Exhibit 4.5
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ADMINISTRATION AGREEMENT
between
FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST
Issuer,
and
FIRST CONSUMERS NATIONAL BANK
Administrator
Dated as of March 1, 2001
TABLE OF CONTENTS
1. Duties of Administrator........................................... 2
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........................................................... 8
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 FCNB in Other Capacities........................ 10
18. Limitation of Liability of Owner Trustee.......................... 10
19. Third-Party Beneficiary........................................... 11
20. Nonpetition Covenants............................................. 11
21. Successor Administrator........................................... 11
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ADMINISTRATION AGREEMENT, dated as of March 1, 2001 (the "Administration
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Agreement"), between FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST, a common law
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trust organized and existing under the laws of the State of Illinois (the
"Issuer"), and FIRST CONSUMERS NATIONAL BANK, a national banking association, as
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administrator (the "Administrator").
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W I T N E S S E T H :
WHEREAS, the Issuer has entered into a Master Indenture, dated as of March
1, 2001 (the "Indenture"), between the Issuer and The Bank of New York, as
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indenture trustee (the "Indenture Trustee"), to provide for the issuance of its
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asset backed notes (the "Notes") from time to time pursuant to one or more
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indenture supplements. Capitalized terms used herein and not defined herein
shall have the meanings assigned to such terms in Annex A to the Indenture;
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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
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Agreements");
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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.
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(a) Duties with Respect to the Related Agreements. The Administrator shall
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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 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
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2.3, 2.5, 2.6, 2.12(c) or 2.15);
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(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);
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(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);
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(iv) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release of
collateral (Section 8.8);
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(v) the duty to cause the Issuer to maintain an office or agency
within 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);
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(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 Permitted
Investments (Section 3.3);
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(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 3.3);
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(viii) the direction to Paying Agents to pay to the Indenture Trustee
all sums held in trust by such Paying Agents (Section 3.3);
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(ix) the duty to cause the Issuer to keep in full force its
existence, rights and franchises as an Illinois 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);
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(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 3.5);
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(xi) 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);
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(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 3.7(b));
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(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 3.7(d));
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(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 3.9);
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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);
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(xvi) the delivery of notice to the Indenture Trustee and the Rating
Agencies of (1) each Event of Default and (2) each default by the Servicer
or Seller under the Transfer and Servicing Agreement;
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(xvii) 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);
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(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 5.5);
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(xix) 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));
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(xx) the removal of the Indenture Trustee, if necessary and in
compliance with the Indenture, and the appointment of a successor (Section
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6.8);
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(xxi) the preparation of various reports to be filed with the
Indenture Trustee and the Commission, as applicable (Section 7.3);
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(xxii) notifying the Indenture Trustee if and when the Notes are
listed on any stock exchange (Section 7.4);
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(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 (Section 8.9);
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(xxiv) 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
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3.7(f), 10.1, 10.2 and 10.3);
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(xxv) the execution of new Notes conforming to any supplemental
indenture (Section 10.6);
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(xxvi) 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));
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(xxvii) the preparation and delivery of Officers' Certificates and
the obtaining of Independent Certificates, if necessary, in connection with
the deposit of any Collateral or other property or securities with 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));
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(xxviii) 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
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(xxix) compliance with the provisions of the Transfer and Servicing
Agreement, Indenture Supplement and Trust Agreement applicable to the
Issuer.
(b) Additional Duties.
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(i) In addition to the duties of the Administrator set forth
above, but subject to Sections 1(c)(ii) and 5, the Administrator shall
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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 holder of
the Seller 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)
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and 5 of this Agreement, and in accordance with the directions of the
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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
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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,
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
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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,
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appointing the
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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.
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(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 Seller of the proposed action and
Seller 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 own funds to the Noteholders, the Owner 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
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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
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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 Seller at any time during
normal business hours.
3. Compensation. As compensation for the performance of the
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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. Seller 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).
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4. Additional Information to be Furnished to Issuer. The Administrator
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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
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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)
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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
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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.
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(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);
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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 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
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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
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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.
9. Action upon Termination, Resignation or Removal. Promptly upon the
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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 Seller 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.
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10. Notices. Any notice, report or other communication given hereunder
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shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to Bankers Trust Company, Four
Albany Street, 10/th/ Floor, New York, New York 10006, Attn: Corporate Trust and
Agency Services, with a copy to the Administrator;
(b) if to the Administrator or the Seller to First Consumers National
Bank, 9300 S.W. Gemini Drive, Beaverton, Oregon 97008, Attn: President; and
(c) if to the Indenture Trustee, to The Bank of New York, 2 North LaSalle
Street, Suite 1020, Chicago, Illinois 60602, Attn: Account Manager.
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, Seller, the Administrator or the Issuer are effective only
upon receipt.
11. Amendments. This Agreement may be amended from time to time, by a
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written amendment duly executed and delivered by the Issuer and the
Administrator, with the written consent of the Owner Trustee (as such and in its
individual capacity), without the consent of any of the Noteholders, Seller 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 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 Owner.
This Agreement may also be amended from time to time, by a written
amendment duly executed and delivered by the Issuer and the Administrator, with
the written consent of the Owner Trustee (as such and in its individual
capacity), the holders of Notes evidencing not less than 66 2/3% of the
Outstanding Amount of the Notes, Seller 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.
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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
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Administrator unless such assignment is previously consented to in writing by
the Issuer, Seller 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, Seller,
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, Seller 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
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THE LAWS OF THE STATE OF ILLINOIS, 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
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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
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which when so executed shall together constitute but one and the same agreement.
16. Severability. Any provision of this Agreement that is prohibited or
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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 FCNB in Other Capacities. Nothing in this Agreement
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shall affect any obligation FCNB may have in any other capacity, other than as
Administrator.
18. Limitation of Liability of Owner Trustee. Notwithstanding anything
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contained herein to the contrary, this instrument has been signed by Bankers
Trust Company not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer and in no event shall Bankers Trust
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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
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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
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Agreement, the Administrator shall not at any time with respect to the Issuer or
First Consumers Master Trust acquiesce, petition or otherwise invoke or cause
the Issuer or First Consumers Master Trust to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Issuer or First Consumers Master Trust 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 First Consumers Master Trust or any substantial part of their
respective properties, or ordering the winding up or liquidation of the affairs
of the Issuer or First Consumers Master Trust; provided, however, that this
Section 20 shall not operate to preclude any remedy described in Article V of
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the Indenture.
21. Successor Administrator. In the event of a servicing transfer
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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.
FIRST CONSUMERS CREDIT CARD MASTER
NOTE TRUST
By: BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Eileen M. Hughes
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Name: Eileen M. Hughes
Title: Vice President
FIRST CONSUMERS NATIONAL BANK,
as Administrator
By: /s/ John R. Steele
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Name: John R. Steele
Title: Treasurer
Acknowledged and Accepted:
FIRST CONSUMERS NATIONAL BANK,
as Seller
By: /s/ John R. Steele
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Name: John R. Steele
Title: Treasurer
First Consumers Credit Card Master Note Trust
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Administration Agreement Signature Page
EXHIBIT A
[Form of Power of Attorney]
POWER OF ATTORNEY
STATE OF ILLINOIS )
)
COUNTY OF COOK )
KNOW ALL MEN BY THESE PRESENTS, that First Consumers Credit Card Master
Note Trust, a Illinois trust ("Trust"), does hereby make, constitute and appoint
First Consumers 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 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 March 1, 2001, between the Trust and
First Consumers 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 _________, 2001.
FIRST CONSUMERS CREDIT CARD MASTER NOTE
TRUST
By: BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:_________________________________
Name:
Title: