EXHIBIT 4.2
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SERIES 2003-1 INDENTURE SUPPLEMENT
Dated as of March 20, 2003
to
MASTER INDENTURE
Dated as of October 24, 2002
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FIRST NATIONAL MASTER NOTE TRUST,
Issuer,
and
THE BANK OF NEW YORK,
Indenture Trustee on behalf of the Noteholders
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FIRST NATIONAL MASTER NOTE TRUST
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TABLE OF CONTENTS
Page
ARTICLE I
CREATION OF THE SERIES 2003-1 NOTES.................................................................. 1
ARTICLE II
DEFINITIONS.......................................................................................... 1
ARTICLE III
NOTEHOLDER SERVICING FEE
Section 3.01. Servicing Compensation.......................................................................... 14
ARTICLE IV
RIGHTS OF NOTEHOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.01. Collections and Allocations..................................................................... 14
Section 4.02. Determination of Monthly Interest............................................................... 16
Section 4.03. Determination of Monthly Principal.............................................................. 18
Section 4.04. Application of Available Finance Charge Collections and Available Principal Collections......... 18
Section 4.05. Investor Charge-Offs............................................................................ 21
Section 4.06. Reallocated Principal Collections............................................................... 21
Section 4.07. Excess Finance Charge Collections............................................................... 21
Section 4.08. Excess Principal Collections.................................................................... 22
Section 4.09. Certain Series Accounts......................................................................... 22
Section 4.10. Reserve Account................................................................................. 24
Section 4.11. Reserved........................................................................................ 26
Section 4.12. Spread Account.................................................................................. 26
Section 4.13. Investment Instructions......................................................................... 28
Section 4.14. Accumulation Period............................................................................. 28
Section 4.15. Suspension of Accumulation Period............................................................... 29
Section 4.16. Determination of LIBOR.......................................................................... 31
Section 4.17. Interchange..................................................................................... 31
Section 4.18. Foreign Accounts................................................................................ 32
ARTICLE V
DELIVERY OF NOTES; DISTRIBUTIONS; REPORTS TO NOTEHOLDERS
Section 5.01. Delivery and Payment for the Series 2003-1 Notes................................................ 32
Section 5.02. Distributions................................................................................... 32
Section 5.03. Reports and Statements to Series 2003-1 Noteholders............................................. 33
ARTICLE VI
Series 2003-1 Pay Out Events......................................................................... 34
ARTICLE VII
REDEMPTION; FINAL DISTRIBUTIONS; SERIES TERMINATION
Section 7.01. Optional Redemption of Series 2003-1 Notes; Final Distributions................................. 35
Section 7.02. Series Termination.............................................................................. 37
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Ratification of Indenture; Amendments........................................................... 37
Section 8.02. Form of Delivery of the Series 2003-1 Notes..................................................... 37
Section 8.03. Counterparts.................................................................................... 37
Section 8.04. Governing Law................................................................................... 37
Section 8.05. Limitation of Liability......................................................................... 37
Section 8.06. Rights of Indenture Trustee..................................................................... 38
Section 8.07. Additional Requirements for Registration of and Limitations on Transfer
and Exchange of Notes........................................................................... 38
EXHIBIT A-1 FORM OF CLASS A NOTE
EXHIBIT A-2 FORM OF CLASS B NOTE
EXHIBIT A-3 FORM OF CLASS C NOTE
EXHIBIT B FORM OF MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO INDENTURE TRUSTEE
EXHIBIT C FORM OF MONTHLY REPORT TO NOTEHOLDERS
EXHIBIT D FORM OF MONTHLY SERVICER'S CERTIFICATE
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SERIES 2003-1 INDENTURE SUPPLEMENT
SERIES 0000-0 XXXXXXXXX SUPPLEMENT, dated as of March 20, 2003 (the "Indenture
Supplement"), between FIRST NATIONAL MASTER NOTE TRUST, a statutory trust
organized and existing under the laws of the State of Delaware (herein, "Issuer"
or the "Trust"), and THE BANK OF NEW YORK, a New York banking corporation, not
in its individual capacity, but solely as indenture trustee (herein, together
with its successors in the trusts thereunder as provided in the Master Indenture
referred to below, "Indenture Trustee") under the Master Indenture, dated as of
October 24, 2002 (the "Indenture"), between Issuer and Indenture Trustee (the
Indenture, together with this Indenture Supplement, the "Agreement").
Pursuant to Section 2.11 of the Indenture, Transferor may direct Issuer to issue
one or more Series of Notes. The Principal Terms of this Series are set forth in
this Indenture Supplement to the Indenture.
ARTICLE I
CREATION OF THE SERIES 2003-1 NOTES
There is hereby created and designated a Series of Notes to be issued pursuant
to the Indenture and this Indenture Supplement to be known as "First National
Master Note Trust, Series 2003-1" or the "Series 2003-1 Notes." The Series
2003-1 Notes shall be issued in three Classes, known as the "Class A Floating
Rate Asset Backed Notes, Series 2003-1," the "Class B 2.76% Asset Backed Notes,
Series 2003-1," and the "Class C Floating Rate Asset Backed Notes, Series
2003-1."
Series 2003-1 shall be included in Group One and shall be a Principal Sharing
Series. Series 2003-1 shall be an Excess Allocation Series with respect to Group
One only. Series 2003-1 shall not be subordinated to any other Series and shall
not be a Paired Series.
ARTICLE II
DEFINITIONS
Whenever used in this Indenture Supplement, the following words and phrases
shall have the following meanings, and the definitions of such terms are
applicable to the singular as well as the plural forms of such terms and the
masculine as well as the feminine and neuter genders of such terms.
"Accumulation Period" means, unless a Pay Out Event shall have occurred prior
thereto, the period commencing at the opening of business on the Controlled
Accumulation Date and ending on the first to occur of (a) the commencement of
the Rapid Amortization Period and (b) the Series Termination Date.
"Accumulation Period Length" is defined in Section 4.14.
"Accumulation Shortfall" means (a) for the first Distribution Date during the
Accumulation Period, zero; and (b) thereafter, for any Distribution Date during
the Accumulation Period, the excess, if any, of the Controlled Deposit Amount
for the previous Distribution Date over the
amount deposited into the Principal Accumulation Account pursuant to subsection
4.04(c)(i) for the previous Distribution Date.
"Allocation Percentage" means, with respect to any Monthly Period, the
percentage equivalent of a fraction:
(a) the numerator of which shall be equal to:
(i) for Principal Collections during the Revolving Period, and
for Finance Charge Collections during the Revolving Period and the
Accumulation Period, and for Default Amounts at any time, the
Collateral Amount at the end of the last day of the prior Monthly
Period (or, in the case of the Monthly Period in which the Closing
Date occurs, on the Closing Date); or
(ii) for Finance Charge Collections during the Rapid
Amortization Period and for Principal Collections during the Rapid
Amortization Period and the Accumulation Period, the Collateral
Amount at the end of the last day of the Revolving Period, or, with
respect to Finance Charge Collections, if later, at the end of the
last day of the Accumulation Period;
provided, however, that prior to the occurrence of a Pay Out Event
Transferor may, by written notice to Indenture Trustee, Servicer and each
Rating Agency, reduce the numerator used for purposes of allocating
Principal Collections and Finance Charge Collections to Series 2003-1 at
any time if (x) the Rating Agency Condition shall have been satisfied with
respect to such reduction and (y) Transferor shall have delivered to
Indenture Trustee an Officer's Certificate to the effect that, based on
the facts known to such officer at that time, in the reasonable belief of
Transferor, such designation will not cause a Pay Out Event or an event
that, after the giving of notice or the lapse of time, would cause a Pay
Out Event to occur with respect to Series 2003-1; and provided, further,
that Transferor may designate that the numerator for Finance Charge
Collections during the Rapid Amortization Period will be the Collateral
Amount at the end of the last day of the prior Monthly Period by notice to
Servicer and Indenture Trustee, if the Rating Agency Condition has been
met; and
(b) the denominator of which shall be the greater of (x) the
Aggregate Principal Balance determined as of the close of business on the
last day of the prior Monthly Period and (y) the sum of the numerators
used to calculate the allocation percentages for allocations with respect
to Finance Charge Collections, Principal Collections or Default Amounts,
as applicable, for all outstanding Series and all outstanding Series under
(and as defined in) the Pooling and Servicing Agreement (other than any
Series represented by the Collateral Certificate) on such date of
determination; provided, that if one or more Reset Dates occur in a
Monthly Period, the denominator of the Allocation Percentage for the
portion of the Monthly Period falling on and after such Reset Date and
prior to any subsequent Reset Date will be recalculated for such period
using amounts determined as of the close of business on the subject Reset
Date.
"Available Finance Charge Collections" means, for any Monthly Period, an amount
equal to the sum of (a) the Investor Finance Charge Collections for such Monthly
Period, plus (b) the Excess
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Finance Charge Collections allocated to Series 2003-1 for such Monthly Period,
plus (c) Principal Accumulation Investment Proceeds, if any, with respect to the
related Transfer Date, plus (d) amounts on deposit in the Reserve Account and
Spread Account deposited into the Finance Charge Account on the related Transfer
Date to be treated as Available Finance Charge Collections pursuant to
subsections 4.10(b) or (d) and 4.12(g).
"Available Principal Collections" means, for any Monthly Period, an amount equal
to the sum of (a) the Investor Principal Collections for such Monthly Period,
minus (b) the amount of Reallocated Principal Collections with respect to such
Monthly Period which pursuant to Section 4.06 are required to be applied on the
related Distribution Date, plus (c) any Excess Principal Collections, plus (d)
the aggregate amount to be treated as Available Principal Collections pursuant
to subsections 4.04(a)(v) and (vi) for the related Distribution Date.
"Available Reserve Account Amount" means, for any Transfer Date, the lesser of
(a) the amount on deposit in the Reserve Account (after taking into account any
interest and earnings retained in the Reserve Account pursuant to subsection
4.10(b) on such date, but before giving effect to any deposit to or withdrawal
from the Reserve Account made or to be made on such date) and (b) the Required
Reserve Account Amount for such Transfer Date.
"Available Spread Account Amount" means, for any Transfer Date, an amount equal
to the lesser of (a) the amount on deposit in the Spread Account (exclusive of
Investment Earnings on such date and before giving effect to any deposit to, or
withdrawal from, the Spread Account made or to be made with respect to such
date) and (b) the Required Spread Account Amount, in each case on such Transfer
Date.
"Base Rate" means, for any Monthly Period, the annualized percentage equivalent
of a fraction, (a) the numerator of which is equal to the sum of (i) the Monthly
Interest and (ii) the Noteholder Servicing Fee (calculated by assuming that
Interchange equals or exceeds Servicer Interchange for such Monthly Period),
each with respect to the related Distribution Date, and (b) the denominator of
which is the Collateral Amount plus amounts on deposit in the Principal
Accumulation Account as of the first day of such Monthly Period.
"Class A Default Interest" is defined in subsection 4.02(a).
"Class A Interest Shortfall" is defined in subsection 4.02(a).
"Class A Monthly Interest Payment" is defined in subsection 4.02(a).
"Class A Note Initial Principal Balance" means $415,000,000.
"Class A Note Interest Rate" means a per annum rate of 0.10% in excess of LIBOR
as determined on the LIBOR Determination Date for the applicable Interest
Period.
"Class A Note Principal Balance" means, on any date of determination, an amount
equal to (a) the Class A Note Initial Principal Balance, minus (b) the aggregate
amount of principal payments made to Class A Noteholders on or prior to such
date.
"Class A Noteholder" means the Person in whose name a Class A Note is registered
in the Note Register.
"Class A Notes" means any one of the Notes executed by Issuer and authenticated
by or on behalf of Indenture Trustee, substantially in the form of Exhibit A-1.
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"Class A Required Amount" means, for any Distribution Date, an amount equal to
the excess of the amounts described in subsection 4.04(a)(i) over the Available
Finance Charge Collections applied to pay such amount pursuant to subsection
4.04(a).
"Class B Default Interest" is defined in subsection 4.02(b).
"Class B Interest Shortfall" is defined in subsection 4.02(b).
"Class B Monthly Interest Payment" is defined in subsection 4.02(b).
"Class B Note Initial Principal Balance" means $38,750,000.
"Class B Note Interest Rate" means a per annum rate of 2.76%.
"Class B Note Principal Balance" means, on any date of determination, an amount
equal to (a) the Class B Note Initial Principal Balance, minus (b) the aggregate
amount of principal payments made to Class B Noteholders on or prior to such
date.
"Class B Noteholder" means the Person in whose name a Class B Note is registered
in the Note Register.
"Class B Notes" means any one of the Notes executed by Issuer and authenticated
by or on behalf of Indenture Trustee, substantially in the form of Exhibit A-2.
"Class B Required Amount" means, for any Distribution Date, an amount equal to
the excess of the amount described in subsection 4.04(a)(ii) over the Available
Finance Charge Collections applied to pay such amount pursuant to subsection
4.04(a).
"Class C Default Interest" is defined in subsection 4.02(c).
"Class C Interest Shortfall" is defined in subsection 4.02(c).
"Class C Monthly Interest Payment" is defined in subsection 4.02(c).
"Class C Note Initial Principal Balance" means $46,250,000.
"Class C Note Interest Rate" means a per annum rate of 1.60% in excess of LIBOR
as determined on the LIBOR Determination Date for the applicable Interest
Period.
"Class C Note Principal Balance" means, on any date of determination, an amount
equal to (a) the Class C Note Initial Principal Balance, minus (b) the aggregate
amount of principal payments made to Class C Noteholders on or prior to such
date.
"Class C Noteholder" means the Person in whose name a Class C Note is registered
in the Note Register.
"Class C Notes" means any one of the Notes executed by Issuer and authenticated
by or on behalf of Indenture Trustee, substantially in the form of Exhibit A-3
or Exhibit A-4.
"Closing Date" means March 20, 2003.
"Collateral Amount" means, as of any date of determination, an amount equal to
the result of (a) the Initial Collateral Amount, minus (b) the amount of
principal previously paid to the Series 2003-1 Noteholders (other than any
principal payments made from funds on deposit in the Spread Account), minus (c)
the balance on deposit in the Principal Accumulation Account, minus (d) the
excess, if any, of the aggregate amount of Investor Charge-Offs and Reallocated
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Principal Collections over the reimbursements of such amounts pursuant to
subsection 4.04(a)(vi) prior to such date.
"Controlled Accumulation Amount" means, (a) for any Transfer Date with respect
to the Accumulation Period an amount equal to one-twelfth of the Collateral
Amount at the end of the Revolving Period; provided, however, that if the
Accumulation Period Length is determined to be less than 12 months pursuant to
Section 4.14 or 4.15, the Controlled Accumulation Amount shall be equal to (i)
the Initial Collateral Amount divided by (ii) the Accumulation Period Length;
provided, further, that the Controlled Accumulation Amount for any Transfer Date
shall not exceed the Note Principal Balance minus any amount already on deposit
in the Principal Accumulation Account on the Transfer Date.
"Controlled Accumulation Date" means March 1, 2005, or such later date as is
determined in accordance with Sections 4.14 and 4.15.
"Controlled Deposit Amount" means, for any Transfer Date with respect to the
Accumulation Period, an amount equal to the sum of the Controlled Accumulation
Amount for such Transfer Date and any existing Accumulation Shortfall.
"Covered Amount" means an amount, determined as of each Transfer Date for any
Interest Period, equal to the sum of (a) the product of (i) a fraction the
numerator of which is the actual number of days in such Interest Period and the
denominator of which is 360, times (ii) the Class A Note Interest Rate in effect
with respect to such Interest Period, times (iii) the aggregate amount on
deposit in the Principal Accumulation Account up to the Class A Note Principal
Balance as of the Record Date preceding such Transfer Date, plus (b) the product
of (i) a fraction the numerator of which is 30 and the denominator of which is
360, times (ii) the Class B Note Interest Rate in effect with respect to such
Interest Period, times (iii) the aggregate amount on deposit in the Principal
Accumulation Account in excess of the Class A Principal Balance as of the Record
Date preceding such Transfer Date up to the Class B Principal Balance as of the
Record Date preceding such Transfer Date, plus (c) the product of (i) a fraction
the numerator of which is the actual number of days in such Interest Period and
the denominator of which is 360, times (ii) the Class C Note Interest Rate in
effect with respect to such Interest Period, times (iii) the aggregate amount on
deposit in the Principal Accumulation Account in excess of the sum of the Class
A Principal Balance and the Class B Principal Balance as of the Record Date
preceding such Transfer Date.
"Default Amount" means, with respect to any Transfer Date, the aggregate amount
of Principal Receivables (other than Ineligible Receivables) in Accounts which
became Defaulted Accounts during the Related Monthly Period.
"Default Interest" means, for any Distribution Date, Class A Default Interest,
Class B Default Interest and Class C Default Interest for such Distribution
Date.
"Designated Maturity" means, for any LIBOR Determination Date, one month;
provided that LIBOR for the initial Interest Period will be determined by
straight-line interpolation (based on the actual number of days in the initial
Interest Period) between two rates determined in accordance with the definition
of LIBOR, one of which will be determined for a Designated Maturity of one month
and the other of which will be determined for a Designated Maturity of two
months.
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"Dilution" means any downward adjustment made by Servicer in the amount of any
Receivable (a) because of a rebate, refund, unauthorized charge, fraudulent or
counterfeit charge or billing error to an accountholder, (b) because such
Receivable was created in respect of merchandise which was refused or returned
by an accountholder, (c) because of a credit pursuant to a debt cancellation or
debt deferral program which is not recovered from Collections or from Insurance
Proceeds or (d) for any other reason other than receiving Collections therefor
or charging off such amount as uncollectible.
"Distribution Account" is defined in subsection 4.09(a).
"Distribution Date" means May 15, 2003 and the 15th day of each calendar month
thereafter, or if such 15th day is not a Business Day, the next succeeding
Business Day.
"Excess Servicing Fee" means, for each Distribution Date following a Servicer
Default and the appointment of a Successor Servicer, an amount equal to
one-twelfth of the product of the Collateral Amount as of the last day of the
preceding Monthly Period and the excess of the market rate servicing fee
percentage determined by Indenture Trustee over the Servicing Fee Percentage.
Indenture Trustee may determine the market rate servicing fee percentage by
soliciting three or more written bids from qualified successors services and
averaging the rates offered in the bids.
"Excess Spread Percentage" means Net Yield.
"Expected Principal Payment Date" means March 15, 2006.
"Finance Charge Account" is defined in Section 4.09(a).
"Finance Charge Collections" means Collections of Finance Charge Receivables.
"Finance Charge Shortfall" is defined in Section 4.07.
"Foreign Account" means an Account, which as of the Cut Off Date (or, with
respect to Additional Accounts, as of the relevant Addition Date) was an
Eligible Account, but subsequent to such date the Obligor of which has provided,
as its most recent billing address, an address which is not located in the
United States or its territories or possessions.
"Group One" means Series 2003-1, the outstanding PSA Series (other than any
Series represented by the Collateral Certificate) and each other Series
hereafter specified in the related Indenture Supplement to be included in Group
One.
"Initial Collateral Amount" means $500,000,000.
"Interest Period" means, for any Distribution Date, the period from and
including the Distribution Date immediately preceding such Distribution Date
(or, in the case of the first Distribution Date, from and including the Closing
Date) to but excluding such Distribution Date.
"Investment Earnings" means, for any Distribution Date, all interest and
earnings on Permitted Investments included in the Spread Account (net of losses
and investment expenses) during the period commencing on and including the
Distribution Date immediately preceding such Distribution Date and ending on but
excluding such Distribution Date.
"Investor Charge-Offs" is defined in Section 4.05.
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"Investor Default Amount" means, with respect to any Monthly Period, an amount
equal to the product of (a) the Default Amount for such Monthly Period and (b)
the Allocation Percentage for Default Amounts for such Monthly Period.
"Investor Finance Charge Collections" means, with respect to any Date of
Processing, an amount equal to the product of (a) the Allocation Percentage for
such Date of Processing and (b) Collections in respect of Finance Charge
Receivables received on such date and, with respect to any Monthly Period, the
aggregate of such sums for each Date of Processing in such Monthly Period.
"Investor Principal Collections" means, with respect to any Date of Processing,
an amount equal to the product of (a) the Allocation Percentage for such day and
(b) Collections in respect of Principal Receivables received on such Date of
Processing and, with respect to any Monthly Period, the aggregate of such sums
for each Date of Processing in such Monthly Period.
"LIBOR" means, for any Interest Period, an interest rate per annum for such
Interest Period determined by Indenture Trustee in accordance with the
provisions of Section 4.16.
"LIBOR Determination Date" means (i) March 18, 2003 for the period from and
including the Closing Date through and including May 14, 2003 and (ii) the
second London Business Day prior to the commencement of each subsequent Interest
Period.
"London Business Day" means any day on which dealings in deposits in United
States dollars are transacted in the London interbank market.
"Monthly Interest" means, for any Distribution Date, the sum of the Class A
Monthly Interest Payment, the Class B Monthly Interest Payment, and the Class C
Monthly Interest Payment for such Distribution Date.
"Monthly Period" means the period from and including the first day of the
calendar month preceding a related Distribution Date to and including the last
day of such calendar month; provided that the Monthly Period related to the May
15, 2003 Distribution Date shall mean the period from and including the Closing
Date to and including the last day of April, 2003.
"Monthly Principal" is defined in Section 4.03.
"Monthly Principal Reallocation Amount" means, for any Monthly Period, an amount
equal to the sum of:
(a) the lower of (i) the Class A Required Amount and (ii) the
greater of (A)(x) the product of (I) 17.00% and (II) the Initial
Collateral Amount minus (y) the amount of unreimbursed Investor
Charge-Offs (after giving effect to Investor Charge-Offs for the related
Monthly Period) and unreimbursed Reallocated Principal Collections (as of
the previous Distribution Date) and (B) zero; and
(b) the lower of (i) the sum of the Class B Required Amount and the
Servicing Fee Required Amount and (ii) the greater of (A)(x) the product
of (I) 9.25% and (II) the Initial Collateral Amount minus (y) the amount
of unreimbursed Investor Charge-Offs (after giving effect to Investor
Charge-Offs for the related Monthly Period) and unreimbursed Reallocated
Principal Collections (as of the previous Distribution Date and as
determined pursuant to clause (a) above) and (B) zero.
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"Net Yield" means, with respect to any Monthly Period, Portfolio Yield with
respect to such Monthly Period minus the Base Rate with respect to such Monthly
Period.
"Note Principal Balance" means, on any date of determination, an amount equal to
the sum of the Class A Note Principal Balance, the Class B Note Principal
Balance and the Class C Note Principal Balance.
"Noteholder Servicing Fee" is defined in Section 3.01.
"Paired Series" means a Series that has been paired with Series 2003-1 (which
Series may be prefunded or partially prefunded or may be a Variable Interest)
such that a reduction of the Collateral Amount results in (or permits) an
increase of the Collateral Amount of the Paired Series.
"Percentage Allocation" is defined in subsection 4.01(b)(ii)(B).
"Permitted Investments" is defined in Annex A to the Indenture.
"Portfolio Yield" means, for any Monthly Period, the annualized percentage
equivalent of a fraction, (a) the numerator of which is equal to the sum of (i)
the Available Finance Charge Collections (excluding any Excess Finance Charge
Collections and any amounts withdrawn from the Spread Account, except that
Excess Finance Charge Collections from other Series applied for the benefit of
Series 2003-1 Notes may be included if the Rating Agency Condition is met),
minus (ii) the Investor Default Amount and the Uncovered Dilution Amount for
such Monthly Period and (b) the denominator of which is the Collateral Amount
plus amounts on deposit in the Principal Accumulation Account as of the first
day of such Monthly Period.
"Principal Account" is defined in subsection 4.09(a).
"Principal Accumulation Account" is defined in subsection 4.09(a).
"Principal Accumulation Account Balance" means, for any date of determination,
the principal amount, if any, on deposit in the Principal Accumulation Account
on such date of determination.
"Principal Accumulation Investment Proceeds" means, with respect to each
Transfer Date, the investment earnings on funds in the Principal Accumulation
Account (net of investment expenses and losses) for the period from and
including the immediately preceding Transfer Date to but excluding such Transfer
Date.
"Principal Collections" means Collections of Principal Receivables.
"Principal Shortfall" is defined in Section 4.08.
"PSA Series" means a Series under (and as defined in) the Pooling and Servicing
Agreement.
"Qualified Maturity Agreement" means an agreement in which a Qualified Maturity
Agreement Institution agrees to make a deposit into the Principal Accumulation
Account on or before the Expected Principal Payment Date in an amount equal to
the initial Note Principal Balance (reduced by any amount on deposit in the
Principal Accumulation Account).
"Qualified Maturity Agreement Institution" means a counterparty having
short-term debt ratings of no less than "P-1/A-1+" by Moody's and Standard &
Poor's, respectively, or long-term unsecured ratings of no less than "Aa3" by
Moody's and "AA-" by Standard & Poor's.
"Quarterly Net Yield" means, for any Distribution Date, the average of the Net
Yields for each of the three preceding Monthly Periods, and, for purposes of the
May, 2003 and June, 2003
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Distribution Dates, the Net Yields for February and March, 2003 shall be deemed
to be 6.59% and 6.81%, respectively.
"Rapid Amortization Period" means the period commencing on the date on which a
Trust Pay Out Event or a Series 2003-1 Pay Out Event is deemed to occur and
ending on the Series Termination Date.
"Rating Agency" means each of Fitch, Moody's and Standard & Poor's.
"Reallocated Principal Collections" means, for any Transfer Date, Investor
Principal Collections applied in accordance with Section 4.06 in an amount not
to exceed the Monthly Principal Reallocation Amount for the related Monthly
Period.
"Reassignment Amount" means, for any Transfer Date, after giving effect to any
deposits and distributions otherwise to be made on the related Distribution
Date, the sum of (i) the Note Principal Balance on the related Distribution
Date, plus (ii) Monthly Interest for the related Distribution Date and any
Monthly Interest previously due but not distributed to the Series 2003-1
Noteholders, plus (iii) the amount of Default Interest, if any, for the related
Distribution Date and any Default Interest previously due but not distributed to
the Series 2003-1 Noteholders on a prior Distribution Date.
"Reference Banks" means four major banks in the London interbank market selected
by Servicer.
"Required Reserve Account Amount" means, for any Transfer Date on or after the
Reserve Account Funding Date, an amount equal to (a) 0.50% of the Note Principal
Balance or (b) any other amount designated by Transferor; provided, however,
that if such designation is of a lesser amount, Transferor shall (i) provide
Servicer and Indenture Trustee with evidence that the Rating Agency Condition
shall have been satisfied and (ii) deliver to Indenture Trustee a certificate of
an Authorized Officer to the effect that, based on the facts known to such
officer at such time, in the reasonable belief of Transferor, such designation
will not cause a Pay Out Event or an event that, after the giving of notice or
the lapse of time, would cause a Pay Out Event to occur with respect to Series
2003-1.
"Required Retained Transferor Percentage" means, for purposes of Series 2003-1,
7%.
"Required Spread Account Amount" means, for any date of determination, (a) prior
to the occurrence of a Pay Out Event, the product of (i) the Spread Account
Percentage in effect on such date and (ii) the Initial Collateral Amount;
provided that the Required Spread Account Amount shall not exceed the Class C
Note Principal Balance minus the excess, if any, of the Principal Accumulation
Account Balance over the sum of the Class A Note Principal Balance and the Class
B Note Principal Balance on such date of determination and (b) after the
occurrence of a Pay Out Event, an amount equal to the Class C Note Principal
Balance on such date of determination.
"Reserve Account" is defined in subsection 4.10(a).
"Reserve Account Funding Date" means the Transfer Date designated by Servicer
which occurs not later than the earliest of (a) the Transfer Date with respect
to the Monthly Period which commences three months prior to the commencement of
the Accumulation Period (which commencement shall be subject to postponement
pursuant to Section 4.15); (b) the first Transfer Date for which the Quarterly
Net Yield is less than 2.0%, but in such event the Reserve Account Funding Date
shall not be required to occur earlier than the Transfer Date with respect to
the
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Monthly Period which commences 12 months prior to the commencement of the
Accumulation Period; (c) the first Transfer Date for which the Quarterly Net
Yield is less than 3.0%, but in such event the Reserve Account Funding Date
shall not be required to occur earlier than the Transfer Date with respect to
the Monthly Period which commences six months prior to the commencement of the
Accumulation Period; and (d) the first Transfer Date for which the Quarterly Net
Yield is less than 4.0%, but in such event the Reserve Account Funding Date
shall not be required to occur earlier than the Transfer Date with respect to
the Monthly Period which commences four months prior to the commencement of the
Accumulation Period; provided, however, that subject to satisfaction of the
Rating Agency Condition, the Reserve Account Funding Date may be any date
selected by Servicer; provided, further, that the Reserve Account Funding Date
shall be the Distribution Date immediately following the date on which a
Qualified Maturity Agreement is terminated if (w) such Qualified Maturity
Agreement is terminated because the provider of such Qualified Maturity
Agreement ceases to qualify as a Qualified Maturity Agreement Institution, (x)
such Qualified Maturity Agreement is terminated prior to the earlier of the
Expected Principal Payment Date and the commencement of the Rapid Amortization
Period, (y) such Qualified Maturity Agreement is terminated after the later of
the last day of the February, 2006 Monthly Period and, at the election of
Transferor, the date to which the commencement of the Accumulation Period may be
postponed pursuant to Section 4.14 (as determined on the date of such
termination) and (z) Transferor does not obtain a substitute Qualified Maturity
Agreement.
"Reserve Account Surplus" means, as of any Transfer Date following the Reserve
Account Funding Date, the amount, if any, by which the amount on deposit in the
Reserve Account exceeds the Required Reserve Account Amount.
"Reserve Draw Amount" means, with respect to each Transfer Date relating to the
Accumulation Period or the first Transfer Date relating to the Rapid
Amortization Period, the amount, if any, by which the Principal Accumulation
Investment Proceeds for such Distribution Date are less than the Covered Amount
determined as of such Transfer Date.
"Reset Date" means:
(a) each Addition Date and each "Addition Date" (as such term is
defined in the Pooling and Servicing Agreement), in each case relating to
Additional Accounts;
(b) each Removal Date and each "Removal Date" (as such term is
defined in the Pooling and Servicing Agreement) on which Principal
Receivables are removed from the Receivables Trust;
(c) each date on which there is an increase in the outstanding
balance of any Variable Interest or any variable funding certificate
issued pursuant to the Pooling and Servicing Agreement; and
(d) each date on which a new Series or Class of Notes is issued and
each date on which a new "Series" or "Class" (each as defined in the
Pooling and Servicing Agreement) of investor certificates is issued by the
Certificate Trust.
10
"Revolving Period" means the period beginning on the Closing Date and ending at
the close of business on the day immediately preceding the earlier of the day
the Accumulation Period commences or the day the Rapid Amortization Period
commences.
"Series 2003-1" means the Series of Notes the terms of which are specified in
this Indenture Supplement.
"Series 2003-1 Final Maturity Date" means the August, 2008 Distribution Date.
"Series 2003-1 Note" means a Class A Note, a Class B Note or a Class C Note.
"Series 2003-1 Noteholder" means a Class A Noteholder, a Class B Noteholder or a
Class C Noteholder.
"Series 2003-1 Pay Out Event" is defined in Section 6.01.
"Series Allocation Percentage" means, with respect to any Monthly Period, the
percentage equivalent of a fraction, the numerator of which is the numerator
used in determining the Allocation Percentage for Finance Charge Collections for
that Monthly Period and the denominator of which is the sum of the numerators
used in determining the Allocation Percentage for Finance Charge Receivables for
all outstanding Series and PSA Series for such Monthly Period; provided that if
one or more Reset Dates occur in a Monthly Period, the Series Allocation
Percentage will be the percentage equivalent of a fraction, the numerator of
which is an amount equal to the sum of the numerators used in determining the
Allocation Percentage for Finance Charge Collections for Series 2003-1 for each
day during that Monthly Period divided by the total number of days in such
Monthly Period and the denominator of which is an amount equal to the sum of the
numerators used in determining the Allocation Percentages for Finance Charge
Receivables for all outstanding Series and PSA Series for each day during such
Monthly Period divided by the total number of days in such Monthly Period.
"Series Servicing Fee Percentage" means 2% per annum.
"Series Termination Date" means the earliest to occur of (a) the date on which
the Note Principal Balance is paid in full, (b) the date on which the Collateral
Amount is reduced to zero and (c) the Series 2003-1 Final Maturity Date.
"Servicer Interchange" means, with respect to any Monthly Period, an amount
equal to one-twelfth of the product of (a) 1.00% and (b) the Collateral Amount
as of the last day of the preceding Monthly Period; provided, however, that
Servicer Interchange for the May, 2003 Distribution Date shall be $575,342.
"Servicing Fee Required Amount" means, for any Distribution Date, an amount
equal to the excess of the amount described in subsection 4.04(a)(iii) over the
Available Finance Charge Collections applied to pay such amount pursuant to
subsection 4.04(a).
"Spread Account" is defined in subsection 4.12(a).
"Spread Account Deficiency" means the excess, if any, of the Required Spread
Account Amount over the Available Spread Account Amount.
11
"Spread Account Percentage" means, for any Distribution Date, 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% 0.50%
5.25% 5.50% 0.75%
5.00% 5.25% 1.00%
4.75% 5.00% 2.00%
4.50% 4.75% 2.50%
4.00% 4.50% 3.00%
3.50% 4.00% 4.00%
3.00% 3.50% 5.25%
2.00% 3.00% 6.25%
2.00% 6.50%
The Initial Spread Account Percentage shall be 0.50%. The Spread Account
Percentage shall remain at that percentage until (a) further increased to a
higher required percentage as specified above or (b) the Distribution Date on
which the Quarterly Net Yield has increased to a level above that for the then
current Spread Account Percentage on each of the three immediately preceding
Distribution Dates (inclusive of the current Distribution Date), in which case
the Spread Account Percentage shall be decreased to the next lowest percentage
specified above.
"Telerate Page 3750" means the display page currently so designated on the
Bridge Telerate Markets Report (or such page as may replace that page in that
service for the purpose of displaying comparable rates or prices).
"Uncovered Dilution Amount" means an amount equal to the product of (x) the
Series Allocation Percentage for the related Monthly Period times (y) the
aggregate Dilutions occurring during that Monthly Period as to which any deposit
is required to be made to the Excess Funding Account pursuant to Section 3.09(a)
of the Transfer and Servicing Agreement or Section 4.03(c) of the Pooling and
Servicing Agreement but has not been made; provided that, if the Transferor
Interest is greater than zero at the time the deposit referred to in clause (y)
is required to be made, the Uncovered Dilution Amount for such amount to be
deposited shall be deemed to be zero.
Each capitalized term defined herein shall relate to the Series 2003-1 Notes and
no other Series of Notes issued by Issuer, unless the context otherwise
requires. All capitalized terms used herein and not otherwise defined herein
have the meanings ascribed to them in Annex A to the Master Indenture.
The interpretive rules specified in Section 1.2 of the Master Indenture also
apply to this Indenture Supplement. If any term or provision contained herein
shall conflict with or be inconsistent with any term or provision contained in
the Master Indenture, the terms and provisions of this Indenture Supplement
shall be controlling.
ARTICLE III
NOTEHOLDER SERVICING FEE
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SECTION 3.01. SERVICING COMPENSATION. The share of the Servicing Fee
allocable to Series 2003-1 for any Transfer Date (the "Noteholder Servicing
Fee") shall be equal to one-twelfth of the product of (a) the Series Servicing
Fee Percentage and (b) the Collateral Amount as of the last day of the Monthly
Period preceding such Transfer Date; provided, however, that with respect to the
first Transfer Date, the Noteholder Servicing Fee shall be equal to $1,150,685;
provided, further, that if Transferor or Indenture Trustee is Servicer, the
Noteholder Servicing Fee shall be reduced by the amount, if any, by which the
Servicer Interchange for such Monthly Period exceeds the amount of Interchange
included as Collections of Finance Charge Receivables allocable to the Series
2003-1 Notes with respect to such Monthly Period pursuant to Section 4.17 of
this Indenture Supplement. The remainder of the Servicing Fee shall be paid by
the Holders of the Transferor Interest or the Noteholders of other Series (as
provided in the related Indenture Supplements) and in no event shall Issuer,
Indenture Trustee or the Series 2003-1 Noteholders be liable for the share of
the Servicing Fee to be paid by the Holders of the Transferor Interest or the
Noteholders of any other Series.
ARTICLE IV
RIGHTS OF NOTEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
SECTION 4.01. COLLECTIONS AND ALLOCATIONS.
(a) Finance Charge Collections, Principal Collections and
Receivables in Defaulted Accounts shall be allocated and distributed to
Series 2003-1 as set forth in this Article.
(b) On each Date of Processing, Servicer shall allocate to the
Series 2003-1 Noteholders the following amounts as set forth below:
(i) Allocations of Finance Charge Collections. Servicer shall
allocate to the Series 2003-1 Noteholders an amount equal to the
product of (A) the Allocation Percentage and (B) the aggregate
Finance Charge Collections processed on such Date of Processing and
shall deposit such amount into the Finance Charge Account in
accordance with Section 8.04 of the Indenture and subsection
4.01(c).
(ii) Allocations of Principal Collections. Servicer shall
allocate to the Series 2003-1 Noteholders the following amounts as
set forth below:
(A) Allocations During the Revolving Period.
(1) During the Revolving Period an amount equal to
the product of the Allocation Percentage and the
aggregate amount of Principal Collections processed on
each Date of Processing, shall be allocated to the
Series 2003-1 Noteholders and, first, if any other
Principal Sharing Series is outstanding and in its
accumulation period or amortization period, retained in
the Principal Account for application, to the extent
necessary, as
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Excess Principal Collections to other Principal Sharing
Series on the related Distribution Date, second,
deposited to the Excess Funding Account to the extent
necessary so that the Transferor Interest is not less
than the Minimum Transferor Interest and, third, paid to
the Holders of the Transferor Interest.
(2) With respect to each Monthly Period falling in
the Revolving Period, to the extent that Collections of
Principal Receivables allocated to the Series 2003-1
Noteholders pursuant to this subsection 4.01(b)(ii) are
paid to Transferor, Transferor shall make an amount
equal to the Reallocated Principal Collections for the
related Transfer Date available on that Transfer Date
for application in accordance with Section 4.06.
(B) Allocations During the Accumulation Period. During
the Accumulation Period an amount equal to the product of the
Allocation Percentage and the aggregate amount of Principal
Collections processed on each Date of Processing (the product
for any such date is hereinafter referred to as a "Percentage
Allocation") shall be allocated to the Series 2003-1
Noteholders and deposited into the Principal Account in
accordance with Section 8.04 of the Indenture and subsection
4.01(c).
(C) Allocations During the Rapid Amortization Period.
During the Rapid Amortization Period, an amount equal to the
product of the Allocation Percentage and the aggregate amount
of Principal Collections processed on each Date of Processing
shall be allocated to the 2003-1 Noteholders and deposited
into the Principal Account until applied as provided herein;
provided, however, that after the date on which an amount of
such Principal Collections equal to the Note Principal Balance
has been deposited into the Principal Account such amount
shall be, first, if any other Principal Sharing Series is
outstanding and in its accumulation period or amortization
period, retained in the Principal Account for application, to
the extent necessary, as Excess Principal Collections to other
Principal Sharing Series on the related Distribution Date,
second, deposited in the Excess Funding Account to the extent
necessary so that the Transferor Interest is not less than the
Minimum Transferor Interest and, third, paid to the holders of
the Transferor Interest.
(c) During any period when Servicer is permitted by Section 4.03 of
the Pooling and Servicing Agreement or Section 8.04 of the Indenture to
make a single monthly deposit to the Collection Account, amounts allocated
to the Noteholders pursuant to Sections 4.01(a) and (b) with respect to
any Monthly Period need not be 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
14
Receivables (not including any Excess Principal Collections allocated to
Series 2003-1 pursuant to Section 4.03(e) of the Pooling and Servicing
Agreement or Section 8.05 of the Indenture)). The exception to the daily
deposit requirements provided by the second paragraph of Section 8.04(a)
of the Indenture shall not be available during any Monthly Period during
the Rapid Amortization Period, or at any time that the Transferor Interest
is less than the Minimum Transferor Interest, or at any time that the
Available Spread Account Amount is less than the Required Spread Account
Amount, and provided, further, that for purposes of this sentence, the
amount of Collections of Principal Receivables required to be deposited or
distributed on the related Transfer Date during the Accumulation Period
shall include an amount equal to the Controlled Deposit Amount and the
amount of Collections of Finance Charge Receivables required to be
deposited or distributed on the related Distribution Date shall include an
amount equal to the sum of:
(i) an amount equal to 125% of the Monthly Interest that was
payable on the previous Distribution Date; plus
(ii) the Noteholder Servicing Fee due on the related
Distribution Date; plus
(iii) an amount equal to 150% of the Investor Default Amount
for the previous Distribution Date.
(d) On any date, Servicer may withdraw from the Collection Account
or any Series Account any amounts inadvertently deposited in such account
that should have not been so deposited.
SECTION 4.02. DETERMINATION OF MONTHLY INTEREST.
(a) The amount of monthly interest ("Class A Monthly Interest
Payment") distributable from the Distribution Account with respect to the
Class A Notes on any Distribution Date shall be an amount equal to the
product of (i) (A) a fraction, the numerator of which is the actual number
of days in the related Interest Period and the denominator of which is
360, times (B) the Class A Note Interest Rate in effect with respect to
the related Interest Period and (ii) the Class A Note Principal Balance as
of the close of business on the last day of the preceding Monthly Period
(or, with respect to the initial Distribution Date, the Class A Note
Initial Principal Balance).
On the Determination Date preceding each Distribution Date, Servicer
shall determine the excess, if any (the "Class A Interest Shortfall"), of
(x) the aggregate amount accrued pursuant to this Section 4.02(a) as of
the prior Distribution Date over (y) the amount actually transferred from
the Distribution Account for payment of such amount. If the Class A
Interest Shortfall for any Distribution Date is greater than zero, on each
subsequent Distribution Date until such Class A Interest Shortfall is
fully paid, an additional amount ("Class A Default Interest") equal to the
product of (i) (A) a fraction, the numerator of which is the actual number
of days in the related Interest Period and the denominator of which is
360, times (B) the Class A Note Interest Rate in effect with
15
respect to the related Interest Period and (ii) such Class A Interest
Shortfall (or the portion thereof which has not been paid to the Class A
Noteholders) shall be payable as provided herein with respect to the Class
A Notes. Notwithstanding anything to the contrary herein, Class A Default
Interest shall be payable or distributed to the Class A Noteholders only
to the extent permitted by applicable law.
(b) The amount of monthly interest ("Class B Monthly Interest
Payment") distributable from the Distribution Account with respect to the
Class B Notes on any Distribution Date shall be an amount equal to the
product of (i) (A) a fraction, the numerator of which is 30 and the
denominator of which is 360, times (B) the Class B Note Interest Rate and
(ii) the Class B Note Principal Balance as of the close of business on the
last day of the preceding Monthly Period (or, with respect to the initial
Distribution Date, the Class B Note Initial Principal Balance).
On the Determination Date preceding each Distribution Date, Servicer
shall determine the excess, if any (the "Class B Interest Shortfall"), of
(x) the aggregate amount accrued pursuant to this Section 4.02(b) as of
the prior Distribution Date over (y) the amount of funds actually
transferred from the Distribution Account for payment of such amount. If
the Class B Interest Shortfall for any Distribution Date is greater than
zero, on each subsequent Distribution Date until such Class B Interest
Shortfall is fully paid, an additional amount ("Class B Default Interest")
equal to the product of (i) (A) a fraction, the numerator of which is 30
and the denominator of which is 360, times (B) the Class B Note Interest
Rate in effect with respect to the related Interest Period and (ii) such
Class B Interest Shortfall (or the portion thereof which has not been paid
to the Class B Noteholders) shall be payable as provided herein with
respect to the Class B Notes. Notwithstanding anything to the contrary
herein, Class B Default Interest shall be payable or distributed to the
Class B Noteholders only to the extent permitted by applicable law.
(c) The amount of monthly interest ("Class C Monthly Interest
Payment") distributable from the Distribution Account with respect to the
Class C Notes on any Distribution Date shall be an amount equal to the
product of (i) (A) a fraction, the numerator of which is the actual number
of days in the related Interest Period and the denominator of which is
360, times (B) the Class C Note Interest Rate in effect with respect to
the related Interest Period and (ii) the Class C Note Principal Balance as
of the close of business on the last day of the preceding Monthly Period
(or, with respect to the initial Distribution Date, the Class C Note
Initial Principal Balance).
On the Determination Date preceding each Distribution Date, Servicer
shall determine the excess, if any (the "Class C Interest Shortfall"), of
(x) the aggregate amount accrued pursuant to this Section 4.02(c) as of
the prior Distribution Date over (y) the amount of funds actually
transferred from the Distribution Account for payment of such amount. If
the Class C Interest Shortfall for any Distribution Date is greater than
zero, on each subsequent Distribution Date until such Class C Interest
Shortfall is fully paid, an additional amount ("Class C Default Interest")
equal to the product of (i) (A) a fraction, the numerator of which is the
actual number of days in the related Interest Period and the denominator
of which is 360, times (B) the Class C Note Interest Rate in
16
effect with respect to the related Interest Period and (ii) such Class C
Interest Shortfall (or the portion thereof which has not been paid to the
Class C Noteholders) shall be payable as provided herein with respect to
the Class C Notes. Notwithstanding anything to the contrary herein, Class
C Default Interest shall be payable or distributed to the Class C
Noteholders only to the extent permitted by applicable law.
SECTION 4.03. DETERMINATION OF MONTHLY PRINCIPAL. The amount of monthly
principal to be transferred from the Principal Account with respect to the Notes
on each Transfer Date (the "Monthly Principal"), beginning with the Transfer
Date in the month following the month in which the Accumulation Period or, if
earlier, the Rapid Amortization Period, begins, shall be equal to the least of
(i) the Available Principal Collections on deposit in the Principal Account with
respect to such Transfer Date, (ii) for each Transfer Date with respect to the
Accumulation Period, the Controlled Deposit Amount for such Transfer Date, (iii)
the Collateral Amount (after taking into account any adjustments to be made on
such Distribution Date pursuant to Sections 4.05 and 4.06) prior to any deposit
into the Principal Accumulation Account on such Transfer Date, and (iv) the Note
Principal Balance, minus any amount already on deposit in the Principal
Accumulation Account on such Transfer Date.
SECTION 4.04. APPLICATION OF AVAILABLE FINANCE CHARGE COLLECTIONS AND
AVAILABLE PRINCIPAL COLLECTIONS. On or before each Transfer Date, Servicer shall
instruct Indenture Trustee in writing (which writing shall be substantially in
the form of Exhibit B) to withdraw and Indenture Trustee, acting in accordance
with such instructions, shall withdraw on such Transfer Date or related
Distribution Date, as applicable, to the extent of available funds, the amount
required to be withdrawn from the Finance Charge Account, the Principal Account,
the Principal Funding Account and the Distribution Account as follows:
(a) On each Transfer Date, an amount equal to the Available Finance
Charge Collections with respect to the related Distribution Date will be
distributed or deposited in the following priority:
(i) an amount equal to Class A Monthly Interest Payment for
such Distribution Date, plus any Class A Interest Shortfall, plus
the amount of any Class A Default Interest for such Distribution
Date, plus the amount of any Class A Default Interest previously due
but not distributed to Class A Noteholders on a prior Distribution
Date shall be deposited by Servicer or Indenture Trustee into the
Distribution Account;
(ii) an amount equal to Class B Monthly Interest Payment for
such Distribution Date, plus any Class B Interest Shortfall, plus
the amount of any Class B Default Interest for such Distribution
Date, plus the amount of any Class B Default Interest previously due
but not distributed to Class B Noteholders on a prior Distribution
Date shall be deposited by Servicer or Indenture Trustee into the
Distribution Account;
(iii) if Servicer is a Person other than FNBO or an Affiliate
of FNBO, an amount equal to the Noteholder Servicing Fee for such
Transfer Date, plus the
17
amount of any Noteholder Servicing Fee previously due but not
distributed to Servicer on a prior Transfer Date, shall be
distributed to Servicer;
(iv) an amount equal to Class C Monthly Interest Payment for
such Distribution Date, plus any Class C Interest Shortfall, plus
the amount of any Class C Default Interest for such Distribution
Date, plus the amount of any Class C Default Interest previously due
but not distributed to the Class C Noteholders on a prior
Distribution Date shall be deposited by Servicer or Indenture
Trustee into the Distribution Account;
(v) an amount equal to the Investor Default Amount and any
Uncovered Dilution Amount for such Distribution Date shall be
treated as a portion of Available Principal Collections for such
Distribution Date and, during the Accumulation Period or the Rapid
Amortization Period, deposited into the Principal Account on the
related Transfer Date;
(vi) an amount equal to the sum of the aggregate amount of
Investor Charge-Offs and the amount of Reallocated Principal
Collections which have not been previously reimbursed pursuant to
this subsection (vi) shall be treated as a portion of Available
Principal Collections for such Distribution Date;
(vii) an amount equal to the excess, if any, of the Required
Spread Account Amount over the Available Spread Account Amount shall
be deposited into the Spread Account;
(viii) if Servicer is FNBO or an Affiliate of FNBO, an amount
equal to the Noteholder Servicing Fee for such Transfer Date, plus
the amount of any Noteholder Servicing Fee previously due but not
distributed to Servicer on a prior Transfer Date, shall be
distributed to Servicer;
(ix) on each Transfer Date from and after the Reserve Account
Funding Date, but prior to the date on which the Reserve Account
terminates as described in subsection 4.10(f), an amount up to the
excess, if any, of the Required Reserve Account Amount over the
Available Reserve Account Amount shall be deposited into the Reserve
Account; and
(x) the balance, if any, will constitute a portion of Excess
Finance Charge Collections for such Distribution Date.
(b) On each Transfer Date with respect to the Revolving Period, an
amount equal to the Available Principal Collections for the related
Monthly Period shall be treated as Excess Principal Collections and
applied in accordance with Section 8.05 of the Indenture.
(c) On each Transfer Date with respect to the Accumulation Period or
the Rapid Amortization Period, an amount equal to the Available Principal
Collections for the related Monthly Period shall be distributed or
deposited in the following order of priority:
18
(i) during the Accumulation Period, an amount equal to the
Monthly Principal for such Transfer Date shall be deposited into the
Principal Accumulation Account;
(ii) during the Rapid Amortization Period, an amount equal to
the Monthly Principal for such Transfer Date shall be deposited into
the Distribution Account on such Transfer Date and on each
subsequent Transfer Date for payment to the Class A Noteholders on
the related Distribution Date until the Class A Note Principal
Balance has been paid in full;
(iii) during the Rapid Amortization Period, after giving
effect to the distribution referred to in clause (ii) above, an
amount equal to the Monthly Principal remaining, if any, shall be
deposited into the Distribution Account on such Transfer Date and on
each subsequent Transfer Date for payment to the Class B Noteholders
on the related Distribution Date until the Class B Note Principal
Balance has been paid in full;
(iv) during the Rapid Amortization Period, after giving effect
to the distributions referred to in clauses (ii) and (iii) above, an
amount equal to the Monthly Principal remaining, if any, shall be
deposited into the Distribution Account on such Transfer Date and on
each subsequent Transfer Date for payment to the Class C Noteholders
on the related Distribution Date until the Class C Note Principal
Balance has been paid in full; and
(v) in the case of each of the Accumulation Period and the
Rapid Amortization Period, the balance of such Available Principal
Collections remaining after application in accordance with clauses
(i) through (iv) above shall be treated as Excess Principal
Collections and applied in accordance with Section 8.05 of the
Indenture.
(d) On each Distribution Date, Indenture Trustee shall pay in
accordance with Section 5.02 to the Class A Noteholders from the
Distribution Account, the amount deposited into the Distribution Account
pursuant to Section 4.04(a)(i) on the preceding Transfer Date, to the
Class B Noteholders from the Distribution Account, the amount deposited
into the Distribution Account pursuant to Section 4.04(a)(ii) and to the
Class C Noteholders from the Distribution Account, the amount deposited
into the Distribution Account pursuant to Section 4.04(a)(iv).
(e) On the earlier to occur of (i) the first Transfer Date with
respect to the Rapid Amortization Period and (ii) the Transfer Date
immediately preceding the Expected Principal Payment Date, Indenture
Trustee, acting in accordance with instructions from Servicer, shall
withdraw from the Principal Accumulation Account and deposit into the
Distribution Account amounts necessary to pay first, to the Class A
Noteholders, until paid in full, second, to the Class B Noteholders, until
paid in full, and, if the Rapid Amortization Period has commenced, any
remainder to the Class C Noteholders, the amounts deposited into the
Principal Accumulation Account pursuant to subsections 4.04(c)(i). On the
Class C Expected Principal Payment Date, if the Rapid
19
Amortization Period has not commenced, Indenture Trustee, acting in
accordance with instructions from Servicer, shall withdraw from the
Principal Accumulation Account and deposit into the Distribution Account
for payment to the Class C Noteholders the amounts deposited into the
Principal Accumulation Account pursuant to subsection 4.04(c)(i) on the
related Transfer Date. Indenture Trustee, acting in accordance with the
instructions of Servicer, shall in accordance with Section 5.02 pay from
the Distribution Account to the Class A Noteholders, the Class B
Noteholders and the Class C Noteholders, as applicable, the amounts
deposited for the account of such Noteholders into the Distribution
Account pursuant to this subsection 4.04(e).
SECTION 4.05. INVESTOR CHARGE-OFFS. On each Determination Date, Servicer
shall calculate the Investor Default Amount and any Uncovered Dilution Amount
for the related Distribution Date. If, on any Distribution Date, the sum of the
Investor Default Amount and any Uncovered Dilution Amount for such Distribution
Date exceeds the sum of the amount of Available Finance Charge Collections
allocated with respect thereto pursuant to subsection 4.04(a)(v) with respect to
such Distribution Date, the Collateral Amount will be reduced (but not below
zero) by the amount of such excess (such reduction, an "Investor Charge-Off").
SECTION 4.06. REALLOCATED PRINCIPAL COLLECTIONS. On each Transfer Date,
Servicer shall apply, or shall instruct Indenture Trustee in writing to apply,
Reallocated Principal Collections with respect to that Transfer Date, to fund
any deficiency pursuant to and in the priority set forth in subsections
4.04(a)(i), (ii) and (iii), after giving effect to any withdrawal from the
Spread Account pursuant to Section 4.12(g) to cover such payments. On each
Transfer Date, the Collateral Amount shall be reduced by the amount of
Reallocated Principal Collections for such Transfer Date.
SECTION 4.07. EXCESS FINANCE CHARGE COLLECTIONS. Series 2003-1 shall be an
Excess Allocation Series with respect to Group One only. For this purpose, each
outstanding series of certificates issued by First Bankcard Master Credit Card
Trust (other than series represented by the Collateral Certificate) shall be
deemed to be a Series in Group One. Subject to Section 8.06 of the Indenture,
Excess Finance Charge Collections with respect to the Excess Allocation Series
in Group One for any Transfer Date will be allocated to Series 2003-1 in an
amount equal to the product of (x) the aggregate amount of Excess Finance Charge
Collections with respect to all the Excess Allocation Series in Group One for
such Distribution Date and (y) a fraction, the numerator of which is the Finance
Charge Shortfall for Series 2003-1 for such Distribution Date and the
denominator of which is the aggregate amount of Finance Charge Shortfalls for
all the Excess Allocation Series in Group One for such Distribution Date. The
"Finance Charge Shortfall" for Series 2003-1 for any Distribution Date will be
equal to the excess, if any, of (a) the full amount required to be paid, without
duplication, pursuant to subsections 4.04(a)(i) through (x) on such Distribution
Date over (b) the Available Finance Charge Collections with respect to such
Distribution Date (excluding any portion thereof attributable to Excess Finance
Charge Collections). Following a Servicer Default and the appointment of a
Successor Servicer, Excess Finance Charge Collections remaining after their
application to cover Finance Charge Shortfalls for Group One, shall be paid to
the Successor Servicer to pay any unpaid Excess Servicing Fees prior to any
distribution to Transferor pursuant to Section 8.06 of the Indenture. Excess
Finance Charge Collections with respect to Group One shall be allocated to
20
Series 2003-1 in accordance with this Section 4.07, without regard to whether
the Rating Agency Condition has been met for purposes of the definition of
"Portfolio Yield".
SECTION 4.08. EXCESS PRINCIPAL COLLECTIONS. Subject to Section 4.03(e) of
the Pooling and Servicing Agreement and Section 8.05 of the Indenture, Excess
Principal Collections allocable to Series 2003-1 on any Transfer Date will be
equal to the product of (x) the aggregate amount of Excess Principal Collections
with respect to all Principal Sharing Series for such Transfer Date and (y) a
fraction, the numerator of which is the Principal Shortfalls for Series 2003-1
for such Transfer Date and the denominator of which is the aggregate amount of
Principal Shortfall for all the Series which are Principal Sharing Series for
such Transfer Date. For this purpose, each outstanding series of certificates
issued by First Bankcard Master Credit Card Trust (other than any series
represented by the Collateral Certificate) shall be deemed to be a Principal
Sharing Series. The "Principal Shortfall" for Series 2003-1 will be equal to (a)
for any Transfer Date with respect to the Revolving Period, zero, (b) for any
Transfer Date with respect to the Accumulation Period, the excess, if any, of
the Controlled Deposit Amount with respect to such Transfer Date over the amount
of Available Principal Collections for such Transfer Date (excluding any portion
thereof attributable to Excess Principal Collections) and (c) for any Transfer
Date with respect to the Rapid Amortization Period, the excess, if any, of the
Collateral Amount with respect to such Transfer Date over the amount of
Available Principal Collections for such Transfer Date (excluding any portion
thereof attributable to Excess Principal Collections). Excess Principal
Collections remaining on any Transfer Date after payment of Principal Shortfalls
for all Series in Group I, and after any application of Excess Principal
Collections as principal with respect to any Variable Interest or variable
funding certificates in such Group will be distributed to the Holder of the
Transferor Interest or deposited in the Excess Funding Account in accordance
with subsection 4.03(e) of the Pooling and Servicing Agreement or Section 8.05
of the Indenture, as applicable.
SECTION 4.09. CERTAIN SERIES ACCOUNTS.
(a) Indenture Trustee shall establish and maintain with a Qualified
Institution, which may be Indenture Trustee, in the name of the Trust, on
behalf of the Trust, for the benefit of the Noteholders, four segregated
trust accounts with such Qualified Institution (the "Finance Charge
Account", the "Principal Account," the "Principal Accumulation Account"
and the "Distribution Account"), each bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of
the Series 2003-1 Noteholders. Indenture Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the
Finance Charge Account, the Principal Account, the Principal Accumulation
Account and the Distribution Account and in all proceeds thereof. The
Finance Charge Account, the Principal Account, the Principal Accumulation
Account and the Distribution Account shall be under the sole dominion and
control of Indenture Trustee for the benefit of the Series 2003-1
Noteholders. If at any time the institution holding the Finance Charge
Account, the Principal Account, the Principal Accumulation Account and the
Distribution Account ceases to be a Qualified Institution, Transferor
shall notify Indenture Trustee in writing, and Indenture Trustee upon
being notified (or Servicer on its behalf) shall, within ten (10) Business
Days, establish a new Finance Charge Account, a new Principal Account, a
new Principal Accumulation Account and a new Distribution Account meeting
the conditions specified above with a Qualified
21
Institution, and shall transfer any cash or any investments to such new
Finance Charge Account, new Principal Account, new Principal Accumulation
Account and new Distribution Account. Indenture Trustee, at the written
direction of Servicer, shall (i) make withdrawals from the Finance Charge
Account, the Principal Account, the Principal Accumulation Account and the
Distribution Account from time to time, in the amounts and for the
purposes set forth in this Indenture Supplement, and (ii) on each Transfer
Date (from and after the commencement of the Accumulation Period) prior to
the termination of the Principal Accumulation Account, make deposits into
the Principal Accumulation Account in the amounts specified in, and
otherwise in accordance with, subsection 4.04(c)(i). Indenture Trustee at
all times shall maintain accurate records reflecting each transaction in
the Finance Charge Account, the Principal Account, the Principal
Accumulation Account and the Distribution Account, so long as such
accounts are established and maintained with Indenture Trustee.
(b) Funds on deposit in the Finance Charge Account, the Principal
Account, the Principal Accumulation Account and the Distribution Account,
from time to time shall be invested and reinvested at the written
direction of Servicer by Indenture Trustee in Permitted Investments that
will mature so that such funds will be available for withdrawal on or
prior to the following Transfer Date. The Indenture Trustee shall not be
held liable for the performance of any Permitted Investments made in
accordance with the terms hereof.
On each Transfer Date with respect to the Accumulation Period and on
the first Transfer Date with respect to the Rapid Amortization Period,
Indenture Trustee, acting at Servicer's direction given on or before such
Transfer Date, shall transfer from the Principal Accumulation Account to
the Finance Charge Account the Principal Accumulation Investment Proceeds
on deposit in the Principal Accumulation Account for application as
Available Finance Charge Collections in accordance with Section 4.04.
Principal Accumulation Investment Proceeds (including reinvested
interest) shall not be considered part of the amounts on deposit in the
Principal Accumulation Account for purposes of this Indenture Supplement.
On each Distribution Date, all interest and earnings (net of losses
and investment expenses) on funds on deposit in the Principal Account, the
Finance Charge Account and the Distribution Account shall be deposited by
Indenture Trustee in a separate deposit account with a Qualified
Institution in the name of Servicer, or a Person designated in writing by
Servicer, which shall not constitute a part of the Trust, or shall
otherwise be turned over by Indenture Trustee to Servicer.
(c) The Finance Charge Account, the Principal Account, the Principal
Accumulation Account, the Distribution Account, the Reserve Account and
the Spread Account are hereby designated as the Series Accounts for the
Series 2003-1 Notes.
(d) Indenture Trustee shall hold such of the Permitted Investments
of funds in any Series Account as consists of instruments, deposit
accounts, negotiable documents, money, goods, letters of credit, and
advices of credit in the State of New York. Indenture
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Trustee shall hold such of the Permitted Investments as constitutes
investment property through a securities intermediary, which securities
intermediary shall agree with Indenture Trustee that (a) such investment
property shall at all times be credited to a securities account of
Indenture Trustee, (b) such securities intermediary shall treat Indenture
Trustee as entitled to exercise the rights that comprise each financial
asset credited to such securities account, (c) all property credited to
such securities account shall be treated as a financial asset, (d) such
securities intermediary shall comply with entitlement orders originated by
Indenture Trustee without the further consent of any other person or
entity, (e) such securities intermediary will not agree with any person or
entity other than Indenture Trustee to comply with entitlement orders
originated by such other person or entity, (f) such securities accounts
and the property credited thereto shall not be subject to any lien,
security interest or right of set-off in favor of such securities
intermediary or anyone claiming through it (other than Indenture Trustee),
and (g) such agreement shall be governed by the laws of the State of New
York. Terms used in the preceding sentence that are defined in the New
York UCC and not otherwise defined herein shall have the meaning set forth
in the New York UCC. Except as permitted by this subsection 4.09(d),
Indenture Trustee shall not hold Permitted Investments through an agent or
nominee.
(e) No Permitted Investment in any Series Account shall be disposed
of prior to its maturity unless Servicer so directs and either (i) such
disposal will not result in a loss of all or part of the principal portion
of such Permitted Investment or (ii) prior to the maturity of such
Permitted Investment, a default occurs in the payment of principal,
interest or any other amount with respect to such Permitted Investment.
SECTION 4.10. RESERVE ACCOUNT.
(a) Indenture Trustee shall establish and maintain with a Qualified
Institution, which may be Indenture Trustee in the name of the Trust, on
behalf of the Trust, for the benefit of the Series 2003-1 Noteholders, a
segregated trust account (the "Reserve Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Series 2003-1 Noteholders. Indenture Trustee shall possess
all right, title and interest in all funds on deposit from time to time in
the Reserve Account and in all proceeds thereof. The Reserve Account shall
be under the sole dominion and control of Indenture Trustee for the
benefit of the Series 2003-1 Noteholders. If at any time the institution
holding the Reserve Account ceases to be a Qualified Institution,
Transferor shall notify Indenture Trustee in writing, and Indenture
Trustee upon being notified (or Servicer on its behalf) shall, within ten
(10) Business Days, establish a new Reserve Account meeting the conditions
specified above with a Qualified Institution, and shall transfer any cash
or any investments to such new Reserve Account. Indenture Trustee, at the
written direction of Servicer, shall (i) make withdrawals from the Reserve
Account from time to time in an amount up to the Available Reserve Account
Amount at such time, for the purposes set forth in this Indenture
Supplement, and (ii) on each Transfer Date (from and after the Reserve
Account Funding Date) prior to termination of the Reserve Account, make a
deposit into the Reserve Account in the amount specified in, and otherwise
in accordance with, subsection 4.04(a)(ix).
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(b) Funds on deposit in the Reserve Account shall be invested at the
written direction of Servicer by Indenture Trustee in Permitted
Investments. Funds on deposit in the Reserve Account on any Transfer Date,
after giving effect to any withdrawals from the Reserve Account on such
Transfer Date, shall be invested in such investments that will mature so
that such funds will be available for withdrawal on or prior to the
following Transfer Date.
On each Transfer Date, all interest and earnings (net of losses and
investment expenses) accrued since the preceding Transfer Date on funds on
deposit in the Reserve Account shall be retained in the Reserve Account
(to the extent that the Available Reserve Account Amount is less than the
Required Reserve Account Amount) and the balance, if any, shall be
deposited into the Finance Charge Account and included in Available
Finance Charge Collections for such Transfer Date. For purposes of
determining the availability of funds or the balance in the Reserve
Account for any reason under this Indenture Supplement, except as
otherwise provided in the preceding sentence, investment earnings on such
funds shall be deemed not to be available or on deposit.
(c) On or before each Transfer Date with respect to the Accumulation
Period and on or before the first Transfer Date with respect to the Rapid
Amortization Period, Servicer shall calculate the Reserve Draw Amount;
provided, however, that such amount will be reduced to the extent that
funds otherwise would be available for deposit in the Reserve Account
under Section 4.04(a)(ix) with respect to such Transfer Date.
(d) If for any Transfer Date the Reserve Draw Amount is greater than
zero, the Reserve Draw Amount, up to the Available Reserve Account Amount,
shall be withdrawn from the Reserve Account on such Transfer Date by
Indenture Trustee (acting in accordance with the written instructions of
Servicer) and deposited into the Finance Charge Account for application as
Available Finance Charge Collections for such Transfer Date.
(e) If the Reserve Account Surplus on any Transfer Date, after
giving effect to all deposits to and withdrawals from the Reserve Account
with respect to such Transfer Date, is greater than zero, Indenture
Trustee, acting in accordance with the written instructions of Servicer,
shall withdraw from the Reserve Account an amount equal to such Reserve
Account Surplus and (i) deposit such amounts in the Spread Account, to the
extent that funds on deposit in the Spread Account are less than the
Required Spread Account Amount, and (ii) distribute any such amounts
remaining after application pursuant to subsection 4.10(e)(i) to the
Holders of the Transferor Interest.
(f) Upon the earliest to occur of (i) the termination of the Trust
pursuant to Article VIII of the Trust Agreement, (ii) the first Transfer
Date relating to the Rapid Amortization Period and (iii) the Transfer Date
immediately preceding the Expected Principal Payment Date, Indenture
Trustee, acting in accordance with the written instructions of Servicer,
after the prior payment of all amounts owing to the Series 2003-1
Noteholders that are payable from the Reserve Account as provided herein,
shall withdraw from the Reserve Account all amounts, if any, on deposit in
the Reserve
24
Account and (A) deposit such amounts in the Spread Account, to the extent
that funds on deposit in the Spread Account are less than the Required
Spread Account Amount, and (B) distribute any such amounts remaining after
application pursuant to subsection 4.10(f)(A) to the Holders of the
Transferor Interest. The Reserve Account shall thereafter be deemed to
have terminated for purposes of this Indenture Supplement. Funds on
deposit in the Reserve Account at any time that the Accumulation Period is
suspended pursuant to Section 4.15 shall remain on deposit until applied
in accordance with subsection 4.10(d), (e) or (f).
SECTION 4.11. RESERVED.
SECTION 4.12. SPREAD ACCOUNT.
(a) On or prior to the Closing Date, Indenture Trustee shall
establish and maintain with a Qualified Institution, which may be
Indenture Trustee in the name of the Trust, on behalf of the Trust, for
the benefit of the Class C Noteholders and the Holder of the Transferor
Interest, a segregated trust account (the "Spread Account"), bearing a
designation clearly indicating that the funds deposited therein are held
for the benefit of the Class C Noteholders and Transferor. Except as
otherwise provided in this Section 4.12, Indenture Trustee shall possess
all right, title and interest in all funds on deposit from time to time in
the Spread Account and in all proceeds thereof. The Spread Account shall
be under the sole dominion and control of Indenture Trustee for the
benefit of the Class C Noteholders and the Holder of the Transferor
Interest. If at any time the institution holding the Spread Account ceases
to be a Qualified Institution, Servicer shall notify Indenture Trustee in
writing, and Indenture Trustee upon being notified (or Servicer on its
behalf) shall, within ten (10) Business Days (or such longer period as to
which the Rating Agencies may consent) establish a new Spread Account
meeting the conditions specified above with a Qualified Institution and
shall transfer any cash or any investments to such new Spread Account.
Indenture Trustee, at the written direction of Servicer, shall (i) make
withdrawals from the Spread Account from time to time in an amount up to
the Available Spread Account Amount at such time, for the purposes set
forth in this Indenture Supplement, and (ii) on each Transfer Date prior
to termination of the Spread Account, make a deposit into the Spread
Account in the amount specified in, and otherwise in accordance with,
subsection 4.12(f).
(b) Funds on deposit in the Spread Account shall be invested at the
written direction of Servicer by Indenture Trustee in Permitted
Investments. Funds on deposit in the Spread Account on any Transfer Date,
after giving effect to any withdrawals from and deposits to the Spread
Account on such Transfer Date, shall be invested in such investments that
will mature so that such funds will be available for withdrawal on or
prior to the following Transfer Date.
On each Transfer Date (but subject to subsections 4.12(c), 4.12(d)
and 4.12(f)), the Investment Earnings, if any, accrued since the preceding
Transfer Date on funds on deposit in the Spread Account shall be paid to
the Holders of the Transferor Interest by Indenture Trustee upon written
direction of Servicer. For purposes of determining the availability of
funds or the balance in the Spread Account for any reason under this
25
Indenture Supplement (subject to subsections 4.12(c), 4.12(d) and
4.12(f)), all Investment Earnings shall be deemed not to be available or
on deposit; provided that after the maturity of the Series 2003-1 Notes
has been accelerated as a result of an Event of Default, all Investment
Earnings shall be added to the balance on deposit in the Spread Account
and treated like the rest of the Available Spread Account Amount.
(c) If, on any Transfer Date, the aggregate amount of Available
Finance Charge Collections pursuant to subsection 4.04(a)(iv) is less than
the aggregate amount required to be deposited pursuant to subsection
4.04(a)(iv), Indenture Trustee, at the written direction of Servicer,
shall (i) withdraw from the Spread Account the amount of such deficiency
up to the Available Spread Account Amount and, if the Available Spread
Account Amount is less than such deficiency, the Indenture Trustee shall
also withdraw Investment Earnings credited to the Spread Account in an
amount so that the total amount withdrawn equals such deficiency, and (ii)
deposit such amount in the Distribution Account for payment to the Class C
Noteholders in respect of interest on the Class C Notes.
(d) On the earlier of the Series 2003-1 Final Maturity Date and the
date on which the Class A Note Principal Balance and the Class B Note
Principal Balance have been paid in full, after applying any funds on
deposit in the Spread Account as described in subsection 4.12(c),
Indenture Trustee, at the written direction of Servicer, shall withdraw
from the Spread Account an amount equal to the lesser of (i) the Class C
Note Principal Balance (after any payments to be made pursuant to
subsection 4.04(c) on such date) and (ii) the Available Spread Account
Amount and, if the Available Spread Account Amount is not sufficient to
reduce the Class C Note Principal Balance to zero, Investment Earnings
credited to the Spread Account up to the amount required to reduce the
Class C Note Principal Balance to zero. The Indenture Trustee, upon the
written direction of Servicer, or Servicer, shall deposit such amounts
into the Distribution Account for distribution to the Class C Noteholders
in accordance with subsection 5.02(e).
