Exhibit 4.2
EXECUTION COPY
FIRST AMENDMENT TO
TRANSFER AND SERVICING AGREEMENT
THIS FIRST AMENDMENT TO TRANSFER AND SERVICING AGREEMENT (this "Amendment")
dated as of March 28, 2007, is made among FIRST NATIONAL FUNDING LLC, in its
capacity as transferor ("Transferor") and in its capacity as depositor (as
defined in Item 1101(e) of Regulation AB) ("Depositor"), FIRST NATIONAL BANK OF
OMAHA, as servicer ("Servicer"), and FIRST NATIONAL MASTER NOTE TRUST, as issuer
("Issuer") and is acknowledged and accepted by THE BANK OF NEW YORK TRUST
COMPANY, N.A., as successor indenture trustee to The Bank of New York
("Indenture Trustee") and consented to by each of the parties executing and
delivering a consent and waiver attached hereto as Exhibit C (collectively, the
"Consent Parties"). Capitalized terms used in this Amendment and not otherwise
defined shall have the meanings ascribed to them in or pursuant to the Transfer
and Servicing Agreement dated as of October 24, 2002, among Transferor, Servicer
and Issuer (the "Transfer and Servicing Agreement").
RECITALS:
A. Transferor, Servicer and Issuer are parties to the Transfer and
Servicing Agreement.
B. Transferor, Servicer and Issuer wish to amend the Transfer and Servicing
Agreement in certain respects as set forth herein.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Transferor, Servicer and Issuer hereby agree as follows:
SECTION 1. AMENDMENTS.
(a) Section 3.05 of the Transfer and Servicing Agreement is hereby amended
and restated in its entirety, as follows:
SECTION 3.05 ANNUAL SERVICER'S CERTIFICATES.
(a) Reference is made to Subpart 229.1100--Asset-Backed Securities
(Regulation AB) of Commodity and Securities Exchanges, 17 C.F.R. Sections
229.1100- 229.1123, as amended ("Regulation AB"). On or before March 15 of
each fiscal year of the Servicer, beginning with March 15, 2008, for so
long as the Depositor is required to report under The Securities Exchange
Act of 1934, as amended (the "Exchange Act") and in order to comply with
Item 1123 of Regulation AB, Servicer shall deliver to Indenture Trustee,
Owner Trustee, any
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Enhancement Provider and each Rating Agency, an Officer's Certificate
substantially in the form of Exhibit D-2. Unless otherwise changed by the
Servicer, the fiscal year of the Servicer begins on January 1 and ends on
December 31. A copy of such certificate may be obtained by any Noteholder
by a request in writing to Indenture Trustee addressed to the Corporate
Trust Office.
(b) On or before March 15 of each fiscal year of the Depositor,
beginning on March 15, 2008, for so long as the Depositor is required to
report under the Exchange Act and in order to comply with Item 1122 of
Regulation AB, Servicer shall deliver to Indenture Trustee, Owner Trustee,
any Enhancement Provider and each Rating Agency, a report assessing its
compliance with the servicing criteria specified in paragraph (d) of Item
1122 of Regulation AB during the immediately preceding calendar year, as
required under paragraph (b) of Rule 13a-18 and Rule 15d-19 of the Exchange
Act and Item 1122 of Regulation AB. Such report, in the form of an
Officer's Certificate substantially in the form of Exhibit D-3, shall
address the servicing criteria specified in paragraph (d) of Item 1122 of
Regulation AB, as set forth on Schedule I attached to such Officer's
Certificate, except for any of the servicing criteria that the Servicer has
determined is inapplicable to the servicing activities it performed during
the immediately preceding calendar year. Unless otherwise changed by the
Depositor, the fiscal year of the Depositor begins on January 1 and ends on
December 31. A copy of such certificate may be obtained by any Noteholder
by a request in writing to Indenture Trustee addressed to the Corporate
Trust Office
(c) (i) On or before March 31, 2007, Servicer will deliver to the
Indenture Trustee, Owner Trustee, any Enhancement Provider and each Rating
Agency an Officer's Certificate substantially in the form of Exhibit D
stating that (a) a review of the activities of Servicer during the 12-month
period ending on December 31 of the prior calendar year, and of its
performance under this Agreement, as amended, was made under the
supervision of the officer signing such certificate, (b) to the best of
such officer's knowledge based on such review, Servicer has fully performed
all its obligations under this Agreement, as amended, throughout such
period, or, if there has been a default in the performance of any such
obligation, specifying each such default known to such officer and the
nature and status thereof, (c) during such period, for each outstanding
Series, Servicer prepared the monthly reports required by Section 3.04(b)
of this Agreement, as amended, and each other monthly report required by
the applicable Indenture Supplement in accordance with Section 3.04(b) of
this Agreement, as amended, and the applicable provisions of each such
Indenture Supplement, (d) the amounts included in such reports agree with
the computer records of Servicer and (e) the calculated amounts included in
such reports are mathematically correct and made in accordance with the
applicable definitions in this Agreement, as amended, and the other
applicable Transaction Documents. A copy of such certificate may be
obtained by any Noteholder by a request in writing to Indenture Trustee
addressed to the Corporate Trust Office.
(ii) To the extent the Servicer is not obligated to deliver the
Officer's Certificates specified in subsections 3.05(a) and 3.05(b) and
unless otherwise
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specified in the applicable Indenture Supplement, Servicer may, at its
option, elect to provide either the Officer's Certificates specified in
subsections 3.05(a) and 3.05(b) or the Officer's Certificate specified in
subsection 3.05(c), on or before March 15 of each calendar year, beginning
March 15, 2008.
(b) Section 3.06 of the TSA is hereby amended, in its entirety, as follows:
SECTION 3.06. ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT.
(a) ATTESTATION REPORT OF REGISTERED PUBLIC ACCOUNTING FIRM PURSUANT
TO ITEM 1123 OF REGULATION AB. On or before March 15 of each fiscal year of
the Depositor, beginning on March 15, 2008, for so long as the Depositor is
required to report under the Exchange Act and in order to comply with Item
1123 of Regulation AB, Servicer shall cause an independent registered
public accounting firm (who may also render other services to Servicer or
Transferor) to furnish a report (addressed to Indenture Trustee) to
Indenture Trustee, Owner Trustee, any Enhancement Provider and each Rating
Agency, that attests to, and reports on, the assessment of compliance with
the servicing criteria made by the Servicer pursuant to Section 3.05(b) of
this Agreement, as amended. Such attestation report shall be made in
accordance with standards for attestation engagements issued or adopted by
the Public Company Accounting Oversight Board and in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act. Unless otherwise provided with respect to any Series in the
related Indenture Supplement, a copy of such attestation report may be
obtained by any Noteholder by a request in writing to Indenture Trustee
addressed to the Corporate Trust Office.
(b) ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. (i) On or before
March 31, 2007, Servicer shall provide to Indenture Trustee, Owner Trustee,
any Enhancement Provider and each Rating Agency a copy of the report
required by 12 C.F.R. Section 363.3(b) (or any comparable successor
regulation) from a firm of nationally recognized independent certified
public accountants (who may also render other services to Servicer or
Transferor) to the effect that, in accordance with attestation standards
established by the American Institute of Certified Public Accountants, such
firm has examined Servicer's assertion that it maintained effective
internal accounting controls during the preceding calendar year, and that
such firm is of the opinion that Servicer's assertion is fairly stated in
all material respects, based on the criteria established in "Internal
Control-Integrated Framework" issued by the Committee of Sponsoring
Organizations of the Xxxxxxxx Commission. Unless otherwise provided with
respect to any Series in the related Indenture Supplement, a copy of such
report may be obtained by any Noteholder by a request in writing to
Indenture Trustee addressed to the Corporate Trust Office.
(ii) On or before March 31, 2007, Servicer shall cause a firm of
nationally recognized independent certified public accountants (who may
also render other services to Servicer or Transferor) to furnish a report
(or reports) to Indenture Trustee, prepared using attestation standards
established by the American Institute
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of Certified Public Accountants, to the effect that they have examined
Servicer's assertions for each outstanding Series made pursuant to
subsections 3.05(c)(i)(c), (d) and (e) above, and have concluded that such
assertions are fairly stated in all material respects, except for such
exceptions as shall be set forth in such report. Servicer shall also
provide copies of the report for each Series to each Rating Agency, the
Owner Trustee and Enhancement Provider. A copy of such report may be
obtained by any Noteholder by a request in writing to Indenture Trustee
addressed to the Corporate Trust Office.
(iii) To the extent Servicer is not obligated to deliver the
attestation report specified in subsection 3.06(a) and unless otherwise
specified in the applicable Indenture Supplement, Servicer may, at its
option, elect to provide either the attestation report specified in
subsection 3.06(a) or the accountant reports specified in subsections
3.06(b)(i) and (ii), on or before March 15 of each calendar year, beginning
March 15, 2008.
(c) The Transfer and Servicing Agreement is further amended by the addition
of Exhibit D-2, Servicer Compliance Certificate Pursuant to Item 1123 of
Regulation AB Under The Securities Exchange Act of 1934, a copy of which is
attached hereto as Exhibit A.
(d) The Transfer and Servicing Agreement is further amended by the addition
of Exhibit D-3, Report on Compliance With Servicing Criteria Pursuant to Item
1122 of Regulation AB Under The Securities Exchange Act of 1934, a copy of which
is attached hereto as Exhibit B.
SECTION 2. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
SECTION 3. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE GOVERNING LAW SPECIFIED IN THE TRANSFER AND SERVICING
AGREEMENT.
SECTION 4. LIMITATION OF LIABILITY. Notwithstanding any other provision of
this Amendment, this Amendment has been executed and delivered by Wilmington
Trust Company, not in its individual capacity, but solely as Owner Trustee of
Issuer, in no event shall Wilmington Trust Company, in its individual capacity,
have any liability with 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 Amendment 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.
[REMAINDER OF THIS PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers on the day
and year first above written.
FIRST NATIONAL FUNDING LLC
By /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
FIRST NATIONAL BANK OF OMAHA
By /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
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FIRST NATIONAL MASTER NOTE TRUST
By: Wilmington Trust Company, not in its
individual capacity, but solely as
Owner Trustee
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Financial Services Officer
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Acknowledged and Agreed to:
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Indenture Trustee
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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EXHIBIT A
TO
FIRST AMENDMENT TO
TRANSFER AND SERVICING AGREEMENT
135
EXHIBIT D-2
SERVICER COMPLIANCE CERTIFICATE
PURSUANT TO ITEM 1123 OF REGULATION AB UNDER
THE SECURITIES EXCHANGE ACT OF 1934
Re: First National Master Note Trust Date: _________
The undersigned, a duly authorized representative of First National Bank of
Omaha (the "Servicer"), pursuant to Item 1123 of Regulation AB and Section
3.05(a) of the Transfer and Servicing Agreement dated as of October 24, 2002,
among First National Funding LLC, as Transferor, First National Bank of Omaha,
as Servicer, and First National Master Note Trust, as Issuer, as amended (the
"Transfer and Servicing Agreement"), does hereby certify that:
1. A review of the activities of the Servicer from [_____________, 20__]
through December 31, [20__] (the "Reporting Period") and of its performance
under the Transfer and Servicing Agreement has been made under my supervision;
and
2. To the best of my knowledge, based on my review, the Servicer has
fulfilled all of its obligations under the Transfer and Servicing Agreement in
all material respects throughout the Reporting Period [except as described
below:].
[ IN WITNESS WHEREOF, I have signed this certificate this ___ day of
[_________, 20__].
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
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EXHIBIT B
TO
FIRST AMENDMENT TO
TRANSFER AND SERVICING AGREEMENT
137
EXHIBIT D-3
REPORT ON COMPLIANCE WITH SERVICING CRITERIA
PURSUANT TO ITEM 1122 OF REGULATION AB UNDER
THE SECURITIES EXCHANGE ACT OF 1934
Re: First National Master Note Trust Date: _________
The undersigned, a duly authorized representative of First National Bank of
Omaha (the "Servicer"), hereby certifies as follows:
(1) The Servicer is responsible for assessing its compliance with the
servicing criteria set forth in 17 C.F.R. Section 229.1122(d) ("Item 1122(d) of
Regulation AB") as set forth on Schedule I attached hereto, except for servicing
criteria [specify sections of Item 1122(d) of Regulation AB that do not apply]
(the "Applicable Servicing Criteria"), which the Servicer has determined are
inapplicable to the activities it performs with respect to the credit-card asset
backed securities transactions being serviced, as of and for the year ended
December 31, [20__] relating to:
- the servicing of credit card asset-backed securities transactions
issued by First National Master Note Trust;
- [_________________________];
- [_________________________]
(2) The Servicer used the servicing criteria in Item 1122(d) of Regulation
AB to assess compliance with the Applicable Servicing Criteria;
(3) The Servicer is in compliance with the Applicable Servicing Criteria as
of and for the period ending December 31, [20__] in all material respects
[except as described below:]; and
(4) [Name of Accountant], an independent registered public accounting firm,
has issued an attestation report on our assessment of compliance with the
Applicable Servicing Criteria as of and for the period ending December 31,
[20__], a copy of which is attached hereto as Exhibit A.
FIRST NATIONAL BANK OF OMAHA,
as Servicer
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
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EXHIBIT A
ACCOUNTANT'S ATTESTATION REPORT
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SCHEDULE I
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
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REFERENCE CRITERIA
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GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to
monitor any performance or other triggers and
events of default in accordance with the
transaction agreements.
1122(d)(1)(ii) If any material servicing activities are
outsourced to third parties, policies and
procedures are instituted to monitor the third
party's performance and compliance with such
servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements
to maintain a back-up servicer for the credit
card receivables are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy
is in effect on the party participating in the
servicing function throughout the reporting
period in the amount of coverage required by and
otherwise in accordance with the terms of the
transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on credit card receivables are
deposited into the appropriate custodial bank
accounts and related bank clearing accounts no
more than two business days following receipt,
or such other number of days specified in the
transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf
of an obligor or to an investor are made only by
authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding
collections, cash flows or distributions, and
any interest or other fees charged for such
advances, are made, reviewed and approved as
specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such
as cash reserve accounts or accounts established
as a form of overcollateralization, are
separately maintained (e.g., with respect to
commingling of cash) as set forth in the
transaction agreements.
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APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
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REFERENCE CRITERIA
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1122(d)(2)(v) Each custodial account is maintained at a
federally insured depository institution as set
forth in the transaction agreements. For
purposes of this criterion, "federally insured
depository institution" with respect to a
foreign financial institution means a foreign
financial institution that meets the
requirements of Rule 13k-1(b)(1) under the
Securities Exchange Act of 1934, as amended.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis
for all asset-backed securities related bank
accounts, including custodial accounts and
related bank clearing accounts. These
reconciliations (A) are mathematically accurate;
(B) are prepared within 30 calendar days after
the bank statement cutoff date, or such other
number of days specified in the transaction
agreements; (C) are reviewed and approved by
someone other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are
resolved within 90 calendar days of their
original identification, or such other number of
days specified in the transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be
filed with the SEC, are maintained in accordance
with the transaction agreements and applicable
SEC requirements. Specifically, such reports (A)
are prepared in accordance with timeframes and
other terms set forth in the transaction
agreements; (B) provide information calculated
in accordance with the terms specified in the
transaction agreements; (C) are filed with the
SEC as required by its rules and regulations;
and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance
and number of credit card accounts serviced by
the servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and
remitted in accordance with timeframes,
distribution priority and other terms set forth
in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted
within two business days to the servicer's
investor records, or
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APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
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REFERENCE CRITERIA
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such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor
reports agree with cancelled checks, or other
form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on credit card accounts
is maintained as required by the transaction
agreements or related credit card agreements.
1122(d)(4)(ii) Credit card accounts and related documents are
safeguarded as required by the transaction
agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the
pool are made, reviewed and approved in
accordance with any conditions or requirements
in the transaction agreements.
1122(d)(4)(iv) Payments on credit card receivables, including
any payoffs, made in accordance with the related
credit card agreements are posted to the
servicer's obligor records maintained no more
than two business days after receipt, or such
other number of days specified in the
transaction agreements, and allocated to
principal, interest or other items (e.g.,
escrow) in accordance with the related credit
card agreements.
1122(d)(4)(v) The servicer's records regarding the credit card
accounts agree with the servicer's records with
respect to an obligor's unpaid principal
balance.
1122(d)(4)(vi) Changes with respect to the terms or status of
an obligor's credit card account (e.g. loan
modifications or re-agings) are made, reviewed
and approved by authorized personnel in
accordance with the transaction agreements and
related credit card agreements.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in
lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with the
timeframes or other requirements established by
the transaction agreements.
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APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
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REFERENCE CRITERIA
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1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a credit card
account is delinquent in accordance with the
transaction agreements. Such records are
maintained on at least a monthly basis, or such
other period specified in the transaction
agreements, and describe the entity's activities
in monitoring delinquent credit card accounts
including, for example, phone calls, letters and
payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness
or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return
for credit card accounts with variable rates are
computed based on the related credit card
agreements.
1122(d)(4)(x) Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's
credit card agreements, on at least an annual
basis, or such other period specified in the
transaction agreements; (B) interest on such
funds is paid, or credited, to obligors in
accordance with applicable credit card
agreements and state laws; and (C) such funds
are returned to the obligor within 30 calendar
days of full repayment of the related credit
card account, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as
tax or insurance payments) are made on or before
the related penalty or expiration dates, as
indicated on the appropriate bills or notices
for such payments, provided that such support
has been received by the servicer at least 30
calendar days prior to these dates, or such
other number of days specified in the
transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with
any payment to be made on behalf of an obligor
are paid from the servicer's funds and not
charged to the obligor, unless the late payment
was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are
posted within two business days to the obligor's
records maintained by the servicer, or such
other number of days specified in the
transaction agreements.
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APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in
accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is maintained as set
forth in the transaction agreements.
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EXHIBIT C
TO
FIRST AMENDMENT TO TRANSFER AND SERVICING AGREEMENT
WAIVER AND CONSENTS
145
