EXHIBIT 4.8 - FORM OF ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT
between
FNANB CREDIT CARD MASTER NOTE TRUST
Issuer,
and
FIRST NORTH AMERICAN NATIONAL BANK
Administrator
Dated as of [ ], 2002
TABLE OF CONTENTS
1. Duties of Administrator .......................................................................... 1
2. Records .......................................................................................... 6
3. Compensation ..................................................................................... 6
4. Additional Information to be Furnished to Issuer ................................................. 7
5. Independence of Administrator .................................................................... 7
6. No Joint Venture ................................................................................. 7
7. Other Activities of Administrator ................................................................ 7
8. Term of Agreement; Resignation and Removal of Administrator ...................................... 7
9. Action upon Termination, Resignation or Removal .................................................. 8
10. Notices .......................................................................................... 9
11. Amendments ....................................................................................... 9
12. Successors and Assigns ........................................................................... 10
13. GOVERNING LAW .................................................................................... 10
14. Headings ......................................................................................... 10
15. Counterparts ..................................................................................... 10
16. Severability ..................................................................................... 10
17. Not Applicable to First North American National Bank in Other Capacities ......................... 11
18. Limitation of Liability of Owner Trustee ......................................................... 11
19. Third-Party Beneficiary .......................................................................... 11
20. Nonpetition Covenants ............................................................................ 11
21. Successor Administrator .......................................................................... 11
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ADMINISTRATION AGREEMENT, dated as of [ ], 2002 (the "Administration
Agreement"), between FNANB CREDIT CARD MASTER NOTE TRUST, a business trust
organized and existing under the laws of the State of Delaware (the "Issuer"),
and FIRST NORTH AMERICAN NATIONAL BANK, a national banking association, as
administrator (the "Administrator").
W I T N E S S E T H :
WHEREAS, the Issuer has entered into a Master Indenture, dated as of [
], 2002 (the "Indenture"), between the Issuer and JPMorgan Chase Bank, as
indenture trustee (the "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;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes, the issuance of the beneficial ownership
interest of the Issuer 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, the
Indenture and all Indenture Supplements being hereinafter referred to
collectively as the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (a) the Notes
and the Collateral and (b) the beneficial ownership interest in the Issuer;
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the 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 the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
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:
1. Duties of Administrator.
(a) Duties with Respect to the Related Agreements. The Administrator
shall consult with the Owner Trustee regarding the duties of the Issuer and the
Owner Trustee under the Related Agreements. The Administrator shall monitor the
performance of the Issuer and the Owner Trustee and shall advise the Owner
Trustee when action is necessary to comply with the Issuer's or the Owner
Trustee's duties under the Related Agreements. The Administrator shall prepare
for execution by the Issuer or the 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 the
Issuer or the Owner Trustee to prepare, file or deliver
pursuant to any Related Agreement. In furtherance of the foregoing, the
Administrator shall take all appropriate action that it is the duty of the
Issuer or the Owner Trustee to take pursuant to the Indenture 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 execution, authentication and delivery of the
Notes (whether upon initial issuance, transfer or exchange, or
otherwise), if any, and delivery of the same to the Indenture Trustee
(if applicable) (Sections 2.3, 2.5, 2.6, 2.11 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 the Indenture Trustee notice of any appointment of a new Transfer
Agent and Registrar and the location, or change in location, of the
Note Register (Section 2.5);
(iii) the furnishing of the Indenture Trustee, the Servicer,
any Noteholder or the Paying Agent with the names and addresses of
Noteholders after receipt of a written request therefor from the
Indenture Trustee, the Servicer, any Noteholder or the Paying Agent,
respectively, or as otherwise specified in the Indenture (Sections
2.9(a) and 7.1);
(iv) the duty to cause the Issuer to maintain an office or
agency within the State of New York (and as otherwise set forth in an
Indenture Supplement) and to give the Indenture Trustee and the
Noteholders notice of the location, or change in location, of such
office or agency (Section 3.2);
(v) the duty to direct the 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 Eligible Investments (Section 3.3);
(vi) the duty to cause newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to Paying Agents to pay to the Indenture
Trustee all sums held in trust by such Paying Agents (Section 3.3);
(viii) the duty to cause the Issuer to keep in full force its
existence, rights and franchises as a Delaware business trust and the
obtaining and preservation of the 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 the
Indenture, the Notes, the Collateral and each other related instrument
and agreement (Section 3.4);
(ix) 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 3.5);
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(x) the obtaining of the Opinion of Counsel on each Closing
Date and the annual delivery of Opinions of Counsel as to the Collateral,
and the annual delivery of the Officer's Certificate (Sections 3.6 and
3.9);
(xi) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has contracted to
assist it in performing its duties under the Indenture (Section 3.7(b));
(xii) causing the delivery of notice by the Indenture Trustee
to the Rating Agencies of the occurrence of any Servicer Default of which
the Issuer has knowledge and the action, if any, known to the Issuer that
is being taken in connection with such default (Section 3.7(d));
(xiii) the delivery to the Indenture Trustee, within 120 days
after the end of each fiscal year of the Issuer of an Officer's Certificate
with respect to various matters relating to compliance with the Indenture
(Section 3.9);
(xiv) the preparation and obtaining of documents,
certificates, opinions and instruments required in connection with the
consolidation or merger by the Issuer with or into any other Person or the
sale of the Issuer's assets substantially as an entirety to any Person
(Section 3.10);
(xv) the delivery of notice to the Indenture Trustee and the
Rating Agencies of (1) each Event of Default, (2) each default by the
Servicer or Transferor under the Transfer and Servicing Agreement and (3)
each default by the Transferor under the Receivables Purchase Agreement
(Section 3.18);
(xvi) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinion of Counsel and the
Independent Certificate relating thereto (Section 4.1);
(xvii) the compliance with any written directive of the
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 5.5);
(xviii) the preparation of an Officer's Certificate to be
delivered to the Indenture Trustee and the delivery of such Officer's
Certificate to the Noteholders (Section 6.3(b));
(xix) the removal of the Indenture Trustee, if necessary and
in compliance with the Indenture, and the appointment of a successor
(Section 6.8);
(xx) the preparation of various reports to be filed with the
Indenture Trustee and the Commission, as applicable (Section 7.3);
(xxi) notifying the Indenture Trustee if and when any Notes
are listed on any stock exchange (Section 7.4);
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(xxii) the preparation 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
3.7(f), 10.1, 10.2 and 10.3);
(xxiii) the execution of new Notes conforming to any supplemental indenture
(Section 10.6);
(xxiv) the preparation of all Officers' Certificates, Opinions of Counsel
and, if necessary, Independent Certificates with respect to any requests by the
Issuer to the Indenture Trustee to take any action under the Indenture (Section
12.1(a));
(xxv) 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 the Indenture
Trustee that is to be made the basis for the release of property from the lien
of the Indenture (Section 12.1(b));
(xxvi) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions (Section 12.6); and
(xxvii) compliance with the provisions of the Transfer and Servicing
Agreement, all Indenture Supplements and the Trust Agreement applicable to the
Issuer.
(b) Additional Duties.
(i) In addition to the duties of the Administrator set forth above, but
subject to Sections 1(c)(ii) and 5, the Administrator shall perform all duties
and obligations of the Issuer under the Related Agreements, and shall perform
such calculations and shall prepare for execution by the Issuer or the Owner
Trustee and shall cause the preparation by other appropriate persons of all such
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Related Agreements and shall administer the Trust in the
interest of the holder of the Transferor Interest, and at the request of the
Issuer shall take all appropriate action that it is the duty of the Issuer or
the 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 the Issuer, the 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 the Owner Trustee and are
reasonably within the capability of the Administrator.
(ii) The Administrator shall perform any duties expressly required to be
performed by the Administrator under the Trust Agreement, including the
preparation of tax returns pursuant to Section 5.7 of the Trust Agreement.
