of the right to receive,
to the extent necessary to make the required payments with respect to the
Investor Certificates at the time and in the amounts specified in this
Agreement, (a) the Investor Principal Collections and Investor Finance Charge
Collections with respect to the Receivables and (b) funds on deposit in the
Collection Account,
20
the Finance Charge Account, the Principal Account, the Spread Account, the
Distribution Account and the Funding Account that are allocable to the Series
2005-1 Certificates. The Exchangeable Transferor Certificate shall not represent
any interest in the Finance Charge Account, the Principal Account, the
Distribution Account, the Spread Account, the Collection Account or the Funding
Account, except as specifically provided in this Article IV.
SECTION 4.03A. COLLECTIONS AND ALLOCATIONS.
(a) Finance Charge Collections, Principal Collections and
Receivables in Defaulted Accounts shall be allocated and distributed to
Series 2005-1 as set forth in this Article.
(b) On any date on which a Funding Account Deficiency exists,
Servicer will deposit Collections otherwise distributable to the Holders
of the Transferor Interest to the Funding Account to the extent of such
deficiency prior to distributing such funds to the Holders of the
Transferor Interest.
(c) On each Date of Processing, Servicer shall allocate to the
Series 2005-1 Certificateholders the following amounts as set forth below:
(i) Allocations of Finance Charge Collections. An amount equal
to the Investor Finance Charge Collections processed on each Date of
Processing shall be allocated to the Series 2005-1
Certificateholders and, first, deposited to the Finance Charge
Account to the extent required by Section 4.03 of the Agreement and
subsection 4.03A(d), and, second, paid to the Holders of the
Transferor Interest.
(ii) Allocations of Principal Collections. Servicer shall
allocate to the Series 2005-1 Certificateholders the following
amounts as set forth below:
(A) Allocations During the Revolving Period.
(1) During the Revolving Period an amount equal to
the Investor Principal Collections processed on each
Date of Processing, shall be allocated to the Series
2005-1 Certificateholders and, first, deposited to the
Funding Account to the extent of any Funding Account
Deficiency, second, if any other Excess Allocation
Series is outstanding and in its accumulation period or
amortization period, deposited to the Principal Account
for application, to the extent necessary, as Excess
Principal Collections to other Excess Allocation Series
on the related Distribution Date, third, deposited to
the Excess Funding Account to the extent necessary so
that (x) the Transferor Interest is not less than the
Minimum Transferor Interest and (y) the sum of the
Principal Receivables in the Trust plus the amount on
deposit in the Excess Funding Account equals or exceeds
the Minimum Aggregate Principal Receivables, and,
fourth, paid to the Holders of the Transferor Interest.
21
(2) With respect to each Monthly Period falling in
the Revolving Period, to the extent that Collections of
Principal Receivables allocated to the Series 2005-1
Certificateholders pursuant to this subsection
4.03A(c)(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; provided, however, that if Transferor
fails to make such funds available, then an amount of
Investor Principal Collections equal to that deficiency
shall be withdrawn from the Principal Account and
treated as Reallocated Principal Collections for
application in accordance with Section 4.06, prior to
any other application of the amounts in the Principal
Account.
(B) Allocations During the Controlled Amortization
Period.
(1) During the Controlled Amortization Period, an
amount equal to the Investor Principal Collections
processed on each Date of Processing shall be allocated
to the Series 2005-1 Certificateholders and, first,
deposited into the Principal Account to the extent of
the sum of the Controlled Distribution Amount for the
next Transfer Date plus any Controlled Distribution
Amounts for prior Monthly Periods not yet paid, and,
second, if any other Excess Allocation Series is
outstanding and in its accumulation period or
amortization period, deposited to the Principal Account
for application, to the extent necessary, as Excess
Principal Collections to other Excess Allocation Series
on the related Distribution Date, third, deposited to
the Excess Funding Account to the extent necessary so
that (x) the Transferor Interest is not less than the
Minimum Transferor Interest and (y) the sum of the
Principal Receivables in the Trust plus the amount on
deposit in the Excess Funding Account equals or exceeds
the Minimum Aggregate Principal Receivables, and fourth,
paid to the Holders of the Transferor Interest.
(2) With respect to each Monthly Period falling in
the Controlled Amortization Period, to the extent that
Collections of Principal Receivables allocated to the
Series 2005-1 Certificateholders pursuant to this
subsection 4.03A(c)(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; provided, however, that if
Transferor fails to make such funds available, then an
amount of Investor Principal Collections equal to that
deficiency shall be withdrawn from the Principal Account
and treated as Reallocated Principal Collections
22
for application in accordance with Section 4.06, prior
to any other application of the amounts in the
Principal Account.
(C) Allocations During the Rapid Amortization Period.
During the Rapid Amortization Period, an amount equal to the
Investor Principal Collections processed on each Date of
Processing shall be allocated to the Series 2005-1
Certificateholders and deposited to the Principal Account
until applied as provided in Sections 4.04(c) and 4.06;
provided, however, that after the date on which an amount of
such Principal Collections equal to the Invested Amount has
been deposited into the Principal Account, any Investor
Principal Collections in excess of such amount shall be,
first, if any other Excess Allocation Series is outstanding
and in its accumulation period or amortization period,
deposited to the Principal Account for application, to the
extent necessary, as Excess Principal Collections to other
Excess Allocation Series on the related Distribution Date,
second, deposited in the Excess Funding Account to the extent
necessary so that (x) the Transferor Interest is not less than
the Minimum Transferor Interest and (y) the sum of the
Principal Receivables in the Trust plus the amount on deposit
in the Excess Funding Account equals or exceeds the Minimum
Aggregate Principal Receivables, and, third, paid to the
Holders of the Transferor Interest.
(d) During any period when Servicer is permitted by Section 4.03 of
the Agreement to make a single monthly deposit to the Collection Account,
amounts allocated to the Certificateholders pursuant to Section 4.03A(c)
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 2005-1
pursuant to Section 4.03(e) of the Agreement)). The exceptions to the
daily deposit requirements 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. In addition, at any time during the
Revolving Period or the Controlled Amortization Period, but subject to the
final sentence of this subsection (d), when daily deposits are required:
(i) the amount of Collections of Principal Receivables
required to be deposited during each Monthly Period (beginning on
the first Business Day of such Monthly Period) during the Controlled
Amortization Period shall be an amount equal to the sum of the
Controlled Distribution Amount plus any Controlled Distribution
Amounts for prior Monthly Periods not yet paid;
23
(ii) the amount of Collections of Finance Charge Receivables
required to be deposited during each Monthly Period (beginning on
the first Business Day of such Monthly Period) shall be an amount
equal to the sum of:
(A) an amount equal to 125% of the sum of the Monthly
Interest and the Facility Fee that was payable on the previous
Distribution Date; plus
(B) an amount equal to the sum of the Senior Cost Amount
for the related Transfer Date; plus
(C) the Investor Servicing Fee due on the related
Transfer Date; plus
(D) an amount equal to 150% of the Investor Default
Amount for the previous Distribution Date; and
(iii) in addition to the deposits required pursuant to
subsection 4.03A(d)(i), if any, the Investor Principal Collections
(up to the Monthly Principal Reallocation Amount for the previous
Distribution Date) shall be deposited daily until the aggregate
amount required to be deposited pursuant to subsections
4.03A(d)(ii)(A), (B) and (C) has been deposited, at which point all
deposits of Investor Principal Collections made pursuant to this
subsection 4.03A(d)(iii) for such Monthly Period shall be released
to Transferor.
Nothing in this subsection shall limit (y) the obligation of
Servicer to deposit all Collections allocable to Series 2005-1 during the
Rapid Amortization Period or at a time when the Transferor Interest is
less than the Minimum Transferor Interest or the Available Spread Account
Amount is less than the Required Spread Account Amount, or (z) the
obligation of Servicer to deposit all Available Principal Collections and
Available Finance Charge Collections to the Series Accounts on the
Transfer Date, to the extent such funds have not been previously deposited
and are required to be distributed to the Series 2005-1 Certificateholders
or the Funding Agent on the following Distribution Date.
(e) 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 4.03B. DETERMINATION OF MONTHLY INTEREST.
(a) Class A Monthly Interest Payment. The amount of monthly
interest distributable from the Collection Account with respect to the
Class A Certificates on any Distribution Date (the "Class A Monthly
Interest Payment") shall be equal to the product of (A) the Applicable
Pass-Through Rate, (B) a fraction the numerator of which is the actual
number of days in the Related Monthly Period and the denominator of
which is (1) 360, if and to the extent the Applicable Pass-Through Rate
is based on the CP Rate or LIBOR and to the component of the Applicable
Pass-Through Rate attributable to the
24
Class A Program Fee Rate and (2) 365 or 366, as the case may be, if and
to the extent the Applicable Pass-Through Rate is based on the
Alternate Base Rate and (C) the Average Class A Invested Amount during
the Related Monthly Period.
On each Determination Date, Servicer shall determine whether
(x) the Class A Monthly Interest Payment for the Related Monthly Period
exceeds (y) the amount allocated and available to pay such Class A
Monthly Interest Payment on the related Distribution Date (any such
excess, a "Class A Interest Shortfall"). If a Class A Interest
Shortfall exists with respect to any Distribution Date, an additional
amount ("Class A Default Interest") shall be payable as provided herein
with respect to the Class A Certificates on each Distribution Date
thereafter to and including the Distribution Date on which such Class A
Interest Shortfall is paid to Class A Certificateholders equal to the
product of (aa) the Applicable Pass-Through Rate, (bb) a fraction the
numerator of which is the actual number of days from the preceding
Distribution Date to but excluding such Distribution Date and the
denominator of which is 360, and (cc) the Class A Interest Shortfall.
Notwithstanding anything to the contrary herein, Class A Default
Interest shall be payable or distributed only to the extent permitted
by applicable law.
(b) CI Monthly Interest Payment. The amount of monthly
interest distributable from the Collection Account with respect to the
Collateral Interest on any Distribution Date (the "CI Monthly Interest
Payment") shall be equal to the product of (A) the Applicable
Pass-Through Rate, (B) a fraction the numerator of which is the actual
number of days in the Related Monthly Period and the denominator of
which is (1) 360, if and to the extent the Applicable Pass-Through Rate
is based on the CP Rate or LIBOR and to the component of the Applicable
Pass-Through Rate attributable to the CI Program Fee Rate and (2) 365
or 366, as the case may be, if and to the extent the Applicable
Pass-Through Rate is based on the Alternate Base Rate and (C) the
Average Collateral Interest Invested Amount during the Related Monthly
Period.
On each Determination Date, Servicer shall determine whether
(x) the CI Monthly Interest Payment for the Related Monthly Period
exceeds (y) the amount allocated and available to pay such CI Monthly
Interest Payment on the related Distribution Date (any such excess, a
"CI Interest Shortfall"). If a CI Interest Shortfall exists with
respect to any Distribution Date, an additional amount ("CI Default
Interest") shall be payable as provided herein with respect to the
Collateral Interest on each Distribution Date thereafter to and
including the Distribution Date on which such CI Interest Shortfall is
paid to Collateral Interest Holder equal to the product of (aa) the
Applicable Pass-Through Rate, (bb) a fraction the numerator of which is
the actual number of days from the preceding Distribution Date to but
excluding such Distribution Date and the denominator of which is 365 or
366, as the case may be, and (cc) the CI Interest Shortfall.
Notwithstanding anything to the contrary herein, CI Default Interest
shall be payable or distributed only to the extent permitted by
applicable law.
SECTION 4.04. APPLICATION OF COLLECTIONS. On or before each Transfer Date,
Servicer shall give Trustee written instructions substantially in the form
contained in Exhibit B hereto, to withdraw or deposit, and Trustee, acting in
accordance with such instructions, shall withdraw or deposit on such Transfer
Date or the related Distribution Date, as applicable, to the extent of available
25
funds, the amounts required to be withdrawn from the Finance Charge Account, the
Principal Account, the Funding Account and the Distribution Account, as follows:
(a) On each Transfer Date, an amount equal to the Available
Finance Charge Collections for the Related Monthly Period shall be
distributed or deposited in the following priority:
(i) an amount equal to the Class A Monthly Interest
Payment for the related Distribution Date, plus the Class A
Facility Fee for such Distribution Date, plus any Class A
Interest Shortfalls, plus the amount of any Class A Default
Interest for such Distribution Date, plus any Class A Default
Interest previously due but not distributed on a prior
Distribution Date, shall be withdrawn from the Finance Charge
Account and deposited into the Distribution Account for
distribution to the Class A Certificateholders; provided, that
the amount deposited pursuant to this clause (i) shall not
exceed the applicable Benchmark Amount;
(ii) an amount equal to the Investor Servicing Fee for
such Transfer Date, plus the amount of any Investor Servicing
Fee previously due but not distributed to Servicer on a prior
Distribution Date, shall be withdrawn from the Finance Charge
Account and distributed to Servicer;
(iii) an amount equal to the Senior Cost Amount for
the Class A Certificates for such Transfer Date shall be
withdrawn from the Finance Charge Account and deposited into
the Distribution Account for distribution to the Funding
Agent;
(iv) an amount equal to the CI Monthly Interest Payment
for such Distribution Date, plus the CI Facility Fee for such
Distribution Date, plus any CI Interest Shortfalls, plus the
amount of any CI Default Interest for such Distribution Date
and any CI Default Interest previously due but not distributed
on a prior Distribution Date shall be withdrawn from the
Finance Charge Account and deposited into the Distribution
Account for distribution to the Collateral Interest Holder;
provided, that the amount deposited pursuant to this clause
(iv) shall not exceed the applicable Benchmark Amount;
(v) an amount equal to the Senior Cost Amount for the
Collateral Interest for such Transfer Date shall be withdrawn
from the Finance Charge Account and deposited into the
Distribution Account for distribution to the Funding Agent;
(vi) an amount equal to the Investor Default Amount for
the Related Monthly Period, if any, and the Uncovered Dilution
Amount, if any, shall be withdrawn from the Finance Charge
Account and deposited into the Principal Account on the
related Transfer Date and treated as Available Principal
Collections for such Distribution Date;
(vii) an amount equal to the aggregate amount of Class A
Charge-Offs which have not been previously reimbursed shall be
withdrawn from the Finance
26
Charge Account and deposited into the Principal Account on the
related Transfer Date and treated as Available Principal
Collections for such Distribution Date;
(viii) an amount equal to the aggregate amount of CI
Charge-Offs which have not been previously reimbursed shall be
withdrawn from the Finance Charge Account and deposited into
the Principal Account on the related Transfer Date and treated
as Available Principal Collections for such Distribution Date;
(ix) an amount equal to the aggregate amount of
Reallocated Principal Collections which have not been
previously reimbursed pursuant to this subsection shall be
withdrawn from the Finance Charge Account and deposited into
the Principal Account on the related Transfer Date and treated
as Available Principal Collections for such Distribution Date;
(x) an amount equal to the excess, if any, of the
Required Spread Account Amount over the Available Spread
Account Amount shall be withdrawn from the Finance Charge
Account and deposited into the Spread Account;
(xi) amounts not distributed pursuant to subsection
4.04(a)(i) because of the proviso in subsection 4.04(a)(i),
which have not been distributed pursuant to subsection
4.04(a)(iii) as part of the Senior Cost Amount for the Class A
Certificates shall be withdrawn from the Finance Charge
Account and deposited into the Distribution Account for
distribution to the Class A Certificateholders;
(xii) amounts not distributed pursuant to subsection
4.04(a)(iv) because of the proviso to subsection 4.04(a)(iv),
which have not been distributed pursuant to subsection
4.04(a)(v) as part of the Senior Cost Amount for the
Collateral Interest shall be withdrawn from the Finance Charge
Account and deposited into the Distribution Account for
distribution to the Collateral Interest Holder;
(xiii) an amount equal to any other amounts then due and
payable by Transferor to the Funding Agent, the Support
Providers, the Series 2005-1 Certificateholders or any other
Person under Section 4.15, the Certificate Purchase Agreement,
the Loan Agreement or the Fee Letter, shall be withdrawn from
the Finance Charge Account and deposited into the Distribution
Account for distribution on a pro rata basis to the Funding
Agent, Support Providers, the Series 2005-1 Certificateholders
or any such other Person, based upon the amount then due and
payable to each of the Funding Agent, Support Providers, the
Series 2005-1 Certificateholders and such other Persons;
(xiv) the balance, if any, will constitute Excess
Finance Charge Collections for such Distribution Date to be
applied in accordance with Section 4.07.
(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 deposited or applied in the
following priority:
27
(i) an amount equal to the Funding Account Deficiency,
if any, shall be deposited into the Funding Account; and
(ii) an amount equal to the balance, if any, of such
Available Principal Collections shall be treated as Excess
Principal Collections to be applied in accordance with Section
4.08.
(c) On the Transfer Date relating to the Monthly Period during
which the Amortization Period begins and each Transfer Date
thereafter, an amount equal to the Available Principal Collections
for the Related Monthly Period shall be distributed in the following
priority:
(i) an amount equal to Class A Monthly Principal for the
related Distribution Date shall be withdrawn from the
Principal Account and deposited into the Distribution Account
for distribution to the Class A Certificateholders;
(ii) an amount equal to the CI Monthly Principal for
such Distribution Date shall be withdrawn from the Principal
Account and deposited into the Distribution Account for
distribution to the Collateral Interest Holder;
(iii) an amount equal to all other amounts then due and
payable by Transferor to the Funding Agent, the Support
Providers, the Series 2005-1 Certificateholders or any other
Person under or in connection with this Supplement, the
Certificate Purchase Agreement, the Loan Agreement and the Fee
Letter shall be withdrawn from the Principal Account and
deposited to the Distribution Account for distribution; and
(iv) an amount equal to the balance, if any, of such
Available Principal Collections for such Distribution Date
after giving effect to paragraphs (i), (ii) and (iii) above,
shall be treated as Excess Principal Collections to be applied
in accordance with Section 4.08.
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 the sum of the Investor Default Amount and any
Uncovered Dilution Amount for any Distribution Date exceeds the amount of
Available Finance Charge Collections allocated with respect thereto pursuant to
subsection 4.04(a)(vi) with respect to that Distribution Date, the Collateral
Interest will be reduced (but not below zero) by the amount of such excess (such
reduction, a "CI Charge-Off"). If on any Distribution Date the Collateral
Interest is (or is reduced to) zero, then the Class A Interest will be reduced
(but not below zero) by any remaining excess of the Investor Default Amount and
any Uncovered Dilution Amount over amounts allocated pursuant to subsection
4.04(a)(vi) (a "Class A Charge-Off").
SECTION 4.06. REALLOCATED PRINCIPAL COLLECTIONS. On each Transfer Date, Servicer
shall apply, or shall instruct Trustee in writing to apply, Investor Principal
Collections with respect to that Transfer Date (in an amount not to exceed the
Monthly Principal Reallocation Amount for the related Monthly Period), to fund
any deficiency in the amounts otherwise available for deposit and distribution
pursuant to and in the priority set forth in subsections 4.04(a)(i) and (ii).
28
Reallocated Principal Collections shall be so applied after giving effect to any
applications of funds from the Spread Account pursuant to Section 4.12 and after
allocation and application of Excess Finance Charge Collections pursuant to
Section 4.07. On each Transfer Date, the Collateral Amount shall be reduced by
the amount of Reallocated Principal Collections for such Transfer Date.
SECTION 4.07. EXCESS FINANCE CHARGE COLLECTIONS. Excess Finance Charge
Collections with respect to the Excess Allocation Series for any Transfer Date
will be allocated to Series 2005-1 in an amount equal to the product of (x) the
aggregate amount of Excess Finance Charge Collections with respect to all the
Excess Allocation Series for such Transfer Date and (y) a fraction, the
numerator of which is the Finance Charge Shortfall for Series 2005-1 for such
Transfer Date and the denominator of which is the aggregate amount of Finance
Charge Shortfalls for all the Excess Allocation Series for such Transfer Date.
The "Finance Charge Shortfall" for Series 2005-1 for any Transfer 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 (xiii) 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). Excess Finance Charge Collections remaining after
their application to cover Finance Charge Shortfalls for Group One, shall be (i)
first, following a Servicer Default and the appointment of a Successor Servicer,
paid to the Successor Servicer to pay any unpaid Excess Servicing Fees, (ii)
second, deposited to the Funding Account in an amount up to the Funding Account
Deficiency, if any, and (iii) third, distributed to Transferor.
SECTION 4.08. SHARED PRINCIPAL COLLECTIONS. Subject to Section 4.03(e) of the
Agreement, Excess Principal Collections for any Transfer Date will be allocated
to Series 2005-1 in an amount equal to the product of (a) the aggregate amount
of Excess Principal Collections with respect to all Excess Allocation Series for
such Transfer Date and (b) a fraction the numerator of which is the Principal
Shortfall for Series 2005-1 for such Transfer Date and the denominator of which
is the aggregate amount of Principal Shortfalls for all the Excess Allocation
Series for such Transfer Date. The "Principal Shortfall" for Series 2005-1 shall
be equal to (i) for any Transfer Date with respect to the Revolving Period, the
excess, if any, of the full amount required to be deposited pursuant to
subsection 4.04(b)(i) on such Transfer Date over the Available Principal
Collections for such Transfer Date (excluding any portion thereof attributable
to Excess Principal Collections), (ii) for any Transfer Date with respect to the
Controlled Amortization Period, the excess, if any, of the full amount required
to be deposited, without duplication, pursuant to Section 4.04(c)(i) and (ii) on
such Transfer Date over the amount of Available Principal Collections for such
Transfer Date (excluding any portion thereof attributable to Shared Principal
Collections) and (iii) for any Distribution Date with respect to the
Amortization Period, the excess, if any, of the Investor Interest with respect
to such Distribution Date over the amount of Available Principal Collections for
such Distribution Date (excluding any portion thereof attributable to Shared
Principal Collections). Excess Principal Collections remaining on any Transfer
Date after payment of Principal Shortfalls for all Excess Allocation Series, and
after any application of Excess Principal Collections as principal pursuant to
Section 4.11 or with respect to any other Excess Allocation Series that includes
variable interests or variable funding certificates will be, first, deposited to
the Funding Account in an amount up to the Funding Account Deficiency, if any,
and, second, distributed to the Holder of the Transferor
29
Interest or deposited in the Excess Funding Account in accordance with
subsection 4.03(e) of the Agreement.
SECTION 4.09. CERTAIN SERIES ACCOUNTS.
(a) Trustee shall establish and maintain with a Qualified
Institution, which may be Trustee, in the name of the Trust, on behalf of
the Trust, for the benefit of the Series 2005-1 Certificateholders, three
segregated trust accounts with such Qualified Institution (the "Finance
Charge Account", the "Principal Account" and the "Distribution Account"),
each bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Series 2005-1 Certificateholders.
