EXECUTION COPY
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VFN SERIES 2003-3 INDENTURE SUPPLEMENT
Dated as of December 17, 2003
to
MASTER INDENTURE
Dated as of October 24, 2002
--------------------------
FIRST NATIONAL MASTER NOTE TRUST,
Issuer,
and
THE BANK OF NEW YORK,
Indenture Trustee on behalf of the Noteholders
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FIRST NATIONAL MASTER NOTE TRUST
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TABLE OF CONTENTS
Page
ARTICLE I
CREATION OF THE VFN SERIES 2003-3 NOTES..................................................................... 1
ARTICLE II
DEFINITIONS................................................................................................. 1
ARTICLE III
NOTEHOLDER SERVICING FEE
Section 3.01. Servicing Compensation.................................................................... 20
ARTICLE IV
RIGHTS OF NOTEHOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.01. Collections and Allocations............................................................... 21
Section 4.02. Determination of Monthly Interest......................................................... 24
Section 4.03. Determination of Monthly Principal........................................................ 26
Section 4.04. Application of Available Finance Charge Collections and Available Principal Collections... 26
Section 4.05. Investor Charge-Offs...................................................................... 29
Section 4.06. Reallocated Principal Collections......................................................... 29
Section 4.07. Excess Finance Charge Collections......................................................... 30
Section 4.08. Excess Principal Collections.............................................................. 30
Section 4.09. Certain Series Accounts................................................................... 31
Section 4.10. Extension of Revolving Period............................................................. 32
Section 4.11. Adjustments............................................................................... 33
Section 4.12. Spread Account............................................................................ 36
Section 4.13. Investment Instructions................................................................... 38
Section 4.14. [Reserved]................................................................................ 38
Section 4.15. Fees; Increased Costs..................................................................... 38
Section 4.16. Note Interest Rates....................................................................... 42
Section 4.17. Interchange............................................................................... 42
Section 4.18. Foreign Accounts.......................................................................... 42
Section 4.19. Funding Account........................................................................... 43
Section 4.20. Taxes..................................................................................... 44
ARTICLE V
DELIVERY OF NOTES; DISTRIBUTIONS; REPORTS TO NOTEHOLDERS
Section 5.01. Delivery and Payment for the VFN Series 2003-3 Notes...................................... 46
Section 5.02. Distributions............................................................................. 46
Section 5.03. Reports and Statements to VFN Series 2003-3 Noteholders................................... 47
ARTICLE VI
VFN SERIES 2003-3 Pay Out Events............................................................................ 47
ARTICLE VII
REDEMPTION; FINAL DISTRIBUTIONS; SERIES TERMINATION
Section 7.01. Optional Redemption of VFN Series 2003-3 Notes; Final Distributions....................... 49
Section 7.02. Series Termination........................................................................ 50
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Ratification of Indenture; Amendments; Waivers............................................ 51
Section 8.02. Form of Delivery of the VFN Series 2003-3 Notes........................................... 51
Section 8.03. Counterparts.............................................................................. 51
Section 8.04. Governing Law............................................................................. 51
Section 8.05. Limitation of Liability................................................................... 51
Section 8.06. Rights of Indenture Trustee............................................................... 51
Section 8.07. Additional Requirements for Registration of and Limitations on Transfer and
Exchange of Notes......................................................................... 51
EXHIBIT A-1 FORM OF CLASS A-1 ASSET BACKED NOTE, VFN SERIES 2003-3
EXHIBIT A-2 FORM OF CLASS A-2 ASSET BACKED NOTE, VFN SERIES 2003-3
EXHIBIT A-3 FORM OF CLASS B-1 ASSET BACKED NOTE, VFN SERIES 2003-3
EXHIBIT A-4 FORM OF CLASS B-2 ASSET BACKED NOTE, VFN SERIES 2003-3
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
EXHIBIT E FORM OF INVESTOR CERTIFICATION
ii
VFN SERIES 0000-0 XXXXXXXXX SUPPLEMENT
VFN SERIES 0000-0 XXXXXXXXX SUPPLEMENT, dated as of December 17, 2003
("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 VFN SERIES 2003-3 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, VFN Series 2003-3" or the "VFN Series 2003-3 Notes"
or "VFN Series 2003-3". The VFN Series 2003-3 Notes shall be issued in four
Classes of Variable Interests, known as the "Class A-1 Asset Backed Notes, VFN
Series 2003-3," the "Class A-2 Asset Backed Notes, VFN Series 2003-3," the
"Class B-1 Asset Backed Notes, VFN Series 2003-3" and the "Class B-2 Asset
Backed Notes, VFN Series 2003-3."
VFN Series 2003-3 shall be included in Group One and shall be a
Principal Sharing Series. VFN Series 2003-3 shall be an Excess Allocation Series
with respect to Group One only. VFN Series 2003-3 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.
"Adjustment Date" is defined in Section 4.11.
"Affected Party" means a VFN Series 2003-3 Noteholder, any Support
Provider or any Funding Agent.
"Agent" means Societe Generale.
"Allocation Percentage" means, with respect to any Monthly Period, the
percentage equivalent of a fraction:
(a) the numerator of which shall be equal to:
(i) for Principal Collections during the
Revolving Period, and for Finance Charge Collections during
the Revolving Period and the Controlled Amortization Period,
and for Default Amounts at any time, the Average Collateral
Amount for the prior Monthly Period; or
(ii) for Finance Charge Collections during the
Rapid Amortization Period and for Principal Collections during
the Rapid Amortization Period and the Controlled Amortization
Period, the 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
Controlled Amortization Period;
provided, however, that prior to the occurrence of a Pay Out Event,
Transferor may, by written notice to Indenture Trustee, Servicer, the
Funding Agents and each Rating Agency, reduce the numerator used for
purposes of allocating Principal Collections and Finance Charge
Collections to VFN Series 2003-3 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 VFN Series 2003-3; 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, the Funding Agents 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 PSA Series (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.
"Alternate Base Rate" means, on any date, and with respect to a Funding
Group, the higher of (a) the Prime Rate for such Funding Group, and (b) the
Federal Funds Rate for such Funding Group plus 0.5% per annum; provided that
after the occurrence and during the continuance of a Rate Trigger Event, the
Alternate Base Rate for a Funding Group shall be the Prime Rate for such Funding
Group plus 2% per annum.
2
"Alternate LIBOR Rate" means, on any date, and with respect to a
Funding Group, the arithmetic average (rounded upward, if necessary, to the
nearest whole multiple of 1/16th of 1%) of rates offered to the applicable
Funding Agent by not fewer than two major banks in London, England at
approximately 10:00 a.m. (Eastern time), on the Rate Determination Date for
deposits in U.S. dollars in the London interbank market for a one-month period
in an amount comparable to the principal amount of such VFN Series 2003-3 Notes.
"Amortization Period" means the period following the Revolving Period
which shall be the Controlled Amortization Period or the Rapid Amortization
Period.
"Applicable Margin" means, with respect to a Funding Group and the
calculation of a given interest rate, the number of basis points specified as
the margin for such rate in such Funding Group's Fee Letter.
"Applicable Pass-Through Rate" means, with respect to a Class of VFN
Series 2003-3 Notes, (a) for any Monthly Period during which such Class of VFN
Series 2003-3 Notes are held for the benefit a CP Vehicle only, the CP Rate for
such CP Vehicle for such Monthly Period, (b) for any Monthly Period during which
such Class of VFN Series 2003-3 Notes are held for the benefit of a CP Vehicle
and Support Providers, the weighted average of (i) the CP Rate for such CP
Vehicle for such Monthly Period (weighted on the basis of the Average Note
Principal Balance of such Class held for the benefit of such CP Vehicle) and
(ii) the Bank Rate for such Support Providers for such Monthly Period (weighted
on the basis of the Average Note Principal Balance of such Class held for the
benefit of such Support Providers), (c) for any Monthly Period during which such
Class of VFN Series 2003-3 Notes are held for the benefit of the related Support
Providers only, the Bank Rate for such Support Providers for such Monthly
Period.
"Available Finance Charge Collections" means, for any Monthly Period,
an amount equal to the sum of (a) the Investor Finance Charge Collections for
such Monthly Period, plus (b) the Excess Finance Charge Collections allocated to
VFN Series 2003-3 for such Monthly Period, plus (c) amounts on deposit in the
Spread Account deposited into the Finance Charge Account on the related Transfer
Date to be treated as Available Finance Charge Collections for such Transfer
Date pursuant to subsections 4.12(c), (f) or (g) or Section 4.02 of the Pooling
and Servicing Agreement or Section 8.03 of the Master Indenture.
"Available Funding Account Amount" means, for any date of
determination, an amount equal to the lesser of (a) the amount on deposit in the
Funding Account (exclusive of Investment Earnings and before giving effect to
any deposit to, or withdrawal from, the Funding Account made or to be made with
respect to such date) and (b) the Designated Funding Account Amount, in each
case on such date of determination.
"Available Principal Collections" means, for any Monthly Period, an
amount equal to 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)(vi) and (vii) for the related
Distribution Date.
3
"Available Spread Account Amount" means, for any Transfer Date, an
amount equal to the lesser of (a) the amount on deposit in the Spread Account
(exclusive of Investment Earnings on such date and before giving effect to any
deposit to, or withdrawal from, the Spread Account made or to be made with
respect to such date) and (b) the Required Spread Account Amount, in each case
on such Transfer Date.
"Average" means, with respect to any defined term and period, the
weighted average of such term based on (a) the aggregate of the values for such
term for each day during the applicable period, divided by (b) the number of
days in such period.
"Bank Rate" means, for any Monthly Period and with respect to a Funding
Group, an interest rate per annum equal to the applicable LIBOR plus the
Applicable Margin; provided, however, that the Bank Rate shall equal the
Alternate Base Rate:
(a) after the occurrence and during the continuance of a
Rate Trigger Event or an event described in subsection 4.15(e) of this
Indenture Supplement; or
(b) during any Monthly Period with respect to any portion
of the applicable Class (i) held by the related Support Providers for
less than the entire Monthly Period or (ii) as to which the related
Funding Agent did not receive notice or determine, by noon (New York
City time) on the third Business Day preceding the first day of such
Monthly Period, that such portion of the applicable Class would be held
by the related Support Providers.
"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, (ii) all amounts payable pursuant to subsection 4.15(a) or
(c), plus any other amounts payable as part of the Senior Cost Amount for the
Class A Notes and the Class B Notes, for such Monthly Period, and (iii) 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 Average Note
Principal Balance for such Monthly Period.
"Benchmark Amount" means, for any Distribution Date and for any Class,
the greater of:
(a) the product of (i) the applicable Bank Rate
(calculated without giving effect to the proviso in the definition
thereof), (ii) a fraction the numerator of which is the actual number
of days in the Related Monthly Period and the denominator of which is
360, and (iii) the applicable Average Note Principal Balance during the
Related Monthly Period; and
(b) the product of (i) the applicable CP Rate plus .05%
(calculating by assuming there are no amounts described in clauses (b),
(c) or (d) of the definitions of "Matched CP Rate" or "Weighted Average
CP Rate" for such Distribution Date), (ii) a fraction the numerator of
which is the actual number of days in the Related Monthly Period and
the denominator of which is 360, and (iii) the applicable Average Note
Principal Balance during the Related Monthly Period.
4
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York, Chicago, Illinois,
Wilmington, Delaware, Atlanta, Georgia or Omaha, Nebraska are authorized or
obligated by law or executive order to be closed, The Depository Trust Company
of New York is open for business and, if the applicable Business Day relates to
any computation or payment to be made with respect to LIBOR, any day on which
dealings and dollar deposits are carried on in the London interbank market.
"Cap Increase Event" shall mean the occurrence of any of the following:
(a) at the option of the Funding Agents, any representation or warranty under a
Transaction Document proves to have been materially incorrect when made and is
not cured within thirty days (unless waived in writing by the Funding Agents)
after receipt of notice thereof from a Funding Agent, (b) a Rate Trigger Event
(whether occurring before or after the commencement of the Controlled
Amortization Period), (c) an event described in Section 9.02(a) of the Pooling
and Servicing Agreement, (d) the transfer to a Successor Servicer of servicing
rights under this Indenture Supplement, without the consent of the Funding
Agents; (e) the notification by any Rating Agency that the purchase and
continued ownership of VFN Series 2003-3 Notes by a CP Vehicle would lead to a
reduction or withdrawal of the rating of the commercial paper issued by such a
CP Vehicle by such Rating Agency; (f) the Scheduled Payment Date; (g) a Change
of Control, (h) entry of a judgment against the Servicer or the Transferor
involving a liability of $20,000,000 or more in the aggregate (to the extent not
paid or fully covered by insurance provided by a carrier who has acknowledged
coverage and has the ability to perform), if such judgment is not vacated,
discharged or stayed or bonded pending appeal within 45 days from the entry
thereof, (i) the reduction of the Collateral Amount due to either Investor
Charge-Offs or Reallocated Principal Collections, (j) a notice of lien is filed
against the Servicer under Section 412(n) of the Code or Section 302(f) of ERISA
or (k) if FNBO is the Servicer, the reduction of the long-term counterparty
rating of the Servicer below Ba1 by Moody's or below BB+ by Standard & Poor's or
the withdrawal of the long-term counterparty rating of the Servicer by either
agency.
"Change of Control" means (a)(i) the acquisition by any Person or two
or more Persons acting in concert, other than where such Person or two or more
Persons, as the case may be, are members of the Xxxxxxxxx Group, of beneficial
ownership of (directly or indirectly, by contract or otherwise), or (ii) the
entering into a contract or arrangement by any Person or two or more Persons
acting in concert, other than where such Person or two or more Persons, as the
case may be, are members of the Xxxxxxxxx Group, that upon consummation, will
result in its or their acquisition of (or control over), voting stock of First
National of Nebraska, Inc. (or any other securities convertible into such voting
stock) representing 51% or more of the combined voting power of all voting stock
of First National of Nebraska, Inc. or (b) First National of Nebraska, Inc.
ceases to own RPA Seller, Servicer or Transferor.
"Class A Default Interest" is defined in subsection 4.02(b).
"Class A Interest Shortfall" is defined in subsection 4.02(b).
"Class A Monthly Interest Payment" is defined in subsection 4.02(a).
"Class A Monthly Principal" means, for any Distribution Date during an
Amortization Period, an amount equal to the least of (a) Available Principal
Collections for such Distribution
5
Date, (b) for each such Distribution Date with respect to the Controlled
Amortization Period on or prior to the Scheduled Payment Date, the Controlled
Distribution Amount plus any Class A Monthly Principal for a prior Monthly
Period not paid, and (c) the Class A Note Principal Balance on such Distribution
Date.
"Class A Notes" means either or both the Class A-1 Notes and the Class
A-2 Notes.
"Class A Required Amount" means, for any Distribution Date, an amount
equal to the excess of the amount described in subsection 4.04(a)(i) over the
Available Finance Charge Collections applied to pay such amount pursuant to
subsection 4.04(a).
"Class A Share" means 89.75%.
"Class A-1 Note" means any one of the Class A-1 VFN Series 2003-3 Notes
executed by Issuer and authenticated by or on behalf of Indenture Trustee,
substantially in the form of Exhibit A-1.
"Class A-1 Noteholder" means the Person in whose name a Class A-1 Note
is registered in the Note Register.
"Class A-1 Note Initial Principal Balance" means, on any date of
determination, $80,775,000, which is the aggregate initial principal balance of
the Class A-1 Notes issued on the Closing Date, plus any increase and minus any
decrease made in accordance with Section 4.11.
"Class A-1 Note Principal Balance" means, on any date of determination,
an amount equal to (a) the Class A-1 Note Initial Principal Balance, minus (b)
the aggregate amount of principal payments made to Class A-1 Noteholders on or
prior to such date (excluding any payment counted in determining the Note
Initial Principal Balance).
"Class A-2 Note" means any one of the Class A-2 VFN Series 2003-3 Notes
executed by Issuer and authenticated by or on behalf of Indenture Trustee,
substantially in the form of Exhibit A-2.
"Class A-2 Noteholder" means the Person in whose name a Class A-2 Note
is registered in the Note Register.
"Class A-2 Note Initial Principal Balance" means, on any date of
determination, $32,310,000, which is the aggregate initial principal balance of
the Class A-2 Notes issued on the Closing Date, plus any increase and minus any
decrease made in accordance with Section 4.11.
"Class A-2 Note Principal Balance" means, on any date of determination,
an amount equal to (a) the Class A-2 Note Initial Principal Balance, minus (b)
the aggregate amount of principal payments made to Class A-2 Noteholders on or
prior to such date (excluding any payment counted in determining the Note
Initial Principal Balance).
"Class B Default Interest" is defined in subsection 4.02(d).
"Class B Interest Shortfall" is defined in subsection 4.02(d).
6
"Class B Monthly Interest Payment" is defined in subsection 4.02(c).
"Class B Monthly Principal" means, for any Distribution Date during an
Amortization Period on or after the Distribution Date on which the Class A-1
Note Initial Principal Balance and the Class A-2 Note Initial Principal Balance
have been paid in full, an amount equal to the least of (a) Available Principal
Collections (after application of such funds pursuant to Section 4.04(c)(i)),
(b) for each Distribution Date with respect to the Controlled Amortization
Period on or prior to the Scheduled Payment Date, the Controlled Distribution
Amount plus any Class B Monthly Principal for a prior Monthly Period not paid,
and (c) the Class B Note Principal Balance on such Distribution Date.
"Class B Notes" means either or both the Class B-1 Notes and the Class
B-2 Notes.
"Class B Share" means 10.25%.
"Class B-1 Note" means any one of the Class B-1 VFN Series 2003-3 Notes
executed by Issuer and authenticated by or on behalf of Indenture Trustee,
substantially in the form of Exhibit A-3.
"Class B-1 Noteholder" means the Person in whose name a Class B-1 Note
is registered in the Note Register.
"Class B-1 Note Initial Principal Balance" means, on any date of
determination, $9,225,000, which is the aggregate initial principal balance of
the Class B-1 Notes issued on the Closing Date, plus any increase and minus any
decrease made in accordance with Section 4.11.
"Class B-1 Note Principal Balance" means, on any date of determination,
an amount equal to (a) the Class B-1 Note Initial Principal Balance, minus (b)
the aggregate amount of principal payments made to Class B-1 Noteholders on or
prior to such date (excluding any payment counted in determining the Note
Initial Principal Balance).
"Class B-2 Note" means any one of the Class B-2 VFN Series 2003-3 Notes
executed by Issuer and authenticated by or on behalf of Indenture Trustee,
substantially in the form of Exhibit A-4.
"Class B-2 Noteholder" means the Person in whose name a Class B-2 Note
is registered in the Note Register.
"Class B-2 Note Initial Principal Balance" means, as of any date of
determination, $3,690,000, which is the aggregate initial principal balance of
the Class B-2 Notes issued on the Closing Date, plus any increase and minus any
decrease made in accordance with Section 4.11.
"Class B-2 Note Principal Balance" means, on any date of determination,
an amount equal to (a) the Class B-2 Note Initial Principal Balance, minus (b)
the aggregate amount of principal payments made to Class B-2 Noteholders on or
prior to such date (excluding any payment counted in determining the Note
Initial Principal Balance or made from funds on deposit in the Spread Account).
7
"Closing Date" means December 17, 2003.
"Collateral Amount" means, as of any date of determination, an amount
equal to the result of (a) the aggregate Note Principal Balance, minus (b) the
excess, if any, of the aggregate amount of Investor Charge-Offs and Reallocated
Principal Collections over the reimbursements of such amounts pursuant to
subsection 4.04(a)(vii) prior to such date.
"Commercial Paper" means the rated commercial paper issued by the CP
Vehicles.
"Commitment Fee" is defined in Section 4.15(a).
"Controlled Amortization Date" means the earlier of December 1, 2007,
or such later date as is determined in accordance with Section 4.10.
"Controlled Amortization Period" means, unless a Pay Out Event shall
have occurred prior thereto, the period commencing at the opening of business on
the Controlled Amortization Date and ending on the first to occur of (a) the
commencement of the Rapid Amortization Period and (b) the Series Termination
Date.
"Controlled Distribution Amount" means, for any Transfer Date with
respect to the Controlled Amortization Period an amount equal to one-twelfth of
the Note Initial Principal Balance at the end of the Revolving Period; provided
that upon an adjustment pursuant to Section 4.11(a), the Controlled Distribution
Amount for any monthly period occurring in whole or in part after such date
shall be adjusted to an amount equal to (a) the Note Initial Principal Balance
as adjusted on such Adjustment Date divided by (b) a number equal to twelve
minus the number of complete Monthly Periods which have occurred from the
Controlled Amortization Date to such Adjustment Date.
"CP Rate" means, for any period and with respect to each CP Vehicle, a
rate per annum equal to the sum of (a) the Applicable Margin plus (b) the
Matched CP Rate for such CP Vehicle; provided that, at the election of the
applicable Funding Agent, the CP Rate in the future may be a rate per annum
equal to the sum of (x) the Applicable Margin plus (y) either the Matched CP
Rate for such CP Vehicle or the Weighted Average CP Rate for such CP Vehicle.
"CP Vehicles" means Xxxxxx Capital Corporation, Asset One
Securitization LLC and Three Pillars Funding LLC and their respective successors
and assigns under the Note Purchase Agreements.
"Credit Agreement" means and includes any agreement entered into by any
Credit Bank providing for the issuance of one or more letters of credit for the
account of a CP Vehicle, the issuance of one or more surety bonds for which the
CP Vehicle is obligated to reimburse the applicable Credit Bank for any drawings
thereunder, the sale by the CP Vehicle to any Credit Bank of receivables or
other financial assets purchased by the CP Vehicle (or portions thereof) and/or
the making of loans and/or other extensions of credit to the CP Vehicle in
connection with its commercial paper program, together with any cash collateral
agreement, letter of credit, surety bond or other agreement or instrument
executed and delivered in connection therewith (but excluding any Liquidity
Agreement).
8
"Credit Bank" means and includes any financial institution or other
Person (other than any customer of a CP Vehicle or any Liquidity Bank as such)
(i) now or hereafter extending credit or a purchase commitment to or for the
account of a CP Vehicle or issuing a letter of credit, surety bond or other
instrument, in each case to support any obligations arising under or in
connection with such CP Vehicle's commercial paper program and (ii) which has
provided to the Indenture Trustee a Certificate in the form of Exhibit E hereto.
"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 and Class B Default Interest for such Distribution Date.
"Designated Funding Account Amount" means, for any date of
determination, (a) if a notice of decrease has been given pursuant to Section
4.11 and the Adjustment Date has not yet occurred, the sum of (i) the total
amount required to pay principal to Noteholders in connection with such decrease
and (ii) the amount, if any, payable to the Funding Agents, for the account of
the CP Vehicles, pursuant to subsections 4.11(a)(i) and 4.15(d)(i) in connection
with such decrease, (b) if a notice of increase has been given (or is required
to be given pursuant to Section 4.11(a)(vii)) pursuant to Section 4.11 and the
Adjustment Date has not yet occurred, the total amount required to fund the
Spread Account to the required level in connection with such increase, plus, in
either case, (c) such additional amounts as may be designated from time to time
by the Transferor, by notice given to the Servicer and the Indenture Trustee, in
connection with a possible increase or decrease pursuant to Section 4.11 for
which a notice has not yet been given.
"Dilution" means any downward adjustment made by Servicer in the amount
of any Receivable (a) because of a rebate, refund, unauthorized charge,
fraudulent or counterfeit charge or billing error to an 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 February 17, 2004 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 Series Servicing Fee
Percentage plus, if the Indenture Trustee is the Successor Servicer, an amount
equal to the amount of the reduction to the applicable Noteholder Servicing Fee
pursuant to the second proviso in Section 3.01 which is attributable to the fact
that Interchange included in Collections of Finance Charge Receivables for the
related Monthly Period is less than Servicer Interchange
9
for such Monthly Period. Indenture Trustee may determine the market rate
servicing fee percentage by soliciting three or more written bids from qualified
successor servicers and averaging the rates offered in the bids.
"Excess Spread Percentage" means Net Yield.
"Federal Funds Rate" means, for any day, the per annum rate set forth
in the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)"; provided that if on any relevant day such rate is not yet
published in H.15(519), the rate for such day will be the rate set forth in the
daily statistical release designated as the Composite 3:30 p.m. Quotations for
U.S. Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor, the "Composite
3:30 p.m. Quotations") for such day under the caption "Federal Funds Effective
Rate"; and provided further, that if on any relevant day the appropriate rate
for such previous day is not yet published in either H.15(519) or the Composite
3:30 p.m. Quotations, the rate for such day will be the arithmetic mean, as
determined by STCM, of the rates for the last transaction in overnight Federal
funds arranged prior to 9:00 a.m. (New York time) on that day by each of three
leading brokers of Federal funds transactions in New York City selected by STCM.
"Fee Letter" means either of the letters dated as of the date hereof
addressed to the Transferor and FNBO from one of the Funding Agents, as such
letters are amended from time to time, with respect to fees for the VFN Series
2003-3 Notes.
"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 (as
defined in the Pooling and Servicing Agreement or, with respect to Additional
Accounts, as of the relevant Addition Date) was an Eligible Account, but
subsequent to such date the Obligor of which has provided, as its most recent
billing address, an address which is not located in the United States or its
territories or possessions.
"Funding Account" is defined in Section 4.19.
"Funding Account Deficiency" means the excess, if any, of the
Designated Funding Account Amount over the Available Funding Account Amount.
"Funding Agent" means each of SG, as agent for the SG Funding Group,
and STCM, as agent for the STCM Funding Group, and their respective successors
and assigns.
"Funding Group" means each of the SG Funding Group and STCM Funding
Group.
10
"Governmental Authority" means (a) any person specified as such in the
Indenture, and (b) for purposes of Section 4.15, the Financial Accounting
Standards Board, the International Accounting Standards Board, any comparable
entity setting accounting standards applicable to an Affected Party, or any
successor to any of the foregoing.
"Group One" means VFN Series 2003-3, the outstanding PSA Series (other
than any Series represented by the Collateral Certificate) and each other Series
specified in the related Indenture Supplement to be included in Group One.
"Investment Earnings" means, for any Distribution Date, all interest
and earnings on Permitted Investments included in the Spread Account or the
Funding Account, as applicable, (net of losses and investment expenses) during
the period commencing on and including the Distribution Date immediately
preceding such Distribution Date and ending on but excluding such Distribution
Date.
"Investor Charge-Offs" is defined in Section 4.05.
"Investor Default Amount" means, with respect to any Monthly Period, an
amount equal to the product of (a) the Default Amount for such Monthly Period
and (b) the Allocation Percentage for Default Amounts for such Monthly Period.
"Investor Finance Charge Collections" means, with respect to any Date
of Processing, an amount equal to the product of (a) the Allocation Percentage
for such Date of Processing and (b) Finance Charge Collections 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) Principal Collections received on such Date of Processing and,
with respect to any Monthly Period, the aggregate of such sums for each Date of
Processing in such Monthly Period.
"Xxxxxxxxx Group" means any of Xxxxx X. Xxxxxxxxx, Xxxxxxx Xxxxxxxxx,
Xxxxxxxxx X. Xxxxxxxxx, Xxxxxxxxx Corporation, or any "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) "controlled, controlled by or
under common control with" any of them or their "affiliates" or "associates" (as
each of such terms are defined in Rule 12b-2 under the Exchange Act).
"LIBOR" means, on any Rate Determination Date, with respect to a
Funding Group, the rate per annum equal to the quotient of (a) the rate
appearing on Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the applicable Funding Agent from
time to time for purposes of providing quotations of interest rates applicable
to one-month dollar deposits in the London interbank market) at approximately
11:00 A.M. (London time) on such Rate Determination Date as the rate for
one-month dollar deposits, in an amount equal (as nearly as possible) to the
principal amount or amounts of the VFN Series 2003-3 Notes held by such Funding
Group; provided that if at least two rates appear on Telerate Page 3750 on such
Rate Determination Date, the rate will be the arithmetic mean of such rates; and
provided, further, that if no such
11
offered rates appear on such page, the rate will be the Alternate LIBOR Rate for
such Funding Group, divided by (b) a number equal to 1.00 minus the Reserve
Percentage. The rate so determined in accordance with this definition shall be
rounded upwards to the nearest whole multiple of 1/16th of 1%.
"Liquidity Adjustment" shall mean, in connection with any potential
Liquidity Event, the replacement of the affected Support Provider by the
applicable CP Vehicle and Funding Agent with a commercial bank satisfactory to
such CP Vehicle and Funding Agent having a commercial paper or short-term
deposit rating equal to or greater than that required by the rating agencies
rating such CP Vehicle's Commercial Paper.
"Liquidity Agreement" means, with respect to a CP Vehicle, any
agreement entered into by such CP Vehicle with a Liquidity Bank providing for
the sale by such CP Vehicle of a VFN Series 2003-3 Note or any interest therein
(or portion thereof), or the making of loans or other extensions of credit to
such CP Vehicle secured by security interests in such Note, or interest therein
(or portion thereof), to support all or part of such CP Vehicle's payment
obligations under its Commercial Paper or to provide an alternate means of
funding such CP Vehicle's investments in accounts receivable or other financial
assets arising out of or in connection with a VFN Series 2003-3 Note or under
its Commercial Paper, in each case as amended, supplemented or otherwise
modified from time to time.
"Liquidity Bank" means and includes each financial institution that is,
or may become, party to a Liquidity Agreement, as purchaser or lender
thereunder, and which has provided to the Indenture Trustee a Certificate in the
form of Exhibit E hereto.
"Liquidity Event" shall mean, unless a Liquidity Adjustment with
respect to the affected Support Provider is effected before such day, the
earlier of (a) the day on which any portion of the commitment of any Support
Provider under any Support Agreement shall be terminated or shall otherwise
cease to be in full force and effect and (b) at the option of the applicable
Funding Agent, the forty-fifth day following the earliest date on which a
Support Provider is downgraded to a level less than that required by the rating
agencies rating the applicable CP Vehicle's Commercial Paper.
"Matched CP Rate" means, for any period and a CP Vehicle, a rate per
annum equal to the sum of (a) the rate or, if more than one rate, the weighted
average of the rates, per annum at which such CP Vehicle's Commercial Paper
having a term selected by the applicable Funding Agent and to be issued to fund
such CP Vehicle's VFN Series 2003-3 Notes (or portion thereof) by such CP
Vehicle may be sold by any placement agent or commercial paper dealer selected
by the Funding Agent, as agreed between each such agent or dealer and the
applicable Funding Agent, plus (b) the commissions and other charges charged by
such placement agent or commercial paper dealer with respect to such Commercial
Paper expressed as a percentage of the face amount of such Commercial Paper and
converted to an interest-bearing equivalent rate per annum, plus (c) certain
documentation and transaction costs directly associated with the issuance of
such Commercial Paper, as are customarily charged by such CP Vehicle to its
customers in similar transactions expressed as a percentage of the face amount
of such Commercial Paper and converted to an interest-bearing equivalent rate
per annum, plus (d) other borrowings by such CP Vehicle (other than under any
Support Agreement), including borrowings to fund small or odd
12
dollar amounts that are not easily accommodated in the commercial paper market,
expressed as a percentage of the face amount of such Commercial Paper and
converted to an interest-bearing equivalent rate per annum, in each case,
without any duplication; provided, however, that if any component of such rate
is a discount rate, in calculating the "Matched CP Rate" for such period, such
CP Vehicle shall for such component use the rate resulting from converting such
discount rate to an interest-bearing equivalent rate per annum.
"Maximum Note Initial Principal Balance" means (a) as of the Closing
Date, $350,000,000 and (b) thereafter, such lesser amount as shall be determined
pursuant to subsection 4.11(b). The Maximum Note Initial Principal Balance shall
be allocated to each Class of Notes as described in Section 4.11(d). This
Indenture Supplement may not be amended to increase the Maximum Note Initial
Principal Balance unless the Rating Agency Condition is met.
"Monthly Interest" means, for any Distribution Date, the sum of the
Class A Monthly Interest Payment and the Class B Monthly Interest Payment for
such Distribution Date.
"Monthly Period" has the meaning specified in the Master Indenture
except that the first Monthly Period with respect to the VFN Series 2003-3 Notes
shall begin on and include the Closing Date and end on January 31, 2004.
"Monthly Principal" is defined in Section 4.03.
"Monthly Principal Reallocation Amount" means, for any Monthly Period,
an amount equal to the lower of (a) the Class A Required Amount and the
Servicing Fee Required Amount and (b) the greater of (i)(x) the product of (I)
10.25% and (II) the Note Initial Principal Balance on the related Transfer Date
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
(ii) zero.
"Net Yield" means, with respect to any Monthly Period, Portfolio Yield
with respect to such Monthly Period minus the Base Rate with respect to such
Monthly Period.
"Noteholder Servicing Fee" is defined in Section 3.01.
"Note Initial Principal Balance" means $126,000,000, which is the
aggregate Note Principal Balance of the VFN Series 2003-3 Notes issued on the
Closing Date, plus any increase and minus any decrease in the Note Initial
Principal Balance in accordance with Subsection 4.11.
"Note Principal Balance" means, on any date of determination, the sum
of the Class A-1 Note Principal Balance, the Class A-2 Note Principal Balance,
the Class B-1 Note Principal Balance and the Class B-2 Note Principal Balance
or, with respect to a particular Class, the Class A-1 Note Principal Balance,
the Class A-2 Note Principal Balance, the Class B-1 Note Principal Balance or
the Class B-2 Note Principal Balance, as applicable.
"Note Purchase Agreements" means the Note Purchase Agreement relating
to the Class A-1 Notes and the Class B-1 Notes and the Note Purchase Agreement
relating to the Class A-2 Notes and the Class B-2 Notes, in each case, of even
date herewith and made among the Transferor, the Servicer, the applicable CP
Vehicles and the applicable Funding Agent.
13
"Paired Series" means a Series that has been paired with VFN Series
2003-3 (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.
"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 VFN Series 2003-3 Notes may be included if the Rating Agency
Condition is met and each Funding Agent consents in writing), minus (ii) the
Investor Default Amount and the Uncovered Dilution Amount for such Monthly
Period and (b) the denominator of which is the Average Collateral Amount for
such Monthly Period.
"Prime Rate" means:
(a) with respect to the SG Funding Group, the prime rate
of interest announced by SG from time to time, changing when and as
said prime rate changes (such rate not necessarily being the lowest or
best rate charged by SG); and
(b) with respect to the STCM Funding Group, the rate of
interest most recently announced by STCM at its principal office in
Atlanta, Georgia as its prime rate (it being understood that at any one
time there shall exist only one such prime rate so announced), which
rate is not necessarily intended to be the lowest rate of interest
determined by STCM in connection with extensions of credit.
"Principal Account" is defined in subsection 4.09(a).
"Principal Collections" means Collections of Principal Receivables.
"Principal Shortfall" is defined in Section 4.08.
"Pro Rata Share" means, for (a) either or both the Class A-1 Notes and
the Class B-1 Notes, five-sevenths (5/7), and (b) for either or both the Class
A-2 Notes and the Class B-2 Notes, two-sevenths (2/7). The result obtained when
calculating a Pro Rata Share of any amount shall be a percentage rounded to two
decimal places.
"PSA Series" means a Series under (and as defined in) the Pooling and
Servicing Agreement.
"QIB" means a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act.
"Quarterly Net Yield" means, for any Distribution Date, the average of
the Net Yields for each of the three preceding Monthly Periods, and, for
purposes of the January, 2004 and
14
February, 2004 Distribution Dates, the Net Yields for October and November, 2003
shall be deemed to be 5.98% and 5.50%, respectively.
"Rapid Amortization Period" means the period commencing on the date on
which a Trust Pay Out Event, a VFN Series 2003-3 Pay Out Event or a Liquidity
Event is deemed to occur and ending on the Series Termination Date.
"Rate Determination Date" means for each Monthly Period the second
Business Day preceding such Monthly Period.
"Rate Trigger Event" means a Pay Out Event, an Event of Default or a
Servicer Default.
"Rating Agency" means Standard & Poor's.
"Rating Agency Condition" means, with respect to any action or
condition, in addition to the notifications specified in the definition of
Rating Agency Condition in the Indenture, that each Funding Agent shall have
consented in writing to such action or condition and shall have received
confirmation that the rating of the Commercial Paper issued by the related CP
Conduit will not be withdrawn or reduced as a result of such action or
condition.
"Reallocated Principal Collections" means, for any Transfer Date,
Investor Principal Collections applied in accordance with Section 4.06 in an
amount not to exceed the Monthly Principal Reallocation Amount for the related
Monthly Period.
"Reassignment Amount" means, for any Transfer Date, after giving effect
to any deposits and distributions otherwise to be made on the related
Distribution Date, the sum of (a) the Note Principal Balance on the related
Distribution Date, plus (b) Monthly Interest for the related Distribution Date
and any Monthly Interest previously due but not distributed to the VFN Series
2003-3 Noteholders, plus (c) the amount of Default Interest, if any, for the
related Distribution Date and any Default Interest previously due but not
distributed to the VFN Series 2003-3 Noteholders on a prior Distribution Date,
plus (d) the amounts due pursuant to Section 4.15 for the related Distribution
Date and any amounts previously due under such section but not paid on a prior
Distribution Date plus (e) all other amounts payable by Issuer or Transferor to
the Funding Agents, the VFN Series 2003-3 Noteholders, the Support Providers or
any other Person under or in connection with this Indenture Supplement, the Note
Purchase Agreements and the Fee Letters.
"Regulatory Change" means, as to any Affected Party, any change in (or
the adoption, implementation, change in phase-in or commencement of
effectiveness of) (a) any federal, state or foreign law applicable to such
Affected Party or (b) any regulation, directive, requirement or request
applicable to such Affected Party by any Governmental Authority or monetary,
fiscal or other similar authority with jurisdiction over the Affected Party.
Without limiting the foregoing, if the issuance of FASB Interpretation No. 46,
or any other change in accounting standards or the issuance of any other
pronouncement, release or interpretation, causes or requires the consolidation
of all or a portion of the assets and liabilities of a CP Vehicle, the Trust or
the Transferor with the assets and liabilities of any Support Provider, such
event shall constitute a Regulatory Change.
15
"Required Retained Transferor Percentage" means, for purposes of VFN
Series 2003-3, 7%.
"Required Spread Account Amount" means, for any date of determination,
the greater of (a) the product of (i) the Spread Account Percentage in effect on
such date and (ii) the Note Initial Principal Balance, and (b) the applicable
Spread Account Floor; provided, however, that the Required Spread Account Amount
will not be reduced during the Controlled Amortization Period; and, provided,
further, that after the occurrence of a Pay Out Event or a Cap Increase Event or
the commencement of the Amortization Period, the Required Spread Account Amount
shall be an amount equal to the sum of the Class B-1 Note Initial Principal
Balance and the Class B-2 Note Initial Principal Balance.
"Reserve Percentage" means, for any day, the stated maximum rate
(expressed as a decimal) of all reserves required to be maintained with respect
to liabilities or assets consisting of or including "eurocurrency liabilities",
as prescribed by Regulation D of the Board of Governors of the Federal Reserve
System (or by any other governmental body having jurisdiction with respect
thereto), including without limitation any basic, marginal, emergency,
supplemental, special, transitional or other reserves, the rate so determined to
be rounded upward to the nearest whole multiple of .0625%.
"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 Adjustment Date and each other date on which
there is an increase in the outstanding balance of any other Variable
Interest or any variable funding certificate issued pursuant to the
Pooling and Servicing Agreement; and
(d) each date on which a new Series or Class of Notes is
issued and each date on which a new "Series" or "Class" (each as
defined in the Pooling and Servicing Agreement) of investor
certificates is issued by the Certificate Trust.
"Revolving Period" means the period beginning on the Closing Date and
ending at the close of business on the day immediately preceding the earlier of
the day the Controlled Amortization Period commences or the day the Rapid
Amortization Period commences.
"Scheduled Payment Date" means the twelfth Distribution Date after the
commencement of the Controlled Amortization Period.
"Senior Cost Amount" means, with respect to any Transfer Date, (a) for
the Class A Notes, amounts (other than amounts included in Monthly Principal and
amounts already deposited to the Distribution Account pursuant to subsection
4.04(a)(i) for such Transfer Date) payable to an Affected Party with respect to
the Class A Notes under this Indenture Supplement
16
or under any Fee Letter or Note Purchase Agreement, to the extent that such
amounts do not, in the aggregate, exceed one-twelfth of 0.50% of the Note
Initial Principal Balance allocated to the Class A Notes; and (b) for the Class
B Notes, amounts (other than amounts included in Monthly Principal and amounts
already deposited to the Distribution Account pursuant to subsection 4.04(a)(iv)
for such Transfer Date) payable to an Affected Party with respect to the Class B
Notes under this Indenture Supplement or under any Fee Letter or Note Purchase
Agreement, to the extent that such amounts do not, in the aggregate, exceed
one-twelfth of 0.50% of the Note Initial Principal Balance allocated to the
Class B Notes.
"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 VFN
Series 2003-3 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 VFN Series 2003-3 Final
Maturity Date.
"Servicer Interchange" means, with respect to any Monthly Period, an
amount equal to one-twelfth of the product of (a) 1.50% and (b) the Collateral
Amount as of the last day of the preceding Monthly Period; provided, however,
that Servicer Interchange for the February, 2004 Distribution Date shall be
$158,794.52.
"Servicing Fee Required Amount" means, for any Distribution Date, an
amount equal to the excess of the amount described in subsection 4.04(a)(ii)
over the Available Finance Charge Collections applied to pay such amount
pursuant to subsection 4.04(a).
"SG" means Societe Generale and its successors and assigns.
"SG Funding Group" means the Holders of the Class A-1 Notes and the
Class B-1 Notes and their respective successors and assigns.
"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.
17
"Spread Account Floor" means (a) zero on the Closing Date, (b) prior to
the Trigger Date, an amount equal to the product of the then applicable Spread
Account Percentage multiplied by the highest Note Initial Principal Balance
during the prior twelve (12) Monthly Periods and (c) on and after the Trigger
Date, the amount set forth as such in the table in the definition of "Spread
Account Percentage."
"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 on and after the Trigger
------------------------------------- Account Date the Spread
greater than or equal Percentage will Account Floor will
to: and less than: equal: equal:
--------------------------------------------------------------------------------
5.50% 1.00% $ 2,500,000
5.25% 5.50% 1.25% $ 3,125,000
5.00% 5.25% 1.50% $ 3,750,000
4.75% 5.00% 2.50% $ 6,250,000
4.50% 4.75% 3.00% $ 7,500,000
4.00% 4.50% 3.50% $ 8,750,000
3.50% 4.00% 4.50% $ 11,250,000
3.00% 3.50% 5.75% $ 14,375,000
2.00% 3.00% 6.75% $ 16,875,000
2.00% 7.00% $ 17,500,000
The Initial Spread Account Percentage shall be 1.00%. The Spread Account
Percentage shall remain unchanged until (a) it is increased to a higher required
percentage as specified above or (b) the Distribution Date on which the
Quarterly Net Yield has increased to a level above that for the then effective
Spread Account Percentage on each of the three immediately preceding
Distribution Dates (inclusive of the current Distribution Date), in which case
the Spread Account Percentage shall be decreased to the next lowest percentage
specified above.
"STCM" means SunTrust Capital Markets, Inc., together with its
successors and assigns.
"STCM Funding Group" means the Holders of the Class A-2 Notes and the
Class B-2 Notes.
"Support Agreement" means a Credit Agreement or a Liquidity Agreement.
"Support Provider" means a Credit Bank or a Liquidity Bank.
"Transaction Documents" means (a) each document designated as such in
the Indenture (other than the Indenture Supplements for any Series of Notes
other than VFN Series 2003-3), and (b) each of the Note Purchase Agreements and
Fee Letters.
18
"Trigger Date" means the date on which the Note Initial Principal
Balance first equals or exceeds $250,000,000.
"Uncovered Dilution Amount" means, for any Distribution Date, an amount
equal to the product of (a) the Series Allocation Percentage for the related
Monthly Period times (b) the aggregate Dilutions occurring during 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 such
deposit is required to be made, the Uncovered Dilution Amount shall be deemed to
be zero; provided, further, that if the Transferor Interest is zero at the time
such deposit is required to be made, for purposes of calculating the Uncovered
Dilution Amount, the amount in clause (b) shall be reduced by an amount equal to
the amount by which the Transferor Interest has been reduced by the Dilutions
referred to in clause (b).
"VFN Series 2003-3" means the Series of Notes the terms of which are
specified in this Indenture Supplement.
"VFN Series 2003-3 Final Maturity Date" means the earliest to occur of
(a) the Distribution Date following the Distribution Date on which the VFN
Series 2003-3 Notes are paid in full, (b) the forty-first Distribution Date
following the end of the Revolving Period and (c) the termination of the Trust.
"VFN Series 2003-3 Note" means a Class A-1 Note, a Class A-2 Note, a
Class B-1 Note or a Class B-2 Note.
"VFN Series 2003-3 Noteholder" means a Class A-1 Noteholder, a Class
A-2 Noteholder, a Class B-1 Noteholder or a Class B-2 Noteholder.
"VFN Series 2003-3 Pay Out Event" is defined in Section 6.01.
"Weighted Average CP Rate" means, for any period and a CP Vehicle, the
per annum rate equivalent to the "CP Costs" (as defined below) related to the
issuance of Commercial Paper that is allocated, in whole or in part, by such CP
Vehicle or its Funding Agent to fund or maintain such CP Vehicle's VFN Series
2003-3 Notes (and which may also be allocated in part to the funding of other
assets of such CP Vehicle); provided, however, that if any component of such
rate is a discount rate, in calculating the "Weighted Average CP Rate" for such
period, such CP Vehicle shall for such component use the rate resulting from
converting such discount rate to an interest-bearing equivalent rate per annum.
As used in this definition, a CP Vehicle's "CP Costs" shall consist of (a) the
actual interest rate (or discount) paid to purchasers of such CP Vehicle's
Commercial Paper, together with the commissions of placement agents and dealers
in respect of such Commercial Paper, to the extent such commissions are
allocated, in whole or in part, to such Commercial Paper by such CP Vehicle or
its Funding Agent, (b) certain documentation and transaction costs directly
associated with the issuance of such Commercial Paper, as are customarily
charged by such CP Vehicle to its customers in similar transactions, (c) any
incremental costs incurred with respect to Commercial Paper maturing on dates
other than those on which corresponding funds are received by such CP Vehicle,
and (d) other
19
borrowings by such CP Vehicle (other than under any Support Agreement),
including borrowings to fund small or odd dollar amounts that are not easily
accommodated in the commercial paper market, in each case, without any
duplication. In addition to the foregoing costs, if the Transferor shall request
any increase in the Note Initial Principal Balance during any period of time
determined by the applicable Funding Agent in its sole discretion to result in
incrementally higher CP Costs applicable to the principal amount associated with
such increase, the principal amount associated with such increase shall, during
such period, be deemed to be funded by the CP Vehicle in a special pool (which
may include principal amounts or capital amounts associated with other
receivables financing facilities or receivables purchase facilities) for
purposes of determining such additional CP Costs applicable only to such special
pool and charged each day during such period against such principal amount.
Each capitalized term defined herein shall relate to the VFN Series
2003-3 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
SECTION 3.01. SERVICING COMPENSATION. The share of the Servicing Fee
allocable to VFN Series 2003-3 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 $317,589.04;
provided, further, that if FNBO 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 VFN Series 2003-3
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 VFN Series 2003-3 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.
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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
VFN Series 2003-3 as set forth in this Article.
(b) On any date on which a Funding Account Deficiency
exists, the Servicer will deposit amounts otherwise distributable to
the Holders of the Transferor Interest to the Funding Account to the
extent of such deficiency prior to distributing such funds to the
Holders of the Transferor Interest.
(c) On each Date of Processing, Servicer shall allocate
to the VFN Series 2003-3 Noteholders the following amounts as set forth
below:
(i) Allocations of Finance Charge Collections.
An amount equal to the Investor Finance Charge Collections
processed on each Date of Processing shall be allocated to the
VFN Series 2003-3 Noteholders and, first, deposited to the
Finance Charge Account to the extent required by Section 4.03
of the Pooling and Servicing Agreement or Section 8.04 of the
Indenture and subsection 4.01(d), and, second, paid to the
Holders of the Transferor Interest.
(ii) Allocations of Principal Collections.
Servicer shall allocate to the VFN Series 2003-3 Noteholders
the following amounts as set forth below:
(A) Allocations During the Revolving
Period.
(1) During the Revolving Period
an amount equal to the Investor Principal
Collections processed on each Date of
Processing, shall be allocated to the VFN
Series 2003-3 Noteholders and, first,
deposited to the Funding Account to the
extent of any Funding Account Deficiency,
second, if any other Principal Sharing
Series is outstanding and in its
accumulation period or amortization period,
deposited to the Principal Account for
application, to the extent necessary, as
Excess Principal Collections to other
Principal Sharing Series on the related
Distribution Date, third, deposited to the
Excess Funding Account to the extent
necessary so that the Transferor Interest is
not less than the Minimum Transferor
Interest and, fourth, 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 VFN
Series 2003-3 Noteholders
21
pursuant to this subsection 4.01(c)(ii) are
paid to Transferor, Transferor shall make an
amount equal to the Reallocated Principal
Collections for the related Transfer Date
available on that Transfer Date for
application in accordance with Section 4.06;
provided, however, that if the Transferor
fails to make such funds available, then an
amount of Investor Principal Collections
equal to that deficiency shall be withdrawn
from the Principal Account and treated as
Reallocated Principal Collections for
application in accordance with Section 4.06,
prior to any other application of the
amounts in the Principal Account.
(B) Allocations During the Controlled
Amortization Period.
(1) During the Controlled
Amortization Period, an amount equal to the
Investor Principal Collections processed on
each Date of Processing shall be allocated
to the VFN Series 2003-3 Noteholders and,
first, deposited into the Principal Account
to the extent of the Controlled Distribution
Amount for the next Transfer Date, and,
second, if any other Principal Sharing
Series is outstanding and in its
accumulation period or amortization period,
deposited to the Principal Account for
application, to the extent necessary, as
Excess Principal Collections to other
Principal Sharing Series on the related
Distribution Date, third, deposited to the
Excess Funding Account to the extent
necessary so that the Transferor Interest is
not less than the Minimum Transferor
Interest and, fourth, paid to the Holders of
the Transferor Interest.
(2) With respect to each
Monthly Period falling in the Controlled
Amortization Period, to the extent that
Collections of Principal Receivables
allocated to the VFN Series 2003-3
Noteholders pursuant to this subsection
4.01(c)(ii) are paid to Transferor,
Transferor shall make an amount equal to the
Reallocated Principal Collections for the
related Transfer Date available on that
Transfer Date for application in accordance
with Section 4.06; provided, however, that
if the Transferor fails to make such funds
available, then an amount of Investor
Principal Collections equal to that
deficiency shall be withdrawn from the
Principal Account and treated as Reallocated
Principal Collections for application in
accordance with Section 4.06, prior to any
other application of the amounts in the
Principal Account.
(C) Allocations During the Rapid
Amortization Period. During the Rapid Amortization
Period, an amount equal to the Investor Principal
Collections processed on each Date of Processing
shall be allocated to the VFN Series 2003-3
Noteholders and deposited to the Principal Account
until applied as provided in Sections 4.04(c) and
4.06; provided, however, that after the date on which
an amount of such Principal Collections equal
22
to the Note Principal Balance has been deposited into
the Principal Account, any Investor Principal
Collections in excess of such amount shall be, first,
if any other Principal Sharing Series is outstanding
and in its accumulation period or amortization
period, deposited to the Principal Account for
application, to the extent necessary, as Excess
Principal Collections to other 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.
(d) During any period when Servicer is permitted by
Section 4.03 of the Pooling and Servicing Agreement or Section 8.04 of
the Indenture to make a single monthly deposit to the Collection
Account, amounts allocated to the Noteholders pursuant to Sections
4.01(a) and (b) with respect to any Monthly Period need not be
deposited into the Collection Account or any Series Account prior to
the related Transfer Date, and, when so deposited, (x) may be deposited
net of any amounts required to be distributed to Transferor and, if
FNBO is Servicer, Servicer, and (y) shall be deposited into the Finance
Charge Account (in the case of Collections of Finance Charge
Receivables) and the Principal Account (in the case of Collections of
Principal Receivables (not including any Excess Principal Collections
allocated to VFN Series 2003-3 pursuant to Section 4.03(e) of the
Pooling and Servicing Agreement or Section 8.05 of the Indenture)). The
exceptions to the daily deposit requirements shall not be available
during any Monthly Period during the Rapid Amortization Period, or at
any time that the Transferor Interest is less than the Minimum
Transferor Interest, or at any time that the Available Spread Account
Amount is less than the Required Spread Account Amount. In addition, at
any time during the Revolving Period or the Controlled Amortization
Period, but subject to the final sentence of this subsection (d), when
daily deposits are required:
(i) the amount of Collections of Principal
Receivables required to be deposited during each Monthly
Period (beginning on the first Business Day of such Monthly
Period) shall be an amount equal to the Controlled
Distribution Amount during the Controlled Amortization Period;
(ii) the amount of Collections of Finance Charge
Receivables required to be deposited during each Monthly
Period (beginning on the first Business Day of such Monthly
Period) shall be an amount equal to the sum of:
(A) an amount equal to 125% of the
Monthly Interest that was payable on the previous
Distribution Date; plus
(B) an amount equal to the sum of the
Senior Cost Amount plus the Commitment Fees for the
related Transfer Date; plus
(C) the Noteholder Servicing Fee due on
the related Transfer Date; plus
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(D) an amount equal to 150% of the
Investor Default Amount for the previous Distribution
Date; plus
(E) an amount equal to any Spread
Account Deficiency; plus
(F) an amount equal to all other
amounts then due and payable by Issuer or Transferor
to the Funding Agents, the VFN Series 2003 3
Noteholders, the Support Providers or any other
Person under or in connection with this Indenture
Supplement, the Note Purchase Agreements or the Fee
Letters; and
(iii) in addition to the deposits required
pursuant to subsection 4.01(d)(i), if any, the Class B Share
of Collections of Principal Receivables shall be deposited
daily until the aggregate amount required to be deposited
pursuant to subsections 4.01(d)(ii)(A), (B) and (C) has been
deposited, at which point all deposits of Collections of
Principal Receivables made pursuant to this subsection
4.04(a)(iii) for such Monthly Period shall be released to the
Transferor.
Nothing in this subsection shall limit (y) the obligation of
the Servicer to deposit all Collections allocable to VFN Series 2003-3
during the Rapid Amortization Period or at a time when the Transferor
Interest is less than the Minimum Transferor Interest or the Available
Spread Account Amount is less than the Required Spread Account Amount,
or (z) the obligation of the Servicer to deposit all Available
Principal Collections and Available Finance Charge Collections to the
Series Accounts on the Transfer Date, to the extent such funds have not
been previously deposited and are required to be distributed to the
Noteholders or the Funding Agents on the following Distribution Date.
(e) On any date, Servicer may withdraw from the
Collection Account or any Series Account any amounts inadvertently
deposited in such account that should have not been so deposited.
SECTION 4.02. 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 equal to
the sum of the following:
(i) the product of (A) the Applicable
Pass-Through Rate for the Class A-1 Notes, (B) a fraction the
numerator of which is the actual number of days in the Related
Monthly Period and the denominator of which is (1) 360, if and
to the extent the Applicable Pass-Through Rate is based on the
CP Rate or LIBOR, and (2) 365 or 366, as the case may be, if
and to the extent the Applicable Pass-Through Rate is based on
the Alternate Base Rate, and (C) the Average Class A-1 Note
Principal Balance during the Related Monthly Period; and
(ii) the product of (A) the Applicable
Pass-Through Rate for the Class A-2 Notes, (B) a fraction the
numerator of which is the actual number of
24
days in the Related Monthly Period and the denominator of
which is (1) 360, if and to the extent the Applicable
Pass-Through Rate is based on the CP Rate or LIBOR, and (2)
365 or 366, as the case may be, if and to the extent the
Applicable Pass-Through Rate is based on the Alternate Base
Rate, and (C) the Average Class A-2 Note Principal Balance
during the Related Monthly Period.
(b) On each Determination Date, the Servicer shall
determine whether (i) the Class A Monthly Interest Payment for the
Related Monthly Period exceeds (ii) the amount allocated and available
to pay such Class A Monthly Interest Payment on the related
Distribution Date (any such excess, a "Class A Interest Shortfall"). If
a Class A Interest Shortfall exists with respect to any Distribution
Date, such shortfall shall be allocated based on the respective Pro
Rata Shares between the Class A-1 Notes and the Class A-2 Notes, and an
additional amount ("Class A Default Interest") shall be payable as
provided herein with respect to the Class A Notes on each Distribution
Date thereafter to and including the Distribution Date on which such
Class A Interest Shortfall is paid to Class A Noteholders for each
Class equal to the product of (A) the Applicable Pass-Through Rate, (B)
a fraction the numerator of which is the actual number of days from the
preceding Distribution Date to but excluding such Distribution Date and
the denominator of which is 360, and (C) the Class A Interest Shortfall
for such Class. Notwithstanding anything to the contrary herein, Class
A Default Interest shall be payable or distributed to Class A
Noteholders only to the extent permitted by applicable law.
(c) 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 equal to
the sum of the following:
(i) the product of (A) the Class B-1 Note
Interest Rate, (B) a fraction the numerator of which is the
actual number of days in the Related Monthly Period and the
denominator of which is (1) 360, if and to the extent the
Applicable Pass-Through Rate is based on the CP Rate or LIBOR,
and (2) 365 or 366, as the case may be, if and to the extent
the Applicable Pass-Through Rate is based on the Alternate
Base Rate, and (C) the Average B-1 Note Principal Balance
during the Related Monthly Period; and
(ii) the product of (A) the Class B-2 Note
Interest Rate, (B) a fraction the numerator of which is the
actual number of days in the Related Monthly Period and the
denominator of which is (1) 360, if and to the extent the
Applicable Pass-Through Rate is based on the CP Rate or LIBOR,
and (2) 365 or 366, as the case may be, if and to the extent
the Applicable Pass-Through Rate is based on the Alternate
Base Rate, and (C) the Average Class B-2 Note Principal
Balance during the Related Monthly Period.
(d) On each Determination Date, the Servicer shall
determine whether (x) the Class B Monthly Interest Payment for the
Related Monthly Period exceeds (y) the amount allocated and available
to pay such Class B Monthly Interest Payment on the related
Distribution Date (any such excess, a "Class B Interest Shortfall"). If
a Class B
25
Interest Shortfall exists with respect to any Distribution Date, such
shortfall shall be allocated based on the respective Pro Rata Shares
between the Class B-1 Notes and the Class B-2 Notes and an additional
amount ("Class B Default Interest") shall be payable as provided herein
with respect to the Class B Notes on each Distribution Date thereafter
to and including the Distribution Date on which such Class B Interest
Shortfall is paid to Class B Noteholders for each Class equal to the
product of (aa) the Applicable Pass-Through Rate, (bb) a fraction the
numerator of which is the actual number of days from the preceding
Distribution Date to but excluding such Distribution Date and the
denominator of which is 360, and (cc) the Class B Interest Shortfall
for such Class. Notwithstanding anything to the contrary herein, Class
B Default Interest shall be payable or distributed to Class B
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 to the Distribution
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 Controlled Amortization 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 the
prior Monthly Period, (ii) for each Transfer Date with respect to the Controlled
Amortization Period, the Controlled Distribution 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), and (iv) the
Note Principal Balance.
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 or deposit, and Indenture Trustee, acting in
accordance with such instructions, shall withdraw or deposit 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 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 the Commitment Fee
for Class A 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 on
a prior Distribution Date, shall be withdrawn from the Finance
Charge Account and deposited into the Distribution Account for
distribution to the Class A Noteholders (to each Class as
calculated pursuant to Section 4.02(a)); provided, that if the
amount available for distribution pursuant to this subsection
(a)(i) is insufficient to make such distributions in full, the
amount available shall be distributed ratably to the Holders
of Class A-1 Notes and Class A-2 Notes based on their
respective Pro Rata Shares; provided,
26
further, that the amount distributed pursuant to this
subsection 4.04(a)(i) shall not exceed the Benchmark Amount
for the Class A Notes;
(ii) 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 the
Servicer;
(iii) an amount equal to the Senior Cost Amount
for the Class A Notes for such Transfer Date shall be
withdrawn from the Finance Charge Account and deposited to the
Distribution Account for distribution to the Funding Agents
pursuant to Section 5.02; provided, that if the amount
available for distribution pursuant to this subsection
(a)(iii) is insufficient to make such distributions in full,
the amount available shall be distributed ratably to the
Funding Agents based on the respective Pro Rata Shares of the
Class A Notes held by each Funding Group;
(iv) an amount equal to the Class B Monthly
Interest Payment for such Distribution Date, plus the
Commitment Fee for Class B for such Distribution Date, plus
any Class B Interest Shortfalls, 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 on a prior Distribution Date shall be withdrawn
from the Finance Charge Account and deposited into the
Distribution Account for distribution to the Class B
Noteholders (to each Class as calculated pursuant to Section
4.02(a)); provided, that if the amount available for
distribution pursuant to this subsection (a)(iv) is
insufficient to make such distributions in full, the amount
available shall be distributed ratably to the Holders of Class
B-1 Notes and Class B-2 Notes based on their respective Pro
Rata Shares; provided, further, that the amount distributed
pursuant to this subsection 4.04(a)(iv) shall not exceed the
Benchmark Amount for the Class B Notes;
(v) an amount equal to the Senior Cost Amount
for the Class B Notes for such Transfer Date shall be
withdrawn from the Finance Charge Account and deposited to the
Distribution Account for distribution to the Funding Agents
pursuant to Section 5.02; provided, that if the amount
available for distribution pursuant to this subsection (a)(v)
is insufficient to make such distributions in full, the amount
available shall be distributed ratably to the Funding Agents
based on the respective Pro Rata Shares of the Class B Notes
held by each Funding Group;
(vi) an amount equal to the Investor Default
Amount for the related Monthly Period, if any, and the
Uncovered Dilution Amount, if any, for such Distribution Date
shall be treated as a portion of Available Principal
Collections for such Distribution Date and withdrawn from the
Finance Charge Account and deposited into the Principal
Account on the related Transfer Date;
(vii) an amount equal to the sum of the aggregate
amount of Investor Charge-Offs and Reallocated Principal
Collections which have not been previously reimbursed pursuant
to this subsection shall be treated as a portion of
27
Available Principal Collections for such Distribution Date and
withdrawn from the Finance Charge Account and deposited into
the Principal Account on the related Transfer Date;
(viii) 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;
(ix) any amounts not distributed pursuant to
subsection 4.04(a)(i) because of the second proviso in such
subsection, which have not been distributed pursuant to
subsection 4.04(a)(iii) as part of the Senior Cost Amount for
the Class A Notes, shall be withdrawn from the Finance Charge
Account and deposited into the Distribution Account for
distribution to the Class A Noteholders (to each Class as
calculated pursuant to Section 4.02(a)); provided, that if the
amount available for distribution pursuant to this subsection
(a)(ix) is insufficient to make such distributions in full,
the amount available shall be distributed ratably to the
Holders of Class A-1 Notes and Class A-2 Notes based on their
respective Pro Rata Shares;
(x) any amounts not distributed pursuant to
subsection 4.04(a)(iv) because of the second proviso in such
subsection, which have not been distributed pursuant to
subsection 4.04(a)(v) as part of the Senior Cost Amount for
the Class B Notes, shall be withdrawn from the Finance Charge
Account and deposited into the Distribution Account for
distribution to the Class B Noteholders (to each Class as
calculated pursuant to Section 4.02(a)); provided, that if the
amount available for distribution pursuant to this subsection
(a)(x) is insufficient to make such distributions in full, the
amount available shall be distributed ratably to the Holders
of Class B-1 Notes and Class B-2 Notes based on their
respective Pro Rata Shares;
(xi) an amount equal to any other amounts payable
to the Funding Agents, the VFN Series 2003-3 Noteholders, the
Support Providers or any other Person under Section 4.15, or
under the Note Purchase Agreements or the Fee Letters, shall
be withdrawn from the Finance Charge Account and deposited to
the Distribution Account for distribution to the Funding
Agents pursuant to Section 4.15; provided, that if the amount
available for distribution pursuant to this subsection (a)(xi)
is insufficient to make such distributions in full, the amount
available shall be distributed ratably to the Funding Agents
based on the respective Pro Rata Shares of the Classes of
Notes held by each Funding Group; and
(xii) 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 Distribution Date shall be distributed or deposited in the
following priority:
28
(i) an amount equal to the Funding Account
Deficiency, if any, shall be deposited to the Funding Account;
and
(ii) an amount equal to the balance, if any, of
such Available Principal Collections shall be treated as
Excess Principal Collections for such Distribution Date.
(c) On the Transfer Date relating to the Monthly Period
during which the Amortization Period begins and each Transfer Date
thereafter, an amount equal to the Available Principal Collections for
the related Distribution Date shall be distributed or deposited in the
following priority:
(i) an amount equal to Class A Monthly Principal
for such Distribution Date shall be withdrawn from the
Principal Account and deposited to the Distribution Account
for distribution ratably to the Holders of the Class A-1 Notes
and the Class A-2 Notes, based on their respective Pro Rata
Shares;
(ii) an amount equal to the Class B Monthly
Principal for such Distribution Date shall be withdrawn from
the Principal Account and deposited to the Distribution
Account for distribution ratably to the Holders of the Class
B-1 Notes and Class B-2 Notes, based on their respective Pro
Rata Shares;
(iii) an amount equal to all other amounts then
due and payable by Issuer to the Funding Agents, the VFN
Series 2003-3 Noteholders, the Support Providers or any other
Person under or in connection with this Indenture Supplement,
the Note Purchase Agreements and the Fee Letters shall be
withdrawn from the Principal Account and deposited to the
Distribution Account for distribution to the Funding Agents
pursuant to Section 4.15; and
(iv) an amount equal to the balance, if any, of
such Available Principal Collections for such Distribution
Date after giving effect to paragraphs (i), (ii) and (iii)
above, shall be treated as Excess Principal Collections.
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)(vi)
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,
if Available Finance Charge Collections (including any amounts described in
clause (c) of the definition of Available Finance Charge Collections and
including amounts available pursuant to subsection 4.04(a)(iii)) are not
sufficient to make the distributions and deposits set forth in subsections
4.04(a)(i) and (ii), Servicer shall apply, or shall instruct Indenture Trustee
in writing to apply, Principal Collections with respect to such Transfer Date,
in an amount not to exceed the
29
Monthly Principal Reallocation Amount for the related Monthly Period, to fund
any such deficiency pursuant to and in the priority set forth in such
subsections. On each Transfer Date, the Collateral Amount shall be reduced by
the amount of Reallocated Principal Collections, if any, for such Transfer Date.
SECTION 4.07. EXCESS FINANCE CHARGE COLLECTIONS. VFN Series 2003-3
shall be an Excess Allocation Series with respect to Group One only. For this
purpose, each outstanding series of certificates issued by First Bankcard Master
Credit Card Trust (other than series represented by the Collateral Certificate)
shall be deemed to be a Series in Group One. Excess Finance Charge Collections
with respect to the Excess Allocation Series in Group One for any Transfer Date
will be allocated to VFN Series 2003-3 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 VFN Series
2003-3 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 VFN
Series 2003-3 for any Distribution Date will be equal to the excess, if any, of
(a) the full amount required to be paid, without duplication, pursuant to
subsections 4.04(a)(i) through (xi) on such Distribution Date over (b) the
Available Finance Charge Collections with respect to such Distribution Date
(excluding any portion thereof attributable to Excess Finance Charge
Collections). Excess Finance Charge Collections remaining after their
application to cover Finance Charge Shortfalls for Group One, shall be (i)
first, following a Servicer Default and the appointment of a Successor Servicer,
paid to the Successor Servicer to pay any unpaid Excess Servicing Fees, (ii)
second, deposited to the Funding Account in an amount up to the Funding Account
Deficiency, if any, and (iii) third, distributed to Transferor. Excess Finance
Charge Collections with respect to Group One shall be allocated to Series 2003-3
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 VFN Series 2003-3 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 VFN
Series 2003-3 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 VFN Series 2003-3 will
be equal to (a) for any Transfer Date with respect to the Revolving Period, the
full amount required to be deposited pursuant to subsection 4.04(b)(i) on such
Transfer Date over the Available Principal Collections for such Transfer Date
(excluding any portion thereof attributable to Excess Principal Collections),
(b) for any Transfer Date with respect to the Controlled Amortization Period,
the excess, if any, of the full amount required to be deposited, without
duplication, pursuant to Section 4.04(c)(i) and (ii) on such Transfer Date over
the amount of Available Principal Collections for such Transfer Date (excluding
any portion thereof attributable to Excess Principal Collections) and (c) for
any Transfer Date with respect to the Rapid Amortization Period, the
30
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 pursuant to Section 4.11 or with respect to
any other Variable Interest or variable funding certificates in such Group will
be, first, deposited to the Funding Account in an amount up to the Funding
Account Deficiency, if any, and, second, distributed to the Holder of the
Transferor 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,
three segregated trust accounts with such Qualified Institution (the
"Finance Charge Account", the "Principal Account" and the "Distribution
Account"), each bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the VFN Series 2003-3
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 and the Distribution Account and
in all proceeds thereof. The Finance Charge Account, the Principal
Account and the Distribution Account shall be under the sole dominion
and control of Indenture Trustee for the benefit of the VFN Series
2003-3 Noteholders. If at any time the institution holding the Finance
Charge Account, the Principal Account and the Distribution Account
ceases to be a Qualified Institution, Transferor shall notify 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 and a new
Distribution Account meeting the conditions specified above with a
Qualified Institution, and shall transfer any cash or any investments
to such new Finance Charge Account, new Principal Account and new
Distribution Account. Indenture Trustee, at the written direction of
Servicer, shall (i) make withdrawals from the Finance Charge Account,
the Principal Account and the Distribution Account from time to time,
in the amounts and for the purposes set forth in this Indenture
Supplement. Indenture Trustee at all times shall maintain accurate
records reflecting each transaction in the Finance Charge Account, the
Principal Account and the Distribution Account, so long as such
accounts are established and maintained with Indenture Trustee.
(b) Funds on deposit in the Finance Charge Account, the
Principal Account and the Distribution Account, from time to time shall
be invested and reinvested at the written direction of Servicer by
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 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
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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 Distribution Account, the Spread Account and the Funding Account
are hereby designated as the Series Accounts for the VFN Series 2003-3
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
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. EXTENSION OF REVOLVING PERIOD. The Revolving Period may
be extended, and the Controlled Amortization Date may be postponed, by written
agreement of the Servicer, the Transferor and the Funding Agents for such period
as shall be specified in the extension; provided, however, that the Controlled
Amortization Date so established shall be the first day of a month. Subject to
Section 11.02 of the Master Indenture, the right of the VFN Series 2003-3
Noteholders to receive payments from the Trust will terminate on the first
Business Day following the VFN Series 2003-3 Final Maturity Date, provided that
all actions required under Sections 11.01 and 11.02 of the Master Indenture in
connection with the Series 2003-3 Termination Date have been taken. The Servicer
shall provide prompt written notice of any such agreement to the Indenture
Trustee and to each Rating Agency.
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SECTION 4.11. ADJUSTMENTS.
(a) CHANGES IN INITIAL NOTE PRINCIPAL BALANCE.
(i) During the Revolving Period, the Note
Initial Principal Balance may be increased, and, at any time,
the Note Initial Principal Balance may be decreased (in
addition to any reductions due to Controlled Distribution
Amounts), from time to time upon the conditions described in
this subsection 4.11(a). The Transferor may deliver to the
Noteholders and the Indenture Trustee on any Business Day a
written notice specifying (A) the proposed amount of the
adjusted Initial Note Principal Balance (the "Adjusted
Amount") and (B) the proposed date of adjustment of the
Initial Note Principal Balance (an "Adjustment Date"), which
shall be any Business Day not earlier than three Business Days
after such notice; provided, however, that the Adjustment Date
specified for a decrease may be a Business Day that is not
also a Distribution Date only if any amounts payable to the CP
Vehicles pursuant to subsection 4.15(d)(i) in connection with
such decrease are paid to the CP Vehicle on such Adjustment
Date. Each adjustment shall be in an amount of not less than
$7,000,000 and shall be in equal increments of $7,000,000. The
Note Initial Principal Balance may not be reduced pursuant to
this Section 4.11 below $35,000,000 unless it is reduced to
zero; provided, however, that, unless the Rating Agency
Condition is met, the Note Initial Principal Balance may not
be reduced below $105,000,000 on any Adjustment Date if, on
such Adjustment Date, the Aggregate Principal Receivables
Balance is less than the greater of (x) $1,200,000,000 and (y)
an amount equal to 75% of the highest Aggregate Principal
Receivables Balance during the prior twenty-four (24) Monthly
Periods; and provided, further, that no reduction may be made
if, on the proposed Adjustment Date, there is an unreimbursed
reduction of the Collateral Amount due to either Investor
Charge-Offs or Reallocated Principal Collections unless the
Rating Agency Condition is met.
(ii) No more than two adjustments of the Note
Initial Principal Balance may be made in any month.
(iii) Any proposed increase in the Note Initial
Principal Balance (the "Increase Amount") shall not exceed an
amount equal to the excess of the Aggregate Principal
Receivables over the sum of (x) the Minimum Aggregate
Principal Receivables and (y) the Minimum Transferor Interest,
each determined as of the day prior to the proposed Adjustment
Date; provided, however, that the Note Initial Principal
Balance on any Business Day shall not exceed the Maximum Note
Initial Principal Balance.
(iv) The purchase of each Note and the purchase
of any Increase Amount is subject to satisfaction of the
condition that, on the Closing Date or on any Adjustment Date
on which an increase in the Note Initial Principal Balance is
occurring, as applicable, the Funding Agents shall have
received a certificate of a Responsible Officer of each of the
Transferor and the Servicer that (A) prior to and after giving
effect to such purchase, no Pay Out Event, Servicer Default or
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Event of Default (and no event or condition which, with notice
or the passage of time or both, would constitute a Pay Out
Event, Servicer Default or Event of Default) shall have
occurred and be continuing on such date; (B) the
representations and warranties of the RPA Seller, the
Transferor and the Servicer (as applicable) in the Transaction
Documents (including this Indenture Supplement) are true and
correct in all material respects on such date (except to the
extent that they relate to an earlier date); (C) the Spread
Account Amount is equal to or greater than the Required Spread
Account Amount on such date, after giving effect to the
purchase occurring on such date; (D) no Cap Increase Event has
occurred and is continuing on such date; (E) prior to and
after giving effect to the purchase, the Transferor Interest
equals or exceeds the Minimum Transferor Interest; and (F) all
the terms, covenants, agreements and conditions of the
Transaction Documents to be complied with and performed by the
Transferor, the Servicer or the Issuer (as applicable) at or
before such date shall have been complied with and performed
in all material respects;
Upon satisfaction of the foregoing conditions, and
the payment by each Funding Agent to the Indenture Trustee on
or before the Adjustment Date of an amount equal to its share
of the Increase Amount for each Class of Notes as determined
pursuant to subsection 4.11(d), the Servicer shall
appropriately note such Increase Amount, the Adjusted Note
Initial Principal Balance and direct the Indenture Trustee in
writing to pay to the Transferor such Increase Amount on the
Adjustment Date from the funds provided by the Funding Agents.
From and after such Adjustment Date, the Note Initial
Principal Balance will be equal to the Adjusted Amount which
shall be shown as such on the next Monthly Servicer's
Certificate. In the event that either Funding Agent fails to
pay all or any portion of its share of an Increase Amount as
required by this subsection, the Servicer shall direct the
Indenture Trustee to return any payments received by it
pursuant to this subsection and there will be no increase to
the Note Initial Principal Balance.
(v) Any proposed decrease in the Note Initial
Principal Balance (other than a permanent reduction pursuant
to subsection 4.11(b) below) shall be effected on an
Adjustment Date in accordance with a notice specifying the
amount of the proposed reduction (the "Reduction Amount") from
(A) Available Principal Collections, (B) Excess Principal
Collections available pursuant to Section 4.08 and Section
4.03(e) of the Pooling and Servicing Agreement or Section 8.05
of the Indenture and (C) amounts on deposit in the Funding
Account.
(vi) The SG Funding Group shall have no
obligation to purchase any Increase Amount that would cause
the sum of the Class A-1 Note Initial Principal Balance and
the Class B-1 Note Initial Principal Balance to exceed their
Pro Rata Share of the Maximum Note Initial Principal Balance.
The STCM Funding Group shall have no obligation to purchase
any Increase Amount that would cause the sum of the Class A-2
Note Initial Principal Balance and the Class B-2 Note Initial
Principal Balance to exceed their Pro Rata Share of the
Maximum Note Initial Principal Balance. Neither Funding Group
has any liability for failure of
34
the other Funding Group to purchase its share of any Increase
Amount. No CP Conduit has any liability for the failure of any
other CP Conduit to purchase its share of any Increase Amount.
(vii) If the Note Initial Principal Balance is
less than $105,000,000, and the Aggregate Principal Receivable
Balance at the close of any Monthly Period is less than the
greater of (A) $1,200,000,000 and (B) an amount equal to 75%
of the highest Aggregate Principal Receivables Balance during
the prior twenty-four (24) Monthly Periods, the Transferor
shall promptly deliver notice to increase the Note Initial
Principal Balance to $105,000,000 pursuant to this Section
4.11 on the next Distribution Date.
(b) PERMANENT REDUCTIONS IN NOTE INITIAL PRINCIPAL
BALANCE. The Transferor may at any time elect to reduce permanently the
Maximum Note Initial Principal Balance by giving at least 30 days'
prior written notice to the CP Vehicles, the Funding Agents, the
Indenture Trustee and the Support Providers of such reduction in the
Maximum Note Initial Principal Balance, including the amount of such
proposed reduction and the proposed date on which such reduction will
commence. The amount of such reduction must be not less than $7,000,000
and shall be in increments of $7,000,000. Any proposed reduction of the
Maximum Note Initial Principal Balance which would reduce the Maximum
Note Initial Principal Balance to an amount less than the Note Initial
Principal Balance then in effect shall be subject to satisfaction of
the condition that the Note Initial Principal Balance will be reduced
pursuant to Section 4.11(a) on or before the date of such reduction.
(c) NOTATION OF ADJUSTMENTS. Each Noteholder shall, and
is hereby authorized to, record on the grid attached to its VFN Series
2003-3 Note (or, at such Noteholder's option, in its internal books and
records) the date and amount of any portion of any Increase Amount
purchased by it and the related adjusted Note Initial Principal
Balance, and each repayment of its VFN Series 2003-3 Note (including
payments effecting a reduction pursuant to subsection 4.11(a) or (b)
above), provided that failure to make any such recordation on such grid
or any error in such grid shall not affect such Noteholder's rights
with respect to its VFN Series 2003-3 Note and its right to receive
Monthly Interest on such adjusted Note Initial Principal Balance. The
Indenture Trustee shall not be responsible for the accuracy of any
information on any such VFN Series 2003-3 Note grid or with respect to
the Noteholder's notations in its internal books and records.
(d) ALLOCATIONS. During the Revolving Period, each
Increase Amount and Reduction Amount, and the Maximum Note Initial
Principal Balance, shall be allocated among the Class A-1 Notes, the
Class A-2 Notes, the Class B-1 Notes and the Class B-2 Notes as
follows. First, any such Increase Amount or Reduction Amount, and the
Maximum Note Initial Principal Balance, shall be allocated to the Class
A-1 Note and the Class B-1 Note based on their Pro Rata Share and to
the Class A-2 Note and the Class B-2 Note based on their Pro Rata
Share. Second, each amount so allocated shall be further allocated to
the applicable Class A Note and to the applicable Class B Note, based
on the Class A Share and the Class B Share, rounding each result up or
down to the nearest integral multiple of $500.
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During an Amortization Period, any Reduction Amount shall be
allocated, first, to the Class A Notes, to the extent of the Class A
Note Initial Principal Balance, and, second, to the Class B Notes to
the extent of the Class B Note Initial Principal Balance. Further
allocations of the Reduction Amount among the Class A-1 Notes, the
Class A-2 Notes, the Class B-1 Notes and the Class B-2 Notes shall be
made on the basis of their respective Pro Rata Shares.
(e) If the Note Initial Principal Balance is increased
before February 1, 2004, the amounts of Servicer Interchange and the
Noteholder Servicing Fee shall be increased accordingly.
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 VFN Series 2003-3 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 VFN Series 2003-3
Noteholders and the Holder of the Transferor Interest. Except as
otherwise provided in this Section 4.12, Indenture Trustee shall
possess all right, title and interest in all funds on deposit from time
to time in the Spread Account and in all proceeds thereof. The Spread
Account shall be under the sole dominion and control of Indenture
Trustee for the benefit of the VFN Series 2003-3 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). The Issuer will deposit into the Spread
Account on the Closing Date an amount equal to the Required Spread
Account Amount.
(b) Funds on deposit in the Spread Account shall be
invested at the written direction of Servicer by 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 by Indenture Trustee, upon written direction
36
of Servicer, first, to the Funding Agents to the extent that the
aggregate amount of Available Finance Charge Collections available
pursuant to subsection 4.04(a)(xi) is less than the aggregate amount
required to be paid to the Funding Agents pursuant to subsection
4.04(a)(xi), and, second, to the Holder of the Transferor Interest. For
purposes of determining the availability of funds or the balance in the
Spread Account for any reason under this Indenture Supplement (subject
to subsections 4.12(c), 4.12(d) and 4.12(f)), all Investment Earnings
shall be deemed not to be available or on deposit; provided that after
a Pay Out Event or after the maturity of the VFN Series 2003-3 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 available pursuant to subsections
4.04(a)(iv) and 4.04(a)(v) is less than the aggregate amount required
to be deposited pursuant to subsection 4.04(a)(iv), 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 B Noteholders in
respect of commitment fees and interest on the Class B Notes.
(d) On the earlier of the VFN Series 2003-3 Final
Maturity Date and the date on which the Class A Note Principal Balance
has 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 B Note Principal
Balance (after any payments to be made pursuant to subsection 4.04(c)
on such date) and (ii) the Available Spread Account Amount and, if the
amount so withdrawn is not sufficient to reduce the Class B Note
Principal Balance to zero, shall also withdraw Investment Earnings
credited to the Spread Account up to the amount required to reduce the
Class B Note Principal Balance to zero. Indenture Trustee, upon the
written direction of Servicer, or Servicer, shall deposit such amounts
into the Distribution Account for distribution to the Class B
Noteholders in accordance with subsection 5.02(e).
(e) On any day following the occurrence of an Event of
Default with respect to the VFN Series 2003-3 Notes and acceleration of
the maturity of the VFN Series 2003-3 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 B Noteholders until the Class B
Note Principal Balance is paid in full, and to the Class A Noteholders
until the Class A Note Principal Balance is paid in full, in that order
of priority, in accordance with Section 4.04 and Section 5.02, to fund
any shortfalls in amounts owed to such Noteholders.
37
(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)(viii) up to the amount of the
Spread Account Deficiency and, if such Available Finance Charge
Collections are less than such Spread Account Deficiency, investment
earnings on funds on deposit in the Spread Account shall be held and
not distributed pursuant to subsection 4.12(b) until such Spread
Account Deficiency is reduced to zero through subsequent deposits
pursuant to subsection 4.04(a)(viii).
(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 B
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
treat such excess as Available Finance Charge Collections.
(h) All amounts withdrawn from the Spread Account for
payment to Noteholders shall be applied, first, to amounts payable to
Class B Noteholders, second, to amounts payable to Class A Noteholders,
and shall be allocated between the Class A-1 Noteholders and the Class
A-2 Noteholders, and between the Class B-1 Noteholders and the Class
B-2 Noteholders, respectively, based on their Pro Rata Shares.
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. [RESERVED].
SECTION 4.15. FEES; INCREASED COSTS.
(a) Each Funding Agent, on behalf of itself, the
applicable CP Vehicles and the Support Providers with respect to such
CP Vehicles, shall be entitled to receive a commitment fee for each
Monthly Period as specified in the applicable Fee Letter (the
"Commitment Fee").
38
Commitment Fees shall be calculated on the basis of the actual
number of days in the applicable Monthly Period and a year of 360 days,
as the case may be, and shall be payable in arrears on each
Distribution Date for the Related Monthly Period.
(b) Upon written demand by the VFN Series 2003-3
Noteholders, the Transferor shall reimburse the VFN Series 2003-3
Noteholders for their reasonable out-of-pocket expenses, including
rating agency fees, arising from (i) any waiver or modification of this
Indenture Supplement or any other Transaction Document which has been
requested by the Transferor or (ii) from the VFN Series 2003-3
Noteholders exercising their rights under this Indenture Supplement or
any other Transaction Document upon a Servicer Default, an Event of
Default or a Pay Out Event. Such amounts shall be paid on the
Distribution Date next following the demand to the extent such amounts
have not been distributed pursuant to Article IV.
(c) (i) If any Regulatory Change occurring after the
date hereof:
(A) shall subject an Affected Party to
any tax, duty or other charge with respect to any
transaction contemplated by this Indenture Supplement
or the Note Purchase Agreements, or shall change the
basis of taxation of payments to such party of any
amounts due under or in respect of any such
transaction or its obligations or its rights in
connection therewith (except for changes in the rate
of tax on the overall net income of such Affected
Party imposed by the United States of America, by the
jurisdiction in which such Affected Party's principal
executive office is located and, if such Affected
Party's principal executive office is not in the
United States of America, by the jurisdiction where
such Affected Party's principal office in the United
States is located);
(B) shall impose, modify or deem
applicable any reserve (including, without
limitation, any reserve imposed by the Federal
Reserve Board, but excluding any reserve included in
the determination of the Class A Monthly Interest
Payment or the Class B Monthly Interest Payment, as
applicable), special deposit or similar requirement
against assets of any such Affected Party, deposits
or obligations with or for the account of any such
Affected Party or with or for the account of any
affiliate (or entity deemed by any Governmental
Authority to be an affiliate) of any such Affected
Party, or credit extended by any such Affected Party;
(C) shall change the amount of capital
maintained or required or requested or directed to be
maintained by any such Affected Party;
(D) shall impose any other condition
affecting any VFN Series 2003-3 Notes owned or funded
in whole or in part by any such Affected Party, or
its obligations or rights, if any, to make purchases
of any VFN Series 2003-3 Notes or to provide funding
therefor; or
39
(E) shall change the rate for, or the
manner in which the FDIC (or a successor thereto)
assesses, deposit insurance premiums or similar
charges; or
(ii) If, as a result of the Indenture Trustee's
location, or as a result of the Transferor's location, the
Trust, a Funding Agent, a CP Vehicle, a Support Provider or
any other VFN Series 2003-3 Noteholder, shall become liable in
the state of such location for any taxes, interest or
penalties and such liability (after giving effect to tax
credits available to such Affected Party in any other
jurisdiction) increases the aggregate tax liability of such
Affected Party, and the result of any of the foregoing
provisions of (i) or (ii) is or would be:
(x) to increase the cost to or to
impose a cost on any such Affected Party funding or
committed to fund any purchase of a VFN Series 2003-3
Note or otherwise incurring obligations in connection
with the transactions contemplated hereby;
(y) to reduce the amount of any sum
received or receivable by any such Affected Party in
connection with the transactions contemplated hereby;
or
(z) in the reasonable determination of
such Affected Party, to reduce the rate of return on
the capital of such Affected Party as a consequence
of its obligations hereunder or arising in connection
herewith to a level below that which such Affected
Party could otherwise have achieved,
then on the Distribution Date next succeeding such demand by
at least two Business Days by such Affected Party (which
demand shall be accompanied by a statement setting forth the
basis of such demand), the Transferor shall pay directly to
such Affected Party such additional amount or amounts as will
compensate such Affected Party for such additional or
increased cost or such reduction to the extent such amounts
have not been paid from the amounts distributed pursuant to
Article IV on such Distribution Date.
(iii) Each such Affected Party will promptly
notify the Transferor and the applicable Funding Agent of any
event of which it has knowledge which will entitle such
Affected Party to compensation pursuant to this Section 4.15;
provided, however, no failure to give or delay in giving such
notification shall adversely affect the rights of any Affected
Party to such compensation. Each such Affected Party shall use
commercially reasonable efforts to avoid increased liability
under clause (c)(ii) above by claiming a credit for taxes paid
in jurisdictions other than the state of the Indenture
Trustee's or the Transferor's location; provided, however,
that no such Affected Party shall be required to take any such
actions which are materially economically adverse in the
context of the tax liability of such Affected Party.
40
(iv) In determining any amount provided for or
referred to in this Section 4.15, an Affected Party may use
any reasonable averaging and attribution methods that it (in
its sole discretion) shall deem applicable. Any Affected
Party, when making a claim under this Section 4.15, shall
submit to the Transferor a statement as to such increased cost
or reduced return (including calculation thereof in reasonable
detail), which statement shall, in the absence of demonstrable
error, be conclusive and binding upon the Transferor.
(d) If any CP Vehicle or Support Provider shall incur any
loss or expense (including any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by
such CP Vehicle or Support Provider to make any funding with respect to
a VFN Series 2003-3 Note) as a result of (i) any settlement with
respect to a VFN Series 2003-3 Note being made on any day other than a
Distribution Date or (ii) any purchase of a VFN Series 2003-3 Note not
being made in accordance with a request therefor from the Transferor as
a result of the Transferor's action or omission, then, upon written
notice to the Transferor from the applicable Funding Agent, the
Transferor shall pay to the Servicer, and the Servicer shall pay to
such CP Vehicle or Support Provider the amount of such loss or expense
to the extent such amount has not been paid from the amounts
distributed pursuant to Article IV on the Distribution Date next
succeeding such notice by at least two Business Days; provided,
however, that amounts required to be paid by the Transferor pursuant to
this subsection shall not constitute a claim against the Transferor to
the extent that the Transferor does not have sufficient funds to make
payment thereof; provided, further, that any claim for payment of such
amounts shall not be extinguished until paid in full. Such written
notice (which shall include calculations in reasonable detail) shall,
in the absence of manifest error, be conclusive and binding upon the
Transferor.
(e) If any of the following events occur:
(i) quotations of per annum rates for the
relevant deposits referred to in the definition of "LIBOR" are
not available to any Support Provider or Funding Agent in
relevant amounts or for the relevant maturity;
(ii) the rate per annum referred to in the
definition of LIBOR shall not adequately represent the cost to
any Support Provider or Funding Agent of adding to or
maintaining a portion of its interests in the relevant VFN
Series 2003-3 Note; or
(iii) funding or maintaining any Support
Provider's or Funding Agent's interest (or portion thereof) in
a VFN Series 2003-3 Note shall violate any applicable law,
rule, regulation or directive of any governmental or
regulatory authority, whether or not having the force of law,
and such Support Provider or Funding Agent shall have not
subsequently notified the Funding Agent that such
circumstances no longer exist,
the Bank Rate shall be determined by reference to the Alternate Base
Rate rather than LIBOR.
41
(f) The obligations of the Trust and the Indenture
Trustee to pay any amounts pursuant to Section 14.15 of this Indenture
Supplement are limited to the funds to be applied pursuant to Article
IV irrespective of the ability of the Transferor to fulfill its
obligation pursuant to such Section.
SECTION 4.16. NOTE INTEREST RATES. Promptly after the end of each
Monthly Period, each Funding Agent will give facsimile notice to the Servicer
and the Indenture Trustee of the Applicable Pass-Through Rate for each Class of
Notes purchased under the related Note Purchase Agreement for such Monthly
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 VFN
Series 2003-3 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 VFN Series 2003-3 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 VFN Series 2003-3 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 VFN Series 2003-3,
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 VFN Series 2003-3 Notes to the extent
specified in any such Indenture Supplement) and the VFN Series 2003-3 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 VFN Series 2003-3 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
42
Foreign Accounts shall constitute Eligible Receivables for all purposes except
that they may not be counted for purposes of determining compliance with the
tests for the Minimum Transferor Interest and the Minimum Aggregate Principal
Receivables.
SECTION 4.19. FUNDING 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 Noteholders and the Holder of the Transferor
Interest, a segregated trust account (the "Funding Account"), bearing a
designation clearly indicating that the funds deposited therein are
held for the benefit of the Noteholders and the Holder of the
Transferor Interest. Except as otherwise provided in this Section 4.19,
Indenture Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Funding Account and in all
proceeds thereof. The Funding Account shall be under the sole dominion
and control of Indenture Trustee for the benefit of the Noteholders and
the Holder of the Transferor Interest. If at any time the institution
holding the Funding Account ceases to be a Qualified Institution,
Servicer shall notify Indenture Trustee in writing, and Indenture
Trustee upon being notified (or Servicer on its behalf) shall, within
ten (10) Business Days (or such longer period as to which the Rating
Agencies may consent) establish a new Funding Account meeting the
conditions specified above with a Qualified Institution and shall
transfer any cash or any investments to such new Funding Account.
Indenture Trustee, at the written direction of Servicer, shall (i) make
withdrawals from the Funding Account from time to time in an amount up
to the Available Funding Account Amount at such time, for the purposes
set forth in this Indenture Supplement, and (ii) on each Transfer Date
prior to termination of the Funding Account, make a deposit into the
Funding Account in the amount specified in, and otherwise in accordance
with, subsection 4.19(d).
(b) Funds on deposit in the Funding Account shall be
invested at the written direction of Servicer by Indenture Trustee in
Permitted Investments. Funds on deposit in the Funding Account on any
Transfer Date, after giving effect to any withdrawals from and deposits
to the Funding Account on such Transfer Date, shall be invested in such
investments that will mature so that such funds will be available for
withdrawal on or prior to the following Business Day.
On each Transfer Date, the Investment Earnings, if any,
accrued since the preceding Transfer Date on funds on deposit in the
Funding Account shall be paid to the 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 Funding
Account for any reason under this Indenture Supplement, all such
Investment Earnings shall be deemed not to be available or on deposit.
(c) On the Business Day prior to any Adjustment Date on
which the Note Initial Principal Balance will increase, the Available
Funding Account Amount shall be withdrawn from the Funding Account and
deposited to the Spread Account to the extent of any Spread Account
Deficiency that will exist on such Adjustment Date (calculated by
assuming that such increase will occur). On any Adjustment Date on
which the Note
43
Initial Principal Balance will decrease, the Available Funding Account
Amount shall be withdrawn from the Funding Account and applied pursuant
to Section 4.11(a)(v)(C) to the extent that amounts available pursuant
to Section 4.11(a)(v)(A) and (B) are not sufficient to pay the full
Reduction Amount. To the extent that amounts on deposit in the Funding
Account include Collections of Principal Receivables, such amounts will
not be deemed to constitute "amounts on deposit in the Principal
Accounts" for purposes of the definition of Transferor Interest or
otherwise included in the calculation of the Transferor Interest and
the Transferor Interest shall be calculated as if such amounts had been
distributed to the Transferor.
(d) If on any Business Day, after giving effect to any
withdrawals from the Funding Account, the Available Funding Account
Amount is less than the Designated Funding Account Amount then in
effect, Collections shall be deposited into the Funding Account
pursuant to subsection 4.01(b) and subsection 4.07(ii) up to the amount
of the Funding Account Deficiency.
(e) If, after giving effect to all deposits to and
withdrawals from the Funding Account on any Business Day, the amount on
deposit in the Funding Account exceeds the Designated Funding Account
Amount, Indenture Trustee, acting in accordance with the instructions
of Servicer, shall pay such amounts to the holders of the Transferor
Interest.
SECTION 4.20. TAXES.
(a) All payments made by the Transferor, the Servicer or
the Trust under this Indenture Supplement, the Note Purchase
Agreements, the Fee Letters, and the other Transaction Documents shall
be made free and clear of, and without deduction or withholding for or
on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes
or any other tax based upon net income imposed on any Affected Party as
a result of a present or former connection between such Affected Party
and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from such Person having
executed, delivered or performed its obligations or received a payment
under, or enforced, this Indenture Supplement, its Note Purchase
Agreement or another Transaction Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from
any amounts payable to any Affected Party hereunder, the amounts so
payable to such Affected Party shall be increased to the extent
necessary to yield such Affected Party (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in or pursuant to
this Indenture Supplement or the relevant Note Purchase Agreement, the
relevant Fee Letter, or the other Transaction Documents; provided,
however, that the Transferor shall not be required to increase any such
amounts payable to any Affected Party that is not organized under the
laws of the United States of America or a state thereof if such
Affected Party fails to comply with the requirements of
44
Section 4.20(b). Whenever any Non-Excluded Taxes are payable by the
Transferor, as promptly as possible thereafter the Transferor shall
send to the applicable Funding Agent for its own account or for the
account of such Affected Party, as the case may be, a certified copy of
an original official receipt received by the Transferor showing payment
thereof. If the Transferor fails to pay any Non-Excluded Taxes when due
to the appropriate taxing authority or fails to remit to the relevant
Funding Agent the required receipts or other required documentary
evidence, the Transferor shall indemnify the applicable Affected Party
for any incremental taxes, interest or penalties that may become
payable by such Affected Party as a result of any such failure. The
agreements in this Section 4.20 shall survive the termination of this
Indenture Supplement and the Note Purchase Agreements, and the payment
of all amounts otherwise payable hereunder or thereunder.
(b) Each Affected Party that is not incorporated under
the laws of the United States of America or a state thereof shall:
(i) deliver to the Transferor two duly completed
copies of (A) United States Internal Revenue Service
Form-W8-BEN or W8-ECI, or successor applicable form, as the
case may be, or (B) an Internal Revenue Service Form W-9, or
successor applicable form, as the case may be;
(ii) deliver to the Transferor two further copies
of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the
most recent form previously delivered by it to the Transferor;
and
(iii) obtain such extension of time for filing and
completing such forms or certification as may reasonably be
required by the Transferor;
unless in any such case an event (including any change in treaty, law
or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Affected Party from duly
completing and delivering any such form with respect to it and such
Affected Party so advises the Transferor. Such Affected Party shall
certify (i) in the case of a W8-BEN or W8-ECI, that it is entitled to
receive payments under this Indenture Supplement and its Note Purchase
Agreement without deduction or withholding of any United States federal
income taxes and (ii) in the case of a Form W-9, that it is entitled to
an exemption from United States backup withholding tax. Each Person not
incorporated under the laws of the United States of America or a state
thereof that is an assignee of an Affected Party shall, upon the
effectiveness of the related transfer, be required to provide all of
the forms and statements required pursuant to this Section 4.20.
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ARTICLE V
DELIVERY OF NOTES; DISTRIBUTIONS; REPORTS TO NOTEHOLDERS
SECTION 5.01. DELIVERY AND PAYMENT FOR THE VFN SERIES 2003-3 NOTES.
Issuer shall execute and issue, and Indenture Trustee shall authenticate, the
VFN Series 2003-3 Notes in accordance with Section 2.03 of the Indenture.
Indenture Trustee shall deliver the VFN Series 2003-3 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-1 Noteholder of record on the related Record
Date (other than as provided in Section 11.02 of the Indenture) 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-1 Noteholders
pursuant to this Indenture Supplement and the applicable Note Purchase
Agreement and Fee Letter.
(b) On each Distribution Date, Indenture Trustee shall
distribute to each Class A-2 Noteholder of record on the related Record
Date (other than as provided in Section 11.02 of the Indenture) 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-2 Noteholders
pursuant to this Indenture Supplement and the applicable Note Purchase
Agreement and Fee Letter.
(c) On each Distribution Date, Indenture Trustee shall
distribute to each Class B-1 Noteholder of record on the related Record
Date (other than as provided in Section 11.02 of the Indenture) the
amounts on deposit in the Distribution Account (including amounts
withdrawn from the Spread Account (at the times and in the amounts
specified in Section 4.12)) that are allocated and available on such
Distribution Date and that are payable to the Class B-1 Noteholders
pursuant to this Indenture Supplement and the applicable Note Purchase
Agreement and Fee Letter.
(d) On each Distribution Date, Indenture Trustee shall
distribute to each Class B-2 Noteholder of record on the related Record
Date (other than as provided in Section 11.02 of the Indenture) the
amounts on deposit in the Distribution Account (including amounts
withdrawn from the Spread Account (at the times and in the amounts
specified in Section 4.12)) that are allocated and available on such
Distribution Date and that are payable to the Class B-2 Noteholders
pursuant to this Indenture Supplement and the applicable Note Purchase
Agreement and Fee Letter.
(e) 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.
46
(f) Except as provided in Section 11.02 of the Indenture
with respect to a final distribution, distributions to VFN 2003-3
Noteholders hereunder shall be made by (i) check mailed to each VFN
Series 2003-3 Noteholder (at such Noteholder's address as it appears in
the Note Register), except that for each Funding Group, such
distribution shall be made by wire transfer of immediately available
funds remitted in accordance with written directions from the related
Funding Agent and received no later than 11:30 a.m., New York time, on
the related Distribution Date and (ii) without presentation or
surrender of any VFN Series 2003-3 Note or the making of any notation
thereon.
SECTION 5.03. REPORTS AND STATEMENTS TO VFN SERIES 2003-3 NOTEHOLDERS.
(a) On each Distribution Date, Indenture Trustee shall
forward to each VFN Series 2003-3 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 subsection (a) or (b) may be obtained by any VFN Series
2003-3 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 VFN Series 2003-3 Noteholder, a statement
prepared by Servicer containing the information which is required to be
contained in the statement to VFN Series 2003-3 Noteholders, as set
forth in paragraph (a) above, aggregated for such calendar year or the
applicable portion thereof during which such Person was a VFN Series
2003-3 Noteholder, together with other information as is required to be
provided by an issuer of indebtedness under the Code. Such obligation
of Indenture Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by
Servicer pursuant to any requirements of the Code as from time to time
in effect.
ARTICLE VI
VFN SERIES 2003-3 PAY OUT EVENTS
If any one of the following events shall occur with respect to the VFN
Series 2003-3 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
47
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 VFN Series 2003-3
Noteholders which continues unremedied for a period of thirty (30) days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to Transferor by Indenture
Trustee, or to Transferor and Indenture Trustee by Holders of VFN
Series 2003-3 Notes evidencing more than 25% of the Note Principal
Balance and which continues to materially and adversely affect the
interest of the VFN Series 2003-3 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 thirty (30) 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 VFN Series 2003-3 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 VFN Series 2003-3 Pay Out Event pursuant to
this subsection (b) of Article VI shall not be deemed to have occurred
hereunder if Transferor has accepted reassignment of the related
Receivable, or all of such Receivables, if applicable, during such
period in accordance with the provisions of the Transfer and Servicing
Agreement or the Pooling and Servicing Agreement;
(c) a failure by Transferor or the "Transferor" under the
Pooling and Servicing Agreement to convey Receivables in Additional
Accounts to the Receivables Trust within five (5) Business Days after
the day on which it is required to convey such Receivables pursuant to
subsection 2.06(a) of the Transfer and Servicing Agreement or
subsection 2.06(a) of the Pooling and Servicing Agreement,
respectively, provided that such failure shall not give rise to a Pay
Out Event if, prior to the date on which such conveyance was required
to be completed, Transferor causes a reduction in the invested amount
of any Variable Interest or any variable funding certificate issued
under the Pooling and Servicing Agreement to occur, so that, after
giving effect to that reduction, the Transferor Interest is not less
than the Minimum Transferor Interest and the Aggregate Principal
Receivables are not less than the Minimum Aggregate Principal
Receivables;
(d) any Servicer Default or any "Servicer Default" under
the Pooling and Servicing Agreement shall occur that would have a
material adverse effect on the VFN Series 2003-3 Noteholders;
48
(e) the Portfolio Yield averaged over three consecutive
Monthly Periods is less than the Base Rate averaged over such period;
(f) the Note Principal Balance shall not be paid in full
on the Scheduled Payment Date;
(g) without limiting the foregoing, the occurrence of an
Event of Default with respect to VFN Series 2003-3 and acceleration of
the maturity of the VFN Series 2003-3 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 subsections, either
Indenture Trustee or both Funding Agents by notice then given in writing to
Transferor and Servicer (and to Indenture Trustee if given by the Funding
Agents) may declare that a "Series Pay Out Event" with respect to VFN Series
2003-3 (a "VFN Series 2003-3 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 VFN Series 2003-3 Pay Out Event shall occur without any notice or other
action on the part of Indenture Trustee or the Funding Agents immediately upon
the occurrence of such event. In the event that one Funding Agent gives notice
to Transferor, Servicer, Indenture Trustee and the other Funding Agent that an
event described in subsection (a), (b) or (d), after the applicable grace
period, if any, set forth in such subsections, should be declared to be a Series
Pay Out Event, such declaration shall become effective on the tenth (10th) day
following receipt of such notice unless both Funding Agents have provided a
written waiver of such declaration.
ARTICLE VII
REDEMPTION;
FINAL DISTRIBUTIONS; SERIES TERMINATION
SECTION 7.01. OPTIONAL REDEMPTION OF VFN SERIES 2003-3 NOTES; FINAL
DISTRIBUTIONS.
(a) On any day occurring on or after the date on which
the outstanding principal balance of the VFN Series 2003-3 Notes is
reduced to 10% or less of the initial Note Principal Balance of the VFN
Series 2003-3 Notes, Servicer shall have the option to direct
Transferor to redeem the VFN Series 2003-3 Notes, at a purchase price
equal to (i) if such day is a Distribution Date, the Reassignment
Amount for such Distribution Date or (ii) if such day is not a
Distribution Date, the Reassignment Amount for the Distribution Date
following such day. This option shall not be exercisable if the
purchase price 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
49
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 Reassignment
Amount. 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 VFN Series 2003-3 shall be reduced to zero, and
the VFN Series 2003-3 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
VFN Series 2003-3 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 VFN 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 based on their respective Pro Rata Shares 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
based on their respective Pro Rata Shares, (ii) (x) the Class B Note
Principal Balance on such Distribution Date will be distributed to the
Class B Noteholders based on their respective Pro Rata Shares 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
based on their respective Pro Rata Shares, (iii) all other amounts
payable by Issuer or Transferor to the Funding Agents, the VFN Series
2003-3 Noteholders, the Support Providers or any other Person under or
in connection with this Indenture Supplement, the Note Purchase
Agreements and the Fee Letters, and (iv) any excess shall be released
to Issuer.
SECTION 7.02. SERIES TERMINATION. On the VFN Series 2003-3 Final
Maturity Date, the unpaid principal amount of the VFN Series 2003-3 Notes shall
be due and payable, and the right of the VFN Series 2003-3 Noteholders to
receive payments from Issuer will be limited solely to the right to receive
payments pursuant to Section 5.05 of the Indenture.
50
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.01. RATIFICATION OF INDENTURE; AMENDMENTS; WAIVERS. 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
and for the avoidance of doubt, any waiver of the provisions of this Indenture
Supplement shall be subject to the provisions of Sections 10.01 and 10.02 of the
Indenture. Except as otherwise specifically provided, any amendment or waiver
that requires the consent of any Holders of the VFN Series 2003-3 Notes may be
made only with the written consent of each Funding Agent.
SECTION 8.02. FORM OF DELIVERY OF THE VFN SERIES 2003-3 NOTES. The
Class A Notes and the Class B Notes shall not be Book-Entry Notes but instead
shall be physically delivered as Registered Notes to each CP Conduit as provided
in Sections 2.01 and 2.03 of the Indenture. Each Class of Notes shall be
registered in the Note Register in the name of the initial CP Conduit purchaser
identified in the applicable Note Purchase Agreement.
SECTION 8.03. COUNTERPARTS. This Indenture Supplement may be executed
in two or more counterparts, and by different parties on separate counterparts,
each of which shall be an original, but all of which shall constitute one and
the same instrument.
SECTION 8.04. GOVERNING LAW. THIS INDENTURE SUPPLEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEBRASKA, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 8.05. LIMITATION OF LIABILITY. Notwithstanding any other
provision herein or elsewhere, this Agreement has been executed and delivered by
Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of the Trust, in no event shall Wilmington Trust
Company, in its individual capacity, have any liability in respect of the
representations, warranties, or obligations of Issuer hereunder or under any
other document, as to all of which recourse shall be had solely to the assets of
Issuer, and for all purposes of this Agreement and each other document, Owner
Trustee (as such or in its individual capacity) shall be subject to, and
entitled to the benefits of, the terms and provisions of the Trust Agreement.
SECTION 8.06. RIGHTS OF INDENTURE TRUSTEE. Indenture Trustee shall have
herein the same rights, protections, indemnities and immunities as specified in
the Master Indenture.
SECTION 8.07. ADDITIONAL REQUIREMENTS FOR REGISTRATION OF AND
LIMITATIONS ON TRANSFER AND EXCHANGE OF NOTES.
(a) All transfers will be subject to the transfer
restrictions set forth on the Notes.
51
(b) The VFN Series 2003-3 Notes have not been, and will
not be, registered under the Securities Act or any state securities
law. The Notes will be offered and sold only to "accredited investors",
as defined in Rule 501 promulgated under the Securities Act, purchasing
for their own accounts or to an "accredited investor" purchasing for a
single account (which is an institutional "accredited investor") as to
which the purchaser exercises sole investment discretion. No reoffer,
resale, pledge or other transfer of any VFN Series 2003-3 Notes or any
interest therein or participation thereof subsequent to the initial
purchase from the Transferor will be made unless (i)(A) such resale or
transfer is made pursuant to Rule 144A under the Securities Act to a
Person whom the seller of the VFN Series 2003-3 Notes reasonably
believes is a QIB purchasing for its own account or a QIB purchasing
for the account of a QIB, whom the seller has informed, in each case,
that the reoffer, resale, pledge or other transfer is being made in
reliance on Rule 144A or (B) such resale or transfer is to an
"accredited investor" purchasing for its own account or for a single
account (which is an institutional "accredited investor") as to which
the purchaser exercises sole investment discretion, and (ii) the seller
delivers (or has previously delivered) to the Indenture Trustee a
Certificate of the purchaser in the form of Exhibit E hereto.
Neither the Transferor nor the Indenture Trustee is obligated
to register the VFN Series 2003-3 Notes under the Securities Act or any
applicable state securities laws or to take any action otherwise
required under the Transaction Documents to permit the transfer of VFN
Series 2003-3 Notes without registration.
(c) Each VFN Series 2003-3 Note will bear legends
substantially in the forms set forth in Exhibits X-0, X-0, X-0 and A-4,
as applicable.
[Signature page follows]
52
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/ Xxxxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxxxx X. Xxxxxxxx, Financial
Services Officer
THE BANK OF NEW YORK,
as Indenture Trustee
By /s/ Xxxx X. Xxxxxxx
-------------------------------
Xxxx X. Xxxxxxx, Agent
Acknowledged and Accepted:
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By /s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx, Vice President
FIRST NATIONAL FUNDING LLC
By First National Funding Corporation,
as Managing Member
By /s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx, Senior Vice President
EXHIBIT A-1
FORM OF CLASS A-1 ASSET BACKED NOTE, VFN SERIES 2003-3
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE
SECURITIES ACT. NO RESALE OR OTHER TRANSFER OF THIS NOTE MAY BE MADE EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY
APPLICABLE PROVISIONS UNDER STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT
TO CERTAIN CONDITIONS SET FORTH IN A NOTE PURCHASE AGREEMENT RELATING HERETO.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES
THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST FIRST BANKCARD MASTER CREDIT CARD
TRUST, A COMMON LAW TRUST ORGANIZED UNDER THE LAWS OF NEBRASKA ("FBMCCT"), FIRST
NATIONAL FUNDING CORPORATION, A NEBRASKA BUSINESS CORPORATION ("FNFC"),
TRANSFEROR OR ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY
INSTITUTION IN INSTITUTING AGAINST FBMCCT, FNFC, TRANSFEROR OR ISSUER, ANY
BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS,
OR OTHER PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR
SIMILAR LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO THE NOTES, THE
INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS A-1 NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS A-1 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-1 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-1
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-VFN-A-1-_______
FIRST NATIONAL MASTER NOTE TRUST
CLASS A-1 ASSET BACKED NOTE, VFN SERIES 2003-3
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 [ ], 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 date or dates specified in or pursuant to the Indenture.
Issuer will pay interest on the unpaid principal amount of this Note at the
Applicable Pass-Through 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, and principal of this Note
shall be paid, each 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.
A1-3
IN WITNESS WHEREOF, Issuer has caused this Class A-1 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: December [_], 2003
A1-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 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-1 ASSET BACKED NOTE, VFN SERIES 2003-3
SUMMARY OF TERMS AND CONDITIONS
This Class A-1 Note is one of a duly authorized issue of Notes of
Issuer, designated as First National Master Note Trust, VFN Series 2003-3 (the
"VFN Series 2003-3 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 December [ ], 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-2 Notes, the Class B-1 Notes and the Class B-2 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-1 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-1 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-1 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
A1-6
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A1-7
CLASS A-1 NOTE
CLASS A-1 CURRENT
CLASS A-1 PRINCIPAL CLASS A-1 CURRENT
NOTE INITIAL CLASS A-1 PAYMENTS NOTE INITIAL CLASS A-1
PRINCIPAL INCREASE (INCLUDING PRINCIPAL NOTE PRINCIPAL
DATE BALANCE AMOUNTS REDUCTIONS) BALANCE BALANCE
---- ------- ------- ----------- ------- -------
12-[ ]-03
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A1-8
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 A-2 ASSET BACKED NOTE, VFN SERIES 2003-3
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE
SECURITIES ACT. NO RESALE OR OTHER TRANSFER OF THIS NOTE MAY BE MADE EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY
APPLICABLE PROVISIONS UNDER STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT
TO CERTAIN CONDITIONS SET FORTH IN A NOTE PURCHASE AGREEMENT RELATING HERETO.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES
THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST FIRST BANKCARD MASTER CREDIT CARD
TRUST, A COMMON LAW TRUST ORGANIZED UNDER THE LAWS OF NEBRASKA ("FBMCCT"), FIRST
NATIONAL FUNDING CORPORATION, A NEBRASKA BUSINESS CORPORATION ("FNFC"),
TRANSFEROR OR ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY
INSTITUTION IN INSTITUTING AGAINST FBMCCT, FNFC, TRANSFEROR OR ISSUER, ANY
BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS,
OR OTHER PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR
SIMILAR LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO THE NOTES, THE
INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS A-2 NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS A-2 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-2 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-2 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-VFN-A-2-__________
FIRST NATIONAL MASTER NOTE TRUST
CLASS A-2 ASSET BACKED NOTE, VFN SERIES 2003-3
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 [ ], 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 date or dates specified in or pursuant to
the Indenture. Issuer will pay interest on the unpaid principal amount of this
Note at the Applicable Pass-Through 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, and principal of
this Note shall be paid, each 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.
A2-3
IN WITNESS WHEREOF, Issuer has caused this Class A-2 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: December [_], 2003
A2-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 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 A-2 ASSET BACKED NOTE, VFN SERIES 2003-3
SUMMARY OF TERMS AND CONDITIONS
This Class A-2 Note is one of a duly authorized issue of Notes of
Issuer, designated as First National Master Note Trust, VFN Series 2003-3 (the
"VFN Series 2003-3 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 December [ ], 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-1 Notes, the Class B-1 Notes and the Class B-2 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-2 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-2 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-2 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
A2-6
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A2-7
CLASS A-2 NOTE
CLASS A-2 CURRENT
CLASS A-2 PRINCIPAL CLASS A-2 CURRENT
NOTE INITIAL CLASS A-2 PAYMENTS NOTE INITIAL CLASS A-2
PRINCIPAL INCREASE (INCLUDING PRINCIPAL NOTE PRINCIPAL
DATE BALANCE AMOUNTS REDUCTIONS) BALANCE BALANCE
---- ------- ------- ----------- ------- -------
12-[ ]-03
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A2-8
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-1 ASSET BACKED NOTE, VFN SERIES 2003-3
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE
SECURITIES ACT. NO RESALE OR OTHER TRANSFER OF THIS NOTE MAY BE MADE EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY
APPLICABLE PROVISIONS UNDER STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT
TO CERTAIN CONDITIONS SET FORTH IN A NOTE PURCHASE AGREEMENT RELATING HERETO.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES
THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST FIRST BANKCARD MASTER CREDIT CARD
TRUST, A COMMON LAW TRUST ORGANIZED UNDER THE LAWS OF NEBRASKA ("FBMCCT"), FIRST
NATIONAL FUNDING CORPORATION, A NEBRASKA BUSINESS CORPORATION ("FNFC"),
TRANSFEROR OR ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY
INSTITUTION IN INSTITUTING AGAINST FBMCCT, FNFC, TRANSFEROR OR ISSUER, ANY
BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS,
OR OTHER PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR
SIMILAR LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO THE NOTES, THE
INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS B-1 NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS B-1 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-1 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-1 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-VFN-B-1-___________
FIRST NATIONAL MASTER NOTE TRUST
CLASS B-1 ASSET BACKED NOTE, VFN SERIES 2003-3
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 [ ], 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 date or dates specified in or pursuant to
the Indenture. Issuer will pay interest on the unpaid principal amount of this
Note at the Applicable Pass-Through 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, and principal of
this Note shall be paid, each 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-1 NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND
PAYMENTS ON THE CLASS A-1 NOTES AND THE CLASS A-2 NOTES TO THE EXTENT SPECIFIED
IN THE INDENTURE SUPPLEMENT.
A3-3
IN WITNESS WHEREOF, Issuer has caused this Class B-1 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: December [_], 2003
A3-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B-1 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 B-1 ASSET BACKED NOTE, VFN SERIES 2003-3
SUMMARY OF TERMS AND CONDITIONS
This Class B-1 Note is one of a duly authorized issue of Notes of
Issuer, designated as First National Master Note Trust, VFN Series 2003-3 (the
"VFN Series 2003-3 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 December [ ], 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-1 Notes, the Class A-2 Notes and the Class B-2 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-1 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-1 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-1 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
A3-6
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A3-7
CLASS B-1 NOTE
CLASS B-1 CURRENT
CLASS B-1 PRINCIPAL CLASS B-1 CURRENT
NOTE INITIAL CLASS B-1 PAYMENTS NOTE INITIAL CLASS B-1 NOTE
PRINCIPAL INCREASE (INCLUDING PRINCIPAL PRINCIPAL
DATE BALANCE AMOUNTS REDUCTIONS) BALANCE BALANCE
---- ------- ------- ----------- ------- -------
12-[ ]-03
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A3-8
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 ASSET BACKED NOTE,
VFN SERIES 2003-3
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE
SECURITIES ACT. NO RESALE OR OTHER TRANSFER OF THIS NOTE MAY BE MADE EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY
APPLICABLE PROVISIONS UNDER STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT
TO CERTAIN CONDITIONS SET FORTH IN A NOTE PURCHASE AGREEMENT RELATING HERETO.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES
THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST FIRST BANKCARD MASTER CREDIT CARD
TRUST, A COMMON LAW TRUST ORGANIZED UNDER THE LAWS OF NEBRASKA ("FBMCCT"), FIRST
NATIONAL FUNDING CORPORATION, A NEBRASKA BUSINESS CORPORATION ("FNFC"),
TRANSFEROR OR ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY
INSTITUTION IN INSTITUTING AGAINST FBMCCT, FNFC, TRANSFEROR OR ISSUER, ANY
BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS,
OR OTHER PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR
SIMILAR LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO THE NOTES, THE
INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS B-2 NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS B-2 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-2 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-2
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).
A4-2
$__________________
REGISTERED
No. R-VFN-B-2-__________
FIRST NATIONAL MASTER NOTE TRUST
CLASS B-2 ASSET BACKED NOTE, VFN SERIES 2003-3
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 [ ], 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 date or dates specified in or pursuant to the Indenture.
Issuer will pay interest on the unpaid principal amount of this Note at the
Applicable Pass-Through 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, and principal of this Note
shall be paid, each 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-2 NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND
PAYMENTS ON THE CLASS A-1 NOTES AND THE CLASS A-2 NOTES TO THE EXTENT SPECIFIED
IN THE INDENTURE SUPPLEMENT.
A4-3
IN WITNESS WHEREOF, Issuer has caused this Class B-2 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: December [___], 2003
A4-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B-2 Notes described in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Indenture Trustee
By ________________________________________
Authorized Signatory
Dated _____________________________________
A4-5
FIRST NATIONAL MASTER NOTE TRUST
CLASS B-2 ASSET BACKED NOTE, VFN SERIES 2003-3
SUMMARY OF TERMS AND CONDITIONS
This Class B-2 Note is one of a duly authorized issue of Notes of
Issuer, designated as First National Master Note Trust, VFN Series 2003-3 (the
"VFN Series 2003-3 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 December [ ], 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-1 Notes, the Class A-2 Notes and the Class B-1 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-2 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-2 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-2 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
A4-6
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A4-7
CLASS B-2 NOTE
CLASS B-2
PRINCIPAL CURRENT
CLASS B-2 CLASS B-2 PAYMENTS CLASS B-2 CURRENT CLASS B-2
NOTE INITIAL INCREASE (INCLUDING NOTE INITIAL NOTE PRINCIPAL
DATE PRINCIPAL BALANCE AMOUNTS REDUCTIONS) PRINCIPAL BALANCE BALANCE
------------ ----------------- --------- ----------- ------------------ -----------------
12-[ ]-03
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
A4-8
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.
A4-9
EXHIBIT B
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO INDENTURE TRUSTEE
FIRST NATIONAL MASTER NOTE TRUST
VFN SERIES 2003-3
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 December [ ], 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 2003-3 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 Monthly Period................... $ _____________
Class A Commitment Fee for such
Distribution Date.......................... $ _____________
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..... $ _____________
Class A Benchmark Amount for Distribution
Date....................................... $ _____________
Amount not distributed pursuant to
subsection 4.04(a)(i) due to Class A
Benchmark Amount........................... $ _____________
B. Pursuant to subsection 4.04(a)(ii):
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....................................... $ _____________
C. Pursuant to subsection 4.04(a)(iii):
Other Senior Cost Amount for Class A to be
deposited to Distribution
Account.................................... $ _____________
D. Pursuant to subsection 4.04(a)(iv):
Class B Monthly Interest Payment for the
preceding Monthly Period................... $ _____________
Class B Commitment Fee for such
Distribution Date.......................... $ _____________
Class B Interest Shortfall due to Class B
Noteholders................................ $ _____________
B-2
Class B Default Interest for such
Distribution Date.......................... $ _____________
Class B Default Interest previously due but
not distributed to Class B Noteholders..... $ _____________
Class B Benchmark Amount for such
Distribution Date.......................... $ _____________
Amount not distributed pursuant to
subsection 4.04(a)(iv) due to Class B
Benchmark Amount........................... $ _____________
E. Pursuant to subsection 4.04(a)(v):
Other Senior Cost Amount for Class B to be
deposited to Distribution Account.......... $ _____________
F. Pursuant to subsection 4.04(a)(vi):
Investor Default Amount to be treated as
Available Principal Collections............ $ _____________
Uncovered Dilution Amount for such
Distribution Date to be treated as
Available Principal Collections............ $ _____________
G. Pursuant to subsection 4.04(a)(vii):
The amount of Investor Charge Offs and
Reallocated Principal Collections not
previously reimbursed to be treated as
Available Principal Collections............ $ _____________
H. Pursuant to subsection 4.04(a)(viii):
Amounts to be deposited into the Spread
Account.................................... $ _____________
I. Pursuant to subsection 4.04(a)(ix):
Class A amounts not distributed pursuant to
subsection 4.04(a)(i) because of second
proviso which have not been distributed as
part of Class A Senior Cost Amount......... $ _____________
B-3
J. Pursuant to subsection 4.04(a)(x):
Class B amounts not distributed pursuant to
subsection 4.04(a)(iii) because of second
proviso which have not been distributed as
part of Class B Senior Cost Amount......... $ _____________
K. Pursuant to subsection 4.04(a)(xi):
Other amounts payable by Issuer to Funding
Agents, Noteholders, Support Providers or
others to be deposited into the
Distribution Account....................... $ _____________
L. Pursuant to subsection 4.04(a)(xii):
The balance will constitute Excess Finance
Charge Collections for such Distribution
Date $ _____________
M. Excess Finance Charge Collections available
and required to support other Series in
Group One.................................. $ _____________
N. Excess Finance Charge Collections available
to cover Excess Servicing Fee.............. $ _____________
Pursuant to Section 4.04(b) and (c), Servicer does hereby instruct
Indenture Trustee (i) to make a withdrawal from the Principal Account (or other
Series Account specified below) on ________________________, 200 ____, which
date is a Transfer Date under the Indenture Supplement, in an aggregate amount
(equal to the Available Principal Collections) as set forth below in respect of
the following amounts and (ii) to apply the proceeds of such withdrawal in
accordance with Section 4.04(b) and (c):
A. Pursuant to subsection 4.04(b):
An amount equal to the Funding Account
Deficiency to be withdrawn from Principal
Account and deposited into Funding Account... $ _____________
An amount equal to the remaining Available
Principal Collections to be treated as
Excess Principal Collections and applied in
accordance with Section 8.05 of the
Indenture.................................... $ _____________
B-4
B. Pursuant to subsection 4.04(c)(i):
During the Amortization Period, an amount
equal to the Class A Monthly Principal to
be withdrawn from the Principal Account and
deposited to the Distribution Account for
payment to the Class A Noteholders on the
Distribution Date until an aggregate amount
equal to the Class A Note Principal Balance
has been so deposited...................... $ _____________
C. Pursuant to subsection 4.04(c)(ii):
During the Amortization Period, after
giving effect to Clause (B) above, an
amount equal to the Class B Monthly
Principal, to be withdrawn from the
Principal Account and 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.................................. $ _____________
D. Pursuant to subsection 4.04(c)(iii):
An amount equal to the other amounts
payable by Issuer to Funding Agents,
Noteholders, Support Providers or others to
be deposited into the Distribution
Account.................................... $ _____________
E. Pursuant to subsection 4.04(c)(iv):
Available Principal Collections, if any,
remaining after giving effect to Clauses
(B) through (D) above, to be treated as
Excess Principal Collections and applied in
accordance with Section 8.05 of the
Indenture.................................. $ _____________
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 not to exceed the Monthly Principal
Reallocation Amount 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:
B-5
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) and (ii) of the
Indenture Supplement to be deposited to the
Distribution Account for payment to the
Class A Noteholders or distributed to the
Servicer................................... $ _____________
Pursuant to Section 4.09, Servicer does hereby instruct Indenture
Trustee to deposit interest and earnings on the funds on deposit in the
Principal Account, the Finance Charge Account and the Distribution Account to an
account designated by Servicer:
Earnings on Principal Account, Finance
Charge Account and Distribution Account to
the order of Servicer...................... $ _____________
Pursuant to Section 4.12(c), Servicer does hereby instruct Indenture
Trustee to withdraw from the Spread Account an amount equal to a deficiency in
the aggregate amount of Available Finance Charge Collections available to make
the deposit required pursuant to Section 4.04(a)(iii), up to the Available
Spread Account Amount, in the following amount.
$ _____________
[Pursuant to Section 4.12(d), Servicer does hereby instruct Indenture
Trustee to withdraw from the Spread Account an amount equal to the Class B Note
Principal Balance, up to the Available Spread Account Amount, in the following
amount.]
$ _____________
[Pursuant to Section 4.12(e), Servicer does hereby instruct Indenture
Trustee to withdraw from the Spread Account an amount equal to the Note
Principal Balance, up to the Available Spread Account Amount, in the following
amount.]
$ _____________
Pursuant to Section 4.19(c), Servicer does hereby instruct Indenture
Trustee to withdraw from the Funding Account an amount equal to [the amount of
any Spread Account Deficiency that will exist on the applicable Adjustment Date]
[the amount required pursuant to Section 4.11(a)(v)(C) in connection with a
decrease in the Note Initial Principal Balance in excess of amounts available
pursuant to Section 4.11(a)(v)(A) and (B)].
$ _____________
II. INSTRUCTIONS TO MAKE CERTAIN PAYMENTS
Pursuant to Section 5.02, 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
B-6
on ________________________, which date is a Distribution Date under the
Indenture Supplement, the following amounts:
A. Pursuant to subsection 5.02(a):
(1) Class A-1 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 and
commitment fees on the Class A-1 Notes
pursuant to the Indenture Supplement....... $ _____________
(2) Class A-1 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-1 Notes pursuant to the
Indenture Supplement....................... $ _____________
B. Pursuant to subsection 5.02(b):
(1) Class A-2 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 and
commitment fees on the Class A-2 Notes
pursuant to the Indenture Supplement....... $ _____________
(2) Class A-2 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-2 Notes pursuant to the
Indenture Supplement....................... $ _____________
C. Pursuant to subsection 5.02(c):
(1) Class B-1 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 and
commitment fees on the Class B-1 Notes
pursuant to the Indenture Supplement....... $ _____________
B-7
(2) Class B-1 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-1 Notes pursuant to the
Indenture Supplement....................... $ _____________
D. Pursuant to subsection 5.02(d):
(1) Class B-2 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 and
commitment fees on the Class B-2 Notes
pursuant to the Indenture Supplement....... $ _____________
(2) Class B-2 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-2 Notes pursuant to the
Indenture Supplement....................... $ _____________
B-8
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-9
EXHIBIT C
FORM OF MONTHLY REPORT TO NOTEHOLDERS
FIRST NATIONAL MASTER NOTE TRUST VFN SERIES 2003-3
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 December
[ ], 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 2003-3 Pay Out Event and
no Trust Pay Out Event has occurred except as described below:
[If applicable, insert "None"]
(g) As of the date hereof the Available Spread Account Amount equals the
Required Spread Account Amount.
A. INFORMATION REGARDING THE PERFORMANCE OF THE RECEIVABLES
1. Principal Receivables
(a) Beginning of Monthly Period Principal Receivables _______________________
(b) End of Monthly Period Principal Receivables _______________________
(c) Average Principal Receivables _______________________
2. (a) End of Monthly Period Trust Receivables _______________________
(b) End of Monthly Period Total Outstanding Notes/Certificates _______________________
(c) Minimum Transferor Interest (7% of (b)) _______________________
(d) Total Transferor Interest ((a) minus (b)) _______________________
3. Delinquent Balances
Delinquency Aggregate Account Percentage of
Category Balance Total Receivables
-------------------------------------------------------------------------------------------------------
(a) 30 to 59 days _________________________________________________
(b) 60 to 89 days _________________________________________________
(c) 90 to 119 days _________________________________________________
(d) 120 to 149 days _________________________________________________
(e) 150 or more days _________________________________________________
Total: _________________________________________________
4. Aggregate amount of Collections _______________________
(a) Total Collections _______________________
(b) Total Collections of Principal Receivables _______________________
(c) Total Collections of Finance Charge Receivables _______________________
(d) Aggregate Allocation Percentages for Outstanding Series _______________________
(e) Aggregate Allocation Percentage of Collections of Principal
Receivables _______________________
(f) Aggregate Allocation Percentage of Collections of Finance
Charge Receivables _______________________
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 _______________________
------------------------
(1) MasterCard and VISA are registered trademarks of MasterCard International
Incorporated and of VISA USA, Inc., respectively.
C-2
(b) Sales net of cash advances during the Monthly Period on
Accounts designated to the Receivables Trust _______________________
(c) Total amount of Interchange paid or payable to FNBO with
respect to the Monthly Period _______________________
(d) Amount of Interchange allocable to Series 2003-3 with respect
to the Monthly Period ([c] multiplied by [b/a] multiplied by
the Allocation Percentage for Finance Charge Collections) _______________________
(e) Servicer Interchange amount (1.5% of 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 2003-3 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-1 Note Principal Balance _______________________
(b) Class A-2 Note Principal Balance _______________________
(c) Class B-1 Note Principal Balance _______________________
(d) Class B-2 Note Principal Balance _______________________
Total Note Principal Balance _______________________
3. Allocation Percentages for the Monthly Period
C-3
(a) Principal Collections _______________________
(b) Finance Charge Collections _______________________
(c) Default Amounts _______________________
4. Investor Principal Collections processed during the Monthly Period
and allocated to the Series _______________________
5. Excess Principal Collections available from other Group I Series
allocated to the Series _______________________
6. Aggregate amounts treated as Available Principal Collections
pursuant to subsections 4.04(a)(v) and (vi) of the related
Indenture Supplement _______________________
7. Reallocated Principal Collections (up to the Monthly Principal
Reallocation Amount) applied pursuant to Section 4.06 of the
related Indenture Supplement _______________________
8. AVAILABLE PRINCIPAL COLLECTIONS (4+5+6-7) _______________________
9. Investor Finance Charge Collections (including Interchange and
Recoveries) processed during the Monthly Period _______________________
10. Excess Finance Charge Collections from Group I allocated to the
Series _______________________
11. Excess amounts from Spread Account to be treated as Available
Finance Charge Collections pursuant to Section 4.12(g) of the
related Indenture Supplement _______________________
12. AVAILABLE FINANCE CHARGE COLLECTIONS (9+10+11) _______________________
13. Distributions of principal and interest to Noteholders on the
Distribution Date:
(a) Class A-1 Noteholders _______________________
(b) Class A-2 Noteholders _______________________
(c) Class B-1 Noteholders _______________________
(d) Class B-2 Noteholders _______________________
14. Distributions of principal to Noteholders on the Distribution Date:
(a) Class A-1 Noteholders _______________________
(b) Class A-2 Noteholders _______________________
(c) Class B-1 Noteholders _______________________
(d) Class B-2 Noteholders _______________________
C-4
15. Distributions of interest to Noteholders on the Distribution Date:
(a) Class A-1 Noteholders _______________________
(b) Class A-2 Noteholders _______________________
(c) Class B-1 Noteholders _______________________
(d) Class B-2 Noteholders _______________________
16. The aggregate amount of all Principal Receivables in Accounts which
became Defaulted Accounts during the Monthly Period which were
allocated to the Series
(a) Default Amount _______________________
(b) Allocation Percentage (B.3.(c) above) _______________________
Total Investor Default Amount (axb) _______________________
17. 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 _______________________
18. The aggregate amount of Investor Charge-Offs (including any
Uncovered Dilution Amount not covered by the Transferor) for the
Monthly Period _______________________
19. Noteholder Servicing Fee for the Monthly Period payable to the
Servicer (after adjustment for Servicer Interchange shortfall, if
any) _______________________
20. Ratings of the Class A Notes
Xxxxx'x _______________________
S&P _______________________
Fitch _______________________
21. Ratings of the Class B Notes
Xxxxx'x _______________________
S&P _______________________
Fitch _______________________
22. Note Interest Rate for the Monthly Period
(a) Class A Note Interest Rate _______________________
(b) Class B Note Interest Rate _______________________
C. QUARTERLY NET YIELD
1. Base Rate for the Monthly Period _______________________
C-5
2. Portfolio Yield for the Monthly Period (See "Portfolio Yield"
definition which is adjusted for Investor Default Amount and
Uncovered Dilution Amount) (a minus b) _______________________
(a) Gross portfolio yield ___________%
(b) Gross default rate ___________%
3. Net Yield for the Monthly Period (Portfolio Yield MINUS Base Rate) _______________________
4. Quarterly Net Yield for the related Distribution Date _______________________
D. INFORMATION REGARDING THE SPREAD ACCOUNT
1. Opening Available Spread Account Amount on the Distribution Date
for the Monthly Period _______________________
2. Aggregate amount required to be withdrawn pursuant to Section
4.12(c) of the related Indenture Supplement for distribution to
Class B Noteholders _______________________
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 B Note Principal Balance _______________________
4. Spread Account Percentage for the Distribution Date for the Monthly
Period _______________________
5. Closing Required Spread Account Amount for the Distribution Date
for the Monthly Period _______________________
6. Amount on deposit in Spread Account after required withdrawals on
the Distribution Date for the Monthly Period (1-(2+3)) _______________________
7. Spread Account Deficiency, if any (5 MINUS 6) _______________________
8. Amounts deposited pursuant to Section 4.04(a)(vii) of the related
Indenture Supplement _______________________
9. Remaining Spread Account Deficiency, if any (7 minus 8) _______________________
C-6
IN WITNESS thereof, the undersigned has duly executed and delivered
this Certificate the _________ day of _________________________, _____.
FIRST NATIONAL BANK OF OMAHA,
Servicer
By ________________________________________
Name ______________________________________
Title _____________________________________
C-7
EXHIBIT D
FORM OF MONTHLY SERVICER'S CERTIFICATE
FIRST NATIONAL BANK OF OMAHA
FIRST NATIONAL MASTER NOTE TRUST, VFN SERIES 2003-3
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 VFN Series 0000-0 Xxxxxxxxx
Supplement, dated as of December [ ], 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, Event of Default, Servicer Default or Cap
Increase Event occurred on or prior to such Distribution Date.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Certificate this _____________ day of ____________________, 20 ____.
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By ________________________________________
Name ______________________________________
Title _____________________________________
D-2
EXHIBIT E
FORM OF INVESTOR CERTIFICATION
[DATE]
The Bank of New York,
as Indenture Trustee
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Re: First National Master Note Trust, VFN Series 2003-3
Ladies and Gentlemen:
In connection with our proposed purchase of $ in principal amount of
First National Master Note Trust, Class [ ] Note, VFN Series 2003-3 (the
"Notes"), we confirm that:
1. We agree to be bound by the restrictions and conditions set
forth in the Master Indenture, dated as of October 24, 2002, as supplemented by
the VFN Series 0000-0 Xxxxxxxxx Supplement thereto, dated as of December [ ],
2003 (collectively, the "Indenture"), each by and between First National Master
Note Trust, as Issuer, and The Bank of New York, as Indenture Trustee (the
"Trustee"), and agree to be bound thereby, and not reoffer, resell, pledge or
otherwise transfer (any such act, a "Transfer") the Notes except in compliance
with such restrictions and conditions.
2. We understand that the Notes have not been and will not be
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or any state securities law. We further agree and understand that the Notes may
be reoffered, resold, pledged or otherwise transferred only in compliance with
the Securities Act and other applicable laws and (i) when pursuant to a
transaction complying with the requirements of Rule 144A under the Securities
Act only to a person that we reasonably believe is a qualified institutional
buyer within the meaning of Rule 144A (a "QIB") purchasing for its own account
or a QIB purchasing for the account of a QIB, whom we have informed, in each
case, that the reoffer, resale, pledge or other transfer is being made in
reliance on Rule 144A or (ii) to an "accredited investor", as defined in Rule
501 promulgated under the Securities Act, purchasing for its own account or to
an "accredited investor" purchasing for a single account (which is an
institutional "accredited investor") as to which the purchaser exercises sole
investment discretion.
3. We are [a QIB purchasing for our own account] [a QIB
purchasing for the account of a QIB] [an "accredited investor" acquiring the
Notes for our own account or for a single account which is an institutional
"accredited investor" as to which we exercise sole investment discretion]. We
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any account for which we are acting are each able to bear the economic
risk of our or its investment.
4. We are acquiring the Notes purchased by us for investment
purposes and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act.
5. We hereby agree that we will not resell or otherwise transfer
the Notes or any interest therein unless the purchaser thereof provides or has
provided to the addressee hereof a letter substantially in the form hereof. We
further understand that, on any proposed resale, pledge or transfer of any
Notes, we will be required to furnish to the Trustee and the Registrar such
certification and other information as the Trustee or the Registrar may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions and with the restrictions and conditions of the Notes and the
Indenture pursuant to which the Notes were issued. We further understand that
Notes purchased by us will bear a legend to the foregoing effect.
6. We are not (i) an employee benefit plan (as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title I of ERISA, (ii) a plan
described in Section 4975(e)(1) of the Code, (iii) a governmental plan, as
defined in Section 3(32) of ERISA, subject to any federal, state or local law
which is, to a material extent, similar to the provisions of Section 406 of
ERISA or Section 4975 of the Code, (iv) an entity whose underlying assets
include plan assets by reason of a plan's investment in the entity, or (v) a
person investing "plan assets" of any such plan (including, for purposes of
clauses (iv) and (v), any insurance company general account, but excluding any
entity registered under the Investment Company Act of 1940, as amended).
7. The person signing this letter on behalf of the ultimate
beneficial purchaser of the Notes has been duly authorized by such beneficial
purchaser of the Notes to do so, and this letter has been duly executed and
delivered and constitutes the legal, valid and binding obligation of the
purchaser, enforceable against the purchaser in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles affecting the
enforcement of creditors' rights generally and general principles of equity.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[Name of Purchaser]
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
E-2
