EXHIBIT 10.1
[EXECUTION COPY]
INSTRUMENT OF RESIGNATION AND APPOINTMENT
INSTRUMENT OF RESIGNATION AND APPOINTMENT, dated as of
November 18, 2003 (this "Agreement"), among FIRST NORTH AMERICAN NATIONAL BANK,
a national banking association ("FNANB"), as Administrator, FNANB CREDIT CARD
MASTER NOTE TRUST, a statutory trust organized under the laws of the State of
Delaware, as Issuer (in such capacity, the "Issuer"), and FLEET BANK (RI),
NATIONAL ASSOCIATION, a national banking association ("Fleet").
PRELIMINARY STATEMENTS
WHEREAS, FNANB, as Administrator, and the Issuer are parties
to an Administration Agreement dated as of July 1, 2002 (the "Administration
Agreement");
WHEREAS, FNANB desires to resign as Administrator under the
Administration Agreement;
WHEREAS, Section 8 of the Administration Agreement permits
FNANB to resign as Administrator if, among other conditions, a successor
Administrator shall have been appointed by the Issuer and such successor
Administrator shall have agreed in writing to be bound by the terms of the
Administration Agreement; and
WHEREAS, the Issuer desires to appoint Fleet as successor
Administrator under the Administration Agreement and Fleet desires to accept
such appointment;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, each party agrees as follows:
Section 1. Definitions. All terms used in this Agreement that
are defined in the Administration Agreement have the meanings assigned to them
therein, except to the extent such terms are amended or modified in this
Agreement.
Section 2. Resignation of FNANB as Administrator. FNANB hereby
resigns as Administrator under the Administration Agreement. The Issuer hereby
waives its right to receive 60 days prior written notice of such resignation.
Section 3. Appointment of Fleet as Administrator. The Issuer
hereby appoints Fleet as successor Administrator under the Administration
Agreement. Fleet hereby accepts such appointment and agrees to be bound by the
terms of the Administration Agreement in the same manner as FNANB was bound
prior to its resignation as Administrator.
Section 4. Conditions to Effectiveness. The resignation of
FNANB as Administrator under the Administration Agreement and the appointment of
Fleet as successor
Administrator under the Administration Agreement shall become effective upon
satisfaction of the Rating Agency Condition with respect to such resignation and
appointment. On and after the date on which such resignation and appointment
become effective, FNANB shall be released from all of its duties and other
obligations as Administrator under the Administration Agreement. FNANB shall
cooperate with the Issuer and take all reasonable steps requested by the Issuer
to assist the Issuer in making an orderly transfer of the duties and other
obligations of the Administrator from FNANB to Fleet. FNANB hereby confirms that
it has been paid all fees and reimbursable expenses accruing to it as
Administrator as of the date of this Agreement.
Section 5. Power of Attorney. The Owner Trustee shall, on
behalf of the Issuer, execute and deliver to Fleet one or more powers of
attorney substantially in the form of Exhibit A hereto appointing Fleet (in its
capacity as successor Administrator) the attorney-in-fact of the Issuer for the
purpose of executing on behalf of the Issuer certain documents, reports,
filings, instruments, certificates and opinions as described therein. The Power
of Attorney dated July 19, 2002 executed by the Issuer in favor of FNANB is
hereby revoked effective as of the date of this Agreement.
Section 6. Counterparts. This Agreement may be executed in two
or more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
Section 7. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (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 8. Amendments. This Agreement may not be amended,
supplemented or otherwise modified, and the terms of this Agreement may not be
waived, except by a written instrument signed by all parties hereto.
Section 9. 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.
-2-
IN WITNESS WHEREOF, FNANB, Fleet and the Issuer have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
FIRST NORTH AMERICAN NATIONAL BANK,
as Administrator
By: /s/ Xxxxxx X. Xxxxxxx
______________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
FNANB CREDIT CARD MASTER NOTE TRUST,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee on
behalf of the Issuer
By: /s/ Xxxxxxxx X. Xxxxx
______________________________
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
FLEET BANK (RI), NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Acknowledged and Accepted:
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
___________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
FNANB Bankcard Portfolio Sale
Instrument of Resignation and Appointment
November 18, 2003
Exhibit A
Power of Attorney
[TO BE ATTACHED]