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 and the Distribution Account and in all proceeds thereof. The
Finance Charge Account, the Principal Account and the Distribution Account
shall be under the sole dominion and control of Trustee for the benefit of
the Series 2005-1 Certificateholders. If at any time the institution
holding the Finance Charge Account, the Principal Account and the
Distribution Account ceases to be a Qualified Institution, Transferor
shall notify Trustee in writing, and 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 and a new Distribution
Account meeting the conditions specified above with a Qualified
Institution, and shall transfer any cash or any investments to such new
Finance Charge Account, new Principal Account and new Distribution
Account. Trustee, at the written direction of Servicer, shall (i) make
withdrawals from the Finance Charge Account, the Principal Account and the
Distribution Account from time to time, in the amounts and for the
purposes set forth in this Supplement. Trustee at all times shall maintain
accurate records reflecting each transaction in the Finance Charge
Account, the Principal Account and the Distribution Account, so long as
such accounts are established and maintained with Trustee.
(b) Funds on deposit in the Finance Charge Account, the Principal
Account and the Distribution Account from time to time shall be invested
and reinvested at the written direction of Servicer by Trustee in
Permitted Investments that will mature so that such funds will be
available for withdrawal on or prior to the following Transfer Date.
Trustee shall not be held liable for the performance of any Permitted
Investments made in accordance with the terms hereof.
(c) 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 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 Trustee to Servicer.
(d) The Finance Charge Account, the Principal Account, the
Distribution Account, the Spread Account and the Funding Account are
hereby designated as the Series Accounts for the Series 2005-1
Certificateholders.
30
(e) Trustee shall hold such of the Permitted Investments of funds in
any Series Account as consists of instruments, deposit accounts,
negotiable documents, money, goods, letters of credit, and advices of
credit in the State of New York. Trustee shall hold such of the Permitted
Investments as constitutes investment property through a securities
intermediary, which securities intermediary shall agree with Trustee that
(a) such investment property shall at all times be credited to a
securities account of Trustee, (b) such securities intermediary shall
treat 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 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 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 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(e), Trustee shall not hold Permitted
Investments through an agent or nominee.
(f) 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. EXTENSION AND TERMINATION. The Revolving Period may be extended by
written agreement of the Funding Agent, the CP Vehicle and the Collateral
Interest Holder for such period as shall be specified in the extension;
provided, however, that the Controlled Amortization Date so established shall be
the first day of a month and the Revolving Period as extended shall not expire
later than December 31, 2020. Subject to Section 12.03 of the Agreement, the
right of the Series 2005-1 Certificateholders to receive payments from the Trust
will terminate on the first Business Day following the Series Termination Date,
provided that all actions required under Sections 12.01 and 12.03 of the
Agreement in connection with the Series Termination Date have been taken.
SECTION 4.11. ADJUSTMENTS TO INVESTOR INTEREST.
(a) CHANGES IN INVESTOR INTEREST.
(i) During the Revolving Period, the Investor Interest
may be increased, and, at any time, the Investor Interest may
be decreased (in addition to any reductions due to Controlled
Distribution Amounts), from time to time upon the conditions
described in this subsection 4.11(a); provided that no
reduction or increase may be made if, on the proposed
Adjustment Date, there is an unreimbursed reduction of the
Collateral Interest due to either Investor Charge-Offs or
Reallocated Collateral Interest Principal Collections unless
the Rating
31
Agency Condition is met. Transferor may deliver to the
Funding Agent and Trustee on any Business Day a written notice
specifying (A) the proposed amount of the adjusted Investor
Interest (the "Adjusted Amount") and (B) the proposed date of
adjustment of the Investor Interest (an "Adjustment Date"),
which shall be any Business Day not earlier than three
Business Days after such notice; provided, however, that the
Adjustment Date specified for a decrease may be a Business Day
that is not also a Distribution Date only if any amounts
payable by Transferor pursuant to subsection 4.15(d)(i) in
connection with such decrease are paid pursuant to such
subsection on such Adjustment Date. Each adjustment shall be
in an amount of not less than $4,000,000 and shall be in equal
increments of $4,000,000. The Investor Interest may not be
reduced pursuant to this Section 4.11 below $5,000,000 unless
it is reduced to zero.
(ii) No more than two adjustments of the Investor
Interest may be made in any month.
(iii) Any proposed increase in the Investor Interest
(the "Increase Amount") shall not exceed an amount equal to
the excess of the Aggregate Principal Receivables over the sum
of (x) the Minimum Aggregate Principal Receivables and (y) the
Minimum Transferor Interest, each determined as of the day
prior to the proposed Adjustment Date; provided, however, that
the Investor Interest on any Business Day shall not exceed the
Maximum Investor Interest.
(iv) The purchase of any Increase Amount is subject to
satisfaction of the condition that, on any Adjustment Date on
which an increase in the Investor Interest is occurring, the
Funding Agent shall have received an officer's certificate of
each of Transferor and Servicer that (A) prior to and after
giving effect to such purchase, no Pay Out Event or Servicer
Default (and no event or condition which, with notice or the
passage of time or both, would constitute a Pay Out Event or
Servicer Default) shall have occurred and be continuing on
such date; (B) the representations and warranties of RPA
Seller, Transferor and Servicer (as applicable) in the
Transaction Documents (including this Supplement) are true and
correct in all material respects on such date (except to the
extent that they relate to an earlier date); (C) the Available
Spread Account Amount is equal to or greater than the Required
Spread Account Amount on such date, after giving effect to the
purchase occurring on such date; (D) no Cap Increase Event has
occurred and is continuing on such date; (E) prior to and
after giving effect to the purchase, the Transferor Interest
equals or exceeds the Minimum Transferor Interest; and (F) all
the terms, covenants, agreements and conditions of the
Transaction Documents to be complied with and performed by
Transferor or Servicer (as applicable) at or before such date
shall have been complied with and performed in all material
respects.
Upon satisfaction of the foregoing conditions, and the
payment by the Funding Agent to Trustee on or before the
Adjustment Date of an amount equal to the Increase Amount, the
Investor Interest will be equal to the Adjusted Amount as of
the Adjustment Date and Servicer shall appropriately note such
Increase
32
Amount and direct Trustee in writing to pay to Transferor such
Increase Amount on the Adjustment Date from the funds provided
by the Funding Agent. In the event that the Funding Agent
fails to pay any portion of an Increase Amount as required by
this subsection, Servicer shall direct Trustee in writing to
return any payments received by it pursuant to this subsection
and there will be no increase to the Investor Interest.
(v) Any proposed decrease in the Investor Interest
(other than a permanent reduction pursuant to subsection
4.11(b) below) shall be effected on an Adjustment Date in
accordance with a notice specifying the amount of the proposed
reduction (the "Reduction Amount") from (A) Available
Principal Collections, (B) Excess Principal Collections and
(C) amounts on deposit in the Funding Account.
(vi) The Class A Certificateholders shall have no
obligation to purchase its portion of any Increase Amount that
would cause the Class A Interest to exceed the Maximum Class A
Interest. The CI Investor shall have no obligation to purchase
its portion of any Increase Amount that would cause the
Collateral Interest to exceed the Maximum Collateral Interest.
(b) PERMANENT REDUCTIONS IN INVESTOR INTEREST. Transferor may
at any time elect to reduce permanently the Maximum Investor
Interest by giving at least 30 days' prior written notice to the
Funding Agent and Trustee of such reduction in the Maximum Investor
Interest, including the amount of such proposed reduction and the
proposed date on which such reduction will commence. The amount of
such reduction must be not less than $4,000,000 and shall be in
increments of $4,000,000. Any proposed reduction of the Maximum
Investor Interest which would reduce the Maximum Investor Interest
to an amount less than the Investor Interest then in effect shall be
subject to satisfaction of the condition precedent that the Investor
Interest will be reduced pursuant to Section 4.11(a) on or before
the date of such reduction.
(c) NOTATION OF ADJUSTMENTS. Each Class A Certificateholder
shall, and is hereby authorized to, record on the grid attached to its
Class A Certificate (or, at such Class A Certificateholder's option, in
its internal books and records) the date and amount of any portion of
any Increase Amount purchased by it and its portion of the related
Adjusted Amount, and each repayment of its Class A Certificate
(including payments effecting a reduction pursuant to subsection
4.11(a) or (b) above), provided that failure to make any such
recordation on such grid or any error in such grid shall not adversely
affect such Class A Certificateholder's rights with respect to its
Class A Interest or its right to receive Class A Monthly Interest
Payments. Trustee shall not be responsible for the accuracy of any
information on any such Class A Certificate grid or with respect to the
Certificateholder's notations in its internal books and records.
(d) ALLOCATIONS. During the Revolving Period, each Increase
Amount and Reduction Amount shall be allocated to the Class A
Interest and the Collateral Interest based on their respective Pro
Rata Shares. During an Amortization Period, each Reduction Amount
shall be allocated, first, to the Class A Interest, to the extent of
the
33
Class A Interest, and, second, to the Collateral Interest. Any
permanent reductions in the Investor Interest pursuant to subsection
4.11(b) shall be allocated to the Class A Interest and the
Collateral Interest based on their respective Pro Rata Shares.
(e) FIRST INCREASE. If the Investor Interest is increased
before December 1, 2005, the amounts of Servicer Interchange and
Investor Servicing Fee for the first Distribution Date shall be
increased accordingly.
SECTION 4.12. SPREAD ACCOUNT.
(a) On or prior to the Closing Date, Trustee shall establish
and maintain with a Qualified Institution, which may be Trustee, in
the name of the Trust, on behalf of the Trust, for the benefit of
the Series 2005-1 Certificateholders and the Holder of the
Transferor Interest, a segregated trust account (the "Spread
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Series 2005-1
Certificateholders and the Holder of the Transferor Interest. Except
as otherwise provided in this Section 4.12, 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 Trustee for
the benefit of the Series 2005-1 Certificateholders 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 Trustee in writing, and Trustee upon being notified (or
Servicer on its behalf) shall, within ten (10) Business Days (or
such longer period as to which the Funding Agent may consent)
establish a new Spread Account meeting the conditions specified
above with a Qualified Institution and shall transfer any cash or
any investments to such new Spread Account. 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
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). Transferor will 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 Trustee in Permitted
Investments. Funds on deposit in the Spread Account on any Transfer
Date, after giving effect to any withdrawals from and deposits to
the Spread Account on such Transfer Date, shall be invested in such
investments that will mature so that such funds will be available
for withdrawal on or prior to the following Transfer Date.
On each Transfer Date (but subject to subsections 4.12(c),
4.12(d) and 4.12(f)), the Investment Earnings, if any, accrued since
the preceding Transfer Date on funds on deposit in the Spread
Account shall be paid by Trustee, upon written direction of
Servicer, first, to the Funding Agent to the extent that the
aggregate amount of Available Finance Charge Collections available
pursuant to subsections 4.04(a)(v), (xii) and (xiii)is less than the
aggregate amount required to be paid to the Funding Agent pursuant
to subsections 4.04(a)(v), (xi) and (xiii), and, second, to the
Holder of the Transferor Interest. For purposes of determining the
availability of funds or the balance in the
34
Spread Account for any reason under this 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 a Pay Out Event, 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 available pursuant to
subsections 4.04(a)(iv) and 4.04(a)(v) is less than the aggregate
amount required to be deposited pursuant to subsection 4.04(a)(iv),
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, 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 Finance Charge Account to be treated as
Available Finance Charge Collections and used solely for payments to
the Collateral Interest Holder in respect of interest on the
Collateral Interest.
(d) On the date on which the Class A Invested Amount has been
paid in full, after applying any funds on deposit in the Spread
Account as described in subsection 4.12(c), Trustee, at the written
direction of Servicer, shall withdraw from the Spread Account an
amount equal to the lesser of (i) the Collateral Interest Invested
Amount (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 Collateral
Interest Invested Amount to zero, shall also withdraw Investment
Earnings credited to the Spread Account up to the amount required to
reduce the Collateral Interest Invested Amount to zero. Trustee,
upon the written direction of Servicer, or Servicer, shall deposit
such amounts into the Distribution Account for distribution to the
Collateral Interest Holder in accordance with subsection 5.02(c).
(e) On the Series 2005-1 Final Maturity Date, the Servicer
shall withdraw from the Spread Account an amount equal to the lesser
of (i) the Invested Amount and (ii) the Available Spread Account
Amount and the Trustee or the Servicer shall deposit such amount
into the Distribution Account for distribution to the Collateral
Interest Holder until the Collateral Interest Invested Amount is
paid in full, and then to the Class A Certificateholders until the
Class A Invested Amount is paid in full, in that order of priority,
in accordance with Section 4.04 and Section 5.02, to fund any
shortfalls in amounts owed to such Series 2005-1 Certificateholders.
(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)(x) 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
35
Account Deficiency is reduced to zero through subsequent deposits
pursuant to subsection 4.04(a)(x).
(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, 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 Collateral Interest
Invested Amount has been paid in full, after making any payments to
the Certificateholders required pursuant to subsections 4.12(c) and
(d) Trustee, at the written direction of Servicer, shall treat such
excess as Available Finance Charge Collections.
SECTION 4.13. INVESTMENT INSTRUCTIONS. Any investment instructions required to
be given to Trustee pursuant to the terms hereof must be given to Trustee no
later than 11:00 a.m., New York City time, on the date such investment is to be
made. In the event Trustee receives such investment instruction later than such
time, Trustee may, but shall have no obligation to, make such investment. In the
event Trustee is unable to make an investment required in an investment
instruction received by Trustee after 11:00 a.m., New York City time, on such
day, such investment shall be made by Trustee on the next succeeding Business
Day. In no event shall 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. INVESTOR SERVICING FEE. The share of the Monthly Servicing Fee
allocable to Series 2005-1 for any Transfer Date (the "Investor Servicing Fee")
shall be equal to one-twelfth of the product of (a) the Series Servicing Fee
Percentage and (b) the Investor Interest as of the last day of the Monthly
Period preceding such Transfer Date; provided, however, that with respect to the
first Transfer Date, the Investor Servicing Fee shall be equal to $1,250,000;
provided, further, that if FNBO or Trustee is Servicer, the Investor 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 2005-1
Certificates with respect to such Monthly Period pursuant to Section 4.17. The
remainder of the Monthly Servicing Fee shall be paid by the Holders of the
Transferor Interest or the investors in other Series or Note Series (as provided
in the related Supplement or Indenture Supplements) and in no event shall
Trustee or the Series 2005-1 Certificateholders be liable for the share of the
Monthly Servicing Fee to be paid by such other Persons.
SECTION 4.15. FEES, INCREASED COSTS.
(a) The Funding Agent, on behalf of itself, the applicable CP
Vehicles and the Support Providers with respect to such CP Vehicles,
and on behalf of itself and the Collateral Interest Holder, shall be
entitled to receive a Facility Fee for each Monthly Period, each
such fee as specified in the Fee Letter. In addition, it is
understood and agreed that the Class A Program Fee and the CI
Program Fee described in the Fee Letter are included in the
calculation of Monthly Interest.
(b) Upon written demand by the Funding Agent, Transferor shall
reimburse the Funding Agent for its reasonable out-of-pocket
expenses, including rating agency fees, arising from (i) any waiver
or modification of this Supplement or any other
36
Transaction Document or (ii) from the Funding Agent or the Series
2005-1 Certificateholders exercising rights under this Supplement or
any other Transaction Document upon a Servicer Default or a Pay Out
Event. Such amounts shall be paid on the Distribution Date next
following the demand to the extent such amounts have not been
distributed pursuant to Article IV.
(c) (i) If any Regulatory Change occurring after the date
hereof:
(A) shall subject an Affected Party to any tax,
duty, assessment, fees or other governmental charge with
respect to any transaction contemplated by this
Supplement, the Certificate Purchase Agreement or the
Loan Agreement, or shall change the basis of taxation of
payments to such party of any amounts due under or in
respect of any such transaction or its obligations or
its rights in connection therewith (except for changes
in the rate of tax on the overall net income of such
Affected Party imposed by the United States of America,
by the jurisdiction in which such Affected Party's
principal executive office is located and, if such
Affected Party's principal executive office is not in
the United States of America, by the jurisdiction where
such Affected Party's principal office in the United
States is located);
(B) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve
imposed by the Federal Reserve Board, but excluding any
reserve included in the determination of the Class A
Monthly Interest Payment or the CI Monthly Interest
Payment, as applicable), special deposit or similar
requirement against assets of any such Affected Party,
deposits or obligations with or for the account of any
such Affected Party or with or for the account of any
affiliate (or entity deemed by any Governmental
Authority to be an affiliate) of any such Affected
Party, or credit extended by any such Affected Party;
(C) shall change the amount of capital maintained
or required or requested or directed to be maintained by
any such Affected Party;
(D) shall impose any other condition affecting any
Series 2005-1 Certificates owned or funded in whole or
in part by any such Affected Party, or its obligations
or rights, if any, to make purchases of any Series
2005-1 Certificates or to provide funding therefor; or
(E) shall change the rate for, or the manner in
which the FDIC (or a successor thereto) assesses,
deposit insurance premiums or similar charges; or
(ii) If, as a result of Trustee's location, or as a
result of Transferor's location, the Trust or an Affected
Party shall become liable in the state of such location for
any taxes, interest or penalties and such liability (after
giving effect to tax credits available to such Affected Party
in any other jurisdiction) increases the
37
aggregate tax liability of such Affected Party, and the
result of any of the foregoing provisions of (i) or (ii) is or
would be:
(x) to increase the cost to or to impose a cost on
any such Affected Party funding or committed to fund any
purchase of a Series 2005-1 Certificate or otherwise
incurring obligations in connection with the
transactions contemplated hereby;
(y) to reduce the amount of any sum received or
receivable by any such Affected Party in connection with
the transactions contemplated hereby; or
(z) in the reasonable determination of such
Affected Party, to reduce the rate of return on the
capital of such Affected Party as a consequence of its
obligations hereunder or arising in connection herewith
to a level below that which such Affected Party could
otherwise have achieved,
then on the Distribution Date next succeeding such
demand by at least two Business Days by such Affected Party
(which demand shall be accompanied by a statement setting
forth the basis of such demand), Transferor shall pay directly
to such Affected Party such additional amount or amounts as
will compensate such Affected Party for such additional or
increased cost or such reduction to the extent such amounts
have not been paid from the amounts distributed pursuant to
Article IV on such Distribution Date.
(iii) Each such Affected Party will promptly notify
Transferor or the Funding Agent, as applicable, of any event
of which it has knowledge which will entitle such Affected
Party to compensation pursuant to this Section 4.15; provided,
however, no failure to give or delay in giving such
notification shall adversely affect the rights of any Affected
Party to such compensation. Each such Affected Party shall use
commercially reasonable efforts to avoid increased liability
under clause (c)(ii) above by claiming a credit for taxes paid
in jurisdictions other than the state of Trustee's or
Transferor's location; provided, however, that no such
Affected Party shall be required to take any such actions
which are materially economically adverse in the context of
the tax liability of such Affected Party.
(iv) In determining any amount provided for or referred
to in this Section 4.15, an Affected Party may use any
reasonable averaging and attribution methods that it (in its
sole discretion) shall deem applicable. Any Affected Party,
when making a claim under this Section 4.15, shall submit to
Transferor a statement as to such increased cost or reduced
return (including calculation thereof in reasonable detail),
which statement shall, in the absence of demonstrable error,
be conclusive and binding upon Transferor.
38
(d) If any of the events described in the definition of "Broken
Funding Cost" occurs and, as a result, any Series 2005-1 Certificateholder
or Support Provider shall incur any Broken Funding Costs (including any
loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Series 2005-1 Certificateholder or
Support Provider to make any funding with respect to a Series 2005-1
Certificate) then, upon written notice to Transferor from the Funding
Agent, Transferor shall pay to Servicer, and Servicer shall pay to the
Funding Agent for the account of such Series 2005-1 Certificateholder or
Support Provider the amount of such loss or expense to the extent such
amount has not been paid from the amounts distributed pursuant to Article
IV on the Distribution Date next succeeding such notice by at least two
Business Days. Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be conclusive
and binding upon Transferor.
(e) If any of the following events occur:
(i) quotations of per annum rates for the relevant deposits
referred to in the definition of "LIBOR" are not available to any
Support Provider or the Funding Agent in relevant amounts or for the
relevant maturity;
(ii) the rate per annum referred to in the definition of LIBOR
shall not adequately represent the cost to any Support Provider or the
Funding Agent of adding to or maintaining a portion of its interests
in the relevant Series 2005-1 Certificate; or
(iii) funding or maintaining any Support Provider's, the Funding
Agent's interest (or portion thereof) in a Series 2005-1 Certificate
shall violate any applicable law, rule, regulation or directive of any
governmental or regulatory authority, whether or not having the force
of law, and such Support Provider or the Funding Agent shall have not
subsequently notified the Funding Agent that such circumstances no
longer exist,
the Bank Rate shall be determined by reference to the Alternate Base Rate
rather than LIBOR.
(f) The obligations of the Trust and Trustee to pay any amounts
pursuant to this Section 4.15 are limited to the funds to be applied
pursuant to Article IV irrespective of the ability of Transferor to fulfill
its obligation pursuant to this Section. Amounts required to be paid by
Transferor pursuant to this Agreement shall not constitute a claim against
Transferor to the extent that Transferor does not have sufficient funds to
make payment thereof; provided, however, that any claim for payment of such
amounts shall not be extinguished until paid in full.
SECTION 4.16. CERTIFICATE INTEREST RATES. Promptly after the end of each Monthly
Period, the Funding Agent will give facsimile notice to Servicer and Trustee of
the Applicable Pass-Through Rate for each Class of Certificates for such Monthly
Period.
SECTION 4.17. INTERCHANGE. On or prior to each Determination Date, Transferor
shall notify Servicer of the amount of Interchange to be included as Collections
of Finance Charge
39
Receivables allocable to the Series 2005-1 Certificates 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 RPA Seller 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 RPA
Seller; and
(c) the Allocation Percentage for Finance Charge Receivables with
respect to such Monthly Period.
On each Transfer Date, Transferor shall pay to Servicer, and Servicer shall
deposit into the Finance Charge Account, in immediately available funds, the
amount of Interchange to be so included as Collections of Finance Charge
Receivables allocable to the Series 2005-1 Certificates with respect to the
Related Monthly Period. Transferor hereby assigns, sets over, conveys, pledges
and grants a security interest and lien to Trustee for the benefit of the Series
2005-1 Certificateholders in 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 Supplement shall constitute a
security agreement under applicable law. To the extent that a Supplement or
Indenture Supplement for any Series or Note Series (other than Series 2005-1)
assigns, sets over, conveys, pledges or grants a security interest in
Interchange allocable to the Trust, all Investor Certificates or Notes issued
thereunder (except that any such Series or Note Series may be subordinated to
the Series 2005-1 Certificates to the extent specified in any such Supplement or
Indenture Supplement) and the Series 2005-1 Certificates shall rank pari passu
and be equally and ratably entitled in accordance with their respective
allocation percentage 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 Supplement and other
Supplements and Indenture Supplements.
SECTION 4.18. FOREIGN ACCOUNTS. So long as any Series 2005-1 Certificates are
outstanding, no more than 1% (or any higher percentage as to which the Rating
Agency Condition has been satisfied) of the aggregate Principal Receivables as
of the most recently ended Monthly Period shall be Receivables arising in
Foreign Accounts.
SECTION 4.19. FUNDING ACCOUNT.
(a) On or prior to the Closing Date, Trustee shall establish and
maintain with a Qualified Institution, which may be Trustee, in the name of
the Trust, on behalf of the Trust, for the benefit of the Series 2005-1
Certificateholders and the Holder of the Transferor Interest, a segregated
trust account (the "Funding Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Series 2005-1 Certificateholders and the Holder of the Transferor Interest.
Except as otherwise provided in this Section 4.19, Trustee shall possess
all right, title and interest in all funds on deposit from time to time in
the Funding Account and in all proceeds thereof. The Funding Account shall
be under the sole dominion and control of Trustee for the benefit of the
Series 2005-1 Certificateholders and the Holder of the Transferor Interest.
40
If at any time the institution holding the Funding Account ceases to be a
Qualified Institution, Servicer shall notify Trustee in writing, and the
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 Funding Account meeting the conditions
specified above with a Qualified Institution and shall transfer any cash or
any investments to such new Funding Account. Trustee, at the written
direction of Servicer, shall (i) make withdrawals from the Funding Account
from time to time in an amount up to the Available Funding Account Amount
at such time, for the purposes set forth in this Supplement, and (ii) on
each Transfer Date prior to termination of the Funding Account, make a
deposit into the Funding Account in the amount specified in, and otherwise
in accordance with, subsection 4.19(d).
(b) Funds on deposit in the Funding Account shall be invested at the
written direction of Servicer by Trustee in Permitted Investments. Funds on
deposit in the Funding Account on any Transfer Date, after giving effect to
any withdrawals from and deposits to the Funding 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
Business Day.
On each Transfer Date, the Investment Earnings, if any, accrued since
the preceding Transfer Date on funds on deposit in the Funding Account
shall be paid to the Holder of the Transferor Interest by Trustee upon
written direction of Servicer. For purposes of determining the availability
of funds or the balance in the Funding Account for any reason under this
Supplement, all such Investment Earnings shall be deemed not to be
available or on deposit.
(c) On the Business Day prior to any Adjustment Date on which the
Investor Interest will increase, the Available Funding Account Amount shall
be withdrawn from the Funding Account and deposited to the Spread Account
to the extent of any Spread Account Deficiency that will exist on such
Adjustment Date (calculated by assuming that such increase will occur). On
any Adjustment Date on which the Investor Interest will decrease, the
Available Funding Account Amount shall be withdrawn from the Funding
Account and applied pursuant to Section 4.11(a)(v)(C) to the extent that
amounts available pursuant to Section 4.11(a)(v)(A) and (B) are not
sufficient to pay the full Reduction Amount. To the extent that amounts on
deposit in the Funding Account include Collections of Principal
Receivables, such amounts will not be deemed to constitute "amounts on
deposit in the Principal Accounts" for purposes of the definition of the
Transferor Interest or otherwise included in the calculation of the
Transferor Interest and the Transferor Interest shall be calculated as if
such amounts had been distributed to Transferor.
(d) If on any Business Day, after giving effect to any withdrawals
from the Funding Account, the Available Funding Account Amount is less than
the Designated Funding Account Amount then in effect, Collections shall be
deposited into the Funding Account pursuant to subsection 4.03A(b) and
subsection 4.07(ii) up to the amount of the Funding Account Deficiency.
41
(e) If, after giving effect to all deposits to and withdrawals from
the Funding Account on any Business Day, the amount on deposit in the
Funding Account exceeds the Designated Funding Account Amount, Trustee,
acting in accordance with the instructions of Servicer, shall pay such
amounts to the Holder of the Transferor Interest.
SECTION 4.20. TAXES.
(a) All payments made by Transferor, Servicer or the Trust under this
Supplement, the Loan Agreement, the Fee Letter and the other Transaction
Documents shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes and
franchise taxes or any other tax based upon net income imposed on any
Affected Party as a result of a present or former connection between such
Affected Party and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or
therein (other than any such connection arising solely from such Person
having executed, delivered or performed its obligations or received a
payment under, or enforced, this Supplement, the Loan Agreement, the
Certificate Purchase Agreement or another Transaction Document). If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to any Affected Party hereunder, the amounts so payable to
such Affected Party shall be increased to the extent necessary to yield
such Affected Party (after payment of all Non-Excluded Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in or pursuant to this Supplement, the Loan Agreement, the Fee
Letter or the other Transaction Documents; provided, however, that
Transferor shall not be required to increase any such amounts payable to
any Affected Party that is not organized under the laws of the United
States of America or a state thereof if such Affected Party fails to comply
with the requirements of subparagraph (b) of this Section 4.20. Whenever
any Non-Excluded Taxes are payable by Transferor, as promptly as possible
thereafter Transferor shall send to the Funding Agent for its own account
or for the account of such Affected Party, as the case may be, a certified
copy of an original official receipt received by Transferor showing payment
thereof. If Transferor fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Funding Agent the
required receipts or other required documentary evidence, Transferor shall
indemnify the applicable Affected Party for any incremental taxes, interest
or penalties that may become payable by such Affected Party as a result of
any such failure. The agreements in this Section 4.20 shall survive the
termination of this Supplement and the Loan Agreement, and the payment of
all amounts otherwise payable hereunder or thereunder.
(b) Each Affected Party that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) deliver to Transferor and the Trustee two duly completed
copies of (A) United States Internal Revenue Service Form-W8-BEN or
W8-ECI, or
42
successor applicable form, as the case may be, or (B) an Internal
Revenue Service Form W-9, or successor applicable form, as
the case may be;
(ii) deliver to Transferor and the Trustee two further copies of
any such form or certification on or before the date that any such
form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to Transferor and the Trustee; and
(iii) obtain such extension of time for filing and completing
such forms or certification as may reasonably be required by
Transferor or the Trustee;
unless in any such case an event (including any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which
would prevent such Affected Party from duly completing and delivering any
such form with respect to it and such Affected Party so advises Transferor.
Such Affected Party shall certify (i) in the case of a W8-BEN or W8-ECI,
that it is entitled to receive payments under this Supplement and the
Certificate Purchase Agreement or the Loan Agreement, as applicable,
without deduction or withholding of any United States federal income taxes
and (ii) in the case of a Form W-9, that it is entitled to an exemption
from United States backup withholding tax. Each Person not incorporated
under the laws of the United States of America or a state thereof that is
an assignee of an Affected Party shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this Section 4.20.
SECTION 7. ARTICLE V OF THE AGREEMENT. Article V of the Agreement shall
read in its entirety as follows and shall be applicable only to the Series
2005-1 Certificates:
ARTICLE V
DISTRIBUTIONS AND REPORTS TO INVESTOR
CERTIFICATEHOLDERS
Section 5.01. DISTRIBUTIONS.
(a) On each Distribution Date, the Paying Agent shall distribute (in
accordance with the certificate delivered by Servicer to Trustee pursuant
to subsection 3.04(b)) to each Class A Certificateholder of record on the
related Record Date for such Distribution Date (other than as provided in
subsection 2.04(e) or Section 12.03 respecting a final distribution) such
Class A Certificateholder's pro rata share (based on Class A Certificates
held by such Class A Certificateholder) of the amounts on deposit in the
Distribution Account payable to the Class A Certificateholders pursuant to
Article IV by check mailed to each Class A Certificateholder, provided
that, so long as the Class A Certificates are held by the Funding Agent,
such amount shall be payable by wire transfer in immediately available
funds remitted in accordance with written directions from the Funding Agent
and received not later than 11:30 a.m., New York time, on the related
Distribution Date.
43
(b) On each Distribution Date, the Paying Agent shall distribute (in
accordance with the certificate delivered by Servicer to Trustee pursuant
to subsection 3.04(b)) to the Collateral Interest Holder for such
Distribution Date (other than as provided in subsection 2.04(e) or Section
12.03 respecting a final distribution) the amounts on deposit in the
Distribution Account payable to the Collateral Interest Holder pursuant to
Article IV by check mailed to the Collateral Interest Holder; provided
that, so long as the Collateral Interest is held by the Funding Agent, such
amount shall be payable by wire transfer in immediately available funds
remitted in accordance with written directions from the Funding Agent and
received not later than 11:30 a.m., New York time, on the related
Distribution Date.
Section 5.02. CERTIFICATEHOLDERS' STATEMENT.
(a) Monthly Certificateholders' Statement. On or before the thirteenth
calendar day of each month, the Paying Agent shall make available to each
Series 2005-1 Certificateholder, the Funding Agent, the Trustee (if the
Trustee is not acting as Paying Agent) and each Rating Agency a statement
substantially in the form of Exhibit C to this Supplement prepared by
Servicer.
(b) Annual Certificateholders Tax Statement. On or before January 31
of each calendar year, beginning with calendar year 2006, Trustee shall
furnish or cause to be furnished to each Person who at any time during the
preceding calendar year was a Series 2005-1 Certificateholder an annual
statement prepared by Servicer substantially in the form of Exhibit C
hereto. Such obligations of Trustee shall be deemed to have been satisfied
to the extent that substantially comparable information shall be provided
by Trustee pursuant to any requirements of the Internal Revenue Code as in
effect from time to time.
(c) Reports by Trustee. Trustee will make the report referred to in
Section 5.02(a) (and, at its option, any additional files containing the
same information in an alternative format) available each month to
Certificateholders and other parties to the Agreement via Trustee's
internet website, which is presently located at
www.bnyinvestorreporting.com. Trustee shall have the right to change the
way the report referred to in Section 5.02(a) herein is distributed in
order to make such distribution more convenient and/or more accessible to
the above parties and to the Certificateholders. Trustee shall provide
timely and adequate notification to all above parties and to the
Certificate holders regarding any such change.
SECTION 8. SERIES 2005-1 PAY OUT EVENTS. Subject to the last paragraph of
this Section 8, the following events are Series 2005-1 Pay Out Events:
(a) failure on the part of RPA Seller, Servicer, Transferor or the
Indenture Transferor (i) to make any payment or deposit required to be made
by it by the terms of the Agreement, this Supplement, the Certificate
Purchase Agreement, the Loan Agreement or any other Transaction Document on
or before the date occurring two (2) Business Days after the date such
payment or deposit is required to be made therein or herein or (ii) duly to
observe or perform any other of its covenants or agreements set forth in
the Agreement, this Supplement, the Certificate Purchase Agreement, the
Loan
44
Agreement or any other Transaction Document, which failure has a material
adverse effect on any Class of the Series 2005-1 Certificates and which
continues unremedied for a period of thirty (30) days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to RPA Seller, Servicer or Transferor by Trustee, or
to Servicer, Transferor and Trustee by the Majority Certificateholders or
the Funding Agent and which continues to materially and adversely affect
the interest of any Class of the Series 2005-1 Certificateholders for such
period;
(b) any representation or warranty made by RPA Seller, Servicer,
Transferor or the Indenture Transferor under the Agreement, the Indenture
or any supplement to either of them, or any other Transaction Document, or
any information contained in a computer file or microfiche list required to
be delivered by Servicer, Transferor or the Indenture Transferor pursuant
to any Transaction Document, 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 thirty (30) days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to RPA Seller, Servicer or Transferor by
the Trustee, or to RPA Seller, Transferor and Trustee by the Majority
Certificateholders or the Funding Agent and as a result of which the
interests of any Class of the Series 2005-1 Certificateholders are
materially and adversely affected and continue to be materially and
adversely affected for such period; provided, however, that a Series 2005-1
Pay Out Event pursuant to this subsection (b) 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 Agreement;
(c) a failure by Transferor or the Indenture Transferor to convey
Receivables arising under Additional Accounts to the Trust pursuant to
subsection 2.06(a) of the Agreement, 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 funding certificate issued under the Agreement or
revolving note issued under the Indenture 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 Indenture
shall occur;
(e) the Portfolio Yield averaged over three consecutive Monthly
Periods is less than the Base Rate averaged over such period;
(f) the Invested Amount shall not be paid in full on the Scheduled
Payment Date;
(g) a default in the payment of any interest on any Series 2005-1
Certificate or any note issued under a Note Series, or in payment of any
Facility Fee, in each case when
45
the same becomes due and owing and such default continues for a period of
thirty-five (35) days;
(h) prior to the Series Termination Date, the occurrence of a Trust
Pay Out Event as defined in Section 9.01 of the Agreement;
(i) the Investor Interest is reduced below the Invested Amount on any
date and Transferor fails to permanently reduce the Maximum Investor
Interest to zero within five (5) Business Days after the Distribution Date
on which such event occurs;
(j) failure by Transferor to grant and maintain a valid first
perfected security interest in Receivables in favor of Trustee, or failure
by RPA Seller to grant and maintain a valid first perfected security
interest in Receivables in favor of Transferor (and Trustee, as its
assignee), or failure by Servicer to maintain either of such security
interests;
(k) the Internal Revenue Service or the Pension Benefit Guaranty
Corporation files notice of a Lien with regard to any assets of RPA Seller,
Servicer or Transferor and such Lien is not released within ten (10)
Business Days of the date on which Servicer or Transferor becomes (or
should have become) aware of the existence of such Lien, but solely if such
Lien can become a Lien on the Receivables which is senior to the interest
of Trustee;
(l) a Change of Control of RPA Seller, Servicer or Transferor shall
occur;
(m) the occurrence of any event which, with the giving of notice or
passage of time or both, would give rise to a Pay Out Event under any other
Series or Note Series.
then, in the case of any event described in subsection (a), (b), (d), (j), (l)
or (m), after the applicable grace period, if any, set forth in such
subsections, either Trustee, the Majority Certificateholders or the Funding
Agent by notice then given in writing to Transferor and Servicer (and to Trustee
if given by the Funding Agent) may declare that a "Series Pay Out Event" with
respect to Series 2005-1 (a "Series 2005-1 Pay Out Event") has occurred as of
the date of such notice, and, in the case of any event described in subsection
(c), (e), (f), (g), (h) or (i), a Series 2005-1 Pay Out Event shall occur
without any notice or other action on the part of Trustee, the Majority
Certificateholders or the Funding Agent immediately upon the occurrence of such
event. In the event that the Majority Certificateholders or the Funding Agent
gives notice to Transferor, Servicer and Trustee that an event described in any
of subsection (a), (b), (d), (j), (l) or (m), after the applicable grace period,
if any, set forth in such subsection, should be declared to be a Series Pay Out
Event, such declaration shall become effective on the tenth (10th) day following
receipt of such notice unless the Funding Agent or the Majority
Certificateholders, as applicable, has provided a written waiver of such
declaration.
SECTION 9. RESTRICTIONS ON TRANSFER.
(a) For purposes of this Agreement, the Collateral Interest shall be treated as
Subject Certificates under Section 6.15. At no time shall the aggregate number
of Private Holders with respect to the Collateral Interest exceed 10 or such
greater number as to which Transferor shall consent in writing. Any purported
transfer, assignment or other conveyance (including any
46
participation) of the Collateral Interest in contravention of the foregoing
restriction shall be null and void ab initio and the purported transferor shall
continue to be treated as the holder of such Collateral Interest and the
purported transferee shall not be recognized as a Collateral Interest Holder by
Transferor or Trustee.
(b) The Class A Certificates have not been, and will not be, registered under
the Securities Act or any state securities law. No reoffer, resale, pledge
(except as provided in the Asset Purchase Agreement) or other transfer of any
Class A Certificate or any interest therein or participation thereof subsequent
to the initial purchase from Transferor will be made unless such resale or
transfer is made pursuant to Rule 144A under the Securities Act to a Person whom
the seller of the Certificates reasonably believes is a QIB purchasing for its
own account or a QIB purchasing for the account of a QIB, whom the seller has
informed, in each case, that the reoffer, resale, pledge or other transfer is
being made in reliance on Rule 144A and Transferor delivers a Certificate in the
form of Exhibit E hereto. Neither Transferor nor Trustee is obligated to
register the Class A Certificates under the Securities Act or to take any action
otherwise required under this Agreement or this Series Supplement to permit the
transfer of Class A Certificates without registration.
(c) Each Class A Certificate will bear legends substantially in the forms set
forth below:
"THIS CERTIFICATE 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 CERTIFICATE 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 CERTIFICATE IS
SUBJECT TO CERTAIN CONDITIONS SET FORTH IN A CERTIFICATE PURCHASE AGREEMENT
RELATING HERETO.
THE HOLDER OF THIS CLASS A CERTIFICATE SHALL BE DEEMED TO REPRESENT AND WARRANT
THAT IT IS NOT ACQUIRING THE CERTIFICATE 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").
THIS CERTIFICATE WILL NOT BE ACCEPTED FOR REGISTRATION OF TRANSFER EXCEPT UPON
PRESENTATION OF EVIDENCE SATISFACTORY TO TRUSTEE THAT THE RESTRICTIONS ON
TRANSFER SET FORTH ABOVE HAVE BEEN COMPLIED WITH, ALL AS PROVIDED IN THE
AGREEMENT."
(d) The Collateral Interest shall be subject to the restrictions on transfer set
forth in the Loan Agreement.
47
SECTION 10. NONPETITION.
(a) NONPETITION IN FAVOR OF THE TRUST, NOTE TRUST OR TRANSFEROR. Servicer,
Trustee and (with respect to the Trust and the Note Trust) Transferor, by
entering into this Supplement, and each Series 2005-1 Certificateholder, by
accepting an Investor Certificate, hereby covenant and agree that they will not
at any time institute against the Trust, the Note Trust or Transferor, or join
in any institution against the Trust, the Note Trust or the Transferor of, any
bankruptcy proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Investor
Certificates, the Agreement or this Supplement; provided, however that nothing
herein shall prohibit Trustee from filing proofs of claim or otherwise
participating in any such proceedings instituted by any other person.
(b) NONPETITION IN FAVOR OF THE CP VEHICLES. Each of the parties hereto, by
entering into this Supplement, covenants and agrees it will not at any time
institute against, or join any other Person in instituting against, the CP
Vehicles any bankruptcy, reorganization, arrangement, insolvency or liquidation
or other similar proceedings under any U.S. federal or state bankruptcy or
similar law; provided, however that nothing herein shall prohibit Trustee from
filing proofs of claim or otherwise participating in any such proceedings
instituted by any other person..
SECTION 11. MISCELLANEOUS PROVISIONS.
(a) RATIFICATION OF AGREEMENT. As supplemented by this Supplement, the
Agreement is in all respects ratified and confirmed and the Agreement as so
supplemented by this Supplement shall be read, taken and construed as one and
the same instrument. The Collateral Interest Holder and its successors and
assigns shall be a third party beneficiary of this Agreement.
(b) COUNTERPARTS. This Supplement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all of such counterparts shall together constitute but one and the same
instrument.
(c) GOVERNING LAW. This Supplement shall be construed in accordance with
the laws of the State of Nebraska, without reference to its conflict-of-laws
provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
48
IN WITNESS WHEREOF, the undersigned have caused this Series 2005-1 Supplement to
be duly executed and delivered by their respective duly authorized officers on
the day and year first above written.
FIRST NATIONAL FUNDING LLC, as
Transferor
By First National Funding Corporation, its
Managing Member
By /s/ KARLYN M. KNIERIEM
-------------------------------------------
Name Karlyn M. Knieriem
Title Vice President
FIRST NATIONAL BANK OF OMAHA, as Servicer
By /s/ TIMOTHY D. HART
-------------------------------------------
Name Timothy D. Hart
Title Senior Vice President
THE BANK OF NEW YORK, as Trustee
By /s/ JOHN BOBKO
-------------------------------------------
Name John Bobko
Title Vice President
SERIES SUPPLEMENT SIGNATURE PAGE
49
EXHIBIT A
FORM OF CLASS A CERTIFICATE
THIS CERTIFICATE 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 CERTIFICATE 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 CERTIFICATE IS
SUBJECT TO CERTAIN CONDITIONS SET FORTH IN A CERTIFICATE PURCHASE AGREEMENT
RELATING HERETO.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF, AND EACH HOLDER OF A
BENEFICIAL INTEREST THEREIN, 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"), FIRST NATIONAL FUNDING
LLC ("TRANSFEROR"), OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY
INSTITUTION IN INSTITUTING AGAINST FBMCCT, FNFC OR TRANSFEROR, 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 CERTIFICATES, THE POOLING AND
SERVICING AGREEMENT OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS A CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AND
EACH HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS A
CERTIFICATES AS INDEBTEDNESS 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 CERTIFICATE SHALL BE DEEMED TO REPRESENT AND WARRANT
THAT IT IS NOT ACQUIRING THE CERTIFICATE 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").
THIS CERTIFICATE WILL NOT BE ACCEPTED FOR REGISTRATION OF TRANSFER EXCEPT UPON
PRESENTATION OF EVIDENCE SATISFACTORY TO TRUSTEE THAT THE RESTRICTIONS ON
TRANSFER SET FORTH ABOVE HAVE BEEN COMPLIED WITH, ALL AS PROVIDED IN THE
AGREEMENT.
A-2
No. $___________ (Maximum)
FIRST BANKCARD MASTER CREDIT CARD TRUST
SERIES 2005-1
CLASS A VARIABLE FUNDING CERTIFICATE
Each $1,000 minimum denomination represents
an Undivided Interest in the
First Bankcard Master Credit Card Trust Series 2005-1
Evidencing an Undivided Interest in a trust, the corpus of which consists of a
portfolio of MasterCard1 and VISA(1) credit card receivables generated or
acquired by First National Bank of Omaha and other assets and interests
constituting the Trust under the Pooling and Servicing Agreement described
below.
(Not an interest in or obligation of Transferor, First National Bank of Omaha or
any Affiliate thereof.)
This certifies that ___________________ (the "Class A Certificateholder") is the
registered owner of an Undivided Interest in the principal amount of up to
$541,500,000 in a trust (the "Trust"), the corpus of which consists of a
portfolio of receivables (the "Receivables") now existing or hereafter created
and arising in connection with selected MasterCard and VISA credit card accounts
(the "Accounts") of First National Bank of Omaha, all moneys due or to become
due in payment of the Receivables (including all Finance Charge Receivables),
all proceeds of such Receivables, proceeds of credit insurance policies relating
to the Receivables, all moneys on deposit in certain bank accounts of the Trust
(including, if specified, certain investment earnings thereon), the right to
certain amounts received as Interchange with respect to the Accounts, and the
other assets and interests constituting the Trust pursuant to a Second Amended
and Restated Pooling and Servicing Agreement dated as of October 24, 2002, as
amended or supplemented from time to time (the "Pooling and Servicing
Agreement"), by and between First National Funding LLC, as Transferor, First
National Bank of Omaha, as Servicer, and The Bank of New York, as Trustee (the
"Trustee").
Transferor has structured the Pooling and Servicing Agreement and the Series
2005-1 Certificates with the intention that the Series 2005-1 Certificates will
qualify under applicable tax law as indebtedness, and Transferor, the Holder of
the Transferor Interest, Servicer and each Series 2005-1 Certificateholder, by
acceptance of its Series 2005-1 Certificate, agrees to treat and to take no
action inconsistent with the treatment of the Series 2005-1 Certificates (or
beneficial interest therein) for purposes of federal, state, local and foreign
income or franchise taxes and any other tax imposed on or measured by income, as
indebtedness. Each Series 2005-1 Certificateholder agrees that it will cause any
beneficial owner acquiring an interest in a Series 2005-1 Certificate through it
to comply with the Pooling and Servicing Agreement as to treatment as
indebtedness for certain tax purposes.
- -------------------------------
(1) MasterCard and VISA are registered trademarks of MasterCard
International Incorporated and of VISA USA, Inc., respectively.
