EXHIBIT 4.8 - ADMINISTRATION AGREEMENT
[EXECUTION COPY]
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ADMINISTRATION AGREEMENT
Dated as of July 1, 2002
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FNANB CREDIT CARD MASTER NOTE TRUST
Issuer
and
FIRST NORTH AMERICAN NATIONAL BANK
Administrator
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FNANB CREDIT CARD MASTER NOTE TRUST
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TABLE OF CONTENTS
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PAGE
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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 ................................................... 6
Section 7. Other Activities of Administrator .................................. 6
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 ......................................................... 8
Section 12. Successors and Assigns ............................................. 9
Section 13. GOVERNING LAW ...................................................... 9
Section 14. Headings ........................................................... 10
Section 15. Counterparts ....................................................... 10
Section 16. Severability ....................................................... 10
Section 17. Not Applicable to First North American National Bank 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
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ADMINISTRATION AGREEMENT, dated as of July 1, 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
July 1, 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:
Section 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 the 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
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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, 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 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 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.
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(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 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.
Section 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 the Transferor at any
time during normal business hours.
Section 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. The 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. The Administrator shall have no recourse to the assets pledged under the
Indenture with respect to any amounts payable under this Section 3.
Section 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.
Section 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.
Section 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.
Section 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.
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Section 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.
(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
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(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 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 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 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.
Section 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 Administration, telecopy number (302)
▇▇▇-▇▇▇▇, 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 (770)
▇▇▇-▇▇▇▇;
(c) if to the Indenture Trustee, to JPMorgan Chase Bank, ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ITS Structured Finance,
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, the Transferor, the Administrator or the 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 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 Transferor, to cure any ambiguity, to correct or supplement
any provisions in this Agreement or for the purpose of adding any
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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
Transferor; provided, however, that (i) such amendment shall 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 and (ii) satisfaction of the Rating Agency Condition shall be
required in connection with any 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 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; and,
provided further, that satisfaction of the Rating Agency Condition shall be
required in connection with any such amendment.
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.
Section 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, 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,
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 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.
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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 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.
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 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 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.
Section 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 the Transferor, and the
Issuer shall not at any time with respect to FNANB Credit Card Master Trust or
the Transferor acquiesce, petition or otherwise invoke or cause the Issuer,
FNANB Credit Card Master Trust 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, FNANB Credit Card Master Trust 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, FNANB Credit Card Master Trust or the 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 the Transferor; provided, however, that this Section 20 shall not operate to
preclude any remedy described in Article V of the Indenture.
10
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.
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.
FNANB CREDIT CARD MASTER NOTE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Financial Services
Officer
FIRST NORTH AMERICAN NATIONAL BANK,
as Administrator
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
Acknowledged and Accepted:
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Financial Services Officer
12
EXHIBIT A
to
ADMINISTRATION AGREEMENT
FORM OF POWER OF ATTORNEY
COMMONWEALTH )
OF VIRGINIA
)
CITY OF RICHMOND )
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 July 1, 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 July, 2002.
FNANB CREDIT CARD MASTER NOTE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: _____________________________________
Name:
Title: