EXHIBIT 10.2
CCR&W Draft - 7/23/02
THIS ADMINISTRATION AGREEMENT, dated as of August __, 2002 (the "Administration
Agreement"), is hereby entered into between Comcertz ABS Corporation, a Delaware
corporation (the "Company"), and Commerzbank Capital Markets Corp. ("CCMC").
W I T N E S S E T H:
WHEREAS, the Company is a special purpose corporation formed for the
purpose of serving as the depositor (in such capacity, the "Depositor") of one
or more trusts (each, a "Trust") pursuant to one or more trust agreements (each,
a "Trust Agreement") entered into by the Depositor and a trustee (each, a
"Trustee"); WHEREAS, each Trust will issue trust certificates (the
"Certificates") and/or other securities (together with the Certificates, the
"Trust Securities") and apply the net proceeds of such issuance to acquire
certain assets ("Deposited Assets") from the Depositor;
WHEREAS, the Company is appointing CCMC to act as administrative agent for
the Company (in such capacity, the "Administrative Agent") and, in connection
therewith, has requested the Administrative Agent, and the Administrative Agent
has agreed, in its capacity as Administrative Agent, to manage certain
operations of the Company in accordance with (i) each of the Trust Agreements,
(ii) each underwriting agreement entered into by the Company, (iii) each
registration statement (as may be amended or supplemented from time to time) and
all other documents filed by the Company with the Securities and Exchange
Commission (the "SEC") and (iv) all other agreements and documents that are
signed by or on behalf of the Company and/or filed with a governmental agency by
or on behalf of the Company (all agreements and documents specified in clauses
(i) through (iv), the "Depositor Documents"), subject to the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties hereinafter set forth or incorporated herein, the
Company and the Administrative Agent hereby agree as follows:
Section 1. Appointment and Authority of Administrative Agent. The Company
hereby appoints the Administrative Agent as the Company's agent to provide
administrative and advisory services to the Company with respect to the
operations of the Company in connection with or relating to the Depositor
Documents and the transactions contemplated thereby, subject to the terms and
conditions hereinafter set forth, and to perform certain other services on
behalf of the Company that are specified below. All such duties and services to
be performed by the Administrative Agent shall be performed in a manner
consistent with the terms and provisions of the Depositor Documents. The
Administrative Agent hereby accepts such appointment.
Section 2. Administrative Agent's Services and Duties.
(a) The Administrative Agent's duties on behalf of the Company in
connection with the Depositor Documents shall include the following:
(i) administering the day-to-day operations of the Company and performing
or supervising the performance of such functions as may be agreed upon by the
Administrative Agent and the board of directors of the Company including,
without limitation, engaging in certain authorized transactions under the
Depositor Documents;
(ii) causing the preparation of, and reviewing, on behalf of the Company,
each of the Depositor Documents and all other documents related to the
transactions contemplated by the Depositor Documents;
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(iii) arranging for the execution of the Depositor Documents by the
Company, arranging for the execution of amendments to and waivers under the
Depositor Documents and any other documents or instruments deliverable by the
Company under the Depositor Documents and this Administration Agreement;
(iv) enforcing performance by the parties to the Depositor Documents of
their respective obligations to the Company under the Depositor Documents;
(v) giving such notices and other communications that the Company may from
time to time be required or permitted to give under the Depositor Documents;
(vi) providing the Company with suggested revisions of the Depositor
Documents as may be necessary or appropriate, assisting the Company in revising
such Depositor Documents and obtaining any required consents of holders of
Certificates (the "Certificateholders") and, when required, providing prior
written notice of any such revision to each rating agency (each, a "Rating
Agency") that is then rating any Trust Security and confirmation of the ratings
(if any) of any Trust Securities from each Rating Agency in connection with any
such revision;
(vii) endorsing checks and other instruments or security of the Company on
behalf of the Company as may be necessary or advisable;
(viii) retaining on behalf of and for the account of the Company legal
counsel necessary to perform for the Company the services necessary or
appropriate to the Company's organization and the preparation, execution and
delivery of the Depositor Documents;
(ix) preparing, having executed, and filing any and all documents
necessary to obtain or preserve the right of the Company to do business in any
jurisdiction or necessary or appropriate in connection with its activities under
the Depositor Documents;
(x) providing the executive and administrative personnel, office space and
services required in rendering the foregoing services under this Administration
Agreement to the Company;
(xi) providing all other notices and reports required to be delivered by
the Depositor under the Depositor Documents, including any annual statement as
to compliance that may be required to be delivered to a Trustee pursuant to the
related Trust Agreement and any annual statement of a firm of independent public
accountants that may be required to be furnished to a Trustee pursuant to the
related Trust Agreement;
(xii) advising and assisting the Company in connection with its engagement
and appointment of the Trustee(s) (and, to the extent necessary, any replacement
or successor trustee) for one or more Trusts;
(xiii) advising and assisting the Company in connection with its purchase
of the Deposited Assets and its sale of the Deposited Assets to one or more
Trusts;
(xiv) advising and assisting the Company in connection with its sale of
the Trust Securities issued by one or more Trusts to the underwriter or
underwriters appointed by the Company;
(xv) advising and assisting the Company in connection with its acquisition
or establishment of any required credit support (if any), such as letters of
credit, financial guaranty, surety bond, reserve account or similar credit
support, for the benefit of the Certificateholders;
(xvi) advising and assisting the Company, in cooperation with the relevant
underwriters, in seeking to qualify all applicable Trust Securities for offering
and sale under the applicable securities laws, and maintain or cause to be
maintained such qualifications in effect for as long as may be required for the
distribution of such Trust Securities;
(xvii) filing or causing the filing of such statements and reports as may
be required by the laws of each jurisdiction in which the Trust Securities have
been so qualified;
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(xviii) appointing, and entering into agreements with, agents to calculate
rates on each series or class of floating rate Trust Securities and to perform
such other calculations related to one or more Trust Securities;
(xix) advising and assisting the Company in connection with its filing of
all registration statements and other requisite documents with the SEC and
deliver to the relevant underwriters (A) conformed copies of the registration
statements and each amendment thereto, (B) each prospectus related to the Trust
Securities and (C) any document incorporated by reference in any prospectus;
(xx) advising and assisting the Company in connection with the filing with
the SEC of any amendment to the registration statement or prospectus or any
supplement to a prospectus that may be required by the Securities Act or
requested by the SEC;
(xxi) advising, or causing the Company to advise, the underwriters of the
time when any amendment to the registration statement has been filed or becomes
effective or any supplement to the prospectus or any amended prospectus has been
filed and furnishing, or causing the Company to furnish, to the underwriters
with copies thereof;
(xxii) advising and assisting the Company to prepare, sign and file with
the SEC copies of the annual reports and of the information, documents, proxy or
information statements and other reports (or copies of such portions of any of
the foregoing as the SEC may from time to time by rules and regulations
prescribe), if any, required to be filed by the Company with the SEC pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (including Form 8-K and
Form 10-K) subsequent to the date of the prospectus and, for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Certificates of any Trust, to promptly advise the underwriters of its
receipt of notice of the issuance by the SEC of any stop order or of: (A) any
order preventing or suspending the use of any prospectus supplement or
prospectus; (B) the suspension of the qualification of the Certificates of any
Trust for offering or sale in any jurisdiction; (C) the initiation of or threat
of any proceeding for any such purpose; (D) any request by the SEC for the
amending or supplementing of the registration statement or the prospectus or for
additional information;
(xxiii) in the event of the issuance of any stop order or of any order
preventing or suspending the use of any prospectus or prospectus supplement or
suspending any such qualification, use its best efforts to obtain, or cause the
Company to obtain, the withdrawal of such order by the SEC;
(xxiv) following the issuance and sale of the Certificates of any Trust,
advising and assisting the Company to prepare, sign and file with the SEC a
report on Form 8-K relating to each series of Certificates issued, containing a
copy of the trust agreement (including the series supplement) as executed;
(xxv) if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the effective date in connection with the
offering or sale of the Certificates, and if at such time any events occurred as
a result of which the prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such prospectus is delivered, not
misleading, or, if for any other reason it is necessary during such same period
to amend or supplement the prospectus or to file under the Exchange Act any
document incorporated by reference in the prospectus in order to comply with the
Securities Act or the Exchange Act, advising and assisting the Company to (A)
notify the underwriters, (B) upon the underwriters' request, file such document
and prepare and furnish as many copies as the underwriters may request of an
amended prospectus or a supplement to the prospectus which corrects such
statement or omission or effects such compliance and (C) in case the
underwriters are required to deliver a prospectus in connection with sales of
any of the Certificates at any time nine months or more after the effective
date, prepare and deliver to the underwriters as many copies as the underwriters
request of an amended or supplemented prospectus;
(xxvi) advising and assisting the Company to deliver to each applicable
Trustee (within 15 days after the Company is required to file the same with the
SEC) such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of the related Trust
Agreement, if any, as may be required to be filed with the SEC from time to time
by such rules and regulations;
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(xxvii) advising and assisting the Company to prepare and make available
to the Certificateholders a statement of earnings of each Trust covering a
period of at least twelve consecutive months beginning not later than the first
day of the first fiscal quarter following the closing date for such Trust;
(xxviii) advising and assisting the Company to deliver to the Trustee, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports as may be required to
be filed by the Company;
(xxix) if the combined principal balances of the securities of an issuer
or obligor that are part of the Deposited Assets for any Trust exceed ten
percent of the aggregate principal balance of the Deposited Assets for such
Trust, and such issuer or obligor ceases to file periodic reports required under
the Exchange Act, within a reasonable period of time, advising and assisting the
Company to either (A) file periodic reports containing the information that such
issuer(s) would otherwise file or make publicly available the information that
such issuer(s) would otherwise make publicly available or (B) instruct the
Trustee to either (1) distribute within a reasonable period of time such
security or securities to the Certificateholders of such Trust or (2) sell
within a reasonable period of time the securities and distribute the proceeds to
the Certificateholders of such Trust;
(xxx) for each applicable Trust, advising and assisting the Company to
apply for and obtain approval for listing of Certificates of such Trust on the
desired exchange;
(xxxi) for each applicable Trust, advising and assisting the Company to
prepare and submit all filings required by the applicable exchange;
(xxxii) for each applicable Trust, advising and assisting the Company to
monitor compliance with all applicable exchange rules; and
(xxxiii) advising and assisting the Company to monitor compliance with the
applicable requirements for exemption under Rule 3a-7 under the Investment
Company Act of 1940, as amended (the "Investment Company Act") and all
applicable rules, regulations and interpretations thereunder, such as ensuring
that the underlying securities and other instruments that comprise the trust
property meet the requirements of Rule 3a-7.
(b) The services of the Administrative Agent to the Company under this
Administration Agreement are not to be deemed exclusive. Nothing in this
Administration Agreement shall prevent the Administrative Agent or any of its
affiliates from engaging in other businesses or from rendering services of any
kind to any other person or entity, including providing advisory service to
others.
(c) The Administrative Agent shall maintain, or cause to be maintained,
proper books of account and complete records of all transactions of the Company
undertaken or performed by the Administrative Agent under this Administration
Agreement and will render statements or copies thereof from time to time as
reasonably requested by the Company or a Rating Agency. The Administrative Agent
will assist in ensuring the timely completion of all audits (if any) of the
Company required under the Depositor Documents or required for purposes of
maintaining compliance by any Trust with Rule 3a-7 under the Investment Company
Act and all applicable rules, regulations and interpretations thereunder, such
as ensuring that the underlying securities and other instruments that comprise
the Trust property meet the requirements of Rule 3a-7.
(d) In order to permit the Administrative Agent to perform its duties
hereunder, the Company shall cooperate fully with the Administrative Agent and
assist the Administrative Agent in carrying out the Administrative Agent's
duties hereunder, including, without, limitation, executing such documents as
the Administrative Agent may reasonably request and/or providing to the
Administrative Agent or its designated representative or agent such authority
and power (including power of attorney) to execute such documents on behalf of
the Company as the Administrative Agent may reasonably request.
Section 3. Activities of Administrative Agent. The Administrative Agent
will not, in performing its obligations under this Administration Agreement,
knowingly take any action that would cause the Company to be in violation of any
law, rule or regulation applicable to it or of any provision of its certificate
of incorporation, By-Laws, or any warranty, representation or covenant of the
Company contained in the Depositor Documents, which violation could have a
material adverse effect on the operations, assets or financial condition of the
Company; or
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cause the Company to become subject to registration as an "investment company"
under the Investment Company Act and the rules and regulations thereunder.
Section 4. Standard of Care. The Administrative Agent shall perform its
duties under this Administration Agreement diligently, in conformity with the
Company's obligations relating thereto and in accordance with the same standard
of care exercised by a prudent person in connection with the administration of
similar operations and in no event with less care than the Administrative Agent
exercises or would exercise in connection with the administration of its own
operations. Notwithstanding the foregoing sentence, nothing in this
Administration Agreement shall be deemed as a warranty by the Administrative
Agent of the credit quality or risk associated with any asset purchased by the
Company.
Section 5. Representations and Warranties of the Company. The Company
represents and warrants to the Administrative Agent that:
(a) The Company is a special purpose corporation duly organized and
validly existing under the laws of the State of Delaware and is duly qualified
and authorized to do business and to own its properties and to perform its
obligations under this Administration Agreement.
(b) The Company has the power and authority to enter into and perform this
Administration Agreement and the execution, delivery and performance of this
Administration Agreement by the Company have been duly authorized by all
necessary action on the Company's part and do not contravene its certificate of
incorporation or by-laws or any indenture, mortgage, credit agreement, license
or other agreement or instrument to which the Company is a party or by which it
or any of its property is bound, or any law, judgment or governmental rule,
regulation or order applicable to it.
(c) The Administration Agreement constitutes the Company's legal, valid
and binding obligation, enforceable against the Company in accordance with its
terms, except as such enforcement may be limited by (A) any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally or (B) the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
(d) There are no actions or proceedings pending or threatened against the
Company before any court or administrative agency which are likely to have a
material adverse effect on the Company's condition or the results of its
operations or its ability to perform its obligations under this Administration
Agreement.
(e) No authorization, approval or license or other action by, and no
notice to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery and performance by
the Company of this Administration Agreement or for the consummation of the
transactions contemplated hereby and thereby.
(f) The Company is not in default under any agreement or instrument to
which it is a party the result of which default would materially and adversely
affect its ability to perform its obligations under this Administration
Agreement.
(g) The Company is not required to register as an "investment company"
within the meaning of the Investment Company Act.
(h) The Company has not established and does not maintain or contribute to
any employee benefit plan that is covered by Title IV of the Employee Retirement
Security Act of 1974, as amended.
(i) The "principal place of business" and "chief executive office" of the
Company is located at c/o Lord Securities Corporation, 00 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. All records concerning the Deposited Assets
shall be held at the offices of the Administrative Agent.
Section 6. Representations and Warranties of the Administrative Agent. The
Administrative Agent represents and warrants to the Company that:
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(a) It is a corporation duly organized and validly existing under the laws
of the State of Delaware and is duly qualified and authorized to do business and
to own its properties and to perform its obligations under this Administration
Agreement.
(b) It has the power and authority to enter into and perform this
Administration Agreement and the execution, delivery and performance of this
Administration Agreement has been duly authorized by all necessary action on its
part and do not contravene its charter and/or by-laws or any indenture,
mortgage, credit agreement, license or other agreement or instrument to which it
is a party or by which it or any of its property is bound, or any law, judgment
or governmental rule, regulation or order applicable to it.
(c) This Administration Agreement constitutes its legal, valid and binding
obligation, enforceable against the Administrative Agent in accordance with its
terms, except as such enforcement may be limited by (A) any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally or (B) the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
(d) There are no actions or proceedings pending or threatened against the
Administration Agent before any court or administrative agency which are likely
to have a material adverse effect on its condition or the results of its
operations or its ability to perform its obligations under this Administration
Agreement.
(e) No authorization, approval or license or other action by, and no
notice to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery and performance by
it of the this Administration Agreement or for the consummation of the
transactions contemplated hereby and thereby.
(f) It is not in default under any agreement or instrument to which it is
a party the result of which default would materially and adversely affect its
ability to perform its obligations under this Administration Agreement.
Section 7. Compensation of the Administrative Agent. For all services to
be rendered by the Administrative Agent as described in this Administration
Agreement, the Company will pay to the Administrative Agent, as full
compensation for its services hereunder, such fee or fees as may be determined
from time to time by the Administrative Agent and the Company (collectively, the
"Administrative Agent Fee"). The Administrative Agent Fee shall be payable
solely from funds available to the Company, from time to time, in excess of
those needed to pay all other liabilities of the Company. To the fullest extent
permitted by applicable law, unpaid Administrative Agent fees shall not
constitute a "claim" in bankruptcy for the purposes of the Bankruptcy Code. This
Section 7 shall survive any termination of the Administration Agreement.
Section 8. Indemnification.
(a) The Company hereby agrees to indemnify and hold harmless the
Administrative Agent and the Administrative Agent's directors, officers,
employees, agents, incorporators and stockholders from and against any and all
damages, losses, liabilities, costs and expenses incurred by the Administrative
Agent in performing (or failing to perform) its obligations under this
Administration Agreement, other than any performance or failure to perform by
the Administrative Agent or its directors, officers, employees, agents,
incorporators or shareholders which constitutes negligence or willful
misconduct. The Administrative Agent shall immediately notify the Company of any
damage, loss, liability, cost or expense which the Administrative Agent has
determined has given or would give rise to a right of indemnification under this
Administration Agreement and the Company shall have the right upon notice to the
Administrative Agent to compromise or defend any such liability or claim at its
own expense. Failure to give such notice shall not relieve the Company of its
indemnity under this Administration Agreement; provided, however, that the
Company shall not be held responsible for any damage, loss, liability, cost or
expense resulting from the failure to give such notice.
(b) The Administrative Agent hereby agrees to indemnify and hold harmless
the Company and each such company's directors, officers, employees, agents,
managers, authorized person and members from and against any and all damages,
losses, liabilities, costs and expenses incurred by such company resulting from
negligence or willful misconduct on the part of the Administrative Agent in
performing (or failing to perform) its obligations
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under this Administration Agreement. The Company shall immediately notify the
Administrative Agent of any damage, loss, liability, cost or expense which the
Company has determined has given or would give rise to a right of
indemnification under this Administration Agreement and this Administrative
Agent shall have the exclusive right to compromise or defend any such liability
or claim at its own expense, which decision shall be binding and conclusive upon
the Company. Failure to give such notice shall not relieve the Administrative
Agent of its indemnity under this Administration Agreement; provided, however,
that the Administrative Agent shall not be held responsible for any damage,
loss, liability, cost or expense resulting from the failure to give such notice.
(c) Amounts owed by the Company under this Section 8 shall be payable
solely from the funds available to the Company, from time to time, in excess of
those needed to pay all other liabilities of the Company. To the fullest extent
permitted by applicable law, unpaid amounts due from the Company under this
Section 8 shall not constitute a "claim" against the Company as defined in the
Bankruptcy Code. This Section 8 shall survive termination of the Administration
Agreement.
Section 9. Obligation to Supply Information. The Administrative Agent is
authorized on behalf of the Company to prepare and supply, or cause the other
parties to the Depositor Documents to prepare and supply, the Administrative
Agent with such information regarding their performance under the Depositor
Documents as the Administrative Agent may from time to time reasonably request
in connection with the performance of its obligations hereunder. The Company and
its auditors and advisors will have access to the Company's books and records
and the Administrative Agent will provide the Company, its auditors and advisors
with copies of such books and records as required.
Section 10. The Administrative Agent's Liability. The Administrative Agent
assumes no liability for anything other than to render the services called for
in Section 2 hereof consistent with the requirements of Section 4 hereof and
neither the Administrative Agent nor any of its directors, officers, employees
or affiliates shall be responsible for any action of the Company or the
directors, officers or employees thereof, other than as provided under the
Depositor Documents and this Agreement.
Section 11. Reliance on Information Obtained from Third Parties. The
Company recognizes that the accuracy and completeness of the records maintained
and the information supplied by the Administrative Agent hereunder is dependent
upon the accuracy and completeness of the information obtained by the
Administrative Agent from the parties to the Depositor Documents and other
sources and the Administrative Agent shall not be responsible for any inaccuracy
in the information so obtained or for any inaccuracy in the records maintained
by the Administrative Agent hereunder which may result therefrom.
Section 12. No Joint Venture. Nothing contained in this Administration
Agreement shall constitute the Company and the Administrative Agent as members
of any partnership, joint venture, association, syndicate or unincorporated
business.
Section 13. Miscellaneous.
(a) Effectiveness. This Administration Agreement shall become effective as
of the Formation Date when each of the parties thereto shall have executed
counterparts of this Administration Agreement and each party shall have
forwarded a counterpart executed by it to the other party thereto.
(b) Counterparts. This Administration Agreement may be executed by the
parties thereto in separate counterparts, each of which shall be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
(c) Supplements; Amendments; Modification. This Administration Agreement
may be supplemented, modified or amended by written instrument signed on behalf
of both parties hereto. To the extent, if any, that is necessary in order that
the rating assigned to any Trust Security not be reduced or withdrawn by any
Rating Agency, each supplement, modification or amendment, as the case may be,
of this Administration Agreement shall not be effective until satisfaction of
the Rating Agency Condition with respect to such material supplement,
modification or amendment. The Company will forward a copy of each supplement,
modification or amendment to each Trustee and each Rating Agency, following the
execution thereof. "Rating Agency Condition" means, with respect to any
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specified action or determination, receipt by the Company, the Depositor and the
Administrative Agent of a written confirmation from each Rating Agency that the
specified action or determination will not result in a withdrawal or reduction
by such Rating Agency of the then current rating on such Certificate.
(d) Termination. This Administration Agreement may terminate upon either
party to this Administration Agreement providing to the other party thereto at
least ninety (90) days' written notice; provided, however, that such termination
may not be made unless the Rating Agency Condition is satisfied. Prior to the
effectiveness of the termination of the Administrative Agent's obligations under
this Administration Agreement, the Company shall have appointed a successor
Administrative Agent, such successor Administrative Agent shall have accepted
such appointment, and the Rating Agency Condition shall have been satisfied;
provided, further, that the indemnification provisions contained in Section 8
hereof shall survive any such termination.
(e) Notices. All demands, notices and communications under this
Administration Agreement shall (unless otherwise expressly provided herein) be
in writing (including by telex, telecopy or e-mail communication). Notices under
this Administration Agreement shall be deemed to have been given as of the date
mailed or delivered and shall be delivered, or mailed by registered mail, or
telexed, telecopied or e-mailed to the Company and the Administrative Agent.
(f) No Recourse. The obligations of the Company under this Administration
Agreement are solely the limited liability company obligations of the Company.
No recourse shall be had for the payment amount owing by the Company under this
Administration Agreement or for the payment by the Company of any fee in respect
hereof or any other obligation or claim of or against the Company arising out of
or based upon this Administration Agreement, against any employee, officer,
director, manager, authorized person, agent or member or other affiliate of the
Company. The Administrative Agent agrees that the Company shall be liable for
any claims hereunder that such party may have against the Company only to the
extent the Company has funds available in excess of needed to pay all other
liabilities of the Company. Unpaid amounts herein shall constitute a "claim"
against the Company as defined in the Bankruptcy Code. This provision shall
survive termination of the Administration Agreement.
(g) Bankruptcy. The Administrative Agent agrees that it shall not
institute against, or join any other person in instituting against, the Company
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other similar proceeding under the laws of any jurisdiction for
one year and a day after all Trust Securities are paid in full or cancelled
pursuant to the Trust Agreement. The obligations of the Administration Agent
under this Section 13(g) shall survive the termination of this Administration
Agreement.
(h) Delegation of Duties. The Administrative Agent shall be permitted to
perform any or all of its services to be performed under this Administration
Agreement directly or through one or more of its affiliates or through any other
Person, provided that (i) such affiliate or other Person shall have delivered to
the Company an agreement in writing to be obligated for such performance and an
undertaking the terms of which are the same as the terms of the agreement of the
Administrative Agent contained in subsection (g) above and (ii) the
Administrative Agent shall remain primarily liable for the performance of all of
its obligations under this Administration Agreement.
(i) GOVERNING LAW. THE ADMINISTRATION AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO CHOICE OF LAW PRINCIPLES).
(j) Jurisdiction. With respect to any claim or action arising hereunder,
the parties (a) irrevocably submit to the nonexclusive jurisdiction of the
courts of the State of New York and the United States District Court located in
the Borough of Manhattan in The City of New York, New York, and appellate courts
from any thereof, and (b) irrevocably waive any objection which such party may
have at any time to the laying of venue of any suit, action or proceeding
arising out of or relating to this Administration Agreement brought in any such
court, and irrevocably waive any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
(k) WAIVER OF JURY TRIAL. THE PARTIES TO THIS ADMINISTRATION AGREEMENT
KNOWINGLY, VOLUNTARILY AND EXPRESSLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ENFORCING OR DEFENDING ANY RIGHTS ARISING
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OUT OF OR RELATING TO THIS ADMINISTRATION AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. THE PARTIES HERETO ACKNOWLEDGE THAT THE PROVISIONS OF THIS
SECTION 14(K) HAVE BEEN BARGAINED FOR AND THAT EACH SUCH PARTY HAS BEEN
REPRESENTED BY COUNSEL IN CONNECTION HEREWITH.
(l) Performance. In acting with respect to this Administration Agreement,
the Administrative Agent shall be required to perform only such duties as are
specifically set forth in (i) this Administration Agreement and (ii) applicable
law as in effect from time to time. The Administrative Agent undertakes to
perform such duties and only such duties as are specifically set forth in this
Administration Agreement. No implied covenants or obligations shall be read into
this Administration Agreement against the Administrative Agent.
(m) Waiver of Setoff and Counterclaim. The Administrative Agent hereby
waives all set-offs and counterclaims and all presentments and demands for
performance. This Section 13(m) shall survive termination of the Administration
Agreement.
(n) License of Service Xxxx. In further consideration of the
Administrative Agent's services and duties, the Company agrees that, at its own
expense, it: (i) shall apply to register the xxxx Comcertz in the United States
and in any other jurisdiction where the Company offers goods and/or services
under the Administration Agreement; and (ii) shall use good faith efforts to
obtain and maintain such registration(s) and comply with applicable notice and
marking provisions. The Company further agrees that it: (i) will not assign or
license any rights in the xxxx Comcertz to third parties without the written
consent of the Administrative Agent, or grant any liens on the xxxx Comcertz or
any applications or registrations therefor; and (ii) shall not use the xxxx
Comcertz in connection with any goods or services other than those described in
the Administration Agreement. In the event either party becomes aware of any
infringement of the xxxx Comcertz by a third party, such party shall notify the
other party in writing and the parties will negotiate in good faith as to
whether and how the Company should seek to xxxxx such infringement. Upon
termination of the Administration Agreement, the Company shall assign to
Administrative Agent or its designee for the sum of one (1) dollar all rights in
and to the xxxx Comcertz, all applications or registrations therefor, and all
goodwill in connection therewith.
(o) Entire Agreement. The Administration Agreement constitutes the entire
agreement among the parties hereto with respect to the matters covered hereby
and supersedes all prior agreements and understandings among the parties.
(p) Severability. Any provision of this Administration Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability, without
invalidating the remaining provisions hereof or affecting the validity or
enforceability, of such provision in any other jurisdiction.
(q) Assignment. Neither party may assign all or any portion of its rights
under this Administration Agreement unless (i) the other party consents in
writing and (ii) the Rating Agency Condition is satisfied.
9
IN WITNESS WHEREOF, the parties hereto have caused this Administration Agreement
to be duly executed on the date first above written.
COMCERTZ ABS CORPORATION
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
Address: c/o Lord Securities Corporation
00 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention:
COMMERZBANK CAPITAL MARKETS CORP.
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention:
10