A-3
To the extent not defined herein, capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Class A
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement and the Series 2005-1
Supplement thereto, to which Pooling and Servicing Agreement and the Series
2005-1 Supplement thereto, as amended from time to time, the Class A
Certificateholder by virtue of the acceptance hereof assents and by which the
Class A Certificateholder is bound.
This Class A Certificate does not represent an obligation of, or an interest in,
Transferor or Servicer, and neither the Series 2005-1 Certificates nor the
Accounts or Receivables are insured or guaranteed by the Federal Deposit
Insurance Corporation or any other governmental agency. This Series 2005-1
Certificate is limited in right of payment to certain collections respecting the
Receivables, all as more specifically set forth hereinabove and in the Pooling
and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by or on
behalf of Trustee, by manual signature, this Class A Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement, or be valid
for any purpose.
IN WITNESS WHEREOF, First National Funding LLC has caused this Class A
Certificate to be duly executed.
FIRST NATIONAL FUNDING LLC, as
Transferor
By First National Funding Corporation, its
Managing Member
By
-------------------------------------------
Name
-----------------------------------------
Title
----------------------------------------
A-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
CERTIFICATE OF AUTHENTICATION
This is the Class A Certificate referred to in the within mentioned Pooling and
Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By
--------------------------------
Name
------------------------------
Authorized Officer
Date:
A-5
CLASS A CERTIFICATE
INITIAL CLASS A CLASS A CLASS A CURRENT
CLASS A INCREASE REDUCTION PRINCIPAL CLASS A CLASS A
INTEREST AMOUNTS AMOUNTS PAYMENTS CHARGE-OFFS INTEREST
$
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
----------- ------------ ------------ ----------- ----------- --------
EXHIBIT B
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO TRUSTEE
FIRST BANKCARD MASTER CREDIT CARD TRUST
SERIES 2005-1
The undersigned, a duly authorized representative of First National Bank of
Omaha ("FNBO"), as Servicer pursuant to the Second Amended and Restated Pooling
and Servicing Agreement, dated as of October 24, 2002 (the "Pooling and
Servicing Agreement") among FNBO, as Servicer, First National Funding LLC, as
transferor ("Transferor") and The Bank of New York, as Trustee ("Trustee"), does
hereby certify as follows:
A. Capitalized terms used in this Certificate have their respective
meanings set forth in the Pooling and Servicing Agreement as supplemented
by the 2005-1 Supplement, dated as of October 17, 2005, among Servicer,
Transferor and Trustee (as amended and supplemented, the "Supplement").
B. FNBO is Servicer.
C. The undersigned is a Servicing Officer of Servicer.
I. INSTRUCTION TO MAKE A WITHDRAWAL
Pursuant to Section 4.04, Servicer does hereby instruct 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
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 Monthly Period...............................$_______________
The Class A Facility Fee...............................$_______________
Class A Interest Shortfall due to
Class A Certificateholders.............................$_______________
Class A Default Interest for such
Distribution Date......................................$_______________
Class A Default Interest previously due but
not distributed to Class A Certificateholders..........$_______________
Total..................................................$_______________
Benchmark Amount applicable to the Class A
Certificates for Distribution Date.....................$_______________
Amount not distributed pursuant to subsection
4.04(a)(i) due to Benchmark Amount applicable to
the Class A Certificates...............................$_______________
B. Pursuant to subsection 4.04(a)(ii):
Investor Servicing Fee for such Transfer Date, plus
the amount of any Investor Servicing Fee previously
due but not distributed to Servicer on a prior
Transfer Date..........................................$_______________
C. Pursuant to subsection 4.04(a)(iii):
Senior Cost Amount for Class A Certificates to be
deposited to Distribution Account......................$_______________
D. Pursuant to subsection 4.04(a)(iv):
CI Monthly Interest Payment for the preceding
Monthly Period.........................................$_______________
The CI Facility Fee....................................$_______________
CI Interest Shortfall due to Collateral Interest
Holder.................................................$_______________
CI Default Interest for such Distribution Date.........$_______________
CI Default Interest previously due but not
distributed to Collateral Interest Holder..............$_______________
Total..................................................$_______________
Benchmark Amount applicable to the Collateral
Interest for such Distribution Date....................$_______________
Amount not distributed pursuant to subsection
4.04(a)(iv) due to Benchmark Amount applicable to
the Collateral Interest................................$_______________
B-2
E. Pursuant to subsection 4.04(a)(v):
Other Senior Cost Amount for Collateral Interest to
be deposited to Distribution Account...................$_______________
F. Pursuant to subsection 4.04(a)(vi):
Investor Default Amount to be treated as Available
Principal Collections..................................$_______________
Uncovered Dilution Amount for such Distribution
Date to be treated as Available Principal
Collections............................................$_______________
G. Pursuant to subsections 4.04(a)(vii) and (viii):
The amount of Investor Charge Offs not previously
reimbursed to be treated as Available Principal
Collections............................................$_______________
Class A Charge-offs.............................$_______________
CI Charge-offs..................................$_______________
H. Pursuant to subsection 4.04(a)(ix):
The amount of Reallocated Principal Collections not
previously reimbursed to be treated as Available
Principal Collections..................................$_______________
I. Pursuant to subsection 4.04(a)(x):
Amounts to be deposited into the Spread Account........$_______________
J. Pursuant to subsection 4.04(a)(xi):
Class A amounts not distributed pursuant to
subsection 4.04(a)(i) because of the proviso and
which have not been distributed as part of Class A
Senior Cost Amount.....................................$_______________
B-3
K. Pursuant to subsection 4.04(a)(xii):
Collateral Interest amounts not distributed
pursuant to subsection 4.04(a)(iv) because of the
proviso and which have not been distributed as part
of Collateral Interest Senior Cost Amount..............$_______________
L. Pursuant to subsection 4.04(a)(xiii):
Other amounts payable by Transferor to Funding
Agent, Certificateholders, Support Providers or
others to be deposited into the Distribution
Account................................................$_______________
M. Pursuant to subsection 4.04(a)(xiv):
The balance will constitute Excess Finance Charge
Collections for such Distribution Date.................$_______________
N. Excess Finance Charge Collections available and
required to support other Series in Group One..........$_______________
O. Excess Finance Charge Collections available to
cover Excess Servicing Fee.............................$_______________
Pursuant to Section 4.04(b) and (c), Servicer does hereby instruct 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 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):
An amount equal to the Funding Account Deficiency
to be withdrawn from Principal Account and
deposited into Funding Account.........................$_______________
An amount equal to the remaining Available
Principal Collections to be treated as Excess
Principal Collections and applied in accordance
with Section 4.08......................................$_______________
B-4
B. Pursuant to subsection 4.04(c)(i):
During the Amortization Period, an amount equal to
the Class A Monthly Principal to be withdrawn from
the Principal Account and deposited to the
Distribution Account for payment to the Class A
Certificateholders.....................................$_______________
C. Pursuant to subsection 4.04(c)(ii):
During the Amortization Period, after giving effect
to Clause (B) above, an amount equal to the CI
Monthly Principal, to be withdrawn from the
Principal Account and deposited to the Distribution
Account for payment to the Collateral Interest
Holder.................................................$_______________
D. Pursuant to subsection 4.04(c)(iii):
An amount equal to the other amounts payable by
Transferor to Funding Agent, Certificateholders,
Support Providers or others to be deposited into
the Distribution Account...............................$_______________
E. Pursuant to subsection 4.04(c)(iv):
Available Principal Collections, if any, remaining
after giving effect to Clauses (B) through (D)
above, to be treated as Excess Principal Collections
and applied in accordance with Section 4.08............$_______________
Pursuant to Section 4.06, Servicer does hereby instruct Trustee (i) to make a
withdrawal from the Principal Account on ___________, 200__ which date is a
Distribution Date under the Supplement, in an aggregate amount not to exceed the
Monthly Principal Reallocation Amount as set forth below in respect of the
following amounts and to deposit such funds to the Distribution Account, and
(ii) to apply the proceeds of such withdrawal in accordance with Section 4.06:
Reallocated Principal Collections to fund any
deficiency in the amount payable pursuant to
subsection 4.04(a)(i)..................................$_______________
Reallocated Principal Collections to fund any
deficiency in the amount payable pursuant to
subsection 4.04(a)(ii).................................$_______________
B-5
Pursuant to Section 4.09, Servicer does hereby instruct Trustee to deposit
interest and earnings on the funds on deposit in the Principal Account, the
Finance Charge Account and the Distribution Account to an account designated by
Servicer:
Earnings on Principal Account, Finance Charge
Account and Distribution Account to the order of
Servicer..............................................$_______________
Pursuant to Section 4.12(c), Servicer does hereby instruct Trustee to withdraw
from the Spread Account an amount equal to a deficiency in the aggregate amount
of Available Finance Charge Collections available to make the deposit required
pursuant to Section 4.04(a)(iv), up to the Available Spread Account Amount, in
the following amount.
$_______________
[Pursuant to Section 4.12(d), Servicer does hereby instruct Trustee to withdraw
from the Spread Account an amount equal to the Collateral Interest Invested
Amount, up to the Available Spread Account Amount, in the following amount.]
$_______________
[Pursuant to Section 4.12(e), Servicer does hereby instruct Trustee to withdraw
from the Spread Account an amount equal to the Invested Amount, up to the
Available Spread Account Amount, in the following amount.]
$_______________
Pursuant to Section 4.19(c), Servicer does hereby instruct Trustee to withdraw
from the Funding Account an amount equal to [the amount of any Spread Account
Deficiency that will exist on the applicable Adjustment Date] [the amount
required pursuant to Section 4.11(a)(v)(C) in connection with a decrease in the
Invested Amount in excess of amounts available pursuant to Section 4.11(a)(v)(A)
and (B)].
$_______________
II. INSTRUCTIONS TO MAKE CERTAIN PAYMENTS
Pursuant to Section 5.01, Servicer does hereby instruct Trustee or Paying Agent,
as the case may be, to pay in accordance with Section 5.01 from the Distribution
Account on _________________, which date is a Distribution Date under the
Supplement, the following amounts:
A. Pursuant to subsection 5.01(a):
(1) To the Class A Certificateholder, the amounts on
deposit in the Distribution Account that are
allocated and available on such Distribution Date
to pay interest (including the Class A Facility
Fee) on the Class A Certificates pursuant to the
Supplement............................................$_______________
B-6
(2) To the Class A Certificateholder, the amounts on
deposit in the Distribution Account that are
allocated and available on such Distribution Date
to pay principal of the Class A Certificates
pursuant to the Supplement............................$_______________
B. Pursuant to subsection 5.01(b):
(1) To the Collateral Interest Holder, the amounts on
deposit in the Distribution Account that are
allocated and available on such Distribution Date
to pay interest (including the CI Facility Fee) on
the Collateral Interest pursuant to the Supplement....$_______________
(2) To the Collateral Interest Holder, the amounts on
deposit in the Distribution Account that are
allocated and available on such Distribution Date
to pay principal of the Collateral Interest
pursuant to the Supplement............................$_______________
B-7
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
_________ day of ___________________, 200__.
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
B-8
EXHIBIT C
FORM OF MONTHLY REPORT TO CERTIFICATEHOLDERS
FIRST BANKCARD MASTER CREDIT CARD TRUST SERIES 2005-1
MONTHLY PERIOD ENDING: __________
The undersigned, a duly authorized representative of First National Bank of
Omaha ("FNBO"), as Servicer pursuant to the Second Amended and Restated Pooling
and Servicing Agreement dated as of October 24, 2002 (as amended, the "Pooling
and Servicing Agreement") by and between FNBO, as Servicer, First National
Funding LLC, as Transferor, and The Bank of New York, as trustee ("Trustee"),
does hereby certify as follows:
(a) The Pooling and Servicing Agreement has been supplemented by the Series
2005-1 Supplement, dated as of October 17, 2005, by and among Servicer,
Transferor and Trustee. Capitalized terms used in this Certificate have their
respective meanings set forth in the Pooling and Servicing Agreement, as so
supplemented. References herein to certain sections and subsections are
references to the respective sections and subsections of the Pooling and
Servicing Agreement. This Certificate is delivered pursuant to Section 3.04 of
the Pooling and Servicing Agreement.
(b) FNBO is the Servicer under the Pooling 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 2005-1 Pay Out Event and no
Trust Pay Out Event has occurred except as described below:
[If applicable, insert "None"]
(g) As of the date hereof the Available Spread Account Amount equals the
Required Spread Account Amount.
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. (a) End of Monthly Period Trust Receivables _______________
(b) End of Monthly Period Total Outstanding
Notes/Certificates _______________
(c) Minimum Transferor Interest (7% of (b)) _______________
(d) Total Transferor Interest ((a) minus (b)) _______________
3. Delinquent Balances
Delinquency Aggregate Account Percentage of
Category Balance Total Receivables
- --------------------------------------------------------------------------------
(a) 30 to 59 days ___________________________________________
(b) 60 to 89 days ___________________________________________
(c) 90 to 119 days ___________________________________________
(d) 120 to 149 days ___________________________________________
(e) 150 or more days ___________________________________________
Total: ___________________________________________
4. Aggregate amount of Collections _______________
(a) Total Collections _______________
(b) Total Collections of Principal Receivables _______________
(c) Total Collections of Finance Charge Receivables _______________
(d) Aggregate Allocation Percentages for Outstanding
Series _______________
(e) Aggregate Allocation Percentage of Collections of
Principal Receivables _______________
(f) Aggregate Allocation Percentage of Collections of
Finance Charge Receivables _______________
(g) Principal payment rate _______________
5. Aggregate amount of Principal Receivables in Accounts
which became Defaulted Accounts during the Monthly Period _______________
6. Calculation of Interchange allocable to FNBO 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 Trust _______________
(c) Total amount of Interchange paid or payable to FNBO
with respect to the Monthly Period _______________
- ----------------------------
(1) MasterCard and VISA are registered trademarks of MasterCard International
Incorporated and of VISA USA, Inc., respectively.
C-2
(d) Amount of Interchange allocable to Series 2005-1
with respect to the Monthly Period ([c]
multiplied by [b/a] multiplied by the Allocation
Percentage for Finance Charge Collections) _______________
(e) Servicer Interchange amount (1.5% of Invested
Amount at end of prior Monthly Period) _______________
(f) Adjustment to Investor Service Fee (excess of (e)
over (d)) _______________
7. The aggregate amount of Collections of Finance Charge
Receivables for the Trust for the Monthly Period
(a) Interchange _______________
(b) Recoveries _______________
(c) Finance Charges and Fees _______________
(d) Discount Option Receivables _______________
Total _______________
8. Aggregate Uncovered Dilution Amount for the Monthly
Period _______________
B. INFORMATION REGARDING THE SERIES 2005-1 CERTIFICATES
1. Investor Interest 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) Investor Interest at the close of business on the
Distribution Date _______________
2. Invested Amount at the close of business on the
related Distribution Date _______________
(a) Class A Invested Amount _______________
(b) Collateral Interest Invested Amount _______________
Total Invested Amount _______________
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 _______________
C-3
6. Aggregate amounts treated as Available Principal
Collections pursuant to subsections 4.04(a)(vi),
(vii) and (viii) of the related Supplement _______________
7. Reallocated Principal Collections (up to the Monthly
Principal Reallocation Amount) applied pursuant to
Section 4.06 of the related Supplement _______________
8. AVAILABLE PRINCIPAL COLLECTIONS (4+5+6-7) _______________
9. Investor Finance Charge Collections (including
Interchange and Recoveries) processed during the
Monthly Period _______________
10. Excess Finance Charge Collections from Group I
allocated to the Series _______________
11. Excess amounts from Spread Account to be treated as
Available Finance Charge Collections pursuant to
Section 4.12(g) of the related Supplement _______________
12. AVAILABLE FINANCE CHARGE COLLECTIONS (9+10+11) _______________
13. Distributions of principal and interest to
Certificateholders on the Distribution Date:
(a) Class A Certificateholders _______________
(b) Collateral Interest Holder _______________
14. Distributions of principal to Certificateholders on
the Distribution Date:
(a) Class A Certificateholders _______________
(b) Collateral Interest Holder _______________
15. Distributions of interest to Certificateholders on
the Distribution Date:
(a) Class A Certificateholders _______________
(b) Collateral Interest Holder _______________
16. 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 (a x b) _______________
17. The aggregate amount of Uncovered Dilution Amount
allocated to the Series for the Monthly Period
C-4
(a) Dilutions not covered by Transferor _______________
(b) Series Allocation Percentage (as defined in the
related Supplement) _______________
(c) Total Uncovered Dilution Amount _______________
18. The aggregate amount of Investor Charge-Offs
(including any Uncovered Dilution Amount not covered
by the Transferor) for the Monthly Period _______________
19. Investor Servicing Fee for the Monthly Period payable
to the Servicer (after adjustment for Servicer
Interchange shortfall, if any) _______________
20. Interest Rate for the Monthly Period
(a) Class A Certificate Interest Rate _______________
(b) CI 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) (a minus b) _______________
(a) Gross portfolio yield ____________%
(b) Gross default rate ____________%
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 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 Supplement for
distribution to Collateral Interest Holder _______________
3. Aggregate amount required to be withdrawn pursuant to
Section 4.12(d) of the related Supplement plus
Investment Earnings credit to the Spread Account for
distribution in reduction of the Collateral Interest
Invested Amount _______________
4. Aggregate amount required to be withdrawn pursuant to
Section 4.12(e) of the related Supplement for
distribution in reduction of the Collateral Interest
Invested Amount _______________
C-5
5. Spread Account Percentage for the Distribution Date
for the Monthly Period _______________
6. Closing Required Spread Account Amount for the
Distribution Date for the Monthly Period _______________
7. Amount on deposit in Spread Account after required
withdrawals on the Distribution Date for the Monthly
Period (1-(2+3+4)) _______________
8. Spread Account Deficiency, if any [(6 MINUS 7)] _______________
9. Amounts deposited pursuant to Section 4.04(a)(x) of
the related Supplement _______________
10. Remaining Spread Account Deficiency, if any [(8 MINUS 9)] _______________
C-6
IN WITNESS thereof, the undersigned has duly executed and delivered this
Certificate the ________ day of __________________, _______.
FIRST NATIONAL BANK OF OMAHA,
Servicer
By
-------------------------------------
Name
------------------------------------
Title
-----------------------------------
C-7
EXHIBIT D
FORM OF MONTHLY SERVICER'S CERTIFICATE
FIRST NATIONAL BANK OF OMAHA
FIRST BANKCARD MASTER CREDIT CARD TRUST, SERIES 2005-1
The undersigned, a duly authorized representative of First National Bank of
Omaha ("FNBO"), pursuant to the Second Amended and Restated Pooling and
Servicing Agreement, dated as of October 24, 2002, as supplemented by the Series
2005-1 Supplement, dated as of October 17, 2005 (the "Pooling and Servicing
Agreement"), by and between FNBO, as Servicer, First National Funding LLC
("FNFL"), as Transferor, and The Bank of New York, as trustee (the "Trustee"),
does hereby certify that:
1. FNBO is, as of the date hereof, Servicer under the Pooling and Servicing
Agreement.
2. The undersigned is a Servicing Officer of Servicer.
3. This Certificate relates to the Distribution Date occurring on
_______________, 200__.
4. 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 Pooling
and Servicing Agreement 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".
5. As of the date hereof, to the best knowledge of the undersigned, no Pay
Out Event, Event of Default, Servicer Default or Cap Increase Event occurred on
or prior to such Distribution Date.
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
_______ day of _______________, 200__.
FIRST NATIONAL BANK OF OMAHA, as
Servicer
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
EXHIBIT E
FORM OF INVESTOR CERTIFICATION
[DATE]
The Bank of New York
as Trustee
2 North LaSalle Street
Suite 1020
Chicago, IL 60602
Attention: Corporate Trust Division
Re: First Bankcard Master Credit Card Trust, Series 2005-1
Ladies and Gentlemen:
In connection with our proposed purchase of $_________ in principal amount of
First Bankcard Master Credit Card Trust, Series 2005-1 Class A Variable Funding
Certificates (the "Certificates"), we confirm that:
1. We agree to be bound by the restrictions and conditions set forth in the
Second Amended and Restated Pooling and Servicing Agreement, dated as of October
24, 2002, as supplemented by the Series 2005-1 Supplement thereto, dated October
17, 2005 (collectively, the "Pooling and Servicing Agreement"), each by and
among First National Bank of Omaha, as Servicer, First National Funding LLC, as
Transferor, and The Bank of New York, as Trustee (the "Trustee"), and agree to
be bound by, and not reoffer, resell, pledge or otherwise transfer (any such
act, a "Transfer"), the Certificates except in compliance with such restrictions
and conditions.
2. We understand that the Certificates have not been and will not be
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or any state securities law and agree that the Certificates may be reoffered,
resold, pledged or otherwise transferred only in compliance with the Securities
Act and other applicable laws and only to a person that we reasonably believe is
a qualified institutional buyer within the meaning of Rule 144A (a "QIB")
purchasing for its own account or a QIB purchasing for the account of a QIB,
whom we have informed, in each case, that the reoffer, resale, pledge or other
transfer is being made in reliance on Rule 144A.
3. We are [a QIB purchasing for our own account] [a QIB purchasing for the
account of a QIB]. We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Certificates, and we and any account for which we are acting
are each able to bear the economic risk of our or its investment.
4. We are acquiring the Certificates purchased by us for investment purposes
and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act. We hereby agree that we will
not resell or otherwise transfer the Certificates or any interest therein unless
the purchaser thereof provides or has provided to the addressee hereof a letter
substantially in the form hereof. We further understand that, on any proposed
resale, pledge or transfer of any Certificates, we will be required to furnish
to the Trustee and the Registrar such
certification and other information as the Trustee or the Registrar may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions and with the restrictions and conditions of the Certificates and
the Pooling and Servicing Agreement pursuant to which the Certificates were
issued. We further understand that Certificates purchased by us will bear a
legend to the foregoing effect.
5. We are not (i) an employee benefit plan (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")) that is
subject to the provisions of Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Code, (iii) a governmental plan, as defined in Section 3(32)
of ERISA, subject to any federal, state or local law which is, to a material
extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the
Code, (iv) an entity whose underlying assets include plan assets by reason of a
plan's investment in the entity, or (v) a person investing "plan assets" of any
such plan (including, for purposes of clauses (iv) and (v), any insurance
company general account, but excluding any entity registered under the
Investment Company Act of 1940, as amended).
6. We further understand that, on any proposed resale, pledge or transfer of
any Certificates, we will be required to furnish to Trustee and the Registrar
such certification and other information as Trustee or the Registrar may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions and with the restrictions and conditions of the Certificates and
the Pooling and Servicing Agreement pursuant to which the Certificates were
issued. We further understand that Certificates purchased by us will bear a
legend to the foregoing effect.
7. The person signing this letter on behalf of the ultimate beneficial
purchaser of the Certificates has been duly authorized by such beneficial
purchaser of the Certificates to do so, and this letter has been duly executed
and delivered and constitutes the legal, valid and binding obligation of the
purchaser, enforceable against the purchaser in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles affecting the
enforcement of creditors' rights generally and general principles of equity.
You are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
E-2