Exhibit 10.2
EXECUTION COPY
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ADMINISTRATION AGREEMENT
between
NORDSTROM PRIVATE LABEL CREDIT CARD MASTER NOTE TRUST,
as Issuer,
and
NORDSTROM fsb,
as Administrator
Dated as of October 1, 2001
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TABLE OF CONTENTS
Page
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Section 1.01 Capitalized Terms; Interpretive Provisions.................. 1
Section 1.02 Duties of Administrator..................................... 2
Section 1.03 Records..................................................... 6
Section 1.04 Compensation................................................ 6
Section 1.05 Additional Information to be Furnished to Issuer............ 7
Section 1.06 Independence of Administrator............................... 7
Section 1.07 No Joint Venture............................................ 7
Section 1.08 Other Activities of Administrator........................... 7
Section 1.09 Term of Agreement; Resignation and
Removal of Administrator.................................... 7
Section 1.10 Action upon Termination, Resignation or Removal............. 8
Section 1.11 Notices..................................................... 8
Section 1.12 Amendments.................................................. 9
Section 1.13 Successors and Assigns...................................... 10
Section 1.14 GOVERNING LAW............................................... 10
Section 1.15 Effect of Headings and Table of Contents.................... 11
Section 1.16 Counterparts................................................ 11
Section 1.17 Severability of Provisions.................................. 11
Section 1.18 Not Applicable to Nordstrom fsb in Other Capacities......... 11
Section 1.19 Limitation of Liability of Owner Trustee.................... 11
Section 1.20 Third-Party Beneficiary..................................... 11
Section 1.21 Nonpetition Covenant........................................ 11
Section 1.22 Successor Administrator..................................... 11
Exhibit A Power Of Attorney.............................................. A-1
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ADMINISTRATION AGREEMENT
This Administration Agreement, dated as of October 1, 2001 (the
"Agreement"), is between Nordstrom Private Label Credit Card Master Note Trust,
a Delaware business trust (the "Issuer"), and Nordstrom fsb, a federal savings
bank, as administrator (the "Administrator").
WHEREAS, the Issuer has entered into a master indenture, dated as of
October 1, 2001 (the "Indenture"), between the Issuer and ▇▇▇▇▇ Fargo Bank West,
National Association, a national banking association, as 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 (the "Indenture
Supplements");
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 Indenture; (ii)
the Indenture Supplements; (iii) a transfer and servicing agreement, dated as of
October 1, 2001 (the "Transfer and Servicing Agreement"), among Nordstrom
Private Label Receivables LLC, as transferor (the "Transferor"), Nordstrom fsb,
as servicer (the "Servicer"), and the Issuer and (iv) an amended and restated
trust agreement, dated as of October 1, 2001 (the "Trust Agreement" and,
together with the Indenture, the related Indenture Supplement and the Transfer
and Servicing Agreement, the "Related Agreements"), between the Transferor, as
transferor, and Wilmington Trust Company, as trustee (the "Owner Trustee");
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 therefor pledged pursuant to the Indenture (the "Collateral")
and (b) the beneficial ownership interest in the Issuer (the holder of such
interest being referred to herein as the "Owner");
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:
Section 1.01 Capitalized Terms; Interpretive Provisions.
(a) Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto or incorporated by reference in the Trust
Agreement, the Transfer and Servicing Agreement or the Indenture, as the case
may be. Whenever used herein, unless the context otherwise requires, the
following words and phrases shall have the following meanings:
"Agreement" has the meaning set forth in the Preamble.
"Indenture" has the meaning set forth in the Preamble.
"Related Agreements" has the meaning set forth in the Preamble.
"Transfer and Servicing Agreement" has the meaning set forth in the
Preamble.
"Trust Agreement" has the meaning set forth in the Preamble.
(b) For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (i) terms used in this
Agreement include, as appropriate, all genders and the plural as well as the
singular, (ii) references to this Agreement include all Exhibits hereto, (iii)
references to words such as "herein", "hereof" and the like shall refer to this
Agreement as a whole and not to any particular part, Article or Section within
this Agreement, (iv) the term "include" and all variations thereof shall mean
"include without limitation", (v) the term "or" shall include "and/or" and (vi)
the term "proceeds" shall have the meaning ascribed to such term in the UCC.
Section 1.02 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 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 shall be the duty of the
Issuer or the Owner Trustee to prepare, file or deliver pursuant to any Related
Agreement. In addition to the foregoing, the Administrator shall take all
appropriate action that 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
2.03, 2.05, 2.06, 2.12(c) or 2.15);
(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 2.05);
(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
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Agent, respectively, or as otherwise specified in the Indenture (Sections
2.09(a) and 7.01);
(iv) the preparation, obtaining or filing of the instruments, opinions
and certificates and other documents required for the release of collateral
(Section 2.11);
(v) the duty to cause the Issuer to maintain an office or agency
within the Borough of Manhattan, City 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 3.02);
(vi) 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 3.03);
(vii) 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 3.03);
(viii) the direction to Paying Agents to pay to the Indenture Trustee
all sums held in trust by such Paying Agents (Section 3.03);
(ix) 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 3.04);
(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 the Series Issuance
Date and the annual delivery of Opinions of Counsel as to the Collateral,
and the annual delivery of the Officer's Certificate (Section 3.06);
(xii) 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 3.07(b));
(xiii) 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, being taken in connection with
such default (Section 3.07(d));
(xiv) 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 3.09);
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(xv) 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);
(xvi) the delivery of notice to the Indenture Trustee and each Rating
Agency of (1) each Event of Default, (2) each default by the Servicer or
the Transferor under the Transfer and Servicing Agreement, (3) each default
by a Seller under a Receivables Purchase Agreement and (4) any action taken
by the Indenture Trustee pursuant to the Indenture (Section 3.19);
(xvii) the monitoring of the 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 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 5.05);
(xix) the preparation and deliveryof an Officer's Certificate to be
delivered to the Indenture Trustee and the deliverance of such Officer's
Certificate to the Noteholders (Section 6.03(b));
(xx) the removal of the Indenture Trustee, if necessary and in
compliance with the Indenture, and the appointment of a successor (Section
6.08);
(xxi) the preparation and deliveryof various reports to be filed with
the Indenture Trustee and the Commission, as applicable (Section 7.03);
(xxii) notifying the Indenture Trustee if and when the Notes are
listed on any stock exchange (Section 7.04);
(xxiii) the preparation 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 8.09 and 8.10);
(xxiv) the preparation and deliveryof 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) in connection with a Defeasance, compliance with the provisions
of Section 11.04 of the Indenture (Section 11.04);
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(xxvii) 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 12.01(a));
(xxviii) 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 12.01(b));
(xxix) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions (Section 12.06); and
(xxx) compliance with the provisions of the Transfer and Servicing
Agreement, Indenture Supplement and 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 1.02(c)(ii) and 1.06, 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 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 holders of
the Notes and the Transferor Certificates and at the request of the Issuer
shall take all appropriate action that is the duty of the Issuer or the
Owner Trustee to take pursuant to the Related Agreements. Subject to
Sections 1.02(c)(ii) and 1.06 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.
(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 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. In furtherance
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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 non-ministerial, the Administrator shall not take any
action unless within a reasonable time before the taking of such action,
the Administrator shall have notified the Transferor of the proposed action
and the 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 each successor Transfer Agent and
Registrars, each successor Paying Agents and each successor Indenture
Trustees pursuant to the Indenture or the appointment of successor
Administrators, or the consent to the assignment by each of the
Transfer Agent and Registrar, Paying Agent or Indenture Trustee of its
obligations under the Indenture; and
(1) 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 own funds to the Noteholders, the Owner or any other
Person under the Related Agreements, (y) sell the Collateral pursuant to
Section 5.05 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.
Section 1.03 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 the Transferor at any time
during normal business hours.
Section 1.04 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
3.01(e) of the Transfer and Servicing
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Agreement. The Transferor shall be responsible for payment of the
Administrator's fees (to the extent not paid pursuant to Section 3.01(e) of the
Transfer and Servicing Agreement).
Section 1.05 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.
Section 1.06 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.
Section 1.07 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.
Section 1.08 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.
Section 1.09 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.
(b) Subject to Sections 1.09(e) and (f), the Administrator may resign its
duties hereunder by providing the Issuer with at least 60 days prior written
notice.
(c) Subject to Sections 1.09(e) and (f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60 days
prior written notice.
(d) Subject to Sections 1.09(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 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 the Issuer);
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(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 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 of the events specified in clause (ii)
or (iii) of this Section shall occur, it shall give written notice thereof to
the Issuer and the Indenture Trustee within seven days after the happening of
such event.
(e) No resignation or removal of the Administrator pursuant to this Section
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.
Section 1.10 Action upon Termination, Resignation or Removal. Promptly upon
the effective date of termination of this Agreement pursuant to Section 1.09(a)
or the resignation or removal of the Administrator pursuant to Sections 1.09(b),
(c) or (d), respectively, the Administrator shall be entitled to be paid all
fees and reimbursable expenses accruing to it pursuant to Section 1.04 of this
Agreement and Section 3.01(e) of the Transfer and Servicing Agreement to the
date of such termination, resignation or removal. The Administrator shall
forthwith upon such termination pursuant to Section 1.09(a) deliver to the
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 1.09(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.
Section 1.11 Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
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If to the Issuer or the Owner Trustee, to
Nordstrom Private Label Credit Card Master Note Trust
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
(facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇)
If to the Administrator, to
Nordstrom fsb
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇)
If to the Indenture Trustee, to
▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇▇ Fargo Corporate Trust
Asset Backed Securities
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇)
If to the Transferor, to
Nordstrom Private Label Receivables LLC
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇)
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 each such party as provided above, except that notices to the
Indenture Trustee, the Transferor, the Administrator or the Issuer are effective
only upon receipt.
Section 1.12 Amendments. This Agreement may be amended from time to time,
by a written amendment duly executed and delivered by the Issuer, the
Administrator and the 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 Owner, 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 Owner; provided,
however, that (i) 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
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any Noteholder or the Owner and (ii) the Rating Agency Condition will have been
satisfied with respect to such amendment.
This Agreement may also be amended from time to time, by a written
amendment duly executed and delivered by the Issuer, the Administrator and the
Transferor, with the written consent of the Owner Trustee (as such and in its
individual capacity), the Noteholders evidencing not less than a majority in the
Outstanding Amount of the Notes and the Owner, 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
Owner; 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 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 1.13 Successors and Assigns. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in writing
by the Issuer, the 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,
upon notice to the Rating Agencies, this Agreement may be assigned by the
Administrator without the consent of the Issuer, the 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,
the 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.
Section 1.14 GOVERNING LAW. THIS AGREEMENT AND EACH NOTE SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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Section 1.15 Effect of Headings and Table of Contents. The headings herein
and Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 1.16 Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall together constitute but one and the same
agreement.
Section 1.17 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement 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 and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Section 1.18 Not Applicable to Nordstrom fsb in Other Capacities. Nothing
in this Agreement shall affect any obligation Nordstrom fsb may have in any
other capacity, other than as Administrator.
Section 1.19 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.
Section 1.20 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.
Section 1.21 Nonpetition Covenant. Notwithstanding any prior termination of
this Agreement, the Administrator shall not at any time with respect to the
Issuer or the Transferor acquiesce, petition or otherwise invoke or cause the
Issuer or the Transferor to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Issuer
or the 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 or the
Transferor or any substantial part of its property or ordering the winding up or
liquidation of the affairs of the Issuer or the Transferor; provided, however,
that this Section shall not operate to preclude any remedy described in Article
Five of the Indenture.
Section 1.22 Successor Administrator. In the event of a servicing transfer
pursuant to Article Seven 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.
"Administrator" shall mean initially Nordstrom fsb and thereafter its permitted
successor and assigns as provided in Section 1.13 or any successor Administrator
as provided in this Section.
11
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
NORDSTROM PRIVATE LABEL CREDIT CARD
MASTER NOTE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NORDSTROM fsb,
as Administrator
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
Acknowledged and Accepted:
NORDSTROM PRIVATE LABEL
RECEIVABLES LLC,
as Transferor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
12
EXHIBIT A
Form of Power of Attorney
POWER OF ATTORNEY
STATE OF DELAWARE )
)
COUNTY OF ______________)
KNOW ALL MEN BY THESE PRESENTS, that Nordstrom Private Label Credit Card
Master Note Trust, a Delaware business trust (the "Trust"), does hereby make,
constitute and appoint Nordstrom fsb, 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 without limitation, 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 1, 2001, between the Trust and Nordstrom fsb, as
administrator (the "Administrator"), as 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 October, 2001.
NORDSTROM PRIVATE LABEL CREDIT CARD
MASTER NOTE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
------------------------------------
Name:
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Title:
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A-1