EXHIBIT 4.5
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ADMINISTRATION AGREEMENT
Dated as of October 24, 2002
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FIRST NATIONAL MASTER NOTE TRUST,
as Issuer,
and
FIRST NATIONAL BANK OF OMAHA,
as Administrator
FIRST NATIONAL MASTER NOTE TRUST
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Table of Contents
Page
Section 1. Duties of Administrator..................................... 1
Section 2. Records..................................................... 6
Section 3. Compensation................................................ 6
Section 4. Additional Information To Be Furnished to Issuer............ 6
Section 5. Independence of Administrator............................... 6
Section 6. No Joint Venture............................................ 7
Section 7. Other Activities of Administrator........................... 7
Section 8. Term of Agreement; Resignation and Removal of Administrator.. 7
Section 9. Action Upon Termination, Resignation or Removal............. 8
Section 10. Notices..................................................... 8
Section 11. Amendments.................................................. 9
Section 12. Successors and Assigns...................................... 9
Section 13. Governing Law............................................... 10
Section 14. Headings.................................................... 10
Section 15. Counterparts................................................ 10
Section 16. Severability................................................ 10
Section 17. Not Applicable to FNBO in Other Capacities.................. 10
Section 18. Limitation of Liability of Owner Trustee.................... 10
Section 19. Third-party Beneficiary..................................... 10
Section 20. Nonpetition Covenants....................................... 10
Section 21. Successor Administrator..................................... 11
EXHIBIT A FORM OF POWER OF ATTORNEY
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT, dated as of October 24, 2002 (this
"Agreement"), between FIRST NATIONAL MASTER NOTE TRUST, a statutory trust
organized and existing under the laws of the State of Delaware ("Issuer"), and
FIRST NATIONAL BANK OF OMAHA, a national banking association, as administrator
("Administrator").
W I T N E S S E T H :
WHEREAS, Issuer has entered into a Master Indenture, dated as of October
24, 2002 (the "Indenture"), between Issuer and The Bank of New York, as
indenture trustee ("Indenture Trustee"), to provide for the issuance of its
asset backed notes (the "Notes") from time to time pursuant to one or more
indenture supplements. Capitalized terms used herein and not defined herein
shall have the meanings assigned to such terms in Annex A to the Indenture; and
WHEREAS, Issuer has entered into certain agreements in connection with the
issuance of the Notes, the issuance of the Transferor Interest and transactions
related thereto, including (i) the Transfer and Servicing Agreement, (ii) the
Trust Agreement, and (iii) the Indenture (the Transfer and Servicing Agreement,
the Trust Agreement and the Indenture, and all Indenture Supplements being
hereinafter referred to collectively as the "Related Agreements"); and
WHEREAS, pursuant to the Related Agreements, Issuer and Owner Trustee are
required to perform certain duties in connection with (a) the Notes and the
Collateral and (b) the Transferor Interest; and
WHEREAS, Issuer and Owner Trustee desire to have Administrator perform
certain of the duties of Issuer and Owner Trustee referred to in the preceding
clause, and to provide such additional services consistent with the terms of
this Agreement and the Related Agreements as Issuer and Owner Trustee may from
time to time request; and
WHEREAS, Administrator has the capacity to provide the services required
hereby and is willing to perform such services for Issuer and Owner Trustee on
the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
SECTION 1. DUTIES OF ADMINISTRATOR.
(a) DUTIES WITH RESPECT TO THE RELATED AGREEMENTS. Administrator
shall consult with Owner Trustee regarding the duties of Issuer and Owner
Trustee under the Related Agreements. Administrator shall monitor the
performance of Issuer and shall advise Owner Trustee when action is
necessary to comply with Issuer's or Owner Trustee's duties under the
Related Agreements. Administrator shall prepare for execution by Issuer or
Owner Trustee or shall cause the preparation by other appropriate persons
of all such documents, reports, filings, instruments, orders, certificates
and
opinions as it shall be the duty of Issuer or Owner Trustee to prepare,
file or deliver pursuant to any Related Agreement. In furtherance of the
foregoing, Administrator shall take all appropriate action that it is the
duty of Issuer or Owner Trustee to take pursuant to the Related Agreements
(other than the duties of the Owner Trustee pursuant to the Agreement),
including such of the foregoing as are required with respect to the
following matters under the Indenture (references are to sections of the
Indenture):
(i) the preparation of or obtaining of the documents and
instruments required for cancellation or execution, authentication
and delivery of the Notes (whether upon initial issuance, transfer
or exchange, or otherwise), if any, and delivery of the same to
Indenture Trustee (if applicable) (Section 2.03, 2.05, 2.06, 2.11(c)
or 2.14);
(ii) the duty to cause the Note Register to be kept, to
appoint a successor Transfer Agent and Registrar, if necessary, and
to give Indenture Trustee prompt notice of any appointment of a new
Transfer Agent and Registrar and the location, or change in
location, of the Note Register (Section 2.05);
(iii) the furnishing of Indenture Trustee, Servicer, any
Noteholder or the Paying Agent with the names and addresses of
Noteholders after receipt of a written request therefor from
Indenture Trustee, Servicer, any Noteholder or the Paying Agent,
respectively, or as otherwise specified in the Indenture (Sections
2.09(a) and 7.01);
(iv) the giving of directions (including Issuer Orders)
relating to the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the
release of collateral (Section 8.07);
(v) the duty to cause Issuer to maintain an office or agency
within New York (and as otherwise set forth in an Indenture
Supplement) and to give Indenture Trustee and the Noteholders notice
of the location, or change in location, of such office or agency
(Section 3.02);
(vi) the duty to direct Indenture Trustee to deposit with any
Paying Agent the sums specified in the Indenture and the preparation
of an Issuer Order directing the investment of such funds in
Permitted Investments (Section 3.03);
(vii) the duty to cause newly appointed Paying Agents, if any,
to deliver to Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.03);
(viii) the direction to Paying Agents to pay to Indenture
Trustee all sums held in trust by such Paying Agents (Section 3.03);
(ix) the duty to cause Issuer to keep in full force its
existence, rights and franchises as a Delaware statutory trust and
the obtaining and preservation of Issuer's qualification to do
business in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of
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the Indenture, the Notes, the Collateral and each other related
instrument and agreement (Section 3.04);
(x) the preparation of all supplements, amendments, financing
statements, continuation statements, if any, instruments of further
assurance and other instruments necessary to protect, maintain and
enforce the Collateral (Section 3.05);
(xi) the obtaining of the Opinion of Counsel on each Closing
Date and the annual delivery of an Opinion of Counsel as to the
Collateral (Section 3.06);
(xii) the identification to Indenture Trustee in an Officer's
Certificate of any Person (other than Administrator) with whom
Issuer has contracted to assist it in performing its duties under
the Indenture (Section 3.07(b));
(xiii) causing the delivery of notice by Indenture Trustee to
the Rating Agencies of the occurrence of any Servicer Default of
which Issuer has knowledge and the action, if any, being taken in
connection with such default (Section 3.07(d));
(xiv) the delivery to Indenture Trustee and the Rating
Agencies, within 120 days after the end of each fiscal year of
Issuer, of an Officer's Certificate with respect to various matters
relating to compliance with the Indenture (Section 3.09);
(xv) the preparation and obtaining of documents, certificates,
opinions and instruments required in connection with the
consolidation or merger by Issuer with or into any other Person or
the sale of Issuer's assets substantially as an entirety to any
Person (Section 3.10);
(xvi) the delivery of notice to Indenture Trustee and the
Rating Agencies of (A) each Event of Default or Pay Out Event, (B)
each default by Servicer or Transferor under the Transfer and
Servicing Agreement and (C) each default by the RPA Seller under the
Receivables Purchase Agreement, together with any required status
report and action plan (Sections 3.17 and 5.02);
(xvii) the monitoring of Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation and
delivery of an Officer's Certificate and the obtaining of the
Opinion of Counsel and the Independent Certificate relating thereto
(Section 4.01);
(xviii) the compliance with any directive of Indenture Trustee
with respect to the sale of the Collateral if an Event of Default
shall have occurred and be continuing and the Notes have been
accelerated (Section 5.05);
(xix) the preparation and delivery of an Officer's Certificate
to be delivered to Indenture Trustee and the delivery of such
Officer's Certificate to the Noteholders (Section 6.03(b));
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(xx) the removal of Indenture Trustee, if necessary and in
compliance with the Indenture, and the appointment of a successor,
and notifying the Rating Agencies of same (Section 6.08);
(xxi) the preparation and delivery of various reports to be
filed with Indenture Trustee and the Commission, as applicable
(Section 7.03);
(xxii) notifying Indenture Trustee if and when the Notes are
listed (or delisted) on any stock exchange (Section 7.04);
(xxiii) the preparation and delivery of an Issuer Order and
Officer's Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the
Collateral (Sections 8.07 and 8.08);
(xxiv) the preparation and delivery of Issuer Orders,
agreements, certificates, instruments, consents and other documents
and the obtaining of Opinions of Counsel with respect to the
execution of supplemental indentures (Sections 3.07(f), 10.01, 10.02
and 10.03);
(xxv) the execution of new Notes conforming to any
supplemental indenture (Section 10.06);
(xxvi) the preparation and delivery of all Officers'
Certificates, Opinions of Counsel and, if necessary, Independent
Certificates with respect to any requests by Issuer to Indenture
Trustee to take any action under the Indenture (Section 12.01(a));
(xxvii) the preparation and delivery of Officers' Certificates
and the obtaining of Independent Certificates, if necessary, in
connection with the deposit of any Collateral or other property or
securities with Indenture Trustee that is to be made the basis for
the release of property from the lien of the Indenture (Section
12.01(b));
(xxviii) the preparation and delivery to Noteholders and
Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 12.06); and
(xxix) compliance with the provisions of the Transfer and
Servicing Agreement, each Indenture Supplement and the Trust
Agreement applicable to Issuer.
(b) ADDITIONAL DUTIES.
(i) In addition to the duties of Administrator set forth
above, but subject to Sections 1(c)(ii) and 5 of this Agreement,
Administrator shall perform all duties and obligations of Issuer
under the Related Agreements, and shall perform such calculations
and shall prepare, or shall cause the preparation by
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other appropriate persons, of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of
Issuer or Owner Trustee to prepare, file or deliver pursuant to the
Related Agreements and shall administer the Trust in the interest of
the Holders of the Transferor Interest, and at the request of Issuer
shall take all appropriate action that it is the duty of Issuer or
Owner Trustee to take pursuant to the Related Agreements. Subject to
Sections 1(c)(ii) and 5 of this Agreement, and in accordance with
the directions of Issuer, Administrator shall administer, perform or
supervise the performance of such other activities in connection
with the Collateral (including the Related Agreements) as are not
covered by any of the foregoing provisions and as are expressly
requested by Owner Trustee and are reasonably within the capability
of Administrator.
(ii) Administrator shall perform any duties expressly required
to be performed by Administrator under the Trust Agreement,
including the preparation of tax returns pursuant to Section 5.07 of
the Trust Agreement.
(iii) In carrying out the foregoing duties or any of its other
obligations under this Agreement, Administrator may enter into
transactions with or otherwise deal with any of its Affiliates;
provided, however, that the terms of any such transactions or
dealings shall be in accordance with any directions received from
Issuer and shall be, in Administrator's opinion, no less favorable
to Issuer than would be available from unaffiliated parties.
(iv) It is the intention of the parties hereto that
Administrator shall, and Administrator hereby agrees to, (A)
prepare, file and deliver on behalf of Issuer all such documents,
reports, filings, instruments, certificates and opinions as it shall
be the duty of Issuer to prepare, file or deliver pursuant to the
Related Agreements, including any filings, reports, notices,
applications and registrations with the Commission, and (B) seek any
consents or authorizations from the Commission and any state
authority on behalf of Issuer, in each case as may be necessary or
advisable to comply with any federal or state securities or
reporting requirements laws and to the extent not provided by
Servicer in accordance with Section 3.01(a) of the Pooling and
Servicing Agreement and Section 3.11 of the Transfer and Servicing
Agreement. In furtherance thereof, Owner Trustee shall, on behalf of
Issuer, execute and deliver to Administrator and its agents, and to
each successor Administrator appointed pursuant to the terms hereof,
one or more powers of attorney substantially in the form of Exhibit
A hereto, appointing Administrator the attorney-in-fact of Issuer
for the purpose of executing on behalf of Issuer all such documents,
reports, filings, instruments, certificates and opinions.
(c) NONMINISTERIAL MATTERS.
(i) With respect to matters that in the reasonable judgment of
Administrator are nonministerial, Administrator shall not take any
action unless within a reasonable time before the taking of such
action, Administrator shall
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have notified Issuer of the proposed action and Issuer shall not
have withheld consent or provided an alternative direction. For the
purpose of the preceding sentence, "nonministerial matters" shall
include:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by Issuer and
the compromise of any action, claim or lawsuit brought by or
against Issuer (other than in connection with the collection
or enforcement of the Collateral);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Transfer Agent and
Registrars, successor Paying Agents and successor Indenture
Trustees pursuant to the Indenture or the appointment of
successor Administrators, or the consent to the assignment by
the Transfer Agent and Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(E) the removal of Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, Administrator shall not be obligated to, and shall not,
(A) make any payments from its own funds to the Noteholders, the
Holders of the Transferor Interest or any other Person under the
Related Agreements, (B) sell the Receivables (or interests therein)
pursuant to Section 5.05 of the Indenture other than pursuant to a
written directive of Indenture Trustee or (C) take any other action
that Issuer directs Administrator not to take on its behalf.
SECTION 2. RECORDS. Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by Issuer, Owner Trustee,
Indenture Trustee, Servicer and Transferor at any time during normal business
hours.
SECTION 3. COMPENSATION. As compensation for the performance of
Administrator's obligations under this Agreement, Administrator shall be
entitled to $100 per month which shall be payable in accordance with Section
3.02 of the Transfer and Servicing Agreement. Transferor shall be responsible
for payment of Administrator's fees (to the extent not paid pursuant to Section
3.02 of the Transfer and Servicing Agreement).
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO ISSUER. Administrator
shall furnish to Issuer from time to time such additional information regarding
the Collateral as Issuer shall reasonably request.
SECTION 5. INDEPENDENCE OF ADMINISTRATOR. For all purposes of this
Agreement, Administrator shall be an independent contractor and shall not be
subject to the supervision of
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Issuer or Owner Trustee with respect to the manner in which it accomplishes the
performance of its obligations hereunder. Unless expressly authorized by Issuer,
Administrator shall have no authority to act for or represent Issuer or Owner
Trustee in any way and shall not otherwise be deemed an agent of Issuer or Owner
Trustee.
SECTION 6. NO JOINT VENTURE. Nothing contained in this Agreement shall (i)
constitute Administrator and either of Issuer or Owner Trustee as members of any
partnership, joint venture, association, syndicate, unincorporated business or
other separate entity, (ii) be construed to impose any liability as such on any
of them or (iii) be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall prevent
Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of Issuer, Owner Trustee or Indenture Trustee.
SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
(a) This Agreement shall continue in force until the termination of
Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e) below, Administrator may resign its
duties hereunder by providing Issuer with at least 60 days' prior written
notice.
(c) Subject to Section 8(e) below, Issuer may remove Administrator
without cause by providing Administrator with at least 60 days' prior
written notice.
(d) Subject to Section 8(e) below, at the sole option of Issuer,
Administrator may be removed immediately upon written notice of
termination from Issuer to Administrator if any of the following events
shall occur:
(i) Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default,
shall not cure such default within 30 days (or, if such default
cannot be cured in such time, shall not give within 30 days such
assurance of cure as shall be reasonably satisfactory to Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have
been vacated within 60 days, in respect of Administrator in any
involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect or appoint a receiver,
conservator, liquidator, assignee, custodian, trustee, sequestrator
or similar official for Administrator or any substantial part of its
property or order the winding up or liquidation of its affairs; or
(iii) Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect,
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shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official for Administrator or any substantial part of its
property, shall consent to the taking of possession by any such
official of any substantial part of its property, shall make any
general assignment for the benefit of creditors, shall admit in
writing its inability to pay its debts generally as they become due
or shall fail generally to pay its debts as they become due.
Administrator agrees that if any event specified in clause
(ii) or (iii) of this Section 8(d) shall occur, it shall give
written notice thereof to Issuer and Indenture Trustee within seven
days after the happening of such event. After obtaining knowledge of
any event specified in clause (i), (ii) or (iii) of this Section
8(d), Issuer shall give prompt written notice thereof to the Rating
Agencies.
(e) No resignation or removal of Administrator pursuant to this
Section 8 shall be effective until (i) a successor Administrator shall
have been appointed by Issuer, (ii) such successor Administrator shall
have agreed in writing to be bound by the terms of this Agreement in the
same manner as Administrator is bound hereunder; and (iii) the Rating
Agency Condition shall have been satisfied with respect to the proposed
appointment of the successor Administrator.
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon
the effective date of termination of this Agreement pursuant to Section 8(a) or
the resignation or removal of Administrator pursuant to Section 8(b), (c) or
(d), respectively, Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. Administrator shall forthwith upon such termination
pursuant to Section 8(a) deliver to Transferor all property and documents of or
relating to the Collateral then in the custody of Administrator. In the event of
the resignation or removal of Administrator pursuant to Section 8(b), (c) or
(d), respectively, Administrator shall cooperate with Issuer and take all
reasonable steps requested to assist Issuer in making an orderly transfer of the
duties of Administrator.
SECTION 10. NOTICES. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to Issuer or Owner Trustee, to the Corporate Trust Office of
Owner Trustee, with a copy to Administrator;
(b) if to Administrator, to First National Bank of Omaha, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, Stop Code 3198, Omaha, Nebraska 68197-3198, Attention: President;
(c) if to Indenture Trustee, to The Bank of New York, Suite 1020, ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured
Finance Services;
(d) if to Transferor, to First National Funding LLC, 1620 Dodge
Street, Stop Code 3198, Omaha, Nebraska 68197-3198, Attention: President;
8
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand delivered
to the address of such party as provided above, except that notices to Indenture
Trustee, Transferor, Administrator or Issuer are effective only upon receipt.
SECTION 11. AMENDMENTS. This Agreement may be amended from time to time,
by a written amendment duly executed and delivered by Issuer and Administrator,
with the written consent of Owner Trustee (as such and in its individual
capacity), without the consent of any of the Noteholders, the Holders of the
Transferor Interest or the Transferor to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or modifying in any manner the rights of the Noteholders or the
Holders of the Transferor Interest in a manner not inconsistent with the
provisions of this Agreement and the other Transaction Documents; provided,
however, that such amendment will not, as evidenced by an Officer's Certificate
of Administrator addressed and delivered to Owner Trustee, materially and
adversely affect the interests of any Noteholder or the Holders of the
Transferor Interest.
This Agreement may also be amended from time to time, by a written
amendment duly executed and delivered by Issuer and Administrator, with the
written consent of Owner Trustee (as such and in its individual capacity), the
Holders of Notes evidencing not less than 66-2/3% of the Outstanding Amount of
the Notes and Transferor, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
modifying in any manner the rights of Noteholders or the Holders of the
Transferor Interest under this Agreement; provided, however, that, without the
consent of the Holders of all of the Notes then Outstanding, no such amendment
shall (a) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on the Receivables or distributions that
are required to be made for the benefit of the Noteholders or (b) reduce the
aforesaid portion of the Outstanding Amount of the Notes, the Holders of which
are required to consent to any such amendment.
Prior to the execution of any such amendment or consent, Administrator
shall furnish written notification of the substance of such amendment or consent
to each Rating Agency. Promptly after the execution of any such amendment or
consent, Administrator shall furnish written notification of the substance of
such amendment or consent to Indenture Trustee.
It shall not be necessary for the consent of Noteholders pursuant to this
Section 11 to approve the particular form of any proposed amendment or consent,
but it shall be sufficient if such consent shall approve the substance thereof.
SECTION 12. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
Administrator unless such assignment is previously consented to in writing by
Issuer, Transferor and Owner Trustee (as such and in its individual capacity)
and subject to the satisfaction of the Rating Agency Condition in respect
thereof. An assignment with such consent and satisfaction, if accepted by the
assignee, shall bind the assignee hereunder in the same manner as Administrator
is bound hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by Administrator without the consent of Issuer, Transferor, Owner
Trustee or the
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Rating Agencies to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to Administrator, provided that
such successor organization executes and delivers to Issuer, Transferor and
Owner Trustee an agreement in which such corporation or other organization
agrees to be bound hereunder by the terms of said assignment in the same manner
as Administrator is bound hereunder. Subject to the foregoing, this Agreement
shall bind any successors or assigns of the parties hereto.
SECTION 13. GOVERNING LAW. THIS AGREEMENT 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 14. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
SECTION 15. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which when so executed shall together constitute but one and the same
agreement.
SECTION 16. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 17. NOT APPLICABLE TO FNBO IN OTHER CAPACITIES. Nothing in this
Agreement shall affect any obligation FNBO may have in any other capacity, other
than as Administrator.
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE. Notwithstanding
anything contained herein to the contrary, this instrument has been signed by
Wilmington Trust Company not in its individual capacity but solely in its
capacity as Owner Trustee of Issuer and in no event shall Wilmington Trust
Company in its individual capacity or any beneficial owner of Issuer have any
liability for the representations, warranties, covenants, agreements or other
obligations of Issuer hereunder, as to all of which recourse shall be had solely
to the assets of Issuer. For all purposes of this Agreement, in the performance
of any duties or obligations hereunder, Owner Trustee (as such or in its
individual capacity) shall be subject to, and entitled to the benefits of, the
terms and provisions of the Trust Agreement.
SECTION 19. THIRD-PARTY BENEFICIARY. Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
SECTION 20. NONPETITION COVENANTS. Notwithstanding any prior termination
of this Agreement, neither Owner Trustee nor Administrator shall at any time
institute against Issuer, Transferor or Certificate Trust, or solicit or join or
cooperate with or encourage any institution against Issuer, Transferor or
Certificate Trust of any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or state bankruptcy or
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similar law in connection with any obligations relating to the Notes, this
Administration Agreement or any of the other Transaction Documents; provided,
however, that this Section 20 shall not operate to preclude any remedy described
in Article V of the Indenture.
SECTION 21. SUCCESSOR ADMINISTRATOR. In the event of a servicing transfer
pursuant to Article VII of the Transfer and Servicing Agreement, the successor
servicer under the Transfer and Servicing Agreement shall, upon the date of such
servicing transfer, become the successor Administrator hereunder.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
FIRST NATIONAL MASTER NOTE TRUST
By WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title Vice President
---------------------------------
FIRST NATIONAL BANK OF OMAHA, as
Administrator
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title Senior Vice President
---------------------------------
Acknowledged and accepted:
FIRST NATIONAL FUNDING LLC,
as Transferor
By First National Funding Corporation,
its Managing Member
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title Senior Vice President
---------------------------------
ADMINISTRATION AGREEMENT SIGNATURE PAGE
EXHIBIT A
[FORM OF POWER OF ATTORNEY]
STATE OF DELAWARE )
)
COUNTY OF NEWCASTLE )
KNOW ALL MEN BY THESE PRESENTS, that First National Master Note Trust, a
Delaware statutory trust ("Trust"), does hereby make, constitute and appoint
First National Bank of Omaha, as Administrator under the Administration
Agreement (as defined below), and its agents and attorneys, as Attorneys-in-Fact
to execute on behalf of the Trust all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Trust to
prepare, file or deliver pursuant to the Related Agreements (as defined in the
Administration Agreement), including to appear for and represent the Trust in
connection with the preparation, filing and audit of federal, state and local
tax returns pertaining to the Trust, and with full power to perform any and all
acts associated with such returns and audits that the Trust could perform,
including the right to distribute and receive confidential information, defend
and assert positions in response to audits, initiate and defend litigation, and
to execute waivers of restriction on assessments of deficiencies, consents to
the extension of any statutory or regulatory time limit, and settlements. For
the purpose of this Power of Attorney, the term "Administration Agreement" means
the Administration Agreement, dated as of October 24, 2002, between the Trust
and First National Bank of Omaha, as Administrator, and as such may be amended
from time to time.
This power of attorney is coupled with an interest and shall survive and
not be affected by the subsequent bankruptcy or dissolution of the Trust.
All powers of attorney for this purpose heretofore filed or executed by
the Trust are hereby revoked.
EXECUTED this 24th day of October, 2002.
FIRST NATIONAL MASTER NOTE TRUST
By WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By
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