Exhibit 10.40
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NORDSTROM CREDIT CARD MASTER NOTE TRUST,
as Issuer,
and
NORDSTROM fsb,
as Administrator
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ADMINISTRATION AGREEMENT
Dated as of April 1, 2002
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TABLE OF CONTENTS
Page
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Section 1.01 Capitalized Terms; Interpretive Provisions................... 2
Section 1.02 Duties of Administrator...................................... 2
Section 1.03 Records...................................................... 7
Section 1.04 Compensation................................................. 7
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.. 8
Section 1.10 Action upon Termination, Resignation or Removal.............. 9
Section 1.11 Notices...................................................... 9
Section 1.12 Amendments................................................... 10
Section 1.13 Successors and Assigns....................................... 10
Section 1.14 GOVERNING LAW................................................ 11
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...................................... 12
EXHIBITS
Exhibit A - Form of Power of Attorney..................................... A-1
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ADMINISTRATION AGREEMENT
This Administration Agreement, dated as of April 1, 2002 (the
"Agreement"), is between Nordstrom Credit Card Master Note Trust, as issuer (the
"Issuer"), and Nordstrom fsb (the "Bank"), as administrator (in such capacity,
the "Administrator").
WHEREAS, the Issuer has entered into a master indenture, dated as of
April 1, 2002 (the "Master Indenture"), between the Issuer and Xxxxx Fargo Bank
Minnesota, National Association, as trustee (the "Indenture Trustee"), as
supplemented by the series 2002-1 indenture supplement, dated as of April 1,
2002 (the "Series 2002-1 Indenture Supplement", and together with the Master
Indenture, the "Indenture"), between the Issuer and the Indenture Trustee to
provide for the issuance of asset backed notes (the "Notes") from time to time
pursuant to one or more 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
Master Indenture; (ii) the Series 0000-0 Xxxxxxxxx Supplement; (iii) a transfer
and servicing agreement, dated as of April 1, 2002 (as amended, supplemented or
otherwise modified form time to time, the "Transfer and Servicing Agreement"),
among Nordstrom Credit Card Receivables LLC, as transferor (the "Transferor"),
the Bank, as servicer (in such capacity, the "Servicer"), the Indenture Trustee
and the Issuer and (iv) an amended and restated trust agreement, dated as of
April 1, 2002 (as amended, supplemented or otherwise modified form time to time,
the "Trust Agreement" and, together with the Master Indenture, the Series 2002-1
Indenture Supplement and the Transfer and Servicing Agreement, as each may be
amended, supplemented or otherwise modified form time to time, 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 (i) the Notes
and the collateral therefor pledged pursuant to the Indenture (the "Collateral")
and (ii) 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.
"Master Indenture" has the meaning set forth in the Preamble.
"Related Agreements" has the meaning set forth in the Preamble.
"Series 2002-1 Indenture Supplement" 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 Master 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,
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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 Agent,
respectively, or as otherwise specified in the Indenture (Sections
2.09(a), 2.10 and 7.01);
(iv) the preparation of an Issuer Request regarding
cancellation of any Notes. (Section 2.10);
(v) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of collateral (Section 2.11);
(vi) the duty to cause the Issuer to maintain an office or
agency within the City of Minneapolis, State of Minnesota (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);
(vii) 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);
(viii) 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);
(ix) the direction to Paying Agents to pay to the Indenture
Trustee all sums held in trust by such Paying Agents (Section 3.03);
(x) the duty to cause the Issuer to keep in full effect 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);
(xi) 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);
(xii) the obtaining of the Opinion of Counsel on the Series
Issuance Date and the annual delivery of Opinions of Counsel s to the
Collateral (Section 3.06);
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(xiii) 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));
(xiv) the duty to cause the Issuer to punctually perform and
observe all of the obligations and agreements contained in the
Indenture and the other Transaction Documents and in the instruments
and agreements relating to the Collateral, including filing or causing
to be filed all UCC financing Statements required to be filed by the
terms of the Indenture and the Transfer and Servicing Agreement in
accordance with and in the applicable time periods (Section 3.07(c));
(xv) 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));
(xvi) the delivery of any computer files or microfiche lists
of Accounts that the Issuer has received from the Transferor pursuant
to the Transfer and Servicing Agreement (Section 3.07(g));
(xvii) 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);
(xviii) 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);
(xix) 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 Section 5.05
of the Master Indenture (Section 3.19);
(xx) 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);
(xxi) 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);
(xxii) the preparation and delivery of 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));
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(xxiii) the removal of the Indenture Trustee, if necessary and
in compliance with the Indenture, and the appointment of a successor
(Section 6.08);
(xxiv) the preparation and delivery of various reports to be
filed with the Indenture Trustee and the Commission, as applicable
(Section 7.03);
(xxv) 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);
(xxvi) the preparation and delivery of Issuer Orders,
agreements, certificates, instruments, consents and other documents and
the obtaining of Opinions of Counsel with respect to the execution of
supplemental indentures (Sections 3.07(f), 10.01, 10.02 and 10.03);
(xxvii) the execution of new Notes conforming to any
supplemental indenture (Section 10.06);
(xxviii) in connection with a Defeasance, compliance with the
provisions of Section 11.04 of the Master Indenture (Section 11.04);
(xxix) 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));
(xxx) 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));
(xxxi) 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
(xxxii) 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
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the Related Agreements. Subject to Sections 1.02(c)(ii) and 1.06, 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 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 Registrar, each successor Paying Agent and each successor
Indenture Trustee pursuant to
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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
(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,
(A) make any payments from its own funds to the Noteholders, the Owner
or any other Person under the Related Agreements, (B) sell the
Collateral pursuant to Section 5.05 of the Master Indenture other than
pursuant to a written directive of the Indenture Trustee or (C) 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 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.
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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);
(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) above 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.
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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:
If to the Issuer or the Owner Trustee, to
Nordstrom Credit Card Master Note Trust
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
(facsimile no. (000) 000-0000)
If to the Administrator, to
Nordstrom fsb
0000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
(facsimile no. (000) 000-0000)
If to the Indenture Trustee, to
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Fargo Corporate Trust
Asset Backed Securities
000 Xxxxxxxxx Xxxxxx, XXX X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
(facsimile no. (000) 000-0000)
If to the Transferor, to
Nordstrom Credit Card Receivables LLC
00000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
(facsimile no. (000) 000-0000)
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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 personally delivered at, mailed by registered mail, return receipt requested,
or sent by facsimile transmission, as provided above.
Section 1.12. Amendments. This Agreement may be amended from time to
time, by a written amendment duly executed and delivered by the Issuer and the
Administrator, as acknowledged and accepted by 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
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 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 (i) 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 (ii) reduce the aforesaid portion of the Outstanding Amount of
the Notes of all Series, 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
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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.
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 covenants, agreements, provisions and terms 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, to the fullest extent permitted by law, 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
11
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 Master 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.
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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.
NORDSTROM CREDIT CARD MASTER NOTE TRUST,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice-President
NORDSTROM fsb,
as Administrator
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Acknowledged and Accepted:
NORDSTROM CREDIT CARD RECEIVABLES LLC,
as Transferor
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
EXHIBIT A
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Nordstrom 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, notices and opinions as it shall be the duty of the Trust to
prepare, file or deliver pursuant to the Related Agreements, 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 April 1, 2002, 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.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Administration Agreement.
EXECUTED this day of , 2002.
---- ------
NORDSTROM CREDIT CARD MASTER NOTE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
-----------------------------------
Name:
Title:
A-1