(iii) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or
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dealings shall be in accordance with any directions received from the Issuer and
shall be, in the Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(iv) It is the intention of the parties hereto that the Administrator
shall, and the Administrator hereby agrees to, prepare, file and deliver on
behalf of the Issuer all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer to prepare, file
or deliver pursuant to the Related Agreements, including any filing, reports,
notices, applications and registrations with, and seek any consents or
authorizations from, the Securities and Exchange Commission and any state
authority on behalf of the Issuer as may be necessary or advisable to comply
with any federal or state securities or reporting requirements laws, to the
extent not provided by the Servicer in accordance with Section 3.9 of the
Transfer and Servicing Agreement. In furtherance thereof, the Owner Trustee
shall, on behalf of the Issuer, execute and deliver to the 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 the Administrator the attorney-in-fact of the Issuer for the
purpose of executing on behalf of the Issuer all such documents, reports,
filings, instruments, certificates and opinions.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of the
Administrator are nonministerial, the Administrator shall not take any action
unless within a reasonable time before the taking of such action, the
Administrator shall have notified Transferor of the proposed action and
Transferor shall not have withheld consent or provided an alternative direction.
For the purpose of the preceding sentence, "non-ministerial matters" shall
include:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the 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 the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any payments
from its
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own funds to the Noteholders, the Transferor or any other Person under the
Related Agreements, (y) sell the Collateral pursuant to Section 5.5 of the
Indenture other than pursuant to a written directive of the Indenture
Trustee or (z) take any other action that the Issuer directs the
Administrator not to take on its behalf.
2. Records. The 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 the Issuer, the Owner Trustee, the
Indenture Trustee, the Servicer and Transferor at any time during normal
business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement, the Administrator shall be
entitled to $100 per month which shall be payable in accordance with Section 3.2
of the Transfer and Servicing Agreement. Transferor shall be responsible for
payment of the Administrator's fees (to the extent not paid pursuant to Section
3.2 of the Transfer and Servicing Agreement). The fee to be paid to the
Administrator shall not be paid from the Trust Property and shall be paid only
to the extent that the Transferor has funds available for that purpose. If the
Transferor does not have funds available to make such payment, the Servicer
shall not be entitled to assert a claim against the Transferor for the unpaid
amount.
4. Additional Information to be Furnished to Issuer. The Administrator
shall furnish to the Issuer from time to time such additional information
regarding the Collateral as the Issuer shall reasonably request.
5. Independence of Administrator. For all purposes of this Agreement, the
Administrator shall be an independent contractor and shall not be subject to the
supervision of the Issuer or the Owner Trustee with respect to the manner in
which it accomplishes the performance of its obligations hereunder. Unless
expressly authorized by the Issuer, the Administrator shall have no authority to
act for or represent the Issuer or the Owner Trustee in any way and shall not
otherwise be deemed an agent of the Issuer or the Owner Trustee.
6. No Joint Venture. Nothing contained in this Agreement shall (i)
constitute the Administrator and either of the Issuer or the 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.
7. Other Activities of Administrator. Nothing herein shall prevent the
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 the Issuer, the Owner Trustee or the Indenture
Trustee.
8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the termination of the
Issuer, upon which event this Agreement shall automatically terminate.
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(b) Subject to Sections 8(e) and (f), the Administrator may resign its
duties hereunder by providing the Issuer with at least sixty (60) days prior
written notice.
(c) Subject to Sections 8(e) and (f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least sixty
(60) days prior written notice.
(d) Subject to Sections 8(e) and (f), at the sole option of the Issuer,
the Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator if any of the following events shall occur:
(i) the 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 thirty (30) days (or, if such default cannot be
cured in such time, shall not give within thirty (30) days such assurance
of cure as shall be reasonably satisfactory to the 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 sixty (60) days, in respect of the 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 the
Administrator or any substantial part of its property or order the winding
up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, 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 the 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.
The 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 the Issuer and the Indenture Trustee within seven (7) 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), the Issuer
shall give prompt written notice thereof to the Rating Agencies.
(e) No resignation or removal of the Administrator pursuant to this
Section 8 shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be effective only
after satisfaction of the Rating Agency Condition with respect to the proposed
appointment.
