EXHIBIT 4.5
ADMINISTRATION AGREEMENT
between
SPIEGEL CREDIT CARD MASTER NOTE TRUST
Issuer,
and
FIRST CONSUMERS NATIONAL BANK
Administrator
Dated as of [ ], 2000
TABLE OF CONTENTS
1. Duties of Administrator............................................. 2
2. Records............................................................. 7
3. Compensation........................................................ 7
4. Additional Information to be Furnished to Issuer.................... 7
5. Independence of Administrator....................................... 7
6. No Joint Venture.................................................... 8
7. Other Activities of Administrator................................... 8
8. Term of Agreement; Resignation and Removal of Administrator......... 8
9. Action upon Termination, Resignation or Removal..................... 9
10. Notices............................................................. 9
11. Amendments.......................................................... 10
12. Successors and Assigns.............................................. 11
13. GOVERNING LAW....................................................... 11
14. Headings............................................................ 11
15. Counterparts........................................................ 11
16. Severability........................................................ 11
17. Not Applicable to FCNB in Other Capacities.......................... 12
18. Limitation of Liability of Owner Trustee............................ 12
19. Third-Party Beneficiary............................................. 12
20. Nonpetition Covenants............................................... 12
21. Successor Administrator............................................. 12
ADMINISTRATION AGREEMENT, dated as of [ ], 2000 (the "Administration
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Agreement"), between SPIEGEL CREDIT CARD MASTER NOTE TRUST, a common law trust
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organized and existing under the laws of the State of Illinois (the "Issuer"),
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and FIRST CONSUMERS NATIONAL BANK, a national banking association, as
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 [ ],
2000 (the "Indenture"), between the Issuer and [ ], as indenture trustee
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(the "Indenture Trustee") to provide for the issuance of its asset backed notes
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(the "Notes") from time to time pursuant to one or more indenture supplements;
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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) a Transfer and
Servicing Agreement, dated as of [ ], 2000 (the "Transfer and Servicing
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Agreement"), among Spiegel Credit Corporation III, as Seller, First Consumers
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National Bank, as Servicer, and the Issuer, (ii) a Trust Agreement, dated [ ],
2000 (the "Trust Agreement"), among the Seller, and [ ], as owner trustee, and
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(iii) the Indenture (the Transfer and Servicing Agreement, the Trust Agreement,
the Indenture and any related Indenture Supplement being hereinafter referred to
collectively as the "Related Agreements"). Capitalized terms used herein and not
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defined herein shall have the meanings assigned to such terms in Annex A to the
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Indenture;
WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (a) the Notes
and the collateral therefor pledged pursuant to the Indenture (the "Collateral")
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and (b) the beneficial ownership interest in the Issuer (the holder of such
interest being referred to herein as the "Owner");
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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 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 2.11);
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(v) the duty to cause the Issuer to maintain an office or agency
within Illinois (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 Eligible 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 the Series Issuance
Date and the annual delivery of Opinions of Counsel as to the Collateral,
and the annual delivery of the Officer's Certificate (Section 3.6);
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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
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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, (2) each default by the
Servicer or the Transferor under the Transfer and Servicing Agreement and
(3) each default by a Seller under a Receivables Purchase Agreement
(Section 3.19);
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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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(xvix) the preparation of an Officer's Certificate to be delivered
to the Indenture Trustee and the deliverance of such Officer's Certificate
to the Noteholders (Section 6.3(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 (Sections 8.9
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and 8.10);
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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) [in connection with a Defeasance, compliance with the
provisions of Section 11.04 of the Indenture (Section 11.4)];
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(xxvii) the preparation of all Officers' Certificates, Opinions of
Counsel and, if necessary, Independent Certificates with respect to any
requests by the Issuer to the Indenture Trustee to take any action under
the Indenture (Section 12.1(a));
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(xxviii) the preparation and delivery of Officers' Certificates and
the obtaining of Independent Certificates, if necessary, in connection with
the deposit of any Collateral or other property or securities with the
Indenture Trustee that is to be made the basis for the release of property
from the lien of the Indenture (Section 12.1(b));
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(xxvix) 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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(xxx) 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.
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(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,
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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) NonMinisterial 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 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,
"nonministerial 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;
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(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 account
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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.
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
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6.7 of the Transfer and Servicing Agreement. The Transferor shall be responsible
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for payment of the Administrator's fees (to the extent not paid pursuant to
Section 6.7 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.
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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
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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
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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,
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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 windingup or liquidation of its affairs; or
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(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official
for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial
part of its property, shall make any general assignment for the benefit of
creditors, shall admit in writing its inability to pay its debts generally
as they become due or shall fail generally to pay its debts as they become
due.
The Administrator agrees that if any of the events specified in clause
(ii) or (iii) of this Section 8(d) shall occur, it shall give written
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notice thereof to the Issuer and the Indenture Trustee within seven (7)
days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to this Section
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8 shall be effective until (i) a successor Administrator shall have been
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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
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resignation or removal of the Administrator pursuant to Sections 8(b), (c) or
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(d), respectively, the Administrator shall be entitled to be paid all fees and
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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
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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
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8(b), (c) or (d), respectively, the Administrator shall cooperate with the
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Issuer and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
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shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to [ ]
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(b) if to the Administrator, to [ ]
(c) if to the Indenture Trustee, to [ ]
(d) if to the Seller, to
Spiegel Credit Corporation III
[ ]
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 handdelivered 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.
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, 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, the
Transferor 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,
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however, that (i) such amendment will not, as evidenced by an Officer's
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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 and 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 in the Outstanding Amount of the Notes, the Transferor 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
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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
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each Rating Agency. Promptly after the execution of any such amendment or
consent, the Administrator shall furnish written notification of the substance
of such amendment or consent to the Indenture Trustee.
It shall not be necessary for the consent of Noteholders pursuant to this
Section 11 to approve the particular form of any proposed amendment or consent,
but it shall be sufficient if such consent shall approve the substance thereof.
12. Successors and Assigns. This Agreement may not be assigned by the
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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.
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
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of 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.
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17. Not Applicable to FCNB in Other Capacities. Nothing in this
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Agreement 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 [_____] not
in its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall [ ] 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 thirdparty
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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
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this Agreement, the Administrator shall not at any time with respect to the
Issuer or the Transferor acquiesce, petition or otherwise invoke or cause the
Issuer or the Transferor to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Issuer
or the Transferor under any Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Issuer or the
Transferor or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Issuer or the Transferor; provided,
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however, that this Section 20 shall not operate to preclude any remedy described
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in Article V of the Indenture.
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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
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under the Transfer and Servicing Agreement shall, upon the date of such
servicing transfer, become the successor Administrator hereunder.
"Administrator" shall mean initially FCNB and thereafter its permitted successor
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and assigns as provided in Section 12 or any successor Administrator as provided
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in this Section 21.
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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.
SPIEGEL CREDIT CARD MASTER
NOTE TRUST
By:
[__________________________],
not in its individual capacity
but solely as Owner Trustee
Name:
___________________________________
Title:
By:
FIRST CONSUMERS NATIONAL BANK,
as Administrator
Name:
___________________________________
Title:
Acknowledged and Accepted:
SPIEGEL CREDIT CORPORATION III,
as Seller
By:
Name: ___________________________________
Title:
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EXHIBIT A
[Form of Power of Attorney]
POWER OF ATTORNEY
STATE OF ILLINOIS )
)
COUNTY OF ____________)
KNOW ALL MEN BY THESE PRESENTS, that Spiegel Credit Card Master Note Trust,
a Illinois trust ("Trust"), does hereby make, constitute and appoint [ ], 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 [ ], 2000, between the Trust and [ ], 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 _________, 2000.
SPIEGEL CREDIT CARD MASTER
NOTE TRUST
By: [ ],
not in its individual capacity
but solely as Owner Trustee
Name: ______________________________
Title:
