EXHIBIT 4.10
[FORM OF]
TRANSFER AND ADMINISTRATION AGREEMENT
among
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
as Issuer
CAPITAL ONE FUNDING, LLC,
as Transferor
CAPITAL ONE BANK,
as Administrator
and
THE BANK OF NEW YORK,
as Indenture Trustee
Dated as of September __, 2002
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions ..................................................... 2
Section 1.02 Other Definitional Provisions ................................... 4
ARTICLE II
COMT COLLATERAL CERTIFICATE
Section 2.01 Transfer of COMT Collateral Certificate ......................... 5
Section 2.02 Acceptance by Trust ............................................. 5
Section 2.03 Closing ......................................................... 5
Section 2.04 Books and Records ............................................... 5
Section 2.05 Series 2002-CC Certificateholder ................................ 6
Section 2.06 Protection of Title to COMT Collateral Certificate .............. 6
Section 2.07 Assignment to Indenture Trustee ................................. 6
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.01 Collections and Allocations ..................................... 6
ARTICLE IV
ADMINISTRATION OF THE TRUST; DUTIES OF THE ADMINISTRATOR
Section 4.01 Appointment of Administrator; Duties of Administrator ........... 7
Section 4.02 Records ......................................................... 11
Section 4.03 Compensation .................................................... 11
Section 4.04 Additional Information to be Furnished to Issuer ................ 11
Section 4.05 Independence of Administrator ................................... 11
Section 4.06 No Joint Venture ................................................ 12
Section 4.07 Other Activities of Administrator ............................... 12
Section 4.08 Termination, Resignation and Removal of Administrator ........... 12
Section 4.09 Action Upon Termination, Resignation or Removal ................. 13
ARTICLE V
THE TRANSFEROR
Section 5.01 Representations of Transferor ................................... 13
Section 5.02 Merger or Consolidation of, or Assumption of the Obligations of,
Transferor ...................................................... 16
Section 5.03 Limitation on Liability of Transferor and Others ................ 16
Section 5.04 Transferor May Own Notes ........................................ 16
Section 5.05 Tax Treatment ................................................ 17
ARTICLE VI
ACQUISITION OF TRUST ASSETS
Section 6.01 Acquisition of COMT Collateral Certificate ................... 17
ARTICLE VII
INSOLVENCY EVENTS
Section 7.01 Rights Upon the Occurrence of an Insolvency Event ............ 17
ARTICLE VIII
TERMINATION
Section 8.01 Termination of Agreement ..................................... 18
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment .................................................... 18
Section 9.02 Fees Payable by the Transferor ............................... 19
Section 9.03 Notices ...................................................... 19
Section 9.04 Assignment ................................................... 19
Section 9.05 Limitations on Rights of Others .............................. 20
Section 9.06 Severability ................................................. 20
Section 9.07 Separate Counterparts ........................................ 20
Section 9.08 Headings ..................................................... 20
Section 9.09 GOVERNING LAW ................................................ 20
Section 9.10 Nonpetition Covenants ........................................ 20
Section 9.11 Relation to the Trust Agreement .............................. 21
Section 9.12 Integration of Documents ..................................... 21
Section 9.13 No Waiver; Cumulative Remedies ............................... 21
Section 9.14 Limitation of Liability ...................................... 21
Section 9.15 Acknowledgement and Acceptance of Indenture .................. 21
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THIS TRANSFER AND ADMINISTRATION AGREEMENT among CAPITAL ONE
MULTI-ASSET EXECUTION TRUST (the "Issuer"), CAPITAL ONE FUNDING, LLC, as
transferor (in such capacity, the "Transferor"), CAPITAL ONE BANK ("Capital One
Bank"), as administrator (in such capacity, the "Administrator") and THE BANK OF
NEW YORK, as indenture trustee (in such capacity, the "Indenture Trustee"), is
made and entered into as of September __, 2002.
WHEREAS, Capital One Funding, LLC, as transferor (in such capacity, the
"Master Trust Transferor"), Capital One Bank, as servicer (in such capacity, the
"Servicer") for the Capital One Master Trust (the "Master Trust"), and The Bank
of New York, as trustee for the Master Trust (the "Master Trust Trustee"), have
entered into an Amended and Restated Pooling and Servicing Agreement, dated as
of September 30, 1993 as amended and restated as of August 1, 2002 (as amended
and supplemented as of the date hereof and as the same may be further amended,
supplemented or otherwise modified from time to time, the "Pooling and Servicing
Agreement"), and a Series 2002-CC Supplement thereto, dated as of September __,
2002 (as the same may be amended, supplemented or otherwise modified from time
to time, the "Series Supplement");
WHEREAS, the Transferor proposes to convey and pledge to the Issuer all
of its right, title and interest in and to the COMT Collateral Certificate;
WHEREAS, the Issuer is issuing the Asset Pool One Notes (the "Notes")
pursuant to the Indenture, dated as of September __, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Indenture"), and the
COMT Asset Pool Supplement, dated as of September __, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Asset Pool
Supplement"), each between the Issuer and the Indenture Trustee;
WHEREAS, the parties hereto have entered into certain agreements in
connection with the issuance of the Notes and the beneficial ownership interest
in the Issuer, including this Agreement, the Indenture and the Capital One
Multi-asset Execution Trust Amended and Restated Trust Agreement, dated as of
September __, 2002 (the "Trust Agreement") between Capital One Funding, LLC, as
beneficiary (the "Beneficiary"), and Deutsche Bank Trust Company Delaware, as
owner trustee (the "Owner Trustee") (this Agreement, the Trust Agreement, the
Indenture, the Asset Pool One Supplement and any supplements thereto being
hereinafter referred to collectively as the "Transaction Documents");
WHEREAS, pursuant to the Transaction Documents, the Transferor, 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 and (b) the beneficial ownership interest in the Issuer;
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 the Transaction Documents 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.
In consideration of the mutual agreements contained herein, each party
agrees as follows for the benefit of the other parties and the Noteholders to
the extent provided herein, in the Indenture, the Asset Pool One Supplement and
any Indenture Supplement:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Addition Date" means any day on which the Invested Amount (as such
term is defined in the Series Supplement) of the COMT Collateral Certificate is
increased due to an issuance of Notes pursuant to the Indenture.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Adverse Effect" has the meaning specified in the Trust Agreement.
"Agreement" means this Transfer and Administration Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Appointment Date" has the meaning specified in Section 7.01.
"Asset Pool One" has the meaning specified in the Asset Pool One
Supplement.
"Asset Pool One Supplement" has the meaning specified in the preamble
to this Agreement.
"Beneficiary" has the meaning specified in the preamble to this
Agreement.
"Capital One Bank" has the meaning specified in the preamble to this
Agreement.
"Closing Date" means September __, 2002.
"COMT Collateral Certificate" means the Series 2002-CC Certificate
issued pursuant to the Pooling and Servicing Agreement and the Series
Supplement, as amended, supplemented, restated or otherwise modified from time
to time.
"Collateral" has the meaning specified in the Asset Pool One
Supplement.
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"Collection Account" has the meaning specified in the Asset Pool One
Supplement.
"Distribution Date" means the 15th day of each calendar month, or if
such 15th day is not a Business Day (as defined in the Indenture), the next
succeeding Business Day.
"GAAP" means generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Authority" means the United States of America, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Indenture" has the meaning specified in the preamble to this
Agreement.
"Indenture Trustee" has the meaning specified in the preamble to this
Agreement.
"Insolvency Event" has the meaning specified in Section 7.01.
"Issuer" has the meaning specified in the preamble to this Agreement.
"Master Trust" has the meaning specified in the preamble to this
Agreement.
"Master Trust Transferor" has the meaning specified in the preamble to
this Agreement.
"Master Trust Trustee" has the meaning specified in the preamble to
this Agreement.
