EXHIBIT 4.8
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RECEIVABLES PURCHASE AGREEMENT
Dated as of [ ], 2002
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FIRST NATIONAL BANK OF OMAHA,
RPA Seller,
and
FIRST NATIONAL FUNDING LLC,
Purchaser
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FIRST NATIONAL MASTER NOTE TRUST
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Table of Contents
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions............................................................1
Section 1.02. Other Definitional Provisions..........................................3
ARTICLE II
SALE AND CONTRIBUTION OF RECEIVABLES
Section 2.01. Sales and Contributions................................................4
Section 2.02. Addition of Additional Accounts........................................6
Section 2.03. Removal of Accounts....................................................7
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price.........................................................7
Section 3.02. Adjustments to Purchase Price..........................................8
Section 3.03. Settlement and Ongoing Payment of Purchase Price.......................9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of RPA Seller Relating to RPA Seller....9
Section 4.02. Representations and Warranties of RPA Seller Relating to the
Agreement and the Receivables.........................................11
Section 4.03. Representations and Warranties of Purchaser...........................13
ARTICLE V
RPA SELLER COVENANTS................................................................15
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables................................22
Section 6.02. Reassignment of Holders' Interest in Trust Portfolio..................22
Section 6.03. Conveyance of Reassigned Receivables..................................23
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to Purchase.................................................23
Section 7.02. Conditions to Purchaser's Obligations Regarding Additional
Receivables. ..........................................................23
Section 7.03. Conditions Precedent to Obligations of RPA Seller......................24
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01. Term...................................................................24
Section 8.02. Purchase Termination...................................................24
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment..............................................................24
Section 9.02. GOVERNING LAW..........................................................25
Section 9.03. Notices................................................................25
Section 9.04. Severability of Provisions.............................................25
Section 9.05. Merger or Consolidation of, or Assumption of the Obligations of,
RPA Seller.............................................................25
Section 9.06. Acknowledgement and Agreement of RPA Seller............................26
Section 9.07. Further Assurances.....................................................27
Section 9.08. Nonpetition Covenant...................................................27
Section 9.09. No Waiver; Cumulative Remedies.........................................27
Section 9.10. Counterparts...........................................................28
Section 9.11. Binding Third-Party Beneficiaries......................................28
Section 9.12. Merger and Integration.................................................28
Section 9.13. Schedules and Exhibits.................................................28
EXHIBIT A FORM OF SUPPLEMENTAL CONVEYANCE
EXHIBIT B FORM OF SUBORDINATED NOTE
EXHIBIT C FORM OF OPINION OF COUNSEL
EXHIBIT D FORM OF ANNUAL OPINION OF COUNSEL
SCHEDULE I ACCOUNT SCHEDULE--DELIVERED AS COMPUTER FILE OR MICROFICHE
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RECEIVABLES PURCHASE AGREEMENT
RECEIVABLES PURCHASE AGREEMENT (this "Agreement"), dated as of
[ ], 2002 between FIRST NATIONAL BANK OF OMAHA, a national
banking association ("FNBO"), as seller ("RPA Seller") and FIRST NATIONAL
FUNDING LLC, a
Nebraska limited liability company, as purchaser ("Purchaser").
RECITALS:
WHEREAS, Purchaser desires to purchase, from time to time, certain
Receivables arising under certain specified Accounts of RPA Seller; and
WHEREAS, RPA Seller desires to sell and assign such Receivables to
Purchaser, from time to time, upon the terms and conditions hereinafter set
forth; and
WHEREAS, prior to the Certificate Trust Termination Date, the
Receivables purchased hereunder will be transferred by Purchaser to The Bank of
New York ("Certificate Trust Trustee"), as Trustee for
First Bankcard Master
Credit Card Trust (the "Certificate Trust"), pursuant to the Second Amended and
Restated Pooling and Servicing Agreement dated as of [ ], 2002 (as hereafter
amended and supplemented, the "Pooling and Servicing Agreement") among First
National Funding LLC, as transferor, FNBO, as servicer, and Certificate Trust
Trustee in connection with the issuance of certain Investor Certificates; and
WHEREAS, after the Certificate Trust Termination Date, the Receivables
purchased hereunder will be transferred by Purchaser to First National Master
Note Trust (the "Note Trust") pursuant to the Transfer and Servicing Agreement,
dated as of [ ], 2002 between First National Funding LLC, as Transferor, FNBO,
as servicer, and the Note Trust, and that the Note Trust will thereafter pledge
all of its right, title and interest therein to The Bank of New York, as
indenture trustee ("Indenture Trustee") for the benefit of the Noteholders under
the Master Indenture, dated as of [ ], 2002 (as hereafter amended and
supplemented, the "Indenture") between Indenture Trustee and the Note Trust;
NOW, THEREFORE, it is hereby agreed by and between Purchaser and RPA
Seller as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. Each capitalized term used herein or in any
certificate, document, or Conveyance Paper made or delivered pursuant hereto,
and not defined herein or therein, shall (i) prior to the Certificate Trust
Termination Date, have the meaning (if any) specified in the Pooling and
Servicing Agreement, and, if not defined therein, shall have the meaning
specified in Annex A to the Indenture and (ii) after the Certificate Trust
Termination
Date, shall have the meaning specified in Annex A to the Indenture. In addition,
the following words and phrases shall have the following meanings:
"Closing Date" means, collectively, (a) prior to the Certificate Trust
Termination Date, any "Closing Date" (as defined in the Pooling and Servicing
Agreement) and (b) any "Closing Date" (as defined in Annex A to the Indenture).
"Enhancement" means, collectively, (a) prior to the Certificate Trust
Termination Date, any "Enhancement" (as defined in the Pooling and Servicing
Agreement) and (b) any "Enhancement" (as defined in Annex A to the Indenture).
"Enhancement Provider" means, collectively, (a) prior to the
Certificate Trust Termination Date, any "Enhancement Provider" (as defined in
the Pooling and Servicing Agreement) and (b) any "Enhancement Provider" (as
defined in Annex A to the Indenture).
"Existing Assets" means (i) the Transferor Interest (as defined in the
Pooling and Servicing Agreement), (ii) the Receivables existing at the opening
of business on the Effective Date and arising from the Accounts, (iii) all
Related Assets with respect to such Receivables, (iv) all right, title and
interest of RPA Seller (in its capacity as Transferor (as defined in the Pooling
and Servicing Agreement) but not as Servicer (as defined in the Pooling and
Servicing Agreement)) under the Existing PSA and the other Transaction Documents
(as defined in the Pooling and Servicing Agreement), including any loan
agreements and Supplements executed in connection with any Series of Investor
Certificates and (v) all right, title and interest of RPA Seller, in its
capacity as Transferor under (and as defined in) the Pooling and Servicing
Agreement to any funds on deposit in any Series Account (as defined in the
Pooling and Servicing Agreement) maintained for the benefit of any Series or
Class of Investor Certificates.
"Holders" means the Certificateholders (as defined in the Pooling and
Servicing Agreement) and the Noteholders (as defined in Annex A to the
Indenture).
"Pay Out Event" means (a) with respect to any Series of Investor
Certificates, a Pay Out Event (as defined in the Pooling and Servicing Agreement
and the applicable Supplement) for such Series and (b) with respect to any
Series of Notes, a Pay Out Event (as defined in and pursuant to Annex A to the
Indenture) for such Series.
"Purchaser Documents" means this Agreement and each other Transaction
Document to which Purchaser is a party.
"Rating Agency" means (a) with respect to any Series of Investor
Certificates, a "Rating Agency" (as defined in the Pooling and Servicing
Agreement) for such Series and (b) with respect to any Series of Notes, a
"Rating Agency" (as defined in Annex A to the Indenture) for such Series.
"Rating Agency Condition" means, with respect to any action, that the
"Rating Agency Condition" (as defined in the Pooling and Servicing Agreement)
shall have been satisfied with respect to each outstanding Series of Investor
Certificates and that the "Rating Agency
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Condition" (as defined in Annex A to the Indenture) shall have been satisfied
with respect to each outstanding Series of Notes.
"Related Assets" means, with respect to any Receivable, all monies due
or to become due with respect thereto, all Collections, all Recoveries, all
Insurance Proceeds, all rights, remedies, powers and privileges with respect to
such Receivables, and all proceeds of the foregoing.
"RPA Seller Documents" means this Agreement and each other Transaction
Document to which RPA Seller is a party.
"Series" means, as the context requires, (a) any "Series" (as defined
in the Pooling and Servicing Agreement) or (b) any "Series" (as defined in Annex
A to the Indenture).
"Supplement" means any "Supplement" to (and as defined in) the Pooling
and Servicing Agreement and any Indenture Supplement.
"Transaction Documents" means, collectively, (a) prior to the
Certificate Trust Termination Date, the "Transaction Documents" (as defined in
the Pooling and Servicing Agreement) and (b) the "Transaction Documents" (as
defined in Annex A to the Indenture).
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS. All terms defined directly
or by reference in this Agreement shall have the defined meanings when used in
any certificate or other document delivered pursuant hereto unless otherwise
defined therein. For purposes of this Agreement and all such certificates and
other documents, unless the context otherwise requires: (i) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (ii) terms defined in
Article 9 of the UCC as in effect in the State of
Nebraska and not otherwise
defined in this Agreement are used as defined in that Article; (iii) any
reference to each Rating Agency shall only apply to any specific rating agency
if such rating agency is then rating the applicable outstanding Series at the
request of the Transferor or the Note Trust; (iv) references to any amount as
"on deposit" or "outstanding" on any particular date means such amount at the
close of business on such day; (v) the words "hereof," "herein" and "hereunder"
and words of similar import refer to this Agreement (or the certificate or other
document in which they are used) as a whole and not to any particular provision
of this Agreement (or such certificate or document); (vi) references to any
Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits
in or to this Agreement (or the certificate or other document in which the
reference is made), and references to any paragraph, Section, clause or other
subdivision within any Section or definition refer to such paragraph,
subsection, clause or other subdivision of such Section or definition; (vii) the
term "including" means "including without limitation"; (viii) references to any
law or regulation refer to that law or regulation as amended from time to time
and include any successor law or regulation; (ix) references to any Person
include that Person's successors and assigns; and (x) headings are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
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ARTICLE II
SALE AND CONTRIBUTION OF RECEIVABLES
SECTION 2.01. SALES AND CONTRIBUTIONS.
(a) In consideration of the membership interest in Purchaser
held by RPA Seller, RPA Seller agrees to contribute, and does hereby
contribute to Purchaser, and Purchaser agrees to accept, and does
hereby accept, from RPA Seller on the Effective Date, $[ ] of Existing
Assets. The Existing Assets not so contributed to Purchaser on the
Effective Date are hereby sold, transferred, set over, assigned and
otherwise conveyed by RPA Seller to Purchaser for a purchase price to
be agreed to by RPA Seller and Purchaser, which purchase price shall be
payable on the Effective Date and shall not be materially less
favorable to RPA Seller than prices for transactions of a generally
similar character taking into account the quality of such Existing
Assets and other pertinent factors. The purchase price for the Existing
Assets (other than Existing Assets contributed to Purchaser) shall be
deemed to be a borrowing under the Subordinated Note. The contribution
and sale of the Existing Assets from RPA Seller to Purchaser are
subject in each case to any rights in the Existing Assets transferred,
assigned, set over or otherwise conveyed to the Certificate Trust
Trustee pursuant to the Existing PSA. It is understood and agreed that
the obligations of RPA Seller specified herein with respect to the
Receivables, including its repurchase obligations under Article VI of
this Agreement, shall apply to all Receivables, whether originated
before, on or after the Effective Date and whether sold or contributed
hereunder. RPA Seller and Purchaser hereby agree that each existing
Receivable sold by RPA Seller to the Certificate Trust pursuant to the
Existing PSA before the Effective Date shall be deemed to have been
sold by RPA Seller to Purchaser on the date on which it was so sold to
the Certificate Trust.
(b) RPA Seller hereby transfers, assigns, sets over and
otherwise conveys to Purchaser without recourse (except as expressly
provided herein), and Purchaser purchases and/or accepts as a capital
contribution, as applicable, from RPA Seller, all of RPA Seller's
right, title and interest in and to the Receivables arising from time
to time in the Accounts and Related Assets with respect thereto (other
than the Existing Assets); provided, however, that Principal
Receivables originated after the occurrence of an Insolvency Event with
respect to RPA Seller or Purchaser shall not be conveyed hereunder.
(c) RPA Seller agrees (i) to record and file, at its own
expense, financing statements (and continuation statements when
applicable) with respect to the Receivables now existing and hereafter
created, meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect, and
maintain perfection of, the conveyance of the Receivables to Purchaser
and the first priority nature of Purchaser's interest in the
Receivables and (ii) to deliver a file-stamped copy of such financing
statements or other evidence of such filings to Purchaser and
Receivables Trust Trustee (which evidence may, for purposes of this
Section 2.01, consist of telephone
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confirmation of such filing to Purchaser and Receivables Trust Trustee,
followed by delivery of a file stamped copy to Receivables Trust
Trustee with a copy to Purchaser as soon as is practicable after
filing) on or prior to the Effective Date, and in the case of any
continuation statements filed pursuant to this Section 2.01, as soon as
practicable after receipt thereof by RPA Seller.
(d) RPA Seller further agrees, at its own expense, (i) on or
prior to (A) the Effective Date, in the case of any Accounts designated
to the Certificate Trust prior to such date (and not subsequently
removed), (B) the applicable Addition Date, in the case of Additional
Accounts and (C) the applicable Removal Date, in the case of Removed
Accounts, to indicate in its appropriate computer files that
Receivables created in connection with the Accounts (other than Removed
Accounts) have been sold to Purchaser pursuant to this Agreement and
transferred by Purchaser to the Receivables Trust pursuant to the
applicable Transfer Agreement for the benefit of the Holders (or
conveyed to the Transferor or its designee in accordance with Section
2.09 of the Pooling and Servicing Agreement or Section 2.07 of the
Transfer and Servicing Agreement, as the case may be, in the case of
Removed Accounts) by including in such computer files a code so
identifying each such Account (or, in the case of Removed Accounts,
deleting such code) and (ii) on or prior to the Effective Date to
deliver to Purchaser and Receivables Trust Trustee a computer file or
microfiche list specifying for each such Account designated to the
Receivables Trust prior to such date (and not subsequently removed), as
of the most recent calendar month end, its account number, the
aggregate amount outstanding in such Account and the aggregate amount
of Principal Receivables outstanding in such Account (the "Account
Schedule"). The Account Schedule shall be supplemented from time to
time to reflect Additional Accounts and Removed Accounts. Once the code
referenced in clause (i) of this paragraph has been included with
respect to any Account, RPA Seller further agrees not to alter such
code during the term of this Agreement unless and until (x) such
Account becomes a Removed Account or (y) RPA Seller shall have
delivered to Purchaser, Receivables Trust Trustee and Owner Trustee at
least 30 days' prior written notice of its intention to do so and has
taken such action as is necessary or advisable to cause the respective
interests of Purchaser and Receivables Trust Trustee in the Receivables
and other Trust Assets to continue to be perfected with the priority
required by this Agreement and the applicable Transfer Agreement,
respectively.
(e) It is the intention of the parties hereto that the
conveyances of the Existing Assets, the Receivables and the other
Related Assets by RPA Seller to Purchaser as provided in this Section
2.01 be, and be construed as, absolute sales or capital contributions,
including for accounting purposes, without recourse except as
explicitly provided herein, of the Existing Assets, the Receivables and
the other Related Assets by RPA Seller to Purchaser. Furthermore, it is
not intended that such conveyance be deemed a pledge of the Existing
Assets, the Receivables and the other Related Assets by RPA Seller to
Purchaser to secure a debt or other obligation of RPA Seller. If,
however, notwithstanding the intention of the parties, the conveyance
provided for in this Section 2.01 is determined to be a transfer for
security, then this Agreement shall be deemed to be a security
agreement and RPA Seller hereby grants to Purchaser a security
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interest in all of RPA Seller's right, title and interest in and to the
Existing Assets, the Receivables and the other Related Assets.
SECTION 2.02. ADDITION OF ADDITIONAL ACCOUNTS.
(a) REQUIRED ADDITIONS. If Purchaser is required, pursuant to
Section 2.06 of the Pooling and Servicing Agreement or Section 2.06 of
the Transfer and Servicing Agreement, to designate additional Eligible
Accounts as Additional Accounts, Purchaser shall so notify RPA Seller.
RPA Seller shall designate such Eligible Accounts as Additional
Accounts and shall convey to Purchaser Receivables in such Additional
Accounts, subject to the same qualifications and restrictions as are
set forth in Section 2.06 of the Pooling and Servicing Agreement or
Section 2.06 of the Transfer and Servicing Agreement, as applicable,
with respect to Purchaser; provided, however, that the failure of RPA
Seller to transfer Receivables to Purchaser as provided in this
paragraph solely as a result of the unavailability of a sufficient
amount of Eligible Receivables shall not constitute a breach of this
Agreement; provided further, that any such failure which has not been
timely cured will nevertheless result in the occurrence of a Pay Out
Event with respect to each Series for which, pursuant to the Supplement
therefor, a failure by Purchaser to convey Receivables in Additional
Accounts to the Receivables Trust by the day on which it is required to
convey such Receivables constitutes a Pay Out Event.
(b) PERMITTED ADDITIONS. Subject to the restrictions and
qualifications set forth in Section 2.06 of the Pooling and Servicing
Agreement or Section 2.06 of the Transfer and Servicing Agreement,
Purchaser shall exercise its rights to designate additional Eligible
Accounts as Additional Accounts (including Automatic Additional
Accounts) pursuant to Sections 2.06(a) and (b) of the Pooling and
Servicing Agreement or Sections 2.06(a) and (b) of the Transfer and
Servicing Agreement when requested to do so by RPA Seller.
(c) DELIVERY OF DOCUMENTS. RPA Seller agrees to provide to
Purchaser such information, certificates, financing statements,
opinions and other materials as are reasonably necessary to enable
Purchaser to satisfy its obligations under Section 2.06 of the Pooling
and Servicing Agreement and Section 2.06 of the Transfer and Servicing
Agreement with respect to Additional Accounts (including Automatic
Additional Accounts), including (i) the computer file, microfiche list
or written list required to be delivered with respect to such
Additional Accounts and (ii) a duly executed, written assignment,
substantially in the form of Exhibit A (the "Supplemental Conveyance").
(d) REPRESENTATIONS AND WARRANTIES. In connection with the
designation of any Eligible Account as an Additional Account, RPA
Seller shall represent and warrant that:
(i) each Additional Account is, as of the Addition
Date, an Eligible Account, and each Receivable in such
Additional Account is, as of the Addition Date, an Eligible
Receivable; no selection procedures believed by RPA Seller to
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be materially adverse to the interests of Purchaser or the
Holders were utilized in selecting the Additional Accounts
from the available Eligible Accounts; and that as of the
Addition Date, RPA Seller is not insolvent; and
(ii) as of the Addition Date, the Supplemental
Conveyance constitutes a valid sale to Purchaser of all right,
title and interest of RPA Seller in and to the Receivables and
the Related Assets then existing and thereafter created from
time to time in the Additional Accounts, and such property
will be held by Purchaser free and clear of any Lien except as
permitted by Section 2.05(b) of the Pooling and Servicing
Agreement or the Transfer and Servicing Agreement, as
applicable.
SECTION 2.03. REMOVAL OF ACCOUNTS. Purchaser may remove Accounts from
the Receivables Trust in accordance with Section 2.07 of the Pooling and
Servicing Agreement or Section 2.07 of the Transfer and Servicing Agreement. On
each day on which Accounts are so removed from the Receivables Trust pursuant to
either such Section 2.07, RPA Seller and Purchaser may, but shall not be
required to, by mutual agreement, remove Accounts from the operation of this
Agreement. RPA Seller agrees to provide to Purchaser such information,
certificates, financing statements, opinions and other materials as are
reasonably necessary to enable Purchaser to satisfy its obligations under
Section 2.07 of the Pooling and Servicing Agreement and Section 2.07 of the
Transfer and Servicing Agreement with respect to the removal of Accounts.
ARTICLE III
CONSIDERATION AND PAYMENT
SECTION 3.01. PURCHASE PRICE.
(a) The "Purchase Price" for the Receivables (including
Receivables in Additional Accounts) to be conveyed to Purchaser under
this Agreement that come into existence on or after the Effective Date
shall be payable on each Business Day on which such Receivables are
conveyed by RPA Seller to Purchaser in an amount equal to 100% of the
Principal Receivables so conveyed, as such percentage may be adjusted
from time to time to reflect such factors as RPA Seller and Purchaser
mutually agree will result in a Purchase Price which approximates the
fair market value of such Principal Receivables; provided, however,
that no such adjustment shall be made unless the Rating Agency
Condition is met. If and to the extent that Purchaser shall not have
funds available to pay RPA Seller the Purchase Price for the
Receivables transferred on any day, an amount equal to the portion of
the Purchase Price for such Receivables for which Purchaser shall not
have funds shall be deemed to be a borrowing by Purchaser from RPA
Seller under the Subordinated Note; provided that no borrowing may be
made under the Subordinated Note if, after giving effect to such
borrowing, Purchaser Tangible Equity would be less than Required
Purchaser Tangible Equity; and provided, further, that RPA Seller may,
in its discretion, contribute Receivables on any Business Day and
direct that the Purchase Price of such Receivables shall constitute a
capital contribution from RPA Seller to Purchaser.
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(b) RPA Seller is hereby authorized by Purchaser to endorse on
the schedule attached to the Subordinated Note (or a continuation of
such schedule attached thereto and made a part thereof) an appropriate
notation evidencing the date and amount of each borrowing thereunder,
as well as the date and amount of each payment made with respect
thereto; provided that the failure of any Person to make such a
notation shall not affect any obligations of Purchaser thereunder.
(c) The terms and conditions of the Subordinated Note and all
borrowings thereunder shall be as follows:
(i) All amounts paid by Purchaser with respect to the
Subordinated Note shall be allocated first to the repayment of
accrued interest until all such interest is paid, and then to
outstanding principal of the Subordinated Note.
(ii) The outstanding principal amount of the
Subordinated Note shall bear interest at a fixed rate per
annum of 10% from the Effective Date, calculated based on a
360-day year of twelve 30-day months, or such other rate as
shall be agreed upon by RPA Seller and Purchaser from time to
time (any such rate, the "Subordinated Note Rate"). Interest
on the Subordinated Note shall be payable on [ ]
and the 15th day of each calendar month thereafter, or if the
15th day is not a Business Day, the next Business Day (each
such date, an "Interest Payment Date"). If on any Interest
Payment Date, the amount of funds available to pay interest on
the Subordinated Note is insufficient to pay any amount due
under the Subordinated Note, then interest shall be payable
only to the extent funds are available. All interest in the
Subordinated Note that is not paid when due pursuant to this
paragraph shall be payable on the next Interest Payment Date
on which funds are available, and all such unpaid interest
shall accrue interest at the Subordinated Note Rate until paid
in full.
(iii) Purchaser may, at its option, prepay the
Subordinated Note at any time and from time to time, provided
that in no event shall RPA Seller or any holder of the
Subordinated Note have any right to demand any payment of
principal under the Subordinated Note prior to the date that
is one year and one day after the latest occurring Series
Termination Date for any Series of Investor Certificates or
any Series of Notes (the "Subordinated Note Maturity Date").
SECTION 3.02. ADJUSTMENTS TO PURCHASE PRICE. During any Monthly Period,
if (a) Servicer adjusts downward the amount of any Receivable (i) because of a
rebate, refund, charge-back or other downward adjustment (including Servicer
errors) made without receiving Collections therefor or charging off such amount
as uncollectible or (ii) because such Receivable was created in respect of
merchandise which was refused or returned by an accountholder or as to which the
accountholder has asserted a counterclaim or defense, or (b) any Principal
Receivable is discovered by Servicer as having been created through a fraudulent
or counterfeit charge, then the Purchase Price shall be reduced as provided
below (a "Credit Adjustment"). The amount of such Credit Adjustment with respect
to any Receivable adjusted downward as described in clause (a) of the preceding
sentence, shall be equal to the amount of such adjustment
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and, with respect to any Receivable described in clause (b) of the preceding
sentence, shall equal either (i) the Purchase Price paid for such Receivable by
Purchaser to RPA Seller (including any portion thereof deemed to be a borrowing
under the Subordinated Note or deemed to be a capital contribution from RPA
Seller to Purchaser) or (ii) in the case of any Receivable that was deemed to
have been sold to Purchaser by RPA Seller prior to the Effective Date, the
principal balance of such Receivable. The amount of any Credit Adjustment may be
offset against any amounts due from Purchaser to RPA Seller on such day,
provided that, subject to the following proviso, RPA Seller shall not be
obligated to make any cash payment with respect to a Credit Adjustment until the
Distribution Date following the Monthly Period in which such Credit Adjustment
arose; provided, further, that if, as a result of the occurrence of any event
giving rise to a Credit Adjustment, Purchaser is required to deposit funds into
the Excess Funding Account pursuant to Section 4.03 of the Pooling and Servicing
Agreement or Section 3.09 of the Transfer and Servicing Agreement, RPA Seller
shall pay Purchaser the amount by which the Purchase Price would be reduced in
immediately available funds on or before the date Purchaser is required to make
such deposit to the Excess Funding Account.
SECTION 3.03. SETTLEMENT AND ONGOING PAYMENT OF PURCHASE PRICE. On each
Distribution Date, RPA Seller shall deliver a settlement statement (the
"Settlement Statement"), showing the aggregate Purchase Price of Receivables
conveyed to Purchaser during the prior Monthly Period (or, with respect to the
first Distribution Date following the Effective Date, the period from and
including the Effective Date through the last day of the calendar month
preceding such Distribution Date), and the amount which remains unpaid as Credit
Adjustments made with respect to such period pursuant to Section 3.02 or any
adjustment to the Purchase Price of Receivables with respect to such period
pursuant to Section 6.01, each of which shall reduce the aggregate Purchase
Price payable by Purchaser for such period. Any balance due from Purchaser to
RPA Seller shall be paid in accordance with Section 3.01. Any balance due from
RPA Seller to Purchaser shall be paid in immediately available funds.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF RPA SELLER RELATING TO
RPA SELLER.
(a) REPRESENTATIONS AND WARRANTIES. RPA Seller hereby
represents and warrants to, and agrees with, Purchaser as of the
Effective Date and on each Closing Date, that:
(i) Organization and Good Standing. RPA Seller is a
national banking association validly existing in good standing
under the laws of the United States, and has full corporate
power, authority and legal right to own its properties and
conduct its business as presently owned and conducted, and to
execute, deliver and perform its obligations under the RPA
Seller Documents.
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(ii) Due Qualification. RPA Seller is duly qualified
to do business and is in good standing (or is exempt from such
requirements), and has obtained all necessary licenses and
approvals in each jurisdiction necessary to conduct its
business.
(iii) Due Authorization. The execution, delivery and
performance of the RPA Seller Documents and any other document
or instrument delivered pursuant hereto (such other documents
or instruments, collectively, the "Conveyance Papers") and the
consummation of the transactions provided for in the RPA
Seller Documents have been duly authorized by all necessary
corporate action on the part of RPA Seller or the Trust.
(iv) No Conflict. The execution and delivery of the
RPA Seller Documents by RPA Seller, the performance of the
transactions contemplated by the RPA Seller Documents, and the
fulfillment of the terms of the RPA Seller Documents
applicable to RPA Seller will not conflict with, result in any
breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a
material default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which RPA
Seller is a party or by which it or any of its properties are
bound.
(v) No Violation. The execution, delivery and
performance of the RPA Seller Documents by RPA Seller and the
fulfillment by RPA Seller of the terms hereof and thereof will
not conflict with or violate any Requirements of Law
applicable to RPA Seller.
(vi) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of RPA
Seller, threatened against RPA Seller, before any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality (A) asserting the invalidity of
any RPA Seller Document, (B) seeking to prevent the
consummation of any of the transactions contemplated by the
RPA Seller Documents, (C) seeking any determination or ruling
that, in the reasonable judgment of RPA Seller, would
materially and adversely affect the performance by RPA Seller
of its obligations under any RPA Seller Document, (D) seeking
any determination or ruling that would materially and
adversely affect the validity or enforceability of any RPA
Seller Document or (E) seeking to affect adversely the income
tax attributes of the Certificate Trust or the Note Trust
under Federal or applicable state income or franchise tax
systems.
(vii) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or Governmental Authority required in connection with
the execution and delivery by RPA Seller of the RPA Seller
Documents and the performance of the transactions contemplated
by the RPA Seller Documents by RPA Seller have been obtained,
effected or given and are in full force and effect.
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(viii) Insolvency. RPA Seller is not insolvent, no
Insolvency Event with respect to RPA Seller has occurred, and
the transfer of the Trust Assets, the Existing Assets, the
Receivables and Related Assets by RPA Seller to Purchaser
contemplated hereby has not been made in contemplation of such
insolvency or Insolvency Event.
(b) NOTICE OF BREACH; RELIANCE. The representations and
warranties of RPA Seller set forth in this Section 4.01 shall survive
the transfer and assignment by RPA Seller of the Receivables to
Purchaser and the transfer and assignment by Purchaser of the
Receivables to the Receivables Trust. Upon discovery by RPA Seller or
Purchaser of a breach of any of the representations and warranties by
RPA Seller set forth in this Section 4.01, the party discovering such
breach shall give prompt written notice to the other, to the
Receivables Trust Trustee and to each Enhancement Provider, if any,
entitled thereto pursuant to the relevant Supplement. RPA Seller agrees
to cooperate with Purchaser, Servicer and Receivables Trust Trustee in
attempting to cure any such breach. RPA Seller hereby acknowledges that
Purchaser intends to rely on the representations hereunder in
connection with representations made by Purchaser to secured parties,
assignees or subsequent transferees, including transfers made by
Purchaser to the Certificate Trust pursuant to the Pooling and
Servicing Agreement and to the Note Trust pursuant to the Transfer and
Servicing Agreement.
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF RPA SELLER RELATING TO
THE AGREEMENT AND THE RECEIVABLES.
(a) REPRESENTATIONS AND WARRANTIES. RPA Seller hereby
represents and warrants to Purchaser as of the Effective Date and, with
respect to Additional Accounts, as of the related Addition Date that:
(i) Enforceability. Each RPA Seller Document and, in
the case of Additional Accounts, the related Supplemental
Conveyance, when executed and delivered on behalf of RPA
Seller, constitutes a legal, valid and binding obligation of
RPA Seller, enforceable against RPA Seller in accordance with
its terms, except as such enforceability may be limited by
applicable Debtor Relief Laws now or hereafter in effect and
by general principles of equity (whether considered in a suit
at law or in equity).
(ii) Accurate Account Schedule. As of the Effective
Date, as of each Addition Date with respect to Additional
Accounts, and as of each Removal Date with respect to Removed
Accounts, the Account Schedule delivered pursuant to this
Agreement, as supplemented to such date, is an accurate and
complete listing in all material respects of all the Accounts
as of each such date (or, with respect to the Account Schedule
delivered on the Effective Date, as of the most recent month
end) and the information contained therein with respect to the
identity of such Accounts and the Receivables existing
thereunder is true and correct in all material respects as of
such specified date.
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(iii) No Liens. RPA Seller is the legal and
beneficial owner of all right, title and interest in each
Receivable and RPA Seller has the full right, power and
authority to transfer the Receivables pursuant to this
Agreement, and each Receivable conveyed to Purchaser by RPA
Seller has been conveyed to Purchaser free and clear of any
Lien (other than Liens permitted under Section 2.05(b) of the
Pooling and Servicing Agreement or Section 2.05(b) of the
Transfer and Servicing Agreement) and in compliance, in all
material respects, with all Requirements of Law applicable to
the Credit Card Originator and/or RPA Seller.
(iv) Consents. All approvals, licenses,
authorizations, consents, orders or other actions of any
Person or registrations or declarations with any Governmental
Authority required in connection with the conveyance of each
Receivable then existing to Purchaser by RPA Seller have been
duly obtained, effected or given and are in full force and
effect.
(v) Valid Transfer. This Agreement or, in the case of
Additional Accounts, the related Supplemental Conveyance, upon
execution and delivery on behalf of RPA Seller, constitutes a
valid sale, transfer and assignment to Purchaser of all right,
title and interest of RPA Seller in and to the Existing
Assets, the Receivables and the other Related Assets conveyed
to Purchaser by RPA Seller.
(vi) Accounts. Except as otherwise expressly provided
in this Agreement, the Pooling and Servicing Agreement or any
Supplement thereto, the Transfer and Servicing Agreement, the
Indenture or any Indenture Supplement neither RPA Seller nor
any Person (other than the Receivables Trust Trustee) has any
claim to or interest in the Collection Account, the Excess
Funding Account, any Series Account or any Enhancement.
(vii) Eligible Accounts. With respect to each
Account, including each Additional Account, on the date it
becomes an Account, each such Account is classified as an
Eligible Account.
(viii) Eligible Receivables. On the date each
Additional Account becomes an Account, each Receivable
contained in such Additional Account is an Eligible Receivable
and, with respect to all Accounts, as of the date of the
creation of any new Receivable, such Receivable is an Eligible
Receivable.
(ix) No Adverse Selection. No selection procedures
believed by RPA Seller to be materially adverse to the
interests of Purchaser or the Holders were used in selecting
the Accounts from the available Eligible Accounts.
(x) Subsequent Receivables. On each day on which any
new Receivable is created, RPA Seller represents and warrants
to the Purchaser that the representations and warranties made
in Section 4.02(a)(i), (iii), (iv) and (v)
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and 4.02(b) are true and correct with respect to each such
Receivable as of such day of creation.
(b) PERFECTION REPRESENTATIONS AND WARRANTIES. Debtor hereby
makes the Perfection Representations and Warranties to the Secured
Party. For purposes of this Section 4.02(b): Debtor shall mean RPA
Seller, Secured Party shall mean Purchaser, and Specified Agreement
shall mean this
Receivables Purchase Agreement. The rights and remedies
with respect to any breach of the Perfection Representations and
Warranties made under this Section 4.02(b) shall be continuing and
shall survive any termination of the Specified Agreement. Secured Party
shall not waive a breach of any Perfection Representation and Warranty.
In order to evidence the interests of Debtor and Secured Party under
the Specified Agreement, the Debtor and Servicer shall, from time to
time take such action, and execute and deliver such instruments
(including, without limitation, such actions or filings as are
requested by the Secured Party and financing statements under the UCC
as enacted and then in effect in any other jurisdiction in which the
Debtor is organized, has its principal place of business or maintains
any books, records, files or other information concerning the
Receivables) in order to maintain and perfect, as a first priority
interest, the Secured Party's security interest in the Receivables.
Debtor hereby authorizes Servicer to file financing statements under
the UCC without Debtor's signature where allowed by applicable law.
(c) NOTICE OF BREACH; RELIANCE. The representations and
warranties of RPA Seller set forth in this Section 4.02 shall survive
the transfer and assignment by RPA Seller of the Receivables to
Purchaser and the transfer and assignment by Purchaser of the
Receivables to the Receivables Trust. Upon discovery by RPA Seller or
Purchaser of a breach of any of the representations and warranties by
RPA Seller set forth in this Section 4.02, the party discovering such
breach shall give prompt written notice to the other, to the
Receivables Trust Trustee and to each Enhancement Provider, if any,
entitled thereto pursuant to the relevant Supplement. RPA Seller hereby
acknowledges that Purchaser intends to rely on the representations
hereunder in connection with representations made by Purchaser to
secured parties, assignees or subsequent transferees, including
transfers made by Purchaser to the Certificate Trust pursuant to the
Pooling and Servicing Agreement and to the Note Trust pursuant to the
Transfer and Servicing Agreement. RPA Seller agrees to cooperate with
Purchaser, Servicer and Receivables Trust Trustee in attempting to cure
any such breach.
SECTION 4.03. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
(a) REPRESENTATIONS AND WARRANTIES. As of the Effective Date
and each Closing Date, Purchaser hereby represents and warrants to, and
agrees with, RPA Seller that:
(i) Organization and Good Standing. Purchaser is a
limited liability company validly existing in good standing
under the laws of the State of Delaware and has full power and
authority to own its properties and conduct its
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business as presently owned and conducted and to execute,
deliver and perform its obligations under the Purchaser
Documents.
(ii) Due Authorization. The execution and delivery of
the Purchaser Documents and the consummation of the
transactions provided for in the Purchaser Documents have been
duly authorized by Purchaser by all necessary limited
liability company action on the part of Purchaser.
(iii) No Conflict. The execution and delivery of the
Purchaser Documents, the performance of the transactions
contemplated by the Purchaser Documents, and the fulfillment
of the terms hereof and thereof, will not conflict with,
result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse
of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust or other
instrument to which Purchaser is a party or by which it or any
of its properties are bound.
(iv) No Violation. The execution, delivery and
performance of the Purchaser Documents by Purchaser and the
fulfillment by Purchaser of the terms contemplated herein and
therein will not conflict with or violate any Requirements of
Law applicable to Purchaser.
(v) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of Purchaser,
threatened against Purchaser, before any court, regulatory
body, administrative agency, or other tribunal or governmental
instrumentality (A) asserting the invalidity of any Purchaser
Document, (B) seeking to prevent the consummation of any of
the transactions contemplated by the Purchaser Documents, (C)
seeking any determination or ruling that, in the reasonable
judgment of Purchaser, would materially and adversely affect
the performance by Purchaser of its obligations under any
Purchaser Document or (D) seeking any determination or ruling
that would materially and adversely affect the validity or
enforceability of any Purchaser Document.
(vi) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or Governmental Authority required in connection with
the execution and delivery by Purchaser of the Purchaser
Documents, the performance by Purchaser of the transactions
contemplated by the Purchaser Documents and the fulfillment by
Purchaser of the terms hereof and thereof, have been obtained,
effected or given and are in full force and effect.
(b) NOTICE OF BREACH. The representations and warranties of
Purchaser set forth in this Section 4.03 shall survive the transfer and
assignment by RPA Seller of the Existing Assets to Purchaser. RPA
Seller and Purchaser acknowledge and agree that no breach of any
representation or warranty of Purchaser made hereunder shall invalidate
any conveyance of Existing Assets made by RPA Seller hereunder. Upon
discovery by
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RPA Seller or Purchaser of a breach of any of the representations and
warranties by Purchaser set forth in this Section 4.03, the party
discovering such breach shall give prompt written notice to Receivables
Trust Trustee, the Indenture Trustee, the Owner Trustee, and to each
Enhancement Provider, if any, entitled thereto pursuant to the relevant
Supplement. Purchaser agrees to cooperate with RPA Seller, Servicer and
Receivables Trust Trustee in attempting to cure any such breach. For
purposes of the representations and warranties set forth in this
Section 4.03, each reference to a Supplement shall be deemed to refer
only to those Supplements in effect as of the relevant date.
ARTICLE V
RPA SELLER COVENANTS
RPA Seller hereby covenants and agrees with Purchaser as follows:
(a) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES. RPA
Seller will take no action to cause any Receivable transferred by it
pursuant hereto to be evidenced by any "instrument" (as defined in the
UCC) or to be anything other than an "account" (as defined in the UCC)
and, if any such Receivable is so evidenced (whether or not in
connection with the enforcement or collection of an Account), it shall
be an Ineligible Receivable in accordance with Section 6.01.
(b) SECURITY INTERESTS. Except for the conveyances hereunder
or as otherwise provided herein, RPA Seller will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume
or suffer to exist, any Lien on any Receivable, whether now existing or
hereafter created, or any interest therein; RPA Seller will immediately
notify Purchaser of the existence of any Lien on any Receivable of
which RPA Seller has knowledge; and RPA Seller shall defend the right,
title and interest of Purchaser and its assigns in, to and under the
Receivables, whether now existing or hereafter created, against all
claims of third parties, provided that nothing in this paragraph (b)
shall prevent or be deemed to prohibit RPA Seller from suffering to
exist upon any of the Receivables any Lien for taxes if such taxes
shall not at the time be due and payable or if RPA Seller shall
currently be contesting the validity thereof in good faith by
appropriate proceedings and shall have set aside on its books adequate
reserves with respect thereto.
(c) DELIVERY OF COLLECTIONS OR RECOVERIES. If RPA Seller
receives Collections or Recoveries, RPA Seller agrees to pay to
Purchaser (or the Servicer if Purchaser so directs) all such
Collections and Recoveries as soon as practicable after receipt thereof
but in no event later than two Business Days after the Date of
Processing by RPA Seller, provided that for so long as RPA Seller is
acting as Servicer pursuant to the applicable Transfer Agreement, RPA
Seller shall apply Collections and Recoveries received by it in
accordance with the applicable Transfer Agreement.
(d) NOTICE OF LIENS. RPA Seller shall notify Purchaser
promptly after becoming aware of any Lien on any Receivable other than
the conveyances hereunder or
15
under the Pooling and Servicing Agreement, the Transfer and Servicing
Agreement or the Indenture or any Lien permitted under paragraph (b) of
Article V hereof, Section 2.05(b) of the Pooling and Servicing
Agreement or Section 2.05(b) of the Transfer and Servicing Agreement.
(e) DOCUMENTATION OF TRANSFER. RPA Seller shall cause this
Agreement, all amendments hereto and/or all financing statements and
continuation statements and any other necessary documents covering
ownership interest in the Existing Assets, the Receivables and Related
Assets to be promptly recorded, registered and filed, and at all times
to be kept recorded, registered and filed, all in such manner and in
such places as may be required by law fully to preserve and protect the
right, title and interest of Purchaser hereunder to the Existing
Assets, the Receivables and the Related Assets. RPA Seller shall
deliver to the Receivables Trust Trustee file-stamped copies of, or
filing receipts for, any document recorded, registered or filed as
provided above, as soon as available following such recording,
registration or filing. RPA Seller shall cooperate fully with the
Servicer and the Receivables Trust Trustee in connection with the
obligations set forth above and will execute any and all documents
reasonably required to fulfill the intent of this subsection (e).
RPA Seller will deliver to the Receivables Trust Trustee: (i)
upon each date that any Additional Accounts are to be included in the
Accounts pursuant to Section 2.02, an Opinion of Counsel substantially
in the form of Exhibit C; and (ii) on or before March 31 of each year,
beginning with March 31, 2003, an Opinion of Counsel, substantially in
the form of Exhibit D.
(f) CONVEYANCE OF ACCOUNTS. RPA Seller covenants and agrees
that it will not convey, assign, exchange or otherwise transfer the
Accounts to any Person so long as any Securities are outstanding under
the Indenture or the Pooling and Servicing Agreement; provided,
however, that RPA Seller shall not be prohibited from conveying,
assigning, exchanging or otherwise transferring the Accounts in
connection with a transaction complying with the provisions of Section
9.05.
(g) SALE. RPA Seller agrees to treat the conveyance of the
Receivables to Purchaser hereunder as a sale for all purposes
(including all tax and financial accounting purposes).
(h) CONTINUOUS PERFECTION. RPA Seller shall not change its
name, identity or structure in any manner that might cause any
financing or continuation statement filed pursuant to this Agreement to
be misleading unless RPA Seller shall have delivered to Purchaser at
least 30 days' prior written notice thereof and, no later than 30 days
after making such change, shall have taken all action necessary or
advisable to file new appropriate financing statements and/or amend
such financing statement or continuation statement so that it is not
misleading, in either case, as necessary to cause the interest of the
Purchaser in the Receivables, the other Existing Assets and the other
Related Assets to continue to be perfected with the priority required
by this Agreement. RPA Seller shall not change the jurisdiction under
whose laws it is organized, its chief executive
16
office or change the location of its principal records concerning the
Receivables or the Collections unless it has delivered to Purchaser at
least 30 days' prior written notice of its intention to do so and
notice as to whether, as a result of such change, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new
financing statement and has filed such amendments or financing
statements and otherwise taken action as is necessary or advisable to
cause the interest of Purchaser in the Receivables, the other Existing
Assets and the other Related Assets to continue to be perfected with
the priority required by this Agreement.
(i) CREDIT CARD AGREEMENTS AND GUIDELINES. RPA Seller shall
comply with and perform its obligations under the Credit Card
Agreements relating to the Accounts and the Credit Card Guidelines and
all applicable rules and regulations of VISA USA, Inc. and MasterCard
International Incorporated except insofar as any failure to comply or
perform would not materially or adversely affect the rights and
interests of the Receivables Trust Trustee, the Issuer, the
Certificateholders or the Noteholders under the Investor Certificates
or any other Transaction Documents. Except as expressly provided in any
Supplement, RPA Seller may change the terms and provisions of the
Credit Card Agreements or the Credit Card Guidelines in any respect
(including the reduction of the required minimum monthly payment, the
calculation of the amount, or the timing, of charge offs and Periodic
Finance Charges and other fees assessed thereon), but only if such
change (i) would not, in the reasonable belief of RPA Seller, cause a
Pay Out Event to occur, and (ii) is made applicable to a substantial
portion of a comparable segment of the revolving credit card accounts
owned and serviced by RPA Seller which have characteristics the same
as, or substantially similar to, the Accounts that are the subject of
such change, except as otherwise restricted by an endorsement,
sponsorship or other agreement between RPA Seller and an unrelated
third party or by the terms of the Credit Card Agreements; provided,
however, with respect to RPA Seller, that clause (ii) shall be deemed
to be satisfied at any time that the Transferor Interest exceeds 14% of
the Principal Receivables; and provided, further, that for purposes of
FNBO's debt deferral and debt cancellation program, the requirements of
subsection 2.05(c)(ii) shall be deemed to be satisfied if the
opportunity to initiate the change is made available to a substantial
portion of the comparable segment of the revolving credit card accounts
owned and serviced by FNBO which have characteristics the same as, or
substantially similar to, the Accounts to which such opportunity is
made available. In addition, except as otherwise required by any
Requirement of Law, or as is deemed by RPA Seller to be necessary in
order for RPA Seller to maintain its credit card business, based upon a
good faith assessment by RPA Seller of the nature of the competition in
the credit card business, RPA Seller shall not at any time reduce the
Periodic Finance Charges assessed on any Receivable or other fees on
any Account if, as a result of such reduction, RPA Seller's reasonable
expectation of the Portfolio Yield for any Series (as defined in the
applicable Supplement) as of such date would be less than the then Base
Rate for such Series (as defined in such Supplement).
17
(j) INSURED STATUS UNDER THE FDIA. RPA Seller shall preserve
its status as an insured bank under the FDIA by insuring its deposits
with the FDIC in accordance with the provisions of the FDIA and FDIC
regulations.
(k) SEPARATE CORPORATE EXISTENCE. RPA Seller hereby
acknowledges that the Certificate Trust Trustee, the Indenture Trustee,
the Owner Trustee, the Holders and the Issuer are, and will be,
entering into the transactions contemplated by the Transaction
Documents in reliance upon Purchaser's identity as a legal entity
separate from RPA Seller, the Servicer and any other Person. Therefore,
RPA Seller shall take all reasonable steps to maintain its existence as
a corporation separate and apart from Purchaser and to make it apparent
to third parties that RPA Seller is an entity with assets and
liabilities distinct from those of Purchaser and that Purchaser is not
a division of RPA Seller.
(l) ACCOUNT ALLOCATIONS. In the event that RPA Seller is
unable for any reason to transfer Receivables to the Purchaser in
accordance with the provisions of this Agreement (including, without
limitation, by reason of the application of the provisions of Section
8.02 or an order by any federal governmental agency having regulatory
authority over RPA Seller or any court of competent jurisdiction that
RPA Seller not transfer any additional Principal Receivables to the
Purchaser) then, in any such event, (i) RPA Seller agrees to allocate
and pay to the Purchaser, after the date of such inability, all
Collections with respect to Principal Receivables, and all amounts
which would have constituted Collections with respect to Principal
Receivables but for RPA Seller's inability to transfer such Receivables
(up to an aggregate amount equal to the amount of Principal Receivables
transferred to Purchaser prior to such date); (ii) RPA Seller agrees to
have such amounts applied as Collections in accordance with the
Transaction Documents; and (iii) for only so long as all Collections
and all amounts which would have constituted Collections are allocated
and applied in accordance with clauses (i) and (ii) above, Principal
Receivables (and all amounts which would have constituted Principal
Receivables but for RPA Seller's inability to transfer Receivables to
the Purchaser) that are written off as uncollectible in accordance with
this Agreement shall continue to be allocated in accordance with the
Transaction Documents, and all amounts that would have constituted
Principal Receivables but for RPA Seller's inability to transfer
Receivables to the Purchaser shall be deemed to be Principal
Receivables for the purpose of calculating (A) the applicable Investor
Percentage with respect to any Series and (B) the Aggregate Investor
Percentage thereunder. If RPA Seller is unable pursuant to any
Requirement of Law to allocate Collections as described above, RPA
Seller agrees that it shall in any such event allocate, after the
occurrence of such event, payments on each Account with respect to the
principal balance of such Account first to the oldest principal balance
of such Account and to have such payments applied as Collections in
accordance with the Transaction Documents. The parties hereto agree
that Finance Charge Receivables, whenever created, accrued in respect
of Principal Receivables that have been conveyed to the Purchaser, or
that would have been conveyed to the Purchaser but for the above
described inability to transfer such Receivables, shall continue to be
owned by Purchaser or its assignee notwithstanding any cessation of the
transfer of additional Principal Receivables to the Purchaser and
Collections with respect thereto shall continue to be allocated and
paid in accordance with the Transaction Documents.
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(m) OFFICIAL RECORDS. The resolutions of the Board of
Directors of RPA Seller approving each of the Transaction Documents and
all documents relating thereto are and shall be continuously reflected
in the minutes of the Board of Directors of RPA Seller and in the
official records of RPA Seller. Each of the Transaction Documents and
all documents relating thereto are and shall, continuously from the
time of their respective execution by RPA Seller, be official records
of RPA Seller.
(n) INDEMNIFICATION.
(i) RPA Seller shall indemnify and hold harmless the
Receivables Trust, Issuer, the Owner Trustee, the Certificate
Trustee, the Indenture Trustee, and their officers, directors,
employees and agents (each, an "Indemnified Person") from and
against any reasonable loss, liability, expense, damage or
injury suffered or sustained by reason of any acts, omissions
or alleged acts or omissions arising out of or based upon the
arrangement created by this Agreement or any Supplement or any
other Transaction Document, including any judgment, award,
settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual
or threatened action, proceeding or claim; provided, however,
that RPA Seller shall not indemnify any such Indemnified
Person if such acts, omissions or alleged acts or omissions
constitute or are caused by fraud, negligence or willful
misconduct by such Indemnified Person; and provided, further,
that RPA Seller shall not indemnify the Receivables Trust, the
Issuer or the Holders for any liabilities, costs or expenses
with respect to any action taken by the Receivables Trustee at
the direction of Holders, or by Indenture Trustee at the
direction of Noteholders, made in accordance with the
applicable Transaction Documents; and provided, further, that
RPA Seller shall not indemnify the Receivables Trust, the
Issuer or the Holders as to any losses, claims or damages that
would be incurred by any of them if the Investor Certificates
were notes secured by the Receivables, for example, as a
result of the performance of the Receivables, market
fluctuations, a shortfall or failure to make payment under any
Enhancement or other similar market or investment risks
associated with ownership of such secured notes; and provided,
further, that RPA Seller shall not indemnify the Receivables
Trust, the Issuer or the Holders, the Note Owners or the
Certificate Owners for any liabilities, costs or expenses of
the Receivables Trust, the Issuer or the Holders for any
liabilities, costs or expenses arising under any tax law,
including, without limitation, any federal, state, local or
foreign income or franchise taxes or any other tax imposed on
or measured by income (or any interest or penalties with
respect thereto or arising from a failure to comply therewith)
required to be paid by the Receivables Trust, the Issuer or
the Holders in connection herewith to any taxing authority.
Any such indemnifications under this Article V, paragraph (n),
shall not be payable from the assets of the Receivables Trust
or the Issuer.
(ii) RPA Seller shall not be liable under this
Section 5(n) for any settlement of any claim or action
effected without its prior written consent, which shall not be
unreasonably withheld.
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(iii) Promptly after receipt by an injured party
under this Section 5(n) of notice of the commencement of any
action or proceeding for which such injured party is entitled
to indemnification under this Section 5(n), such injured party
will, if a claim in respect thereof is to be made against RPA
Seller under this Section 5(n), notify RPA Seller of the
commencement thereof; but the omission to so notify RPA Seller
(i) will not relieve it from any liability under Section 5(n)
unless and to the extent that such failure to notify results
in the forfeiture by RPA Seller, or the material impairment,
of substantial rights and defenses and (ii) will not, in any
event, relieve RPA Seller from any obligations to any injured
party that are in addition to the indemnification obligation
provided in this Section 5(n). If any such action or
proceeding is brought that involves any injured party, the
injured party shall promptly notify RPA Seller of the
commencement thereof and RPA Seller will be entitled to
participate therein and, to the extent that it may wish, to
assume the defense thereof, with counsel reasonably
satisfactory to such injured party; provided, however, that if
(x) the use of counsel chosen by RPA Seller to represent the
injured party would present such counsel with a conflict of
interest which, if such counsel had been retained, would have
required such counsel to withdraw from such representation,
(y) the injured party shall have been advised by counsel that
there may be one or more legal defenses available to it that
are different from or additional to those available to RPA
Seller or to other indemnified parties, or (z) RPA Seller
shall not have employed counsel satisfactory to the injured
party to represent the injured party within a reasonable time
after receipt by RPA Seller of notice of the institution of
such action or proceeding, then, in each such case, (1) RPA
Seller shall not have the right to direct the defense of such
action on behalf of such injured party or parties, (2) such
injured party or parties shall have the right to select
separate counsel to defend such action on behalf of such
injured party or parties (provided that, if more than one
injured party is subject to the circumstances described in
clause (y), then, to the extent permitted by the rules of
professional conduct applicable to attorneys, all such
indemnified parties shall be represented by one such separate
counsel) and (3) all costs and expenses of each such injured
party in connection with such action or proceeding shall be
paid by RPA Seller pursuant to Section 5(n)(i) above. The
Transferor may settle any claim for which an injured party
seeks indemnification under this Section 5(n) so long as (A)
RPA Seller pays the settlement in full and (B) as a result
thereof, the injured party is released from all liability
under such claim.
(iv) After notice from RPA Seller to such injured
party of RPA Seller's election so to assume the defense
thereof and approval by such injured party of counsel
appointed to defend such action, RPA Seller will not be liable
to such injured party under this Section 5(n) for any legal or
other expenses, other than reasonable costs of investigation,
subsequently incurred by such injured party in connection with
the defense thereof, unless (i) the injured party shall have
employed separate counsel in accordance with the immediately
preceding paragraph or (ii) RPA Seller has authorized in
writing the employment of counsel for the injured party at the
expense of RPA Seller. If RPA Seller assumes the
20
defense of any such action or proceeding, the injured party
shall have the right to employ separate counsel therein, and
to participate in the defense thereof, but the fees and
expenses of such counsel shall be borne exclusively by such
injured party without any right or entitlement to
reimbursement by RPA Seller or its Affiliates except as
otherwise provided in the preceding sentence and in the
preceding paragraph.
(v) The provisions of this Section 5(n) shall (A)
survive the termination of this Agreement and the earlier
removal or resignation of the Owner Trustee and (B) run
directly to and be enforceable by any injured party, subject
to the limitations hereof.
(o) RPA SELLER COVENANTS. RPA Seller shall deliver to
Purchaser and Indenture Trustee:
(i) within 60 days after the end of each quarterly
fiscal period in its fiscal year, copies of its unconsolidated
financial statements, certified as complete and correct,
subject to normal changes resulting from year-end audit
adjustments, by its chief financial officer;
(ii) within 90 days after the end of the its fiscal
year, copies of consolidated financial statements for such
year, certified by independent accountants of nationally
recognized standing selected by it or, if no such
unconsolidated certified financial statements are prepared,
the consolidated financial statements of the parent of such
party certified by independent accountants of nationally
recognized standing selected by it;
(iii) promptly upon a Responsible Officer's becoming
aware thereof, written notice of material changes in the terms
of the Accounts or servicing and collection policies of
Servicer which may reasonably be expected to have a material
adverse effect on the interests of the Noteholders; and
(iv) promptly upon a Responsible Officer's becoming
aware thereof, written notice of material litigation or
regulatory action which is commenced against RPA Seller or
Servicer which may reasonably be expected to have a material
adverse effect on the interests of the Noteholders.
(p) INTERCHANGE. On or prior to each Determination Date, RPA
Seller shall notify Servicer of the amount of Interchange to be
included as Collections of Finance Charge Receivables allocable to the
Accounts with respect to the Related Monthly Period ("Account
Interchange Amount"), which amount shall be equal to the product of:
(i) the total amount of Interchange paid or payable
to RPA Seller with respect to such Related Monthly Period; and
(ii) a fraction the numerator of which is the volume
during the Related Monthly Period of sales net of cash
advances on the Accounts and the denominator of which is the
amount of sales net of cash advances during the Related
Monthly Period on all VISA and MasterCard accounts owned by
RPA Seller.
21
On each Transfer Date, RPA Seller shall (1) pay to Servicer, and
Servicer shall deposit into the Collection Account, as Collections of
Finance Charge Receivables, in immediately available funds, an amount
equal to the product of (a) the Account Interchange Amount for Related
Monthly Period and (b) the sum of the Allocation Percentages and
Investor Percentages for Finance Charge Collections for the outstanding
Series with respect to such Monthly Period, and [(2) pay any excess of
the Account Interchange Amount over the amount deposited pursuant to
clause (1), each for the Related Monthly Period, to Transferor.]
ARTICLE VI
REPURCHASE OBLIGATION
SECTION 6.01. REASSIGNMENT OF INELIGIBLE RECEIVABLES. If (a) any
representation or warranty under Section 2.02(d) or Section 4.02 is not true and
correct in any material respect as of the date specified therein with respect to
any Receivable or any related Account or (b) any representation or warranty made
by RPA Seller pursuant to Section 2.04 of the Existing PSA is not true and
correct in any material respect as of the date specified therein with respect to
any Receivable transferred to the Certificate Trust prior to the Effective Date
or any related Account and, in either case, as a result thereof Purchaser is
required to accept a reassignment of Ineligible Receivables pursuant to Section
2.04(d) of the Pooling and Servicing Agreement or Section 2.04(d) of the
Transfer and Servicing Agreement, RPA Seller shall pay to Purchaser an amount in
cash equal to either (i) the Purchase Price paid for any such Ineligible
Receivable by Purchaser to RPA Seller (including any portion thereof deemed to
be a borrowing under the Subordinated Note or deemed to be a capital
contribution from RPA Seller to Purchaser) or (ii) in the case of any Receivable
that was deemed to have been sold to Purchaser by RPA Seller prior to the
Effective Date, the principal balance of such Receivable. Such amount may be
offset against any amounts due from Purchaser to RPA Seller with respect to the
Purchase Price for Receivables sold to Purchaser on such day; provided that RPA
Seller shall not be obligated to make any such cash payment until the
Distribution Date following a Monthly Period with respect to amounts owing for
such Monthly Period in accordance with Section 3.03. The obligation of RPA
Seller set forth in this Section shall constitute the sole remedy respecting any
breach of the representations and warranties set forth in the above-referenced
Sections or failure to meet the conditions set forth in the definition in the
Pooling and Servicing Agreement or the Indenture of Eligible Receivable with
respect to such Receivable available to Purchaser.
SECTION 6.02. REASSIGNMENT OF HOLDERS' INTEREST IN TRUST PORTFOLIO. If
(a) any representation or warranty set forth in Section 4.01(a) or Section 4.02
is not true and correct in any material respect or (b) any representation or
warranty made by RPA Seller pursuant to Section 2.03(a), (b) or (c) or Section
2.04(a) of the Existing PSA with respect to any Receivable transferred to the
Certificate Trust prior to the Effective Date or any related Account is not true
and correct in any material respect and, in either case, as a result thereof
Purchaser is required to accept a reassignment of the Receivables transferred to
the Receivables Trust by Purchaser pursuant to Section 2.04(e) of the Pooling
and Servicing Agreement or Section 2.04(f) of the
22
Transfer and Servicing Agreement, RPA Seller shall be obligated to accept a
reassignment of Purchaser's interest in such Receivables on the terms set forth
below.
RPA Seller shall pay to Purchaser by depositing in the Collection
Account in same-day funds, not later than 10:00 a.m. New York City time, on the
Transfer Date following the Monthly Period in which such reassignment obligation
arises, in payment for such reassignment, an amount equal to the Portfolio
Reassignment Price. The obligation of RPA Seller set forth in this Section shall
constitute the sole remedy respecting any breach of the representations and
warranties set forth in the above-referenced Sections available to Purchaser.
SECTION 6.03. CONVEYANCE OF REASSIGNED RECEIVABLES. Upon the request of
RPA Seller, Purchaser shall execute and deliver to RPA Seller a reconveyance
substantially in such form and upon such terms as shall be acceptable to RPA
Seller, pursuant to which Purchaser evidences the conveyance to RPA Seller of
all of Purchaser's right, title, and interest in any Receivables reconveyed to
RPA Seller pursuant to Sections 6.01 and 6.02. Purchaser shall (and shall cause
Receivables Trust Trustee to) execute such other documents or instruments of
conveyance or take such other actions as RPA Seller may reasonably require to
effect any repurchase of Receivables pursuant to this Article VI.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.01. CONDITIONS TO PURCHASE. The obligations of Purchaser to
make its initial purchase of Receivables hereunder shall be subject to RPA
Seller delivering to Purchaser on or before the Effective Date such documents,
certificates and resolutions that Purchaser is required to deliver to the
Certificate Trust Trustee, the Indenture Trustee, any Enhancement Provider or
any Rating Agency in connection with the amendment and restatement of the
Pooling and Servicing Agreement on the date of this Agreement.
SECTION 7.02. CONDITIONS TO PURCHASER'S OBLIGATIONS REGARDING
ADDITIONAL RECEIVABLES. The obligations of Purchaser to purchase any Receivables
created on or after the Effective Date shall be subject to the satisfaction of
the following conditions:
(a) All representations and warranties of RPA Seller contained
in the Transaction Documents shall be true and correct in all material
respects with the same effect as though such representations and
warranties had been made on the date of such purchase;
(b) All information concerning any Account to which such
Receivables relate provided to Purchaser shall be true and correct in
all material respects as of the date of such purchase; and
(c) RPA Seller shall have recorded and filed, at its expense,
any UCC-1 or other financing statement as required as of the date of
such purchase pursuant to Section 2.01(b).
23
SECTION 7.03. CONDITIONS PRECEDENT TO OBLIGATIONS OF RPA SELLER. The
obligations of RPA Seller to sell on any date Receivables shall be subject to
the satisfaction of the following conditions:
(a) All representations and warranties of Purchaser contained
in this Agreement shall be true and correct in all material respects
with the same effect as though such representations and warranties had
been made on the date of such sale; and
(b) Payment or provision for payment of the Purchase Price in
accordance with the provision of Sections 3.01, 3.02 and 3.03 hereof
shall have been made.
ARTICLE VIII
TERM AND PURCHASE TERMINATION
SECTION 8.01. TERM. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue until the later of the
termination of the Certificate Trust as provided in Article XII of the Pooling
and Servicing Agreement or the termination of the Note Trust as provided in
Section 8.01 of the Trust Agreement.
SECTION 8.02. PURCHASE TERMINATION. If an Insolvency Event shall occur
with respect to RPA Seller or Purchaser, then RPA Seller shall immediately cease
to transfer Principal Receivables to Purchaser and shall promptly give notice to
Purchaser and Receivables Trust Trustee of such Insolvency Event.
Notwithstanding any cessation of the transfer to Purchaser of additional
Principal Receivables, Principal Receivables transferred to Purchaser prior to
the occurrence of such Insolvency Event and Collections in respect of such
Principal Receivables and Finance Charge Receivables whenever created, accrued
in respect of such Principal Receivables, shall continue to be property of
Purchaser transferable by Purchaser to the Receivables Trust pursuant to the
Pooling and Servicing Agreement or the Transfer and Servicing Agreement, as
applicable.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01. AMENDMENT. This Agreement and any Conveyance Papers and
the rights and obligations of the parties hereunder may not be changed orally,
but only by an instrument in writing signed by Purchaser and RPA Seller in
accordance with this Section 9.01. This Agreement and any Conveyance Papers may
be amended from time to time by Purchaser and RPA Seller (a) to cure any
ambiguity, (b) to correct or supplement any provisions herein which may be
inconsistent with any other provisions herein or in any Conveyance Papers, (c)
to add any other provisions with respect to matters or questions arising under
this Agreement or any Conveyance Papers that shall not be inconsistent with the
provisions of this Agreement or any Conveyance Papers, (d) to change or modify
the Purchase Price, (e) to change, modify, delete or add any other obligation of
RPA Seller or Purchaser and (f) to provide for the transfer by RPA Seller or
Purchaser of its interest in and to all or part of the Accounts in accordance
with the
24
provisions of the Pooling and Servicing Agreement or the Transfer and Servicing
Agreement (if such transfer is for less than all of the Accounts, the respective
rights, duties and obligations of Purchaser, RPA Seller and Servicer will be
determined at the time of such transfer); provided that no amendment pursuant to
clause (d) or (e) of this Section 9.01 shall be effective unless the Rating
Agency Condition has been satisfied; and provided, further, that no amendment
made pursuant to this Section 9.01 shall adversely affect in any material
respect the interests of any Holders. Any reconveyance executed in accordance
with the provisions hereof shall not be considered to be an amendment to this
Agreement. A copy of any amendment to this Agreement shall be sent to
Receivables Trust Trustee and each Rating Agency.
SECTION 9.02. GOVERNING LAW. THIS AGREEMENT AND THE CONVEYANCE PAPERS
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 9.03. NOTICES. All demands, notices, instructions, directions
and communications under this Agreement shall be in writing and shall be deemed
to have been duly given if personally delivered at, mailed by registered mail,
return receipt requested, or sent by facsimile transmission to (a) in the case
of Purchaser, to First National Funding LLC, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: President, (b) in the case of RPA Seller, to First National
Bank of Omaha, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President,
(c) in the case of the Certificate Trust Trustee or the Indenture Trustee, to
The Bank of New York, [ ], Attention: [ ]
and (d) in the case of the Rating Agency for a particular Series, the address,
if any, specified in the Supplement relating to such Series.
SECTION 9.04. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or any Conveyance
Paper shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions, and terms of this Agreement or any Conveyance
Paper and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of any Conveyance Paper.
SECTION 9.05. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, RPA SELLER.
(a) RPA Seller shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person unless:
(i) the Person formed by such consolidation or into
which RPA Seller is merged or the Person which acquires by
conveyance or transfer the properties and assets of RPA Seller
substantially as an entirety shall be, if RPA Seller is not
the surviving entity, an entity organized and existing under
the laws of the United States of America or any State or the
District of Columbia, and, if RPA
25
Seller is not the surviving entity, such entity shall
expressly assume, by an agreement supplemental hereto,
executed and delivered to Purchaser and Receivables Trust
Trustee, in form reasonably satisfactory to Purchaser and
Receivables Trust Trustee, the performance of every covenant
and obligation of RPA Seller under the Transaction Documents;
(ii) RPA Seller has delivered to Purchaser and
Receivables Trust Trustee (A) an Officer's Certificate stating
that such consolidation, merger, conveyance or transfer and
such supplemental agreement comply with this Section and that
all conditions precedent herein provided for relating to such
transaction have been complied with and (B) an Opinion of
Counsel to the effect that such supplemental agreement is a
valid and binding obligation of such surviving entity
enforceable against such surviving entity in accordance with
its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally
from time to time in effect and except as such enforceability
may be limited by general principles of equity (whether
considered in a suit at law or in equity);
(iii) RPA Seller shall have delivered to Purchaser
and Receivables Trust Trustee and each Rating Agency (A) a Tax
Opinion[, as defined in the Indenture, and (B) if the
Certificate Trust Termination Date has not occurred, a Tax
Opinion, as defined in the Pooling and Serving Agreement,
each] dated the date of such consolidation, merger, conveyance
or transfer, with respect thereto;
(iv) if Transferor is not the surviving entity, the
surviving entity shall file new UCC-1 financing statements
with respect to the interest of Purchaser in the Receivables;
and
(v) satisfaction of the Rating Agency Condition.
(b) This Section 9.05 shall not be construed to prohibit or in
any way limit RPA Seller's ability to effectuate any consolidation or
merger pursuant to which RPA Seller would be surviving entity.
(c) RPA Seller shall notify each Rating Agency promptly after
any consolidation, merger, conveyance or transfer effected pursuant to
this Section 9.05.
(d) The obligations of RPA Seller hereunder shall not be
assignable nor shall any Person succeed to the obligations of RPA
Seller hereunder except in each case in accordance with the provisions
of this Section 9.05.
SECTION 9.06. ACKNOWLEDGEMENT AND AGREEMENT OF RPA SELLER.
(a) RPA Seller expressly acknowledges and agrees that all of
Purchaser's right, title, and interest in, to and under this Agreement,
including all of Purchaser's right, title, and interest in and to the
Receivables purchased pursuant to this Agreement, will be
26
assigned by Purchaser to the Certificate Trust Trustee for the benefit
of the Holders and after the Certificate Trust Termination Date will be
assigned by Purchaser to the Note Trust, and RPA Seller consents to
such assignment. Additionally, RPA Seller agrees for the benefit of the
Certificate Trust Trustee, the Holders and the Note Trust that any
amounts payable by RPA Seller to Purchaser hereunder which are to be
paid by Purchaser to Receivables Trust Trustee for the benefit of the
Holders shall be paid by RPA Seller, on behalf of Purchaser, directly
to Receivables Trust Trustee. Any payment required to be made on or
before a specified date in same-day funds may be made on the prior
business day in next-day funds.
(b) To the extent that RPA Seller retains any interest in the
Receivables now existing and arising from time to time in the Accounts
and the Related Assets, RPA Seller hereby grants to (a) the Certificate
Trust Trustee for the benefit of the Investor Certificateholders and
(b) effective as of the Certificate Trust Termination Date, the
Indenture Trustee for benefit of the Noteholders, a security interest
in all of RPA Seller's right, title and interest, whether now owned or
hereafter arising, in, to and under (i) the Receivables existing at the
opening of business on the Effective Date and arising from the Accounts
and all Related Assets with respect to such Receivables, (ii) the
Receivables now existing and arising from time to time in the Accounts
and the Related Assets with respect thereto and (iii) all proceeds of
such rights and such amounts, to secure the performance of all of the
obligations of RPA Seller hereunder, under the Pooling and Servicing
Agreement, the Indenture and the other Transaction Documents.
SECTION 9.07. FURTHER ASSURANCES. Each of Purchaser and RPA Seller
agrees to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by each other and
by their respective permitted successors and assigns in order to more fully
effect the purposes of this Agreement and the Conveyance Papers, including the
execution of any UCC financing statements or continuation statements or
equivalent documents relating to the Receivables and the Related Assets for
filing under the provisions of the UCC or other law of any applicable
jurisdiction.
SECTION 9.08. NONPETITION COVENANT. Notwithstanding any prior
termination of this Agreement, RPA Seller shall not, at any time, institute
against, solicit or join or cooperate with or encourage any institution against
Purchaser, the Certificate Trust or the Note Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under any United States federal or state bankruptcy or
similar law.
SECTION 9.09. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of Purchaser or RPA Seller, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
27
SECTION 9.10. COUNTERPARTS. This Agreement and all Conveyance Papers
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
together shall constitute one and the same instrument.
SECTION 9.11. BINDING THIRD-PARTY BENEFICIARIES. This Agreement and the
Conveyance Papers will inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. The parties hereto
intend that the Owner Trustee, Certificate Trust, the Certificate Trustee, the
Note Trust and the Indenture Trustee shall be third-party beneficiaries of this
Agreement.
SECTION 9.12. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement and the other Transaction Documents set forth
the entire understanding of the parties relating to the subject matter hereof,
and all prior understandings, written or oral, are superseded by this Agreement
and the other Transaction Documents.
SECTION 9.13. SCHEDULES AND EXHIBITS. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this Agreement
and are incorporated into this Agreement for all purposes.
[Remainder of page intentionally left blank]
28
IN WITNESS WHEREOF, Purchaser and RPA Seller have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
FIRST NATIONAL FUNDING LLC, as
Purchaser
By First National Funding Corporation,
its Managing Member
By
------------------------------------------
Name
----------------------------------------
Title
---------------------------------------
FIRST NATIONAL BANK OF OMAHA, as RPA Seller
By
------------------------------------------
Name
----------------------------------------
Title
---------------------------------------
Acknowledged and Accepted:
THE BANK OF NEW YORK,
as Certificate Trust Trustee and
as Indenture Trustee
By
--------------------------------
Name
------------------------------
Title
-----------------------------
RECEIVABLES PURCHASE AGREEMENT SIGNATURE PAGE
29
EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.02 of
the
Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE NO. _______ dated as of _____________________
20____, by and between FIRST NATIONAL BANK OF OMAHA ("RPA Seller") and FIRST
NATIONAL FUNDING LLC, ("Purchaser") pursuant to the
Receivables Purchase
Agreement referred to below.
WITNESSETH:
WHEREAS, RPA Seller and Purchaser are parties to a
Receivables Purchase
Agreement, dated as of [ ], 2002 (hereinafter as such agreement
may have been, or may from time to time be, amended, supplemented or otherwise
modified, the "
Receivables Purchase Agreement"); and
WHEREAS, pursuant to the
Receivables Purchase Agreement, RPA Seller
wishes to designate Additional Accounts to be included as Accounts and RPA
Seller wishes to convey the Receivables of such Additional Accounts, whether now
existing or hereafter created, to Purchaser pursuant to the Receivables Purchase
Agreement (as each such term is defined in the Receivables Purchase Agreement);
and
WHEREAS, Purchaser is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, RPA Seller and Purchaser hereby agree as follows:
SECTION 1. DEFINED TERMS. Each capitalized term used herein shall have
the meaning specified in the Receivables Purchase Agreement unless otherwise
defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, ________________ 200__.
SECTION 2. DESIGNATION OF ADDITIONAL ACCOUNTS. RPA Seller delivers
herewith an Account Schedule containing a true and complete schedule identifying
all such Additional Accounts and specifying for each such Account, as of the
Addition Date, its account number, the aggregate amount outstanding in such
Account and the aggregate amount of Principal Receivables in such Account. Such
Account Schedule shall be, as of the date of this Supplemental Conveyance,
incorporated into and made part of this Supplemental Conveyance and is marked as
Schedule I to this Supplemental Conveyance.
SECTION 3. CONVEYANCE OF RECEIVABLES.
(a) RPA Seller sells, transfers, assigns, sets over and
otherwise conveys to Purchaser (collectively, the "Conveyance"),
without recourse, all of its right, title and interest in, to and under
the Receivables generated by such Additional Accounts and the Related
Assets, now existing and hereafter arising, all Recoveries allocable to
such Additional Accounts and all monies due or to become due thereunder
and all amounts received with respect thereto and all proceeds thereof.
The foregoing sale, transfer, assignment, set-over and conveyance does
not constitute and is not intended to result in a creation or an
assumption by Purchaser of any obligation of Servicer, RPA Seller or
any other Person in connection with the Accounts, the Receivables or
under any agreement or instrument relating thereto.
(b) In connection with the Conveyance and in accordance with
Section 2.01(b) of the Receivables Purchase Agreement, RPA Seller
agrees to record and file, at its own expense, one or more UCC
financing statements (and continuation statements with respect to such
financing statements when applicable) with respect to the Receivables,
now existing and hereafter created, for the sale of accounts meeting
the requirements of applicable state law in such manner and in such
jurisdictions as may be necessary or advisable to perfect or evidence
the sale and assignment of the Receivables to Purchaser, and to deliver
a file-stamped copy of such financing statement or other evidence of
such filing to Purchaser.
(c) In connection with such sale, RPA Seller further agrees,
at its own expense, on or prior to the date of this Supplemental
Conveyance, to indicate in its appropriate computer files that all
Receivables created in connection with the Additional Accounts
designated hereby have been conveyed to Purchaser pursuant to this
Supplemental Conveyance.
SECTION 4. ACCEPTANCE BY PURCHASER. Purchaser hereby acknowledges its
acceptance of all right, title and interest to the property, now existing and
hereafter arising, conveyed to Purchaser pursuant to Section 3(a) of this
Supplemental Conveyance, and declares that it shall maintain such right, title
and interest. Purchaser further agrees that, not more than five Business Days
after the execution and delivery of this Supplemental Conveyance, RPA Seller
shall deliver to Purchaser the supplement to the Account Schedule described in
Section 2 of this Supplemental Conveyance.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF RPA SELLER. RPA Seller
hereby represents and warrants to Purchaser as of the date of this Supplemental
Conveyance and as of the Addition Date that:
(a) LEGAL, VALID AND BINDING OBLIGATION. This Supplemental
Conveyance constitutes a legal, valid and binding obligation of RPA
Seller enforceable against RPA Seller in accordance with its terms,
except as such enforceability may be limited by applicable Debtor
Relief Laws now or hereinafter in effect and by general principles of
equity (whether considered in a suit at law or in equity);
A-2
(b) ELIGIBILITY OF ACCOUNTS. Each Additional Account
designated hereby is an Eligible Account and each Receivable in such
Additional Account is an Eligible Receivable;
(c) SELECTION PROCEDURES. No selection procedures believed by
RPA Seller to be materially adverse to the interests of Purchaser or
the Holders were used in selecting the Additional Accounts from the
available Eligible Accounts;
(d) INSOLVENCY. RPA Seller is not insolvent and, after giving
effect to the conveyance set forth in Section 3 of this Supplemental
Conveyance, will not be insolvent; no Insolvency Event with respect to
RPA Seller or Purchaser has occurred and the transfer pursuant to
Section 3(a) has not been made in contemplation thereof;
(e) SALE OF RECEIVABLES. This Supplemental Conveyance
constitutes a valid sale to Purchaser of all right, title and interest
of RPA Seller in the Receivables and other Related Assets now existing
or hereafter created from time to time in the Additional Accounts, and
such property will be held by Purchaser free and clear of any Lien
except as permitted by Section 2.05(b) of the Pooling and Servicing
Agreement or the Transfer and Servicing Agreement, as applicable;
(f) NO CONFLICT. The execution and delivery of this
Supplemental Conveyance, the performance of the transactions
contemplated by this Supplemental Conveyance and the fulfillment of the
terms hereof, will not conflict with, result in any breach of any of
the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust or other
instrument to which RPA Seller is a party or by which it or its
properties are bound;
(g) NO VIOLATION. The execution and delivery of this
Supplemental Conveyance by RPA Seller, the performance of the
transactions contemplated by this Supplemental Conveyance and the
fulfillment of the terms hereof applicable to RPA Seller will not
conflict with or violate any Requirements of Law applicable to RPA
Seller;
(h) NO PROCEEDINGS. There are no proceedings or
investigations, pending or, to the best knowledge of RPA Seller,
threatened against RPA Seller before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality
(i) asserting the invalidity of the Receivables Purchase Agreement or
this Supplemental Conveyance, (ii) seeking to prevent the consummation
of any of the transactions contemplated by the Receivables Purchase
Agreement or this Supplemental Conveyance, (iii) seeking any
determination or ruling that, in the reasonable judgment of RPA Seller,
would materially and adversely affect the performance of RPA Seller of
its obligations under the Receivables Purchase Agreement or this
Supplemental Conveyance or (iv) seeking any determination or ruling
that would materially and adversely affect the validity or
enforceability of this Supplemental Conveyance; and
(i) ALL CONSENTS. All approvals, authorizations, consents,
orders or other actions of any Person or any Governmental Authority
required to be obtained by RPA Seller in connection with the execution
and delivery of this Supplemental Conveyance by
▇-▇
▇▇▇ Seller and the performance of the transactions contemplated by this
Supplemental Conveyance by RPA Seller, have been obtained.
SECTION 6. RATIFICATION OF THE RECEIVABLES PURCHASE AGREEMENT. The
Receivables Purchase Agreement is hereby ratified, and all references to the
"Receivables Purchase Agreement," to "this Agreement" and "herein" in the
Transaction Documents shall from and after the Addition Date be references to
the Receivables Purchase Agreement as supplemented by this Supplemental
Conveyance. Except as expressly amended hereby, all the representations,
warranties, terms, covenants and conditions of the Receivables Purchase
Agreement shall remain unamended and shall continue to be, and shall, remain, in
full force and effect in accordance with its terms. Except as expressly provided
herein, this Supplemental Conveyance shall not constitute or be deemed to
constitute a waiver of compliance with or consent to non-compliance with any
term or provision of the Receivables Purchase Agreement.
SECTION 7. COUNTERPARTS. This Supplemental Conveyance may be executed
in any number of counterparts, all of which taken together shall constitute one
and the same instrument.
A-4
IN WITNESS WHEREOF, the undersigned have caused this Supplemental
Conveyance to be duly executed and delivered by their respective duly authorized
officers on the day and the year first above written.
FIRST NATIONAL FUNDING LLC,
as Purchaser
By First National Funding Corporation,
its Managing Member
By
------------------------------------------
Name
----------------------------------------
Title
---------------------------------------
FIRST NATIONAL BANK OF OMAHA,
as RPA Seller
By
------------------------------------------
Name
----------------------------------------
Title
---------------------------------------
SUPPLEMENTAL CONVEYANCE SIGNATURE PAGE
A-5
EXHIBIT B
FORM OF SUBORDINATED NOTE
FOR VALUE RECEIVED, the undersigned, a Delaware limited liability
company ("Purchaser"), hereby unconditionally promises to pay to the order of
FIRST NATIONAL BANK OF OMAHA ("FNBO") in lawful money of the United States of
America in immediately available funds on the Subordinated Note Maturity Date,
the aggregate unpaid amount (as shown in the records of RPA Seller or, at RPA
Seller's option, on the schedule attached hereto and any continuation thereof)
of all borrowings made by Purchaser from RPA Seller to fund the acquisition of
Existing Assets, Receivables and Related Assets in connection with the
transactions contemplated by the Receivables Purchase Agreement, dated as of
[ ], 2002 (as amended and supplemented from time to time, the
"Receivables Purchase Agreement"), among Purchaser and RPA Seller.
Capitalized terms used and not otherwise defined herein have the
meanings assigned to them in the Receivables Purchase Agreement.
The undersigned agrees to pay interest from the date hereof on the
unpaid principal amount hereof from time to time at the rate and at the times
specified in or pursuant to the Receivables Purchase Agreement. Interest shall
be payable in arrears on each Interest Payment Date and upon final payment of
the unpaid principal amount hereof. Purchaser may at its option prepay this Note
in whole or in part at any time and from time to time; provided that in no event
shall the holder hereof have any right to demand any payment of principal
hereunder prior to the Subordinated Note Maturity Date.
This Note is subordinate and junior in right and time of payment to all
"Senior Debt" of Purchaser, which is any Indebtedness of Purchaser and all
renewals, extensions, refinancings and refundings thereof, except any such
Indebtedness that expressly provides that it is not senior or superior in right
of payment hereto. "Indebtedness" is any indebtedness, whether or not
contingent, in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereto) and guarantees of any of the foregoing, whether
or not any such indebtedness would appear as a liability on a balance sheet of
Purchaser prepared on a consolidated basis in accordance with generally accepted
accounting principles.
All scheduled payments of principal and interest in respect of Senior
Debt must be paid before this Note shall be payable, and all scheduled payments
of principal of and interest on this Note shall be payable only to the extent
that Purchaser, after paying all of its accounts payable and other expenses and
obligations, has the funds to make such payments. Purchaser agrees, and the
holder hereof by accepting this Note agrees, to the subordination provisions
herein contained.
Upon prior written notice to Purchaser, the holder hereof may sell,
pledge, assign or otherwise transfer this Note; provided, however, that,
immediately prior to completion of such sale, pledge, assignment or transfer,
the Rating Agency Condition is satisfied.
This Note shall be governed by and construed in accordance with the
laws of the State of
Nebraska.
The holder of this Note, by its acceptance hereof, hereby covenants and
agrees that it will not at any time institute against Purchaser any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law.
IN WITNESS WHEREOF, Purchaser has caused this Subordinated Note to be
duly executed as of the day and year first above written.
FIRST NATIONAL FUNDING LLC
By First National Funding Corporation,
its Managing Member
By
------------------------------------------
Name
----------------------------------------
Title
---------------------------------------
B-2
Schedule Attached to Subordinated Note dated __________________, ___
of FIRST NATIONAL FUNDING LLC payable to the order of FIRST NATIONAL BANK OF
OMAHA.
DATE AND DATE AND
AMOUNT OF AMOUNT OF UNPAID PRINCIPAL NOTATION
BORROWING REPAYMENT BALANCE MADE BY
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EXHIBIT C
PROVISIONS TO BE INCLUDED IN OPINION OF COUNSEL
WITH RESPECT TO ADDITION OF ACCOUNTS
The opinions set forth below may be subject to certain qualifications,
assumptions, limitations and exceptions taken or made in the Opinions of Counsel
delivered on any applicable Closing Date.
1. The Receivables arising in such Additional Accounts constitute
accounts.
2. The Receivable Purchase Agreement, as supplemented by the Supplemental
Conveyance, creates in favor of Transferor a security interest in RPA Seller's
rights in the Receivables in such Additional Accounts and the proceeds thereof
(the "Specified Assets").
3. The security interest in the Specified Assets created by the
Receivables Purchase Agreement will be perfected by the filing of the Financing
Statements as described and defined in such opinion. Based solely upon our
review of the UCC Searches as described and defined in such opinion, we hereby
confirm to you that no person other than the Transferor has filed any financing
statement with the Filing Offices as described and defined in such opinion that
covers the Specified Assets and that would have priority over the security
interest of the Transferor by virtue of such filing.
EXHIBIT D
PROVISIONS TO BE INCLUDED IN
ANNUAL OPINION OF COUNSEL
The opinions set forth below may be subject to certain qualifications,
assumptions, limitations and exceptions taken or made in the Opinion of Counsel
to RPA Seller with respect to similar matters delivered on the Initial Closing
Date (as defined in the Indenture). Unless otherwise indicated, all capitalized
terms used herein shall have the meanings assigned in or pursuant to the
Receivables Purchase Agreement to which this Exhibit D is attached.
1. No further filings or actions are required under the UCC or other
Nebraska law prior to ___________, _____, in order to maintain the perfection
and priority of the first priority security interests created by the
Transaction Documents in favor of Transferor in the Receivables and the proceeds
thereof (the "Specified Assets").
2. Based solely upon our review of the UCC Searches as described and
defined in such opinion, we hereby confirm to you that no Person other than
Transferor has filed any financing statement with the Filing Offices as
described and defined in such opinion that covers the Specified Assets and that
would have priority over the security interest of Transferor by virtue of such
filing.
3. Confirmation or update, as applicable, of the FIRREA analysis delivered
on the Initial Closing Date.
SCHEDULE I
ACCOUNT SCHEDULE--DELIVERED
AS COMPUTER FILE OR MICROFICHE
[Delivered to the Trustee]
