EXHIBIT 4.5
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ADMINISTRATION AGREEMENT
Dated as of [ ], 2002
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FIRST NATIONAL MASTER NOTE TRUST,
as Issuer,
and
FIRST NATIONAL BANK OF OMAHA,
as Administrator
FIRST NATIONAL MASTER NOTE TRUST
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Table of Contents
Page
Section 1. Duties of Administrator...........................................1
Section 2. Records...........................................................6
Section 3. Compensation......................................................6
Section 4. Additional Information To Be Furnished to Issuer..................6
Section 5. Independence of Administrator.....................................6
Section 6. No Joint Venture..................................................7
Section 7. Other Activities of Administrator.................................7
Section 8. Term of Agreement; Resignation and Removal of Administrator.......7
Section 9. Action Upon Termination, Resignation or Removal...................8
Section 10. Notices...........................................................8
Section 11. Amendments........................................................9
Section 12. Successors and Assigns............................................9
Section 13. Governing Law....................................................10
Section 14. Headings.........................................................10
Section 15. Counterparts.....................................................10
Section 16. Severability.....................................................10
Section 17. Not Applicable to FNBO in Other Capacities.......................10
Section 18. Limitation of Liability of Owner Trustee.........................10
Section 19. Third-party Beneficiary..........................................10
Section 20. Nonpetition Covenants............................................10
Section 21. Successor Administrator..........................................11
EXHIBIT A FORM OF POWER OF ATTORNEY
ADMINISTRATION AGREEMENT
THIS
ADMINISTRATION AGREEMENT, dated as of [ ], 2002 (this
"Agreement"), between FIRST NATIONAL MASTER NOTE TRUST, a business trust
organized and existing under the laws of the State of Delaware ("Issuer"), and
FIRST NATIONAL BANK OF OMAHA, a national banking association, as administrator
("Administrator").
WITNESSETH:
WHEREAS, Issuer has entered into a Master Indenture, dated as of [ ],
2002 (the "Indenture"), between Issuer and The Bank of New York, as indenture
trustee ("Indenture Trustee"), to provide for the issuance of its asset backed
notes (the "Notes") from time to time pursuant to one or more indenture
supplements. Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in Annex A to the Indenture; and
WHEREAS, Issuer has entered into certain agreements in connection with
the issuance of the Notes, the issuance of the Transferor Interest 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 and the Indenture, and all Indenture
Supplements being hereinafter referred to collectively as the "Related
Agreements"); and
WHEREAS, pursuant to the Related Agreements, Issuer and Owner Trustee
are required to perform certain duties in connection with (a) the Notes and the
Collateral and (b) the Transferor Interest; and
WHEREAS, Issuer and Owner Trustee desire to have Administrator perform
certain of the duties of Issuer and 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 Issuer and Owner Trustee may from
time to time request; and
WHEREAS, Administrator has the capacity to provide the services
required hereby and is willing to perform such services for Issuer and Owner
Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
SECTION 1. DUTIES OF ADMINISTRATOR.
(a) DUTIES WITH RESPECT TO THE RELATED AGREEMENTS.
Administrator shall consult with Owner Trustee regarding the duties of
Issuer and Owner Trustee under the Related Agreements. Administrator
shall monitor the performance of Issuer and shall advise Owner Trustee
when action is necessary to comply with Issuer's or Owner Trustee's
duties under the Related Agreements. Administrator shall prepare for
execution by Issuer or 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 Issuer or Owner
Trustee to prepare, file or deliver pursuant to any Related Agreement.
In furtherance of the foregoing, Administrator shall take all
appropriate action that it is the duty of Issuer or 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 cancellation or execution,
authentication and delivery of the Notes (whether upon initial
issuance, transfer or exchange, or otherwise), if any, and
delivery of the same to Indenture Trustee (if applicable)
(Section 2.03, 2.05, 2.06, 2.11(c) or 2.14);
(ii) the duty to cause the Note Register to be kept,
to appoint a successor Transfer Agent and Registrar, if
necessary, and to give Indenture Trustee prompt 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 Indenture Trustee, Servicer,
any Noteholder or the Paying Agent with the names and
addresses of Noteholders after receipt of a written request
therefor from Indenture Trustee, Servicer, any Noteholder or
the Paying Agent, respectively, or as otherwise specified in
the Indenture (Sections 2.09(a) and 7.01);
(iv) the giving of directions (including Issuer
Orders) relating to the preparation, obtaining or filing of
the instruments, opinions and certificates and other documents
required for the release of collateral (Section 8.07);
(v) the duty to cause Issuer to maintain an office or
agency within [New York] (and as otherwise set forth in an
Indenture Supplement) and to give Indenture Trustee and the
Noteholders notice of the location, or change in location, of
such office or agency (Section 3.02);
(vi) the duty to direct 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 3.03);
(vii) the duty to cause newly appointed Paying
Agents, if any, to deliver to Indenture Trustee the instrument
specified in the Indenture regarding funds held in trust
(Section 3.03);
(viii) the direction to Paying Agents to pay to
Indenture Trustee all sums held in trust by such Paying Agents
(Section 3.03);
(ix) the duty to cause Issuer to keep in full force
its existence, rights and franchises as a Delaware business
trust and the obtaining and preservation of 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
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the Indenture, the Notes, the Collateral and each other
related instrument and agreement (Section 3.04);
(x) the preparation of all supplements, amendments,
financing statements, continuation statements, if any,
instruments of further assurance and other instruments
necessary to protect, maintain and enforce the Collateral
(Section 3.05);
(xi) the obtaining of the Opinion of Counsel on each
Closing Date and the annual delivery of an Opinion of Counsel
as to the Collateral (Section 3.06);
(xii) the identification to Indenture Trustee in an
Officer's Certificate of any Person (other than Administrator)
with whom Issuer has contracted to assist it in performing its
duties under the Indenture (Section 3.07(b));
(xiii) causing the delivery of notice by Indenture
Trustee to the Rating Agencies of the occurrence of any
Servicer Default of which Issuer has knowledge and the action,
if any, being taken in connection with such default (Section
3.07(d));
(xiv) the delivery to Indenture Trustee and the
Rating Agencies, within 120 days after the end of each fiscal
year of Issuer, of an Officer's Certificate with respect to
various matters relating to compliance with the Indenture
(Section 3.09);
(xv) the preparation and obtaining of documents,
certificates, opinions and instruments required in connection
with the consolidation or merger by Issuer with or into any
other Person or the sale of Issuer's assets substantially as
an entirety to any Person (Section 3.10);
(xvi) the delivery of notice to Indenture Trustee and
the Rating Agencies of (A) each Event of Default or Pay Out
Event, (B) each default by Servicer or Transferor under the
Transfer and Servicing Agreement and (C) each default by the
RPA Seller under the Receivables Purchase Agreement, together
with any required status report and action plan (Sections 3.17
and 5.02);
(xvii) the monitoring of 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 4.01);
(xviii) the compliance with any directive of
Indenture Trustee with respect to the sale of the Collateral
if an Event of Default shall have occurred and be continuing
and the Notes have been accelerated (Section 5.05);
(xix) the preparation of an Officer's Certificate to
be delivered to Indenture Trustee and the delivery of such
Officer's Certificate to the Noteholders (Section 6.03(b));
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(xx) the removal of Indenture Trustee, if necessary
and in compliance with the Indenture, and the appointment of a
successor, and notifying the Rating Agencies of same (Section
6.08);
(xxi) the preparation of various reports to be filed
with Indenture Trustee and the Commission, as applicable
(Section 7.03);
(xxii) notifying Indenture Trustee if and when the
Notes are listed (or delisted) on any stock exchange (Section
7.04);
(xxiii) the preparation of an Issuer Order and
Officer's Certificate and the obtaining of an Opinion of
Counsel and Independent Certificates, if necessary, for the
release of the Collateral (Sections 8.07 and 8.08);
(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 3.07(f), 10.01,
10.02 and 10.03);
(xxv) the execution of new Notes conforming to any
supplemental indenture (Section 10.06);
(xxvi) the preparation of all Officers' Certificates,
Opinions of Counsel and, if necessary, Independent
Certificates with respect to any requests by Issuer to
Indenture Trustee to take any action under the Indenture
(Section 12.01(a));
(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 Indenture Trustee that is to
be made the basis for the release of property from the lien of
the Indenture (Section 12.01(b));
(xxviii) the preparation and delivery to Noteholders
and Indenture Trustee of any agreements with respect to
alternate payment and notice provisions (Section 12.06); and
(xxix) compliance with the provisions of the Transfer
and Servicing Agreement, each Indenture Supplement and the
Trust Agreement applicable to Issuer.
(b) ADDITIONAL DUTIES.
(i) In addition to the duties of Administrator set
forth above, but subject to Sections 1(c)(ii) and 5 of this
Agreement, Administrator shall perform all duties and
obligations of Issuer under the Related Agreements, and shall
perform such calculations and shall prepare for execution by
Issuer, or 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 Issuer or
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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 Transferor Interest, and at the
request of Issuer shall take all appropriate action that it is
the duty of Issuer or Owner Trustee to take pursuant to the
Related Agreements. Subject to Sections 1(c)(ii) and 5 of this
Agreement, and in accordance with the directions of Issuer,
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 Owner Trustee and are reasonably within
the capability of Administrator.
(ii) Administrator shall perform any duties expressly
required to be performed by Administrator under the Trust
Agreement, including the preparation of tax returns pursuant
to Section 5.07 of the Trust Agreement.
(iii) In carrying out the foregoing duties or any of
its other obligations under this Agreement, 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 Issuer and shall be, in
Administrator's opinion, no less favorable to Issuer than
would be available from unaffiliated parties.
(iv) It is the intention of the parties hereto that
Administrator shall, and Administrator hereby agrees to, (A)
prepare, file and deliver on behalf of Issuer all such
documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of Issuer to prepare, file or
deliver pursuant to the Related Agreements, including any
filings, reports, notices, applications and registrations with
the Commission, and (B) seek any consents or authorizations
from the Commission and any state authority on behalf of
Issuer, in each case as may be necessary or advisable to
comply with any federal or state securities or reporting
requirements laws and to the extent not provided by Servicer
in accordance with Section 3.01(a) of the Pooling and
Servicing Agreement and Section 3.11 of the Transfer and
Servicing Agreement. In furtherance thereof, Owner Trustee
shall, on behalf of Issuer, execute and deliver to
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 Administrator the attorney-in-fact of
Issuer for the purpose of executing on behalf of Issuer all
such documents, reports, filings, instruments, certificates
and opinions.
(c) NONMINISTERIAL MATTERS.
(i) With respect to matters that in the reasonable
judgment of Administrator are nonministerial, Administrator
shall not take any action unless within a reasonable time
before the taking of such action, Administrator shall have
notified Issuer of the proposed action and Issuer shall not
have withheld
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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 Issuer and the compromise of any action, claim or
lawsuit brought by or against 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 Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, Administrator shall not be obligated to, and shall
not, (A) make any payments from its own funds to the
Noteholders, the Holders of the Transferor Interest or any
other Person under the Related Agreements, (B) sell the
Receivables (or interests therein) pursuant to Section 5.05 of
the Indenture other than pursuant to a written directive of
Indenture Trustee or (C) take any other action that Issuer
directs Administrator not to take on its behalf.
SECTION 2. RECORDS. 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 Issuer, Owner Trustee,
Indenture Trustee, Servicer and Transferor at any time during normal business
hours.
SECTION 3. COMPENSATION. As compensation for the performance of
Administrator's obligations under this Agreement, 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. Transferor shall be responsible
for payment of Administrator's fees (to the extent not paid pursuant to Section
3.01(e) of the Transfer and Servicing Agreement).
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO ISSUER.
Administrator shall furnish to Issuer from time to time such additional
information regarding the Collateral as Issuer shall reasonably request.
SECTION 5. INDEPENDENCE OF ADMINISTRATOR. For all purposes of this
Agreement, Administrator shall be an independent contractor and shall not be
subject to the supervision of Issuer or Owner Trustee with respect to the manner
in which it accomplishes the performance of
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its obligations hereunder. Unless expressly authorized by Issuer, Administrator
shall have no authority to act for or represent Issuer or Owner Trustee in any
way and shall not otherwise be deemed an agent of Issuer or Owner Trustee.
SECTION 6. NO JOINT VENTURE. Nothing contained in this Agreement shall
(i) constitute Administrator and either of Issuer or Owner Trustee as members of
any partnership, joint venture, association, syndicate, unincorporated business
or other separate entity, (ii) be construed to impose any liability as such on
any of them or (iii) be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall
prevent 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 Issuer, Owner Trustee or Indenture
Trustee.
SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
(a) This Agreement shall continue in force until the
termination of Issuer, upon which event this Agreement shall
automatically terminate.
(b) Subject to Section 8(e) below, Administrator may resign
its duties hereunder by providing Issuer with at least 60 days' prior
written notice.
(c) Subject to Section 8(e) below, Issuer may remove
Administrator without cause by providing Administrator with at least 60
days' prior written notice.
(d) Subject to Section 8(e) below, at the sole option of
Issuer, Administrator may be removed immediately upon written notice of
termination from Issuer to Administrator if any of the following events
shall occur:
(i) 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 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 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 Administrator or any substantial part of its property or
order the winding up or liquidation of its affairs; or
(iii) 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
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such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or
similar official for 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.
Administrator agrees that if any event specified in
clause (ii) or (iii) of this Section 8(d) shall occur, it
shall give written notice thereof to Issuer and Indenture
Trustee within seven 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), Issuer shall give
prompt written notice thereof to the Rating Agencies.
(e) No resignation or removal of Administrator pursuant to
this Section 8 shall be effective until (i) a successor Administrator
shall have been appointed by Issuer, (ii) such successor Administrator
shall have agreed in writing to be bound by the terms of this Agreement
in the same manner as Administrator is bound hereunder; and (iii) the
Rating Agency Condition shall have been satisfied with respect to the
proposed appointment of the successor Administrator.
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly
upon the effective date of termination of this Agreement pursuant to Section
8(a) or the resignation or removal of Administrator pursuant to Section 8(b),
(c) or (d), respectively, Administrator shall be entitled to be paid all fees
and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. Administrator shall forthwith upon such termination
pursuant to Section 8(a) deliver to Transferor all property and documents of or
relating to the Collateral then in the custody of Administrator. In the event of
the resignation or removal of Administrator pursuant to Section 8(b), (c) or
(d), respectively, Administrator shall cooperate with Issuer and take all
reasonable steps requested to assist Issuer in making an orderly transfer of the
duties of Administrator.
SECTION 10. NOTICES. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to Issuer or Owner Trustee, to the Corporate Trust
Office of Owner Trustee, with a copy to Administrator;
(b) if to Administrator, to First National Bank of Omaha, 0000
Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention: President;
(c) if to Indenture Trustee, to The Bank of New York, Suite
1020, 0 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Structured Finance Services;
(d) if to Transferor, to First National Funding LLC, 0000
Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention: President;
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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 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 Indenture
Trustee, Transferor, Administrator or Issuer are effective only upon receipt.
SECTION 11. AMENDMENTS. This Agreement may be amended from time to
time, by a written amendment duly executed and delivered by Issuer and
Administrator, with the written consent of Owner Trustee (as such and in its
individual capacity), without the consent of any of the Noteholders, the Holders
of the Transferor Interest or the Transferor 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 the
Holders of the Transferor Interest in a manner not inconsistent with the
provisions of this Agreement and the other Transaction Documents; provided,
however, that such amendment will not, as evidenced by an Officer's Certificate
of Administrator addressed and delivered to Owner Trustee, materially and
adversely affect the interests of any Noteholder or the Holders of the
Transferor Interest.
This Agreement may also be amended from time to time, by a written
amendment duly executed and delivered by Issuer and Administrator, with the
written consent of Owner Trustee (as such and in its individual capacity), the
Holders of Notes evidencing not less than 662/3% of the Outstanding Amount of
the Notes and Transferor, 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 Holders of the
Transferor Interest under this Agreement; 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, 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, Administrator shall furnish written notification of the substance of
such amendment or consent to Indenture Trustee.
It shall not be necessary for the consent of Noteholders pursuant to
this Section 11 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof.
SECTION 12. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned
by Administrator unless such assignment is previously consented to in writing by
Issuer, Transferor and 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 Administrator
is bound hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by Administrator without the consent of Issuer, Transferor, Owner
Trustee or the
9
Rating Agencies to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to Administrator, provided that
such successor organization executes and delivers to Issuer, Transferor and
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 Administrator is bound hereunder. Subject to the foregoing, this Agreement
shall bind any successors or assigns of the parties hereto.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEBRASKA, 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.
SECTION 14. HEADINGS. The section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
SECTION 15. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute but one
and the same agreement.
SECTION 16. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 17. NOT APPLICABLE TO FNBO IN OTHER CAPACITIES. Nothing in this
Agreement shall affect any obligation FNBO may have in any other capacity, other
than as Administrator.
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE. Notwithstanding
anything contained herein to the contrary, this instrument has been signed by
Wilmington Trust Company not in its individual capacity but solely in its
capacity as Owner Trustee of Issuer and in no event shall Wilmington Trust
Company in its individual capacity or any beneficial owner of Issuer have any
liability for the representations, warranties, covenants, agreements or other
obligations of Issuer hereunder, as to all of which recourse shall be had solely
to the assets of Issuer. For all purposes of this Agreement, in the performance
of any duties or obligations hereunder, Owner Trustee (as such or in its
individual capacity) shall be subject to, and entitled to the benefits of, the
terms and provisions of the Trust Agreement.
SECTION 19. THIRD-PARTY BENEFICIARY. Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
SECTION 20. NONPETITION COVENANTS. Notwithstanding any prior
termination of this Agreement, neither Owner Trustee nor Administrator shall at
any time institute against Issuer, Transferor or Certificate Trust, or solicit
or join or cooperate with or encourage any institution against Issuer,
Transferor or Certificate Trust of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States federal or state
bankruptcy or
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similar law in connection with any obligations relating to the Notes, this
Administration Agreement or any of the other Transaction Documents; provided,
however, that this Section 20 shall not operate to preclude any remedy described
in Article V of the Indenture.
SECTION 21. SUCCESSOR ADMINISTRATOR. In the event of a servicing
transfer pursuant to Article VII of the Transfer and Servicing Agreement, the
successor servicer under the Transfer and Servicing Agreement shall, upon the
date of such servicing transfer, become the successor Administrator hereunder.
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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 NATIONAL MASTER NOTE TRUST
By WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By
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Name
--------------------------------------------
Title
-------------------------------------------
FIRST NATIONAL BANK OF OMAHA, as
Administrator
By
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Name
--------------------------------------------
Title
-------------------------------------------
Acknowledged and accepted:
FIRST NATIONAL FUNDING LLC,
as Transferor
By First National Funding Corporation,
its Managing Member
By
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Name
------------------------------------
Title
-----------------------------------
ADMINISTRATION AGREEMENT SIGNATURE PAGE
EXHIBIT A
[FORM OF POWER OF ATTORNEY]
STATE OF DELAWARE )
)
COUNTY OF NEWCASTLE )
KNOW ALL MEN BY THESE PRESENTS, that First National Master Note Trust,
a Delaware business trust ("Trust"), does hereby make, constitute and appoint
First National Bank of Omaha, 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 [ ], 2002, between the Trust and First
National Bank of Omaha, 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 ________________________________, 2002.
FIRST NATIONAL MASTER NOTE TRUST
By WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By
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