(e) On any day following the occurrence of an Event of Default with
respect to Series 2003-1 and acceleration of the maturity of the Series
2003-1 Notes pursuant to Section 5.03 of the Indenture, Servicer shall
withdraw from the Spread Account an amount equal to the Available Spread
Account Amount and Indenture Trustee or Servicer shall deposit such
amounts into the Distribution Account for distribution to the Class C
Noteholders until the Class C Note Principal Balance is paid in full, to
the Class A Noteholders until the Class A Note Principal Balance is paid
in full, and to the Class B Noteholders until the Class B Note Principal
Balance is paid in full, in that order of priority, in accordance with
Section 5.02, to fund any shortfalls in amounts owed to such Noteholders.
(f) If on any Transfer Date, after giving effect to all withdrawals
from the Spread Account, the Available Spread Account Amount is less than
the Required Spread Account Amount then in effect, Available Finance
Charge Collections shall be deposited into the Spread Account pursuant to
subsection 4.04(a)(vii) up to the amount of the Spread Account Deficiency
and, if such Available Finance Charge Collections are less
26
than such Spread Account Deficiency, investment earnings on funds on
deposit in the Spread Account shall be held and not distributed pursuant
to subsection 4.12(b) until such Spread Account Deficiency is reduced to
zero through subsequent deposits pursuant to subsection 4.04(a)(vii).
(g) If, after giving effect to all deposits to and withdrawals from
the Spread Account with respect to any Transfer Date, the amount on
deposit in the Spread Account exceeds the Required Spread Account Amount,
Indenture Trustee acting in accordance with the instructions of Servicer,
shall treat such excess as additional Available Finance Charge
Collections. On the date on which the Class C Note Principal Balance has
been paid in full, after making any payments to the Noteholders required
pursuant to subsections 4.12(c), (d) and (e), Indenture Trustee, at the
written direction of Servicer, shall withdraw from the Spread Account all
amounts then remaining in the Spread Account and pay such amounts to the
holders of the Transferor Interest.
SECTION 4.13. INVESTMENT INSTRUCTIONS. Any investment instructions
required to be given to Indenture Trustee pursuant to the terms hereof must be
given to Indenture Trustee no later than 11:00 a.m., New York City time, on the
date such investment is to be made. In the event Indenture Trustee receives such
investment instruction later than such time, Indenture Trustee may, but shall
have no obligation to, make such investment. In the event Indenture Trustee is
unable to make an investment required in an investment instruction received by
Indenture Trustee after 11:00 a.m., New York City time, on such day, such
investment shall be made by Indenture Trustee on the next succeeding Business
Day. In no event shall Indenture Trustee be liable for any investment not made
pursuant to investment instructions received after 11:00 a.m., New York City
time, on the day such investment is requested to be made.
SECTION 4.14. ACCUMULATION PERIOD. The Accumulation Period is scheduled to
commence at the beginning of business on March 1, 2005; provided that if the
Accumulation Period Length (determined as described below) on any Determination
Date on or after the December 2004 Determination Date is less than 12 months,
the date on which the Accumulation Period actually commences will be changed to
the first Business Day of the month that is the number of whole months prior to
the month in which the Expected Principal Payment Date occurs equal to the
Accumulation Period Length (so that, as a result of such election, the number of
Monthly Periods in the Accumulation Period will equal the Accumulation Period
Length); provided that (i) the length of the Accumulation Period will not be
less than one month, (ii) such determination of the Accumulation Period Length
shall be made on each Determination Date on and after the December 2004
Determination Date but prior to the commencement of the Accumulation Period, and
any postponement of the Accumulation Period shall be subject to the subsequent
lengthening of the Accumulation Period to the Accumulation Period Length
determined on any subsequent Determination Date, but the Accumulation Period
shall in no event commence prior to the Controlled Accumulation Date, and (iii)
notwithstanding any other provision of this Indenture Supplement to the
contrary, no postponement of the commencement of the Accumulation Period shall
be made after a Pay Out Event shall have occurred and be continuing with respect
to any other Series. The "Accumulation Period Length" will mean a number of
whole months such that the amount available for distribution of principal on the
Series 2003-1 Notes on the Expected Principal Payment Date is expected to equal
or exceed the sum of the Class A Note Principal Balance, the Class B Note
Principal Balance and the Class C
27
Note Principal Balance, assuming for this purpose that (1) the payment rate with
respect to Principal Collections remains constant at the lowest level of such
payment rate during the 12 preceding Monthly Periods (or such lower payment rate
as Servicer may select), (2) the total amount of Principal Receivables in the
Trust (and the principal amount on deposit in the Excess Funding Account, if
any) remains constant at the level on such date of determination, (3) no Pay Out
Event with respect to any Series will subsequently occur and (4) no additional
Series (other than any Series being issued on such date of determination) will
be subsequently issued. Servicer shall calculate the Accumulation Period Length
on each Determination Date on and after the December 2004 Determination Date as
necessary to determine whether the Accumulation Period is postponed and to set
the Reserve Account Funding Date. If the calculation results in a postponement,
Servicer shall provide notice in writing to Indenture Trustee, Transferor,
Issuer and each Rating Agency. Any notice by Servicer confirming the
postponement of the Accumulation Period pursuant to this Section 4.14 shall
specify (i) the Accumulation Period Length, (ii) the commencement date of the
Accumulation Period and (iii) the Controlled Accumulation Amount with respect to
each Monthly Period during the Accumulation Period. The method for determining
the Accumulation Period Length may be changed if the Rating Agency Condition is
met.
SECTION 4.15. SUSPENSION OF ACCUMULATION PERIOD.
(a) Servicer may elect to suspend the commencement of the
Accumulation Period with prior written notice to the Rating Agencies, at
any time prior to the Distribution Date preceding the Expected Principal
Payment Date. The commencement of the Accumulation Period shall be
suspended upon delivery by Servicer to Indenture Trustee of (i) an
Officer's Certificate stating that Servicer has elected to suspend the
commencement of the Accumulation Period and that all conditions precedent
to such suspension set forth in this Section 4.15 have been satisfied,
(ii) a copy of an executed Qualified Maturity Agreement and (iii) an
Opinion of Counsel addressed to Indenture Trustee as to the due
authorization, execution and delivery and the validity and enforceability
of such Qualified Maturity Agreement. Issuer does hereby transfer, assign,
set-over, and otherwise convey to Indenture Trustee for the benefit of the
Series 2003-1 Noteholders, without recourse, all of its rights under any
Qualified Maturity Agreement obtained in accordance with this Section 4.15
and all proceeds thereof. Such property shall constitute part of the Trust
Estate and Collateral for all purposes of the Indenture. The foregoing
transfer, assignment, set-over and conveyance does not constitute and is
not intended to result in a creation or an assumption by Indenture Trustee
or any Noteholder of any obligation of Issuer or any other Person in
connection with a Qualified Maturity Agreement or under any agreement or
instrument relating thereto.
Indenture Trustee hereby acknowledges its acceptance, to the extent
validly transferred, assigned, set-over or otherwise conveyed to Indenture
Trustee, for the benefit of the Series 2003-1 Noteholders, of all of the
rights previously held by Issuer under any Qualified Maturity Agreement
obtained by Issuer and all proceeds thereof, and declares that it shall
hold such rights upon the trust set forth herein and in the Agreement, and
subject to the terms hereof and thereof, for the benefit of the Series
2003-1 Noteholders.
28
(b) Each Qualified Maturity Agreement shall obligate the provider to
deposit into the Principal Accumulation Account on or before the Expected
Principal Payment Date an amount equal to the initial Note Principal
Balance (reduced by any amount on deposit in the Principal Accumulation
Account); provided, however, that Issuer may instead elect to fund all or
a portion of such deposits with the proceeds of the issuance of a new
Series or with the Available Principal Collections with respect to such
Transfer Date. The amounts so deposited shall be applied on the Expected
Principal Payment Date pursuant to subsection 4.04(c) as if the
commencement of the Accumulation Period had not been suspended. The
Qualified Maturity Agreement may require that during the period when the
Accumulation Period is suspended, upon the occurrence of certain events,
Available Principal Collections will be deposited into the Principal
Accumulation Account.
(c) Each Qualified Maturity Agreement shall terminate at the close
of business on the Expected Principal Payment Date; provided, however,
that Servicer may terminate a Qualified Maturity Agreement prior to such
Distribution Date, with notice to each Rating Agency, if (i) the Available
Reserve Account Amount equals the Required Reserve Account Amount and (ii)
one of the following events occurs: (A) Issuer obtains a substitute
Qualified Maturity Agreement, (B) the provider of the Qualified Maturity
Agreement ceases to qualify as a Qualified Institution and Issuer is
unable to obtain a substitute Qualified Maturity Agreement, (C) a Pay Out
Event occurs or (D) an event which may be declared to be a Pay Out Event
occurs, whether or not it is declared. In addition, if the available
Reserve Account Amount equals the Required Reserve Account Amount,
Servicer may terminate a Qualified Maturity Agreement prior to the later
of (1) the date on which the Accumulation Period was scheduled to begin,
before giving effect to the suspension of the Accumulation Period, and (2)
the date to which the commencement of the Accumulation Period is postponed
pursuant to Section 4.14 (as determined on the Determination Date
preceding the date of such termination), in which case the commencement of
the Accumulation Period shall be determined as if the commencement had not
been postponed. In the event that the provider of a Qualified Maturity
Agreement ceases to qualify as a Qualified Institution, Servicer shall use
its best efforts to obtain a substitute Qualified Maturity Agreement,
unless a substitute Qualified Maturity Agreement is not required for any
of the reasons listed in this subsection (c).
(d) If a Qualified Maturity Agreement is terminated prior to the
earlier of the Expected Principal Payment Date and the commencement of the
Rapid Amortization Period and Issuer does not obtain a substitute
Qualified Maturity Agreement, the Accumulation Period shall commence on
the latest of (i) the beginning of business on Xxxxx 0, 0000, (xx) the
date to which the commencement of the Accumulation Period is postponed
pursuant to Section 4.l4 (as determined on the date of such termination)
and (iii) the first day of the Monthly Period following the date of such
termination. The Issuer shall notify the Rating Agencies if it intends to
terminate a Qualified Maturity Agreement prior to the Expected Principal
Payment Date.
29
SECTION 4.16. DETERMINATION OF LIBOR.
(a) On each LIBOR Determination Date in respect of an Interest
Period, Indenture Trustee shall determine LIBOR on the basis of the rate
for deposits in United States dollars for a period of the Designated
Maturity which appears on Telerate Page 3750 as of 11:00 a.m., London
time, on such date. If such rate does not appear on Telerate Page 3750,
the rate for that LIBOR Determination Date shall be determined on the
basis of the rates at which deposits in United States dollars are offered
by the Reference Banks at approximately 11:00 a.m., London time, on that
day to prime banks in the London interbank market for a period of the
Designated Maturity. Indenture Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate.
If at least two (2) such quotations are provided, the rate for that
Interest Period shall be the arithmetic mean of the quotations. If fewer
than two (2) quotations are provided as requested, the rate for that
Interest Period will be the arithmetic mean of the rates quoted by major
banks in New York City, selected by Servicer, at approximately 11:00 a.m.,
New York City time, on that day for loans in United States dollars to
leading European banks for a period of the Designated Maturity.
(b) The Class A Note Interest Rate, Class B Note Interest Rate and
Class C Note Interest Rate applicable to the then current and the
immediately preceding Interest Periods may be obtained by telephoning
Indenture Trustee at its corporate trust office at (000) 000-0000 or such
other telephone number as shall be designated by Indenture Trustee for
such purpose by prior written notice by Indenture Trustee to each Series
2003-1 Noteholder from time to time.
(c) On each LIBOR Determination Date, Indenture Trustee shall send
to Servicer by facsimile transmission, notification of LIBOR for the
following Interest Period.
SECTION 4.17. INTERCHANGE. On or prior to each Determination Date,
Transferor shall cause FNBO to notify Servicer of the amount of Interchange to
be included as Collections of Finance Charge Receivables allocable to the Series
2003-1 Notes with respect to the Related Monthly Period, which amount shall be
equal to the product of:
(a) the total amount of Interchange paid or payable to FNBO with
respect to such Related Monthly Period;
(b) a fraction the numerator of which is the volume during the
Related Monthly Period of sales net of cash advances on the Accounts and
the denominator of which is the amount of sales net of cash advances
during the Related Monthly Period on all VISA and MasterCard accounts
owned by FNBO; and
(c) the Allocation Percentage for Finance Charge Collections with
respect to such Related Monthly Period.
On each Transfer Date, Transferor shall pay to Servicer, and Servicer shall
deposit into the Finance Charge Account, in immediately available funds, an
amount equal to the Interchange to be so included as Collections of Finance
Charge Receivables allocable to the Series 2003-1
30
Notes with respect to the Related Monthly Period. Transferor hereby assigns,
sets over, conveys, pledges and grants a security interest and lien to Indenture
Trustee for the benefit of the Series 2003-1 Noteholders its security interest
in Interchange and the proceeds of Interchange, as set forth in this Section
4.17. In connection with the foregoing grant of a security interest, this
Indenture Supplement shall constitute a security agreement under applicable law.
To the extent that an Indenture Supplement for a related Series, other than
Series 2003-1, assigns, sets over, conveys, pledges or grants a security
interest in Interchange allocable to the Trust, all Notes of any such Series
(except that any Series may be subordinated to the Series 2003-1 Notes to the
extent specified in any such Indenture Supplement) and the Series 2003-1 Notes
shall rank pari passu and be equally and ratably entitled in accordance with
their respective allocation percentages for Finance Charge Collections as
provided herein to the benefits of such Interchange without preference or
priority on account of the actual time or times of authentication and delivery,
all in accordance with the terms and provisions of this Indenture Supplement and
other related Indenture Supplements.
SECTION 4.18. FOREIGN ACCOUNTS. So long as any Series 2003-1 Notes are
Outstanding, notwithstanding the proviso in clause (c) of the definition of
Eligible Accounts in the Pooling and Servicing Agreement and in Annex A to the
Indenture, Receivables arising in Foreign Accounts shall constitute Eligible
Receivables for all purposes except that they may not be counted for purposes of
determining compliance with the tests for the Minimum Transferor Interest and
the Minimum Aggregate Principal Receivables.
ARTICLE V
DELIVERY OF NOTES; DISTRIBUTIONS; REPORTS TO NOTEHOLDERS
SECTION 5.01. DELIVERY AND PAYMENT FOR THE SERIES 2003-1 NOTES. Issuer
shall execute and issue, and Indenture Trustee shall authenticate, the Series
2003-1 Notes in accordance with Section 2.03 of the Indenture. Indenture Trustee
shall deliver the Series 2003-1 Notes to or upon the written order of Issuer
when so authenticated.
SECTION 5.02. DISTRIBUTIONS.
(a) On each Distribution Date, Indenture Trustee shall distribute to
each Class A Noteholder of record on the related Record Date (other than
as provided in Section 11.02 of the Indenture) such Class A Noteholder's
pro rata share of the amounts on deposit in the Distribution Account
(including amounts withdrawn from the Spread Account (at the times and in
the amounts specified in Section 4.12)) that are allocated and available
on such Distribution Date and that are payable to the Class A Noteholders
pursuant to this Indenture Supplement.
(b) On each Distribution Date, Indenture Trustee shall distribute to
each Class B Noteholder of record on the related Record Date (other than
as provided in Section 11.02 of the Indenture) such Class B Noteholder's
pro rata share of the amounts on deposit in the Distribution Account
(including amounts withdrawn from the Spread Account (at the times and in
the amounts specified in Section 4.12)) that are allocated and
31
available on such Distribution Date and that are payable to the Class B
Noteholders pursuant to this Indenture Supplement.
(c) On each Distribution Date, Indenture Trustee shall distribute to
each Class C Noteholder of record on the related Record Date (other than
as provided in Section 11.02 of the Indenture) such Class C Noteholder's
pro rata share of the amounts on deposit in the Distribution Account
(including amounts withdrawn from the Spread Account (at the times and in
the amounts specified in Section 4.12)) that are allocated and available
on such Distribution Date and that are payable to the Class C Noteholders
pursuant to this Indenture Supplement.
(d) The distributions to be made pursuant to this Section 5.02 are
subject to the provisions of Sections 6.01 and 7.01 of the Transfer and
Servicing Agreement, Section 11.02 of the Indenture and Section 7.01 of
this Indenture Supplement.
(e) Except as provided in Section 11.02 of the Indenture with
respect to a final distribution, distributions to 2003-1 Noteholders
hereunder shall be made by (i) check mailed to each Series 2003-1
Noteholder (at such Noteholder's address as it appears in the Note
Register), except that for any Series 2003-1 Notes registered in the name
of the nominee of a Clearing Agency, such distribution shall be made by
wire transfer of immediately available funds and (ii) without presentation
or surrender of any Series 2003-1 Note or the making of any notation
thereon.
SECTION 5.03. REPORTS AND STATEMENTS TO SERIES 2003-1 NOTEHOLDERS.
(a) On each Distribution Date, Indenture Trustee shall forward to
each Series 2003-1 Noteholder a statement substantially in the form of
Exhibit C prepared by Servicer.
(b) Not later than the second Business Day preceding each
Distribution Date, Servicer shall deliver to Owner Trustee, Indenture
Trustee and each Rating Agency (i) a statement substantially in the form
of Exhibit B prepared by Servicer and (ii) a certificate of an Authorized
Officer substantially in the form of Exhibit D; provided that Servicer may
amend the form of Exhibit B from time to time, with the prior written
consent of Indenture Trustee.
(c) A copy of each statement or certificate provided pursuant to
paragraph (a) or (b) may be obtained by any Series 2003-1 Noteholder by a
request in writing to Servicer.
(d) On or before January 31 of each calendar year, beginning with
January 31, 2004, Indenture Trustee shall furnish or cause to be furnished
to each Person who at any time during the preceding calendar year was a
Series 2003-1 Noteholder, a statement prepared by Servicer containing the
information which is required to be contained in the statement to Series
2003-1 Noteholders, as set forth in paragraph (a) above, aggregated for
such calendar year or the applicable portion thereof during which such
Person was a Series 2003-1 Noteholder, together with other information as
is required to be provided by an issuer of indebtedness under the Code.
Such obligation of Indenture Trustee shall
32
be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by Servicer pursuant to any
requirements of the Code as from time to time in effect.
ARTICLE VI
SERIES 2003-1 PAY OUT EVENTS
If any one of the following events shall occur with respect to the Series 2003-1
Notes:
(a) failure on the part of Transferor or the "Transferor" under the
Pooling and Servicing Agreement (i) to make any payment or deposit
required to be made by it by the terms of the Pooling and Servicing
Agreement, the Collateral Series Supplement, the Transfer and Servicing
Agreement, the Indenture or this Indenture Supplement on or before the
date occurring five (5) Business Days after the date such payment or
deposit is required to be made therein or herein or (ii) duly to observe
or perform in any material respect any other of its covenants or
agreements set forth in the Transfer and Servicing Agreement, the Pooling
and Servicing Agreement, Collateral Series Supplement, the Indenture or
this Indenture Supplement, which failure has a material adverse effect on
the Series 2003-1 Noteholders which continues unremedied for a period of
sixty (60) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to Transferor by
Indenture Trustee, or to Transferor and Indenture Trustee by Holders of
Series 2003-1 Notes evidencing more than 25% of the Note Principal Balance
and which continues to materially and adversely affect the interest of the
Series 2003-1 Noteholders;
(b) any representation or warranty made by Transferor or the
"Transferor" under the Pooling and Servicing Agreement or the Transfer and
Servicing Agreement, or any supplement to either of them, shall prove to
have been incorrect in any material respect when made or when delivered,
which continues to be incorrect in any material respect for a period of
sixty (60) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to Transferor by
Indenture Trustee, or to Transferor and Indenture Trustee by Holders of
Series 2003-1 Notes evidencing more than 25% of the Note Principal Balance
and as a result of which the interests of the Noteholders are materially
and adversely affected and continue to be materially and adversely
affected for such period; provided, however, that a Series 2003-1 Pay Out
Event pursuant to this subsection (b) of Article VI shall not be deemed to
have occurred hereunder if Transferor has accepted reassignment of the
related Receivable, or all of such Receivables, if applicable, during such
period in accordance with the provisions of the Transfer and Servicing
Agreement or the Pooling and Servicing Agreement;
(c) a failure by Transferor or the "Transferor" under the Pooling
and Servicing Agreement to convey Receivables in Additional Accounts to
the Receivables Trust within five (5) Business Days after the day on which
it is required to convey such Receivables pursuant to subsection 2.06(a)
of the Transfer and Servicing Agreement or subsection 2.06(a) of the
Pooling and Servicing Agreement, respectively, provided that such failure
shall not give rise to a Pay Out Event if, prior to the date on which such
33
conveyance was required to be completed, Transferor causes a reduction in
the invested amount of any Variable Interest or any variable funding
certificate issued under the Pooling and Servicing Agreement to occur, so
that, after giving effect to that reduction, the Transferor Interest is
not less than the Minimum Transferor Interest and the Aggregate Principal
Receivables are not less than the Minimum Aggregate Principal Receivables;
(d) any Servicer Default or any "Servicer Default" under the Pooling
and Servicing Agreement shall occur that would have a material adverse
effect on the Series 2003-1 Noteholders;
(e) the Portfolio Yield averaged over three consecutive Monthly
Periods is less than the Base Rate averaged over such period;
(f) the Class A Note Principal Balance, the Class B Note Principal
Balance or the Class C Note Principal Balance shall not be paid in full on
the Expected Principal Payment Date;
(g) without limiting the foregoing, the occurrence of an Event of
Default with respect to Series 2003-1 and acceleration of the maturity of
the Series 2003-1 Notes pursuant to Section 5.03 of the Indenture; or
(h) prior to the Certificate Trust Termination Date, the occurrence
of a Trust Pay Out Event as defined in the Pooling and Servicing Agreement
and specified in Section 9.01 of that Agreement;
then, in the case of any event described in subsection (a), (b) or (d), after
the applicable grace period, if any, set forth in such subparagraphs, either
Indenture Trustee or the holders of Series 2003-1 Notes evidencing more than 50%
of the aggregate unpaid principal amount of Series 2003-1 Notes by notice then
given in writing to Transferor and Servicer (and to Indenture Trustee if given
by the Series 2003-1 Noteholders) may declare that a "Series Pay Out Event" with
respect to Series 2003-1 (a "Series 2003-1 Pay Out Event") has occurred as of
the date of such notice, and, in the case of any event described in subsection
(c), (e), (f), (g) or (h) a Series 2003-1 Pay Out Event shall occur without any
notice or other action on the part of Indenture Trustee or the Series 2003-1
Noteholders immediately upon the occurrence of such event.
ARTICLE VII
REDEMPTION;
FINAL DISTRIBUTIONS; SERIES TERMINATION
SECTION 7.01. OPTIONAL REDEMPTION OF SERIES 2003-1 NOTES; FINAL
DISTRIBUTIONS.
(a) On any day occurring on or after the date on which the
outstanding principal balance of the Series 2003-1 Notes is reduced to 10%
or less of the initial Note Principal Balance of the Series 2003-1 Notes,
Servicer shall have the option to direct Transferor to redeem the Series
2003-1 Notes, at a purchase price equal to (i) if such day is a
Distribution Date, the Reassignment Amount for such Distribution Date or
(ii) if such
34
day is not a Distribution Date, the Reassignment Amount for the
Distribution Date following such day. This option shall not be exercisable
if the purchase price (reduced by the amount on deposit in the Principal
Accumulation Account available for distribution to Noteholders) exceeds
the lesser of the estimated fair value, or the par value plus accrued
interest, of a portion of the Receivables in Eligible Accounts then
designated to the Receivables Trust equal to the Collateral Amount.
(b) Servicer shall give Indenture Trustee at least thirty (30) days'
prior written notice of the date on which Servicer intends to direct
Transferor to make such optional redemption. Not later than 12:00 noon,
New York City time, on such day Transferor shall deposit into the Finance
Charge Account and Principal Account, as applicable, in immediately
available funds the excess of the Reassignment Amount over the amount, if
any, on deposit in the Principal Accumulation Account. Such redemption
option is subject to payment in full of the Reassignment Amount. Following
such deposit into the Finance Charge Account and Principal Account in
accordance with the foregoing, the Collateral Amount for Series 2003-1
shall be reduced to zero and the Series 2003-1 Noteholders shall have no
further security interest in the Receivables. The Reassignment Amount
shall be distributed as set forth in subsection 7.01(d).
(c) The amount to be paid by Transferor with respect to Series
2003-1 in connection with a reassignment of Receivables to Transferor
pursuant to Section 2.04(e) of the Transfer and Servicing Agreement or
Section 2.04(e) of the Pooling and Servicing Agreement shall equal the
Reassignment Amount for the Distribution Date related to the Reassignment
Date.
(d) With respect to (a) the Reassignment Amount deposited into the
Finance Charge Account and Principal Account pursuant to this Section 7.01
or (b) the proceeds of any sale of Receivables pursuant to Section
5.05(a)(iii) of the Indenture with respect to Series 0000-0, Xxxxxxxxx
Trustee shall, in accordance with the written direction of Servicer, not
later than 12:00 noon, New York City time, on the related Distribution
Date, make distributions of the following amounts (in the priority set
forth below and, in each case, after giving effect to any deposits and
distributions otherwise to be made on such date) in immediately available
funds: (i) (x) the Class A Note Principal Balance on such Distribution
Date will be distributed to the Class A Noteholders and (y) an amount
equal to the sum of (A) Class A Monthly Interest Payment for such
Distribution Date, (B) any Class A Interest Shortfall for such
Distribution Date and (C) the amount of Class A Default Interest, if any,
for such Distribution Date and any Class A Default Interest previously due
but not distributed to the Class A Noteholders on any prior Distribution
Date, will be distributed to the Class A Noteholders, (ii) (x) the Class B
Note Principal Balance on such Distribution Date will be distributed to
the Class B Noteholders and (y) an amount equal to the sum of (A) Class B
Monthly Interest Payment for such Distribution Date, (B) any Class B
Interest Shortfall for such Distribution Date and (C) the amount of Class
B Default Interest, if any, for such Distribution Date and any Class B
Default Interest previously due but not distributed to the Class B
Noteholders on any prior Distribution Date, will be distributed to the
Class B Noteholders, (iii) (x) the Class C Note Principal Balance on such
Distribution Date will be distributed to the Class C Noteholders and (y)
an amount equal to the sum of (A) Class C Monthly Interest
35
Payment for such Distribution Date, (B) any Class C Interest Shortfall for
such Distribution Date, (C) the amount of Class C Default Interest, if
any, for such Distribution Date and any Class C Default Interest
previously due but not distributed to the Class C Noteholders on any prior
Distribution Date and (iv) any excess shall be released to Issuer.
SECTION 7.02. SERIES TERMINATION. On the Series 2003-1 Final Maturity
Date, the unpaid principal amount of the Series 2003-1 Notes shall be due and
payable, and the right of the Series 2003-1 Noteholders to receive payments from
Issuer will be limited solely to the right to receive payments pursuant to
Section 5.05 of the Indenture.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.01. RATIFICATION OF INDENTURE; AMENDMENTS. As supplemented by
this Indenture Supplement, the Indenture is in all respects ratified and
confirmed and the Indenture as so supplemented by this Indenture Supplement
shall be read, taken and construed as one and the same instrument. This
Indenture Supplement may be amended only by a Supplemental Indenture entered in
accordance with the terms of Section 10.01 or 10.02 of the Indenture. For
purposes of the application of Section 10.02 to any amendment of this Indenture
Supplement, the Series 2003-1 Noteholders shall be the only Noteholders whose
vote shall be required.
SECTION 8.02. FORM OF DELIVERY OF THE SERIES 2003-1 NOTES. The Class A
Notes, the Class B Notes and the Class C Notes shall be Book-Entry Notes and
shall be delivered as Registered Notes to The Bank of New York, as agent for
DTC, Clearstream, and Euroclear Bank S.A./N.V. as provided in Sections 2.01,
2.03 and 2.12 of the Indenture.
SECTION 8.03. COUNTERPARTS. This Indenture Supplement may be executed in
two or more counterparts, and by different parties on separate counterparts,
each of which shall be an original, but all of which shall constitute one and
the same instrument.
SECTION 8.04. GOVERNING LAW. THIS INDENTURE SUPPLEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEBRASKA, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 8.05. LIMITATION OF LIABILITY. Notwithstanding any other provision
herein or elsewhere, this Agreement has been executed and delivered by
Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of the Trust, in no event shall Wilmington Trust
Company, in its individual capacity, have any liability in respect of the
representations, warranties, or obligations of Issuer hereunder or under any
other document, as to all of which recourse shall be had solely to the assets of
Issuer, and for all purposes of this Agreement and each other document, Owner
Trustee (as such or in its individual capacity) shall be subject to, and
entitled to the benefits of, the terms and provisions of the Trust Agreement.
36
SECTION 8.06. RIGHTS OF INDENTURE TRUSTEE. Indenture Trustee shall have
herein the same rights, protections, indemnities and immunities as specified in
the Master Indenture.
SECTION 8.07. ADDITIONAL REQUIREMENTS FOR REGISTRATION OF AND LIMITATIONS
ON TRANSFER AND EXCHANGE OF NOTES. All transfers will be subject to the transfer
restrictions set forth on the Notes.
[Signature page follows]
37
IN WITNESS WHEREOF, the undersigned have caused this Indenture Supplement to be
duly executed and delivered by their respective duly authorized officers on the
day and year first above written.
FIRST NATIONAL MASTER NOTE TRUST,
as Issuer
By Wilmington Trust Company, not in its
individual capacity, but solely as Owner
Trustee
By /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name Xxxxx X. Xxxxxx
---------------------------------------
Title Vice President
--------------------------------------
THE BANK OF NEW YORK,
as Indenture Trustee
By /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name Xxxx X. Xxxxxxx
---------------------------------------
Title Agent
--------------------------------------
Acknowledged and Accepted:
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By /s/ Xxxx X. Xxxxxx
---------------------------------
Name Xxxx X. Xxxxxx
-------------------------------
Title Senior Vice President
------------------------------
FIRST NATIONAL FUNDING LLC,
as Transferor
By /s/ Xxxx X. Xxxxxx
---------------------------------
Name Xxxx X. Xxxxxx
----------------------
Title Senior Vice President
------------------------------
INDENTURE SUPPLEMENT SIGNATURE PAGE
EXHIBIT A-1
FORM OF CLASS A FLOATING RATE ASSET BACKED NOTE, SERIES 2003-1
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT IT
WILL NOT AT ANY TIME INSTITUTE AGAINST FIRST BANKCARD MASTER CREDIT CARD TRUST,
A COMMON LAW TRUST ORGANIZED UNDER THE LAWS OF NEBRASKA ("FBMCCT"), FIRST
NATIONAL FUNDING CORPORATION, A NEBRASKA BUSINESS CORPORATION ("FNFC"),
TRANSFEROR OR ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY
INSTITUTION IN INSTITUTING AGAINST FBMCCT, FNFC, TRANSFEROR OR ISSUER, ANY
BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS,
OR OTHER PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR
SIMILAR LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO THE NOTES, THE
INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS A NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF
A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS A NOTES AS INDEBTEDNESS
OF ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW
AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
THE HOLDER OF THIS CLASS A NOTE SHALL BE DEEMED TO REPRESENT AND WARRANT THAT
EITHER (I) IT IS NOT ACQUIRING THE NOTE WITH THE PLAN ASSETS OF AN "EMPLOYEE
BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), WHICH IS SUBJECT TO TITLE I OF
ERISA, A "PLAN" AS DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), AN ENTITY DEEMED TO HOLD THE PLAN ASSETS OF ANY OF THE
FOREGOING BY REASON OF INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR PLAN IN SUCH
ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS SUBSTANTIALLY
SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR SECTION 4975 OF
THE CODE (EACH SUCH ENTITY A "BENEFIT PLAN"); OR (II) THE ACQUISITION AND
HOLDING OF THE CLASS A NOTE
WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY
SUBSTANTIALLY SIMILAR APPLICABLE LAW).
A1-2
REGISTERED $__________*
No. R- _____ CUSIP NO. _____
FIRST NATIONAL MASTER NOTE TRUST
CLASS A FLOATING RATE ASSET BACKED NOTE, SERIES 2003-1
First National Master Note Trust (herein referred to as "Issuer"), a Delaware
statutory trust governed by a Trust Agreement dated as of October 16, 2002 , for
value received, hereby promises to pay to Cede & Co., or registered assigns,
subject to the following provisions, the principal sum of DOLLARS, or such
greater or lesser amount as determined in accordance with the Indenture, on the
August, 2008 Distribution Date, except as otherwise provided below or in the
Indenture. Issuer will pay interest on the unpaid principal amount of this Note
at the Class A Note Interest Rate on each Distribution Date until the principal
amount of this Note is paid in full. Interest on this Note will accrue for each
Distribution Date from and including the most recent Distribution Date on which
interest has been paid to but excluding such Distribution Date or, for the
initial Distribution Date, from and including the Closing Date to but excluding
such Distribution Date. Interest will be computed on the basis of a 360-day year
and the actual number of days elapsed. Principal of this Note shall be paid in
the manner specified in the Indenture Supplement referred to on the reverse
hereof.
The principal of and interest on this Note are payable in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by or on
behalf of Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
This Note has been executed by Wilmington Trust Company, not in its individual
capacity, but solely in its capacity as Owner Trustee of the Issuer, in no event
shall Wilmington Trust Company, in its individual capacity, have any liability
in respect of the obligations of Issuer hereunder or under any other document,
as to all of which recourse shall be had solely to the assets of Issuer, and for
all purposes of this Note and each other document, Owner Trustee (as such or in
its individual capacity) shall be subject to, and entitled to the benefits of,
the terms and provisions of the Trust Agreement.
----------
* Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
A1-3
IN WITNESS WHEREOF, Issuer has caused this Class A Note to be duly executed.
FIRST NATIONAL MASTER NOTE TRUST,
as Issuer
By Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By ________________________________________
Name ______________________________________
Title______________________________________
Dated: ___________, 200[__]
A1-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Indenture Trustee
By____________________________________
Authorized Signatory
Dated_________________________________
A1-5
FIRST NATIONAL MASTER NOTE TRUST
CLASS A FLOATING RATE ASSET BACKED NOTE, SERIES 2003-1
SUMMARY OF TERMS AND CONDITIONS
This Class A Note is one of a duly authorized issue of Notes of Issuer,
designated as First National Master Note Trust, Series 2003-1 (the "Series
2003-1 Notes"), issued under a Master Indenture dated as of October 24, 2002
(the "Master Indenture"), between Issuer and The Bank of New York, as indenture
trustee (the "Indenture Trustee"), as supplemented by the Indenture Supplement
dated as of March 20, 2003 (the "Indenture Supplement"), and representing the
right to receive certain payments from Issuer. The term "Indenture," unless the
context otherwise requires, refers to the Master Indenture as supplemented by
the Indenture Supplement. The Notes are subject to all of the terms of the
Indenture. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in or pursuant to the Indenture. In the event
of any conflict or inconsistency between the Indenture and this Note, the
Indenture shall control.
The Class B Notes and the Class C Notes will also be issued under the Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will look solely
to the property of Issuer allocated to the payment of this Note for payment
hereunder and that neither Owner Trustee nor Indenture Trustee is liable to the
Noteholders for any amount payable under the Notes or the Indenture or, except
in the case of Indenture Trustee as expressly provided in the Indenture, subject
to any liability under the Indenture.
This Note does not purport to summarize the Indenture and reference is made to
the Indenture for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of Indenture Trustee.
THIS CLASS A NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
ISSUER, FIRST NATIONAL BANK OF OMAHA, FIRST NATIONAL FUNDING CORPORATION, FIRST
NATIONAL FUNDING LLC, OR ANY OF THEIR AFFILIATES, AND IS NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Issuer, Transferor, Indenture Trustee and any agent of Issuer, Transferor or
Indenture Trustee shall treat the person in whose name this Class A Note is
registered as the owner hereof for all purposes, and neither Issuer, Transferor,
Indenture Trustee nor any agent of Issuer, Transferor or Indenture Trustee shall
be affected by notice to the contrary.
THIS CLASS A NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEBRASKA, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A1-6
ASSIGNMENT
Social Security or other identifying number of assignee ___________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________ (name and address of assignee) the within certificate
and all rights thereunder, and hereby irrevocably constitutes and appoints
__________________ attorney, to transfer said certificate on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: _________________________ __________________________**
Signature Guaranteed:
----------
** The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
X0-0
XXXXXXX X-0
FORM OF CLASS B 2.76% ASSET BACKED NOTE, SERIES 2003-1
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT IT
WILL NOT AT ANY TIME INSTITUTE AGAINST FIRST BANKCARD MASTER CREDIT CARD TRUST,
A COMMON LAW TRUST ORGANIZED UNDER THE LAWS OF NEBRASKA ("FBMCCT"), FIRST
NATIONAL FUNDING CORPORATION, A NEBRASKA BUSINESS CORPORATION ("FNFC"),
TRANSFEROR OR ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY
INSTITUTION IN INSTITUTING AGAINST FBMCCT, FNFC, TRANSFEROR OR ISSUER, ANY
BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS,
OR OTHER PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR
SIMILAR LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO THE NOTES, THE
INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS B NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF
A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS B NOTES AS INDEBTEDNESS
OF ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW
AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
THE HOLDER OF THIS CLASS B NOTE SHALL BE DEEMED TO REPRESENT AND WARRANT THAT
EITHER (I) IT IS NOT ACQUIRING THE NOTE WITH THE PLAN ASSETS OF AN "EMPLOYEE
BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), WHICH IS SUBJECT TO TITLE I OF
ERISA, A "PLAN" AS DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), AN ENTITY DEEMED TO HOLD THE PLAN ASSETS OF ANY OF THE
FOREGOING BY REASON OF INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR PLAN IN SUCH
ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS SUBSTANTIALLY
SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR SECTION 4975 OF
THE CODE (EACH SUCH ENTITY A "BENEFIT PLAN"); OR (II) THE ACQUISITION AND
HOLDING OF THE CLASS B NOTE WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED
TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A
GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR APPLICABLE LAW).
A2-2
REGISTERED $__________*
No. R- _____ CUSIP NO. _____
FIRST NATIONAL MASTER NOTE TRUST
CLASS B 2.76% ASSET BACKED NOTE, SERIES 2003-1
First National Master Note Trust (herein referred to as "Issuer"), a Delaware
statutory trust governed by a Trust Agreement dated as of October 16, 2002, for
value received, hereby promises to pay to Cede & Co., or registered assigns,
subject to the following provisions, the principal sum of _________ DOLLARS, or
such greater or lesser amount as determined in accordance with the Indenture, on
the August, 2008 Distribution Date, except as otherwise provided below or in the
Indenture. Issuer will pay interest on the unpaid principal amount of this Note
at the Class B Note Interest Rate on each Distribution Date until the principal
amount of this Note is paid in full. Interest on this Note will accrue for each
Distribution Date from and including the most recent Distribution Date on which
interest has been paid to but excluding such Distribution Date or, for the
initial Distribution Date, from and including the Closing Date to but excluding
such Distribution Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Principal of this Note shall be paid in the manner
specified in the Indenture Supplement referred to on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by or on
behalf of Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
This Note has been executed by Wilmington Trust Company, not in its individual
capacity, but solely in its capacity as Owner Trustee of the Issuer, in no event
shall Wilmington Trust Company, in its individual capacity, have any liability
in respect of the obligations of Issuer hereunder or under any other document,
as to all of which recourse shall be had solely to the assets of Issuer, and for
all purposes of this Note and each other document, Owner Trustee (as such or in
its individual capacity) shall be subject to, and entitled to the benefits of,
the terms and provisions of the Trust Agreement.
THIS CLASS B NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND PAYMENTS ON
THE CLASS A NOTES TO THE EXTENT SPECIFIED IN THE INDENTURE SUPPLEMENT.
----------
* Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
A2-3
IN WITNESS WHEREOF, Issuer has caused this Class B Note to be duly executed.
FIRST NATIONAL MASTER NOTE TRUST, as Issuer
By Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By ________________________________________
Name ______________________________________
Title______________________________________
Dated: ___________, 200[__]
A2-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Indenture Trustee
By____________________________________
Authorized Signatory
Dated_________________________________
A2-5
FIRST NATIONAL MASTER NOTE TRUST
CLASS B 2.76% ASSET BACKED NOTE, SERIES 2003-1
SUMMARY OF TERMS AND CONDITIONS
This Class B Note is one of a duly authorized issue of Notes of Issuer,
designated as First National Master Note Trust, Series 2003-1 (the "Series
2003-1 Notes"), issued under a Master Indenture dated as of October 24, 2002
(the "Master Indenture"), between Issuer and The Bank of New York, as indenture
trustee (the "Indenture Trustee"), as supplemented by the Indenture Supplement
dated as of March 20, 2003 (the "Indenture Supplement"), and representing the
right to receive certain payments from Issuer. The term "Indenture," unless the
context otherwise requires, refers to the Master Indenture as supplemented by
the Indenture Supplement. The Notes are subject to all of the terms of the
Indenture. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in or pursuant to the Indenture. In the event
of any conflict or inconsistency between the Indenture and this Note, the
Indenture shall control.
The Class A Notes and the Class C Notes will also be issued under the Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will look solely
to the property of Issuer allocated to the payment of this Note for payment
hereunder and that neither Owner Trustee nor Indenture Trustee is liable to the
Noteholders for any amount payable under the Notes or the Indenture or, except
in the case of Indenture Trustee as expressly provided in the Indenture, subject
to any liability under the Indenture.
This Note does not purport to summarize the Indenture and reference is made to
the Indenture for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of Indenture Trustee.
THIS CLASS B NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
ISSUER, FIRST NATIONAL BANK OF OMAHA, FIRST NATIONAL FUNDING CORPORATION, FIRST
NATIONAL FUNDING LLC, OR ANY OF THEIR AFFILIATES, AND IS NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Issuer, Transferor, Indenture Trustee and any agent of Issuer, Transferor or
Indenture Trustee shall treat the person in whose name this Class B Note is
registered as the owner hereof for all purposes, and neither Issuer, Transferor,
Indenture Trustee nor any agent of Issuer, Transferor or Indenture Trustee shall
be affected by notice to the contrary.
THIS CLASS B NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEBRASKA, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A2-6
ASSIGNMENT
Social Security or other identifying number of assignee ___________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
______________________ (name and address of assignee) the within certificate
and all rights thereunder, and hereby irrevocably constitutes and appoints
______________________ attorney, to transfer said certificate on the books
kept for registration thereof, with full power of substitution in the premises.
Dated:________________________ ____________________________**
Signature Guaranteed:
----------
** The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
X0-0
XXXXXXX X-0
FORM OF CLASS C FLOATING RATE ASSET BACKED NOTE, SERIES 2003-1
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT IT
WILL NOT AT ANY TIME INSTITUTE AGAINST FIRST BANKCARD MASTER CREDIT CARD TRUST,
A COMMON LAW TRUST ORGANIZED UNDER THE LAWS OF NEBRASKA ("FBMCCT"), FIRST
NATIONAL FUNDING CORPORATION, A NEBRASKA BUSINESS CORPORATION ("FNFC"),
TRANSFEROR OR ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY
INSTITUTION IN INSTITUTING AGAINST FBMCCT, FNFC, TRANSFEROR OR ISSUER, ANY
BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS,
OR OTHER PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR
SIMILAR LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO THE NOTES, THE
INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS C NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF
A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS C NOTES AS INDEBTEDNESS
OF ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW
AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
THE HOLDER OF THIS CLASS C NOTE SHALL BE DEEMED TO REPRESENT AND WARRANT THAT
EITHER (I) IT IS NOT ACQUIRING THE NOTE WITH THE PLAN ASSETS OF AN "EMPLOYEE
BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), WHICH IS SUBJECT TO TITLE I OF
ERISA, A "PLAN" AS DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), AN ENTITY DEEMED TO HOLD THE PLAN ASSETS OF ANY OF THE
FOREGOING BY REASON OF INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR PLAN IN SUCH
ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS SUBSTANTIALLY
SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR SECTION 4975 OF
THE CODE (EACH SUCH ENTITY A "BENEFIT PLAN"); OR (II) THE ACQUISITION AND
HOLDING OF THE CLASS C NOTE WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED
TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A
GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR APPLICABLE LAW).
A3-2
REGISTERED $__________*
No. R- _____ CUSIP NO. _____
FIRST NATIONAL MASTER NOTE TRUST
CLASS C FLOATING RATE ASSET BACKED NOTE, SERIES 2003-1
First National Master Note Trust (herein referred to as "Issuer"), a Delaware
statutory trust governed by a Trust Agreement dated as of October 16, 2002, for
value received, hereby promises to pay to Cede & Co., or registered assigns,
subject to the following provisions, the principal sum of DOLLARS, or such
greater or lesser amount as determined in accordance with the Indenture, on the
August, 2008 Distribution Date, except as otherwise provided below or in the
Indenture. Issuer will pay interest on the unpaid principal amount of this Note
at the Class C Note Interest Rate on each Distribution Date until the principal
amount of this Note is paid in full. Interest on this Note will accrue for each
Distribution Date from and including the most recent Distribution Date on which
interest has been paid to but excluding such Distribution Date or, for the
initial Distribution Date, from and including the Closing Date to but excluding
such Distribution Date. Interest will be computed on the basis of a 360-day year
and the actual number of days elapsed. Principal of this Note shall be paid in
the manner specified in the Indenture Supplement referred to on the reverse
hereof.
The principal of and interest on this Note are payable in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by or on
behalf of Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
This Note has been executed by Wilmington Trust Company, not in its individual
capacity, but solely in its capacity as Owner Trustee of the Issuer, in no event
shall Wilmington Trust Company, in its individual capacity, have any liability
in respect of the obligations of Issuer hereunder or under any other document,
as to all of which recourse shall be had solely to the assets of Issuer, and for
all purposes of this Note and each other document, Owner Trustee (as such or in
its individual capacity) shall be subject to, and entitled to the benefits of,
the terms and provisions of the Trust Agreement.
THIS CLASS C NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND PAYMENTS ON
THE CLASS A NOTES AND THE CLASS B NOTES TO THE EXTENT SPECIFIED IN THE INDENTURE
SUPPLEMENT.
----------
* Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
A3-3
IN WITNESS WHEREOF, Issuer has caused this Class C Note to be duly executed.
FIRST NATIONAL MASTER NOTE TRUST, as Issuer
By Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By ________________________________________
Name ______________________________________
Title______________________________________
Dated: ___________, 200[__]
A3-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class C Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Indenture Trustee
By____________________________________
Authorized Signatory
Dated_________________________________
A3-5
FIRST NATIONAL MASTER NOTE TRUST
CLASS C FLOATING RATE ASSET BACKED NOTE, SERIES 2003-1
SUMMARY OF TERMS AND CONDITIONS
This Class C Note is one of a duly authorized issue of Notes of Issuer,
designated as First National Master Note Trust, Series 2003-1 (the "Series
2003-1 Notes"), issued under a Master Indenture dated as of October 24, 2002
(the "Master Indenture"), between Issuer and The Bank of New York, as indenture
trustee (the "Indenture Trustee"), as supplemented by the Indenture Supplement
dated as of March 20, 2003 (the "Indenture Supplement"), and representing the
right to receive certain payments from Issuer. The term "Indenture," unless the
context otherwise requires, refers to the Master Indenture as supplemented by
the Indenture Supplement. The Notes are subject to all of the terms of the
Indenture. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in or pursuant to the Indenture. In the event
of any conflict or inconsistency between the Indenture and this Note, the
Indenture shall control.
The Class A Notes and the Class B Notes will also be issued under the Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will look solely
to the property of Issuer allocated to the payment of this Note for payment
hereunder and that neither Owner Trustee nor Indenture Trustee is liable to the
Noteholders for any amount payable under the Notes or the Indenture or, except
in the case of Indenture Trustee as expressly provided in the Indenture, subject
to any liability under the Indenture.
This Note does not purport to summarize the Indenture and reference is made to
the Indenture for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of Indenture Trustee.
THIS CLASS C NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
ISSUER, FIRST NATIONAL BANK OF OMAHA, FIRST NATIONAL FUNDING CORPORATION, FIRST
NATIONAL FUNDING LLC, OR ANY OF THEIR AFFILIATES, AND IS NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Issuer, Transferor, Indenture Trustee and any agent of Issuer, Transferor or
Indenture Trustee shall treat the person in whose name this Class C Note is
registered as the owner hereof for all purposes, and neither Issuer, Transferor,
Indenture Trustee nor any agent of Issuer, Transferor or Indenture Trustee shall
be affected by notice to the contrary.
THIS CLASS C NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEBRASKA, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A3-6
ASSIGNMENT
Social Security or other identifying number of assignee ______________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________ (name and address of assignee) the within certificate and all
rights thereunder, and hereby irrevocably constitutes and appoints
_________________ attorney, to transfer said certificate on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:________________________ ____________________________**
Signature Guaranteed:
----------
** The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A3-7
EXHIBIT B
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO INDENTURE TRUSTEE
FIRST NATIONAL MASTER NOTE TRUST
SERIES 2003-1
The undersigned, a duly authorized representative of First National Bank of
Omaha ("FNBO"), as Servicer pursuant to the Transfer and Servicing Agreement,
dated as of October 24, 2002 (the "Transfer and Servicing Agreement") between
FNBO, as Servicer, First National Funding LLC, as transferor ("Transferor") and
First National Master Note Trust, as issuer ("Issuer"), does hereby certify as
follows:
A. Capitalized terms used in this Certificate have their respective
meanings set forth in the Master Indenture dated as of October 24, 2002
(the "Indenture") between Issuer and The Bank of New York, as indenture
trustee ("Indenture Trustee") as supplemented by the 0000-0 Xxxxxxxxx
Supplement dated as of March 20, 2003 between Issuer and Indenture Trustee
(as amended and supplemented, the "Indenture Supplement").
B. FNBO is Servicer.
C. The undersigned is an Authorized Officer of Servicer.
I. INSTRUCTION TO MAKE A WITHDRAWAL
[From the aggregate Collections wired to the Indenture Trustee with respect to
the Related Monthly Period on the Transfer Date, the Indenture Trustee shall
make deposits to the Series Accounts for Series 2003-1 as follows:
To the Finance Charge Account $______________
To the Principal Account $______________
[TO BE USED IF SERVICER IS PERMITTED TO MAKE MONTHLY DEPOSITS PURSUANT TO
THE POOLING AND SERVICING AGREEMENT OR THE TRANSFER AND SERVICING
AGREEMENT, AS APPLICABLE.]
Pursuant to Section 4.04, Servicer does hereby instruct Indenture Trustee (i) to
make a withdrawal from the Finance Charge Account (or other Series Account as
specified below) on , 200 , which date is a Transfer Date under the Indenture
Supplement, in an aggregate amount (equal to the Available Finance Charge
Collections) as set forth below in respect of the following amounts and (ii) to
apply the proceeds of such withdrawal in accordance with subsection 4.04(a):
A. Pursuant to subsection 4.04(a)(i):
Class A Monthly Interest Payment for the
preceding Interest Period .......................................... $___________
Class A Interest Shortfall due to
Class A Noteholders ................................................ $___________
Class A Default Interest for such
Distribution Date .................................................. $___________
Class A Default Interest previously due but
not distributed to Class A Noteholders ............................. $___________
B. Pursuant to subsection 4.04(a)(ii):
Class B Monthly Interest Payment for the
preceding Interest Period .......................................... $___________
Class B Interest Shortfall due to
Class B Noteholders ................................................ $___________
Class B Default Interest for such
Distribution Date .................................................. $___________
Class B Default Interest previously due but
not distributed to Class B Noteholders ............................. $___________
C. Pursuant to subsection 4.04(a)(iii) if Servicer
is not FNBO or an Affiliate of FNBO:
Noteholder Servicing Fee for such Distribution Date,
plus the amount of any Noteholder Servicing Fee
previously due but not distributed to Servicer on a
prior Distribution Date ............................................ $___________
D. Pursuant to subsection 4.04(a)(iv):
Class C Monthly Interest Payment for the
preceding Interest Period .......................................... $___________
Class C Interest Shortfall due to
Class C Noteholders ................................................ $___________
Class C Default Interest for such
Distribution Date .................................................. $___________
B-2
Class C Default Interest previously due but
not distributed to Class C Noteholders ............................. $___________
E. Pursuant to subsection 4.04(a)(v):
Investor Default Amount to be treated as
Available Principal Collections .................................... $___________
Uncovered Dilution Amount for such
Distribution Date to be treated as Available
Principal Collections .............................................. $___________
F. Pursuant to subsection 4.04(a)(vi):
Investor Charge Offs and the amount of
Reallocated Principal Collections not
previously reimbursed to be treated as
Available Principal Collections .................................... $___________
G. Pursuant to subsection 4.04(a)(vii):
Amounts to be deposited into the Spread Account .................... $___________
H. Pursuant to subsection 4.04(a)(viii):
Noteholder Servicing Fee for such Distribution
Date, plus the amount of any Noteholder
Servicing Fee previously due but not distributed
to Servicer on a prior Distribution Date ........................... $___________
I. Pursuant to subsection 4.04(a)(ix):
Amount to be deposited into the Reserve
Account ............................................................ $___________
J. Pursuant to subsection 4.04(a)(x):
The balance will constitute Excess Finance
Charge Collections for such Distribution Date ...................... $___________
K. Excess Finance Charge Collections
available and required to support other
Series in Group One ................................................ $___________
B-3
Excess Finance Charge Collections available to cover
L. Excess Servicing Fee ............................................... $___________
Pursuant to Section 4.04(b) and (c), Servicer does hereby instruct Indenture
Trustee (i) to make a withdrawal from the Principal Account (or other Series
Account specified below) on ______________, 200__ , which date is a Transfer
Date under the Indenture Supplement, in an aggregate amount (equal to the
Available Principal Collections) as set forth below in respect of the following
amounts and (ii) to apply the proceeds of such withdrawal in accordance with
Section 4.04(b) and (c):
A. Pursuant to subsection 4.04(b):
During the Revolving Period, amount equal to the
Available Principal Collections to be treated as Excess
Principal Collections and applied in accordance with
Section 8.05 of the Indenture ...................................... $___________
B. Pursuant to subsection 4.04(c)(i):
During the Accumulation Period, Monthly Principal for
such Transfer Date to be deposited into the Principal
Accumulation Account ............................................... $___________
C. Pursuant to subsection 4.04(c)(ii):
During the Rapid Amortization Period, Monthly
Principal for such Transfer Date to be deposited to
the Distribution Account for payment to the Class A
Noteholders on the Distribution Date until an
aggregate amount equal to the Class A Note
Principal Balance has been so deposited ............................ $___________
D. Pursuant to subsection 4.04(c)(iii):
During the Rapid Amortization Period, after giving
effect to Clause (C) above, if any remaining Monthly
Principal, to be deposited to the Distribution Account
for payment to the Class B Noteholders on the Distribution
Date until an aggregate amount equal to the
Class B Note Principal Balance has been so deposited ............... $___________
B-4
E. Pursuant to subsection 4.04(c)(iv):
During the Rapid Amortization Period, after giving
effect to Clause (D) above, if any remaining Monthly
Principal, to be deposited to the Distribution Account
for payment to the Class C Noteholders, on the
Distribution Date until an aggregate amount equal to
the Class C Note Principal Balance has been so deposited ........... $___________
F. Pursuant to subsection 4.04(c)(v):
Available Principal Collections, if any, remaining
after giving effect to Clauses (B) through (E) above,
to be treated as Excess Principal Collections ...................... $___________
Pursuant to Section 4.06, Servicer does hereby instruct Indenture Trustee (i) to
make a withdrawal from the Principal Account on _____________, 200__ which date
is a Distribution Date under the Indenture Supplement, in an aggregate amount
(equal to the Available Principal Collections) as set forth below in respect of
the following amounts and (ii) to apply the proceeds of such withdrawal in
accordance with Section 4.06:
Reallocated Principal Collections, up to the amount
required to fund any deficiency pursuant to and in
the priority set forth subsections 4.04(a)(i), (ii)
and (iii) of the Indenture Supplement (after
application of amounts available from the Spread
Account) to be deposited to the Distribution
Account for payment to the Class A and Class B
Noteholders or distributed to the Servicer ......................... $___________
Pursuant to Section 4.09, Servicer does hereby instruct Indenture
Trustee to transfer from the Principal Accumulation Account to the
Finance Charge Account, the Principal Accumulation Investment Proceeds
on deposit in the Principal Accumulation Account for application as
Available Finance Charge Collections in the following amount and to
deposit interest and earnings on the funds on deposit in the Principal
Account, the Finance Charge Account and the Distribution Account to an
account designated by Servicer:
From Principal Accumulation Account
to the Finance Charge Account $_________
Earnings on Principal Account, Finance
Charge Account and Distribution Account
to the order of Servicer $_________
B-5
Pursuant to Section 4.10, Servicer does hereby instruct Indenture Trustee to
withdraw from the Reserve Account an amount equal to any Reserve Account Surplus
to be deposited into the Spread Account in accordance with Section 4.10(e), in
the following amount.
$__________________
Pursuant to Section 4.12, Servicer does hereby instruct Indenture Trustee to
withdraw from the Spread Account an amount equal to a deficiency in Class C
Monthly Interest Payment up to the Available Spread Account Amount, in the
following amount.
$__________________
II. INSTRUCTIONS TO MAKE CERTAIN PAYMENTS
Pursuant to Section 5.02, Servicer does hereby instruct Indenture Trustee or
Paying Agent, as the case may be, to pay in accordance with Section 5.02 from
the Distribution Account or the Principal Accumulation Account, as applicable,
_____________ on , which date is a Distribution Date under the Indenture
Supplement, the following amounts:
A. Pursuant to subsection 5.02(a):
(1) Class A Noteholder's pro rata share of the amounts on
deposit in the Distribution Account that are allocated
and available on such Distribution Date to pay interest
on the Class A Notes pursuant to the Indenture
Supplement ................................................ $______________________
(2) Class A Noteholder's pro rata share of the amounts on
deposit in the Distribution Account that are allocated
and available on such Distribution Date to pay
principal of the Class A Notes pursuant to the
Indenture Supplement ...................................... $______________________
B. Pursuant to subsection 5.02(b):
(1) Class B Noteholder's pro rata share of the amounts on
deposit in the Distribution Account that are allocated
and available on such Distribution Date to pay interest
on the Class B Notes pursuant to the Indenture
Supplement ................................................ $______________________
B-6
(2) Class B Noteholder's pro rata share of the amounts on
deposit in the Distribution Account that are allocated
and available on such Distribution Date to pay
principal of the Class B Notes pursuant to the
Indenture Supplement ...................................... $______________________
C. Pursuant to subsection 5.02(c):
(1) Class C Noteholder's pro rata share of the amounts on
deposit in the Distribution Account that are allocated
and available on such Distribution Date to pay interest
on the Class C Notes pursuant to the Indenture
Supplement, including amounts withdrawn from the Spread
Account ................................................... $______________________
(2) Class C Noteholder's pro rata share of the amounts on
deposit in the Distribution Account that are allocated
and available on such Distribution Date to pay
principal of the Class C Notes pursuant to the
Indenture Supplement ...................................... $______________________
B-7
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
_______ day of ____________, 200__.
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By__________________________________
Name________________________________
Title_______________________________
B-8
EXHIBIT C
FORM OF MONTHLY REPORT TO NOTEHOLDERS
FIRST NATIONAL MASTER NOTE TRUST SERIES 2003-1
MONTHLY PERIOD ENDING:
The undersigned, a duly authorized representative of First National Bank of
Omaha ("FNBO"), as Servicer pursuant to the Transfer and Servicing Agreement
dated as of October 24, 2002 (as amended, the "Transfer and Servicing
Agreement") by and between FNBO, as Servicer, First National Funding LLC, as
Transferor, and First National Master Note Trust, as Issuer, does hereby certify
as follows:
(a) The rights of the Issuer under the Transfer and Servicing Agreement have
been assigned to The Bank of New York, as Indenture Trustee, under the Master
Indenture dated as of October 24, 2002 (the "Indenture"), by and between Issuer
and the Indenture Trustee, and acknowledged by Transferor and Servicer, as
supplemented by the Series 0000-0 Xxxxxxxxx Supplement, dated as of March 20,
2003, by and between Issuer and Indenture Trustee, and acknowledged by
Transferor and Servicer (the "Supplement"). Capitalized terms used in this
Certificate have their respective meanings set forth in the Transfer and
Servicing Agreement. References herein to certain sections and subsections are
references to the respective sections and subsections of the Transfer and
Servicing Agreement. This Certificate is delivered pursuant to Section 3.04 of
the Transfer and Servicing Agreement and Articles VIII and IX of the Indenture.
(b) FNBO is the Servicer under the Transferor and Servicing Agreement.
(c) The undersigned is a Servicing Officer.
(d) The date of this Certificate is the Determination Date relating to the _____
Distribution Date (the "Distribution Date").
(e) To the knowledge of the undersigned, there are no Liens on any Receivables
in the Trust except as described below:
[If applicable, insert "None".]
(f) To the knowledge of the undersigned, no Series 2003-1 Pay Out Event and no
Trust Pay Out Event has occurred except as described below:
[If applicable, insert "None"]
(g) As of the date hereof the Available Spread Account Amount equals the
Required Spread Account Amount and, if the Reserve Account Funding Date has
occurred, the Available Reserve Account Amount equals the Required Reserve
Account Amount.
A. INFORMATION REGARDING THE PERFORMANCE OF THE RECEIVABLES
1. Principal Receivables
(a) Beginning of Monthly Period Principal Receivables --------------
(b) End of Monthly Period Principal Receivables --------------
(c) Average Principal Receivables --------------
2. End of Monthly Period Trust Receivables --------------
3. Delinquent Balances
Delinquency Aggregate Account Percentage of
Category Balance Total Receivables
-------- ----------------- -----------------
(a) 30 to 59 days ----------------------------------------------
(b) 60 to 89 days ----------------------------------------------
(c) 90 to 119 days ----------------------------------------------
(d) 120 to 149 days ----------------------------------------------
(e) 150 or more days ----------------------------------------------
Total:
4. Aggregate amount of Collections
(a) Total Collections ------------
(b) Total Collections of Principal Receivables ------------
(c) Total Collections of Finance Charge Receivables ------------
(d) Aggregate Allocation Percentages for Outstanding
Series ------------
(e) Aggregate Allocation Percentage of Collections of
Principal Receivables ------------
(f) Aggregate Allocation Percentage of Collections of
Finance Charge Receivables ------------
5. Aggregate amount of Principal Receivables in Accounts which
became Defaulted Accounts during the Monthly Period ------------
6. Calculation of Interchange allocable to the Issuer for the
Monthly Period ------------
(a) Sales net of cash advances during the Monthly Period
on all FNBO MasterCard and VISA(1) accounts ------------
(b) Sales net of cash advances during the Monthly Period
on Accounts designated to the Receivables Trust ------------
----------
(1) MasterCard and VISA are registered trademarks of MasterCard International
Incorporated and of VISA USA, Inc., respectively.
C-2
(c) Total amount of Interchange paid or payable to FNBO
with respect to the Monthly Period ------------
(d) Amount of Interchange allocable to Series 2003-1 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% of Collateral Amount
at end of prior Monthly Period) ------------
(f) Adjustment to Noteholder Servicing Fee (excess of (e)
over (d)) ------------
7. The aggregate amount of Collections of Finance Charge
Receivables for the Receivables Trust for the Monthly
Period
(a) Interchange ------------
(b) Recoveries ------------
(c) Finance Charges and Fees ------------
(d) Discount Receivables ------------
Total ------------
8. Aggregate Uncovered Dilution Amount for the Monthly
Period
B. INFORMATION REGARDING THE SERIES 2003-1 NOTES
1. Collateral Amount at the close of business on the
prior Distribution Date ------------
(a) Reductions due to Investor Charge-Offs
(including Uncovered Dilution Amounts) to be
made on the related Distribution Date ------------
(b) Reimbursements to be made on the related
Distribution Date from Available Finance Charge
Collections ------------
(c) Collateral Amount at the close of business on
the Distribution Date ------------
2. Note Principal Balance at the close of business on
the Distribution Date during the Monthly Period
(a) Class A Note Principal Balance ------------
(b) Class B Note Principal Balance ------------
(c) Class C Note Principal Balance ------------
Total Note Principal Balance ------------
3. Allocation Percentages for the Monthly Period
(a) Principal Collections ------------
(b) Finance Charge Collections ------------
(c) Default Amounts ------------
C-3
4. Investor Principal Collections processed during the
Monthly Period and allocated to the Series ------------
5. Excess Principal Collections available from other
Group I Series allocated to the Series ------------
6. Aggregate amounts treated as Available Principal
Collections pursuant to subsections 4.04(a)(v) and
(vi) of the related Indenture Supplement ------------
7. Reallocated Principal Collections (up to the Monthly
Principal Reallocation Amount) applied pursuant to
Section 4.06 of the related Indenture Supplement ------------
8. AVAILABLE PRINCIPAL COLLECTIONS (4+5+6-7) ------------
9. Principal Accumulation Investment Proceeds ------------
10. Investor Finance Charge Collections (including
Interchange and Recoveries) processed during the
Monthly Period ------------
11. Excess Finance Charge Collections from Group I
allocated to the Series ------------
12. Reserve Account withdrawals pursuant to Section
4.10(b) or (d) of the related Indenture Supplement ------------
13. Excess amounts from Spread Account to be treated as
Available Finance Charge Collections pursuant to
Section 4.12(g) of the related Indenture Supplement ------------
14. AVAILABLE FINANCE CHARGE COLLECTIONS (9+10+11+12+13) ------------
15. Distributions of principal and interest to
Noteholders on the Distribution Date:
(a) Class A Noteholders ------------
(b) Class B Noteholders ------------
(c) Class C Noteholders ------------
16. Distributions of principal to Noteholders on the
Distribution Date:
(a) Class A Noteholders ------------
(b) Class B Noteholders ------------
(c) Class C Noteholders ------------
17. Distributions of interest to Noteholders on the
Distribution Date:
C-4
(a) Class A Noteholders ------------
(b) Class B Noteholders ------------
(c) Class C Noteholders ------------
18. The aggregate amount of all Principal Receivables in
Accounts which became Defaulted Accounts during the
Monthly Period which were allocated to the Series
(a) Default Amount ------------
(b) Allocation Percentage (B.3.(c) above)
Total Investor Default Amount (axb) ------------
19. The aggregate amount of Uncovered Dilution Amount
allocated to the Series for the Monthly Period
(a) Dilutions not covered by Transferor ------------
(b) Series Allocation Percentage (as defined in the
related Indenture Supplement) ------------
(c) Total Uncovered Dilution Amount ------------
20. The aggregate amount of Investor Charge-Offs
(including any Uncovered Dilution Amount not covered
by the Transferor) for the Monthly Period ------------
21. Noteholder Servicing Fee for the Monthly Period
payable to the Servicer (after adjustment for
Servicer Interchange shortfall, if any) ------------
22. Ratings of the Class A Notes
Xxxxx'x ------------
S&P ------------
Fitch ------------
23. Ratings of the Class B Notes
Xxxxx'x ------------
S&P ------------
Fitch ------------
24. Ratings of the Class C Notes
Xxxxx'x ------------
S&P ------------
Fitch ------------
25. Note Interest Rate for the Monthly Period
(a) Class A Note Interest Rate ------------
(b) Class B Note Interest Rate ------------
(c) Class C Note Interest Rate ------------
C-5
C. QUARTERLY NET YIELD
1. Base Rate for the Monthly Period ------------
2. Portfolio Yield for the Monthly Period (See
"Portfolio Yield" definition which is adjusted for
Investor Default Amount and Uncovered Dilution
Amount) ------------
3. Net Yield for the Monthly Period (Portfolio Yield
MINUS Base Rate) ------------
4. Quarterly Net Yield for the related Distribution Date ------------
D. INFORMATION REGARDING THE PRINCIPAL ACCUMULATION ACCOUNT
1. Opening Principal Accumulation Account Balance on the
Distribution Date for the Monthly Period ------------
2. Controlled Deposit Amount to be deposited to the
Principal Accumulation Account on the Distribution
Date for the Monthly Period
(a) Controlled Accumulation Amount ------------
(b) Accumulation Shortfall ------------
(c) Controlled Deposit Amount (a+b) ------------
3. Amounts withdrawn from the Principal Accumulation
Account for distribution to Noteholders on the
related Distribution Date
(a) Distribution in reduction of the Class A Notes ------------
(b) Distribution in reduction of the Class B Notes ------------
(c) Distribution in reduction of the Class C Notes ------------
4. Principal Accumulation Account ending balance after
deposit/withdrawal on the Distribution Date for the
Monthly Period ------------
E. INFORMATION REGARDING THE SPREAD ACCOUNT
1. Opening Available Spread Account Amount on the
Distribution Date for the Monthly Period ------------
2. Aggregate amount required to be withdrawn pursuant to
Section 4.12(c) of the related Indenture Supplement
for distribution to Class C Noteholders pursuant to
Section 4.04(a)(iv) of the related Indenture
Supplement ------------
3. Aggregate amount required to be withdrawn pursuant to
Section 4.12(d) of the related Indenture Supplement
for distribution in reduction of the Class C Note
Principal Balance ------------
4. Spread Account Percentage for the Distribution Date
for the Monthly Period ------------
C-6
5. Closing Required Spread Account Amount for the
Distribution Date for the Monthly Period ------------
6. Amount on deposit in Spread Account after required
withdrawals on the Distribution Date for the Monthly
Period (1-(2+3)) ------------
7. Spread Account Deficiency, if any (5 MINUS 6) ------------
8. Amounts deposited pursuant to Section 4.04(a)(vii) or
4.10(e) of the related Indenture Supplement ------------
9. Remaining Spread Account Deficiency, if any (7 minus
8) ------------
F. INFORMATION REGARDING THE RESERVE ACCOUNT
1. Reserve Account Funding Date ------------
2. Opening Available Reserve Account Amount on the
Distribution Date for the Monthly Period ------------
3. Aggregate amount required to be withdrawn pursuant to
Section 4.10(d) of the related Indenture Supplement
for inclusion in Available Finance Charge
Collections:
(a) Covered Amount ------------
(b) Principal Accumulation Investment Proceeds ------------
(c) Reserve Draw Amount (a MINUS b) ------------
4. Required Reserve Account Amount ------------
5. Reserve Account Surplus (4-(2-3)) ------------
G. INFORMATION REGARDING ACCUMULATION PERIOD (REQUIRED ON AND
AFTER DECEMBER, 2004 DISTRIBUTION DATE)
1. Accumulation Period Length (months) ------------
C-7
IN WITNESS thereof, the undersigned has duly executed and delivered this
Certificate the _______________ day of _________________________,_____________ .
FIRST NATIONAL BANK OF OMAHA,
Servicer
By___________________________________
Name_________________________________
Title________________________________
C-8
EXHIBIT D
FORM OF MONTHLY SERVICER'S CERTIFICATE
FIRST NATIONAL BANK OF OMAHA
FIRST NATIONAL MASTER NOTE TRUST, SERIES 2003-1
The undersigned, a duly authorized representative of First National Bank of
Omaha ("FNBO"), as Servicer pursuant to the Transfer and Servicing Agreement,
dated as of October 24, 2002 (as amended and supplemented, the "Transfer and
Servicing Agreement"), among First National Funding LLC, as Transferor, First
National Bank of Omaha, as Servicer and First National Master Note Trust, as
Issuer, does hereby certify as follows:
1. Capitalized terms used in this Certificate have their respective meanings set
forth in the Transfer and Servicing Agreement or the Master Indenture dated as
of October 24, 2002 (as amended or supplemented, the "Master Indenture"),
between Issuer and The Bank of New York, as indenture trustee ("Indenture
Trustee") as supplemented by the Series 0000-0 Xxxxxxxxx Supplement, dated as of
March 20, 2003, between Issuer and Indenture Trustee (as amended and
supplemented, the "Indenture Supplement") and together with the Master
Indenture, the "Indenture"), as applicable.
2. FNBO is, as of the date hereof, Servicer under the Transfer and Servicing
Agreement.
3. The undersigned is an Authorized Officer of Servicer.
4. This Certificate relates to the Distribution Date occurring on
______________, 200__.
5. As of the date hereof, to the best knowledge of the undersigned, Servicer has
performed in all material respects all of its obligations under the Transfer and
Servicing Agreement and the Indenture through the Monthly Period preceding such
Distribution Date [or, if there has been a default in the performance of any
such obligation, set forth in detail the (i) nature of such default, (ii) the
action taken by Servicer, if any, to remedy such default and (iii) the current
status of each such default]; if applicable, insert "None".
6. As of the date hereof, to the best knowledge of the undersigned, no Pay Out
Event occurred on or prior to such Distribution Date.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate this _______ day of ____________________, 20__.
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By___________________________________
Name_________________________________
Title________________________________