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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 the Administrator pursuant to Sections 8(b), (c) or
(d), respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The 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 the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Sections
8(b), (c) or (d), respectively, the Administrator shall cooperate with the
Issuer and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to Wilmington Trust Company,
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Adminstration, telecopy number [______], telephone
number [______], with a copy to the Administrator;
(b) if to the Administrator, to First North American National Bank, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial
Officer, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇, telephone number (▇▇▇) ▇▇▇-▇▇▇▇;
(c) if to the Indenture Trustee, JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: [______], telecopy number [______],
telephone number [______]; and
(d) if to the Transferor, to DC Funding, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ 11, Bermuda, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇, telephone
number (▇▇▇) ▇▇▇-▇▇▇▇.
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 the
Indenture Trustee, Transferor, the Administrator or the Issuer are effective
only upon receipt.
11. Amendments. This Agreement may be amended from time to time, by a
written amendment duly executed and delivered by the Issuer, the Administrator
and Transferor, with the written consent of the Owner Trustee (as such and in
its individual capacity), without the consent of any of the Noteholders 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 Transferor; provided, however, that
such amendment will not, as evidenced by an Officer's Certificate of the
Administrator addressed and delivered to the Owner Trustee, materially and
adversely affect the interests of any Noteholder or the Transferor.
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This Agreement may also be amended from time to time, by a written
amendment duly executed and delivered by the Issuer, the Administrator and
Transferor, with the written consent of the Owner Trustee (as such and in its
individual capacity), the Holders of Notes evidencing not less than a majority
of the Outstanding Amount of the Notes 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; 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, the
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, the Administrator shall furnish written notification
of the substance of such amendment or consent to the 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.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer, Transferor and the 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 the
Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement
may be assigned by the Administrator without the consent of the Issuer,
Transferor, the Owner Trustee or the Rating Agencies to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization executes
and delivers to the Issuer, Transferor and the 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 the Administrator is bound
hereunder. Subject to the foregoing, this Agreement shall bind any successors or
assigns of the parties hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, 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.
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.
15. Counterparts. This Agreement may be executed in counterparts, each
of which when so executed shall together constitute but one and the same
agreement.
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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.
17. Not Applicable to First North American National Bank in Other
Capacities. Nothing in this Agreement shall affect any obligation First North
American National Bank may have in any other capacity, other than as
Administrator.
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 the Issuer and in no event shall Wilmington Trust Company in its
individual capacity or any beneficial owner of the Issuer have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to the
assets of the Issuer. For all purposes of this Agreement, in the performance of
any duties or obligations hereunder, the 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.
19. Third-Party Beneficiary. The 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.
20. Nonpetition Covenants. Notwithstanding any prior termination of this
Agreement, the Administrator shall not at any time with respect to the Issuer,
FNANB Credit Card Master Trust or Transferor, and the Issuer shall not at any
time with respect to FNANB Credit Card Master Trust or Transferor acquiesce,
petition or otherwise invoke or cause the Issuer, FNANB Credit Card Master Trust
or Transferor to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Issuer, FNANB Credit Card
Master Trust or Transferor under any Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, conservator, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer, FNANB
Credit Card Master Trust or Transferor or any substantial part of their
respective properties, or ordering the winding up or liquidation of the affairs
of the Issuer, FNANB Credit Card Master Trust or Transferor; provided, however,
that this Section 20 shall not operate to preclude any remedy described in
Article V of the Indenture.
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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
FNANB CREDIT CARD MASTER
NOTE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:___________________________________
Name:
Title:
FIRST NORTH AMERICAN NATIONAL BANK,
as Administrator
By:___________________________________
Name:
Title:
Acknowledged and Accepted:
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By:____________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely as Owner Trustee
By:____________________________
Name:
Title:
11
EXHIBIT A
[Form of Power of Attorney]
POWER OF ATTORNEY
STATE OF [NEW YORK] )
)
COUNTY OF [ ] )
KNOW ALL MEN BY THESE PRESENTS, that FNANB Credit Card Master Note
Trust, a Delaware business trust ("Trust"), does hereby make, constitute and
appoint First North American National Bank, 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, without limitation, 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 [ ], 2002, between the Trust and First North American
National Bank, 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 ____ day of _________, 2002.
FNANB CREDIT CARD MASTER NOTE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:___________________________________
Name:
Title: