EXHIBIT 4.2
FIRST AMENDMENT TO
MASTER INDENTURE
(FIRST NATIONAL MASTER NOTE TRUST)
THIS FIRST AMENDMENT TO MASTER INDENTURE, dated as of November 17, 2003
(this "Amendment") is made between FIRST NATIONAL MASTER NOTE TRUST, a statutory
trust organized under the laws of the State of Delaware ("Issuer") and THE BANK
OF NEW YORK, a New York banking corporation, as Indenture Trustee ("Indenture
Trustee"). Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned thereto in the Master Indenture (as defined below).
R E C I T A L S :
A. Issuer and Indenture Trustee are parties to that certain
Master Indenture, dated as of October 24, 2002 (the "Master Indenture").
B. Issuer wishes to amend the Master Indenture in certain
respects as set forth herein and has provided an Issuer Order authorizing such
amendments to Indenture Trustee as contemplated by Section 10.01(a) of the
Master Indenture.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS.
(a) Section 4.01 of the Master Indenture is hereby
amended and restated to read in its entirety as follows:
"SECTION 4.01 SATISFACTION AND DISCHARGE OF THE INDENTURE. The
Indenture shall cease to be of further effect with respect to the Notes
except as to (a) rights of registration of transfer and exchange, (b)
substitution of mutilated, destroyed, lost or stolen Notes, (c) the
rights of Noteholders to receive payments of principal thereof and
interest thereon, (d) Sections 3.03, 3.07, 3.08, 3.11, 3.12 and 12.16,
(e) the rights and immunities of Indenture Trustee hereunder, including
the rights of Indenture Trustee under Section 6.07, and the obligations
of Indenture Trustee under Section 4.02, and (f) the rights of
Noteholders as beneficiaries hereof with respect to the property so
deposited with Indenture Trustee and payable to all or any of them, and
Indenture Trustee, at the expense of Issuer and on written demand of,
or on behalf of, Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of the Indenture with respect to the Notes
when:
(i) either
(A) all Notes theretofore authenticated
and delivered (other than (1) Notes which have been
destroyed, lost or stolen and which have been
replaced, or paid as provided in Section 2.06, and
(2) Notes for whose full payment Servicer or
Transferor, on behalf of Issuer, has theretofore
deposited money in trust, which money has thereafter
been repaid to Issuer or discharged from such trust,
as provided in Section 3.03) have been delivered to
Indenture Trustee for cancellation; or
(B) all Notes not theretofore delivered
to Indenture Trustee for cancellation:
(1) have become due and
payable; or
(2) will become due and
payable at the Series Termination Date for
such Class or Series of Notes; or
(3) are to be called for
redemption within one year under
arrangements satisfactory to Indenture
Trustee for the giving of notice of
redemption by Indenture Trustee in the name,
and at the expense, of Issuer; and
(4) Transferor or Servicer, in
the case of (1), (2) or (3) above, has
irrevocably deposited or caused to be
irrevocably deposited with Indenture Trustee
cash or direct obligations of or obligations
guaranteed by the United States of America
(which will mature prior to the date such
amounts are payable), in trust for such
purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such
Notes not theretofore delivered to Indenture
Trustee for cancellation when due at the
Series Termination Date for such Class or
Series of Notes or the Redemption Date (if
Notes shall have been called for redemption
pursuant to the related Indenture
Supplement), as the case may be;
(ii) Issuer has paid or caused to be paid all
other sums payable hereunder by Issuer; and
(iii) Issuer has delivered or caused to be
delivered to Indenture Trustee an Officer's Certificate, an
Opinion of Counsel and (if required by the TIA or Indenture
Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements
of Section 12.01(a) and each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of the Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of the
Indenture, the obligations of Issuer and Servicer to Indenture
Trustee under Section 6.07 and of Indenture Trustee to the
Noteholders under Section 4.02 shall survive such satisfaction
and discharge(c)."
(b) Section 12.13 of the Indenture is hereby amended by
deleting the word "CONFLICT" in the second line and changing the word
"CHOICE" to "CONFLICT" in the third line.
SECTION 2. EFFECTIVENESS. The amendments set forth in Section 1 shall
become effective as of November 17, 2003, upon execution of this Amendment by
each of the parties hereto and satisfaction of each other condition precedent
specified in Section 10.01 of the Master Indenture to the effectiveness of any
amendment to the Master Indenture.
SECTION 3. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY 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 4. SEVERABILITY. Each provision of this Amendment shall be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability of any provision hereof, and the
unenforceability of any provision hereof, and the unenforceability of one or
more provisions of this Amendment in one jurisdiction shall not have the effect
of rendering such provision or provisions unenforceable in any other
jurisdiction.
SECTION 5. RATIFICATION OF THE MASTER INDENTURE. From and after the
date hereof, each reference in the Master Indenture to the "Indenture," "this
Indenture," "hereunder," "hereof," "herein" or words of like import, and
references to the Master Indenture in any other document, instrument or
agreement executed and/or delivered in connection therewith, shall, in each
case, mean and be a reference to the Master Indenture as amended hereby. Except
as specifically amended by this Amendment, the Master Indenture shall continue
in full force and effect and is hereby ratified and confirmed.
SECTION 6. COUNTERPARTS. This Amendment may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 7. LIMITATION OF LIABILITY. Notwithstanding any other provision
herein or elsewhere, this Amendment has been executed and delivered by
Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of Issuer, 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.
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EXHIBIT 4.2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective duly authorized officers as of the date and
year first written above.
FIRST NATIONAL MASTER NOTE TRUST,
as Issuer
By Wilmington Trust Company, not in its
individual capacity, but solely as
Owner Trustee
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title Financial Services Officer
THE BANK OF NEW YORK, as Indenture Trustee
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Agent
Acknowledged and Accepted:
FIRST NATIONAL FUNDING LLC, as Transferor
By First National Funding Corporation,
its Managing Member
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title Senior Vice President
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title Vice President
FIRST AMENDMENT TO
MASTER INDENTURE SIGNATURE PAGE