"Note Rating Agency" means, with respect to any Outstanding Series,
Class or Tranche of Notes, each statistical note rating agency selected by the
Issuer to rate such Notes.
"Notes" has the meaning specified in the preamble to this Agreement.
"Noteholder" means an Asset Pool One Noteholder (as defined in the
Asset Pool One Supplement).
"Officer's Certificate" means a certificate on behalf of any Person
that is signed by any authorized officer or Vice President or more senior
officer of such Person and states that the certifications set forth in such
certificate are based upon the results of a due inquiry into the matters in
question conducted by or under the supervision of the signing officer and that
the facts stated in such certifications are true and correct to the best of the
signing officer's knowledge.
"Opinion of Counsel" means a written opinion of counsel reasonably
acceptable to the Indenture Trustee who may be an employee of or of counsel to
the Transferor or the Servicer.
"Owner Trustee" has the meaning specified in the preamble to this
Agreement.
"Person" means any individual, corporation, partnership (general or
limited), limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization, governmental entity or other entity
of similar nature.
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"Pooling and Servicing Agreement" has the meaning specified in the
preamble to this Agreement.
"Requirements of Law" means, for any Person, the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local (including without limitation, usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
"Series Supplement" has the meaning specified in the preamble to this
Agreement.
"Servicer" has the meaning specified in the preamble to this Agreement.
"Transaction Documents" has the meaning specified in the preamble to
this Agreement.
"Transferor" has the meaning specified in the preamble to this
Agreement.
"Trust" means the Issuer.
"Trust Agreement" has the meaning specified in the preamble to this
Agreement.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York and any other applicable jurisdiction.
Section 1.02 Other Definitional Provisions.
(a) Unless otherwise specified in this Agreement, capitalized terms
used herein and not otherwise defined herein have the meanings assigned to them
in the Indenture.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under GAAP. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under GAAP, the definitions contained in this Agreement
or in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, subsection, Schedule
and Exhibit references contained in this Agreement are references to Sections,
subsections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" shall mean "including without limitation."
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(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II
COMT COLLATERAL CERTIFICATE
Section 2.01 Transfer of COMT Collateral Certificate. In consideration of
the Trust's delivery to the Transferor of the Trust Certificate (as defined in
the Trust Agreement) and the net proceeds of the initial sale of Notes, the
Transferor does hereby transfer, assign, set over, pledge and otherwise convey
to the Trust, without recourse (subject to the obligations herein), all right,
title and interest of the Transferor, whether now owned or hereafter acquired,
in and to the COMT Collateral Certificate and the proceeds thereof. The parties
to this Agreement intend that the conveyance of the COMT Collateral Certificate
and the proceeds thereof pursuant to this Agreement constitute a sale, and not a
secured borrowing, for accounting purposes. Nevertheless, this Agreement also
shall be deemed to be and hereby is a security agreement within the meaning of
the UCC, and the conveyance by the Transferor provided for in this Agreement
shall be deemed to be and hereby is a grant by the Transferor to the Trust of a
security interest in and to all of the Transferor's right, title and interest,
whether now owned or hereafter acquired, in, to and under the COMT Collateral
Certificate, all accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, goods, letters of credit, letter-of-credit
rights, investment property and oil, gas and other minerals consisting of,
arising from, or relating to the COMT Collateral Certificate, and the proceeds
thereof, to secure the obligations of the Transferor hereunder. The Transferor
and the Trust shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that the security interest in the COMT
Collateral Certificate created hereunder will be a perfected security interest
of first priority under applicable law and will be maintained as such throughout
the term of this Agreement.
Section 2.02 Acceptance by Trust. The Trust hereby acknowledges its
acceptance of all right, title and interest to the property, now existing and
hereafter created, conveyed to the Trust pursuant to Section 2.01.
Section 2.03 Closing. The transfer, assignment, set over, pledge and
conveyance of the COMT Collateral Certificate shall take place at the offices of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 0000 X Xxxxxx, Xxxxx 000, Xxxxxxxxxx, X.X.
00000 on the Closing Date, simultaneously with the closing of the transactions
contemplated by the Pooling and Servicing Agreement, the Series Supplement and
the Transaction Documents.
Section 2.04 Books and Records. In connection with the transfer,
assignment, set over, pledge and conveyance set forth in Section 2.01, the
Transferor shall indicate in its accounting, computer and other records that the
COMT Collateral Certificate has been transferred to the Trust, and the COMT
Collateral Certificate shall be registered in the name of the Trust and shall be
delivered to the Trust in the State of Delaware. In addition, the Transferor
agrees to record and file, at its own expense, any financing statements (and
amendments with respect to such financing statements when applicable) required
to be filed with respect to the COMT Collateral Certificate assigned by the
Transferor hereunder, meeting the requirements of applicable law in such manner
and in such jurisdictions as are necessary under the applicable UCC to perfect
the transfer,
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assignment, set over, pledge and conveyance of the COMT Collateral Certificate
to the Trust, and to deliver a file-stamped copy of such financing statements
and amendments or other evidence of such filings to the Trust on or prior to the
Closing Date (excluding such amendments, which shall be delivered promptly after
filing).
Section 2.05 Series 2002-CC Certificateholder. In accordance with the
terms of the Asset Pool One Supplement, the Indenture Trustee shall be the
Series 2002-CC Certificateholder for all purposes under the Pooling and
Servicing Agreement and the Series Supplement. To the extent the COMT Collateral
Certificate is sold or otherwise transferred to a third party in connection with
the sale or liquidation of the Collateral pursuant to the provisions of the
Indenture and the Asset Pool One Supplement, such transferee shall be the Series
2002-CC Certificateholder for all purposes under the Pooling and Servicing
Agreement and the Series Supplement.
Section 2.06 Protection of Title to COMT Collateral Certificate.
(a) The Transferor shall take all actions necessary, and the Trust shall
cooperate with the Transferor, to perfect, and maintain perfection of, the
interests of the Trust and the Indenture Trustee in the COMT Collateral
Certificate.
(b) The Transferor shall not change its name or its type or jurisdiction
of organization without having delivered at least sixty (60) days prior written
notice to the Trust and the Indenture Trustee that all actions have been taken,
and all filings have been made, as are necessary to continue and maintain the
first priority perfected interest of the Trust in the COMT Collateral
Certificate.
(c) The Owner Trustee shall permit the Indenture Trustee and its agents
at any time following reasonable notice and during normal business hours to
inspect, audit and make copies of and abstracts from the Owner Trustee's records
regarding the COMT Collateral Certificate.
Section 2.07 Assignment to Indenture Trustee. The Transferor hereby
acknowledges and consents to the mortgage, pledge, assignment and grant of a
security interest by the Trust to the Indenture Trustee pursuant to the Asset
Pool One Supplement of all right, title and interest of the Trust in, to and
under the COMT Collateral Certificate and to the other property described in the
Granting Clause of the Asset Pool One Supplement and the assignment of any or
all of the Trust's rights and obligations hereunder to the Indenture Trustee.
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.01 Collections and Allocations. All distributions in respect of
the COMT Collateral Certificate shall be deposited in the Collection Account for
Asset Pool One, which amounts shall be applied by the Indenture Trustee pursuant
to the Asset Pool One Supplement.
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ARTICLE IV
ADMINISTRATION OF THE TRUST; DUTIES OF THE ADMINISTRATOR
Section 4.01 Appointment of Administrator; Duties of Administrator.
(a) The Issuer hereby appoints Capital One Bank to act as initial
administrator (the "Administrator"), subject to Section 4.08.
(b) Duties of the Administrator with Respect to Transaction
Documents. The Administrator shall consult with the Transferor and the Owner
Trustee regarding the duties of the Issuer and the Owner Trustee under the
Transaction Documents. 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 Transaction Documents.
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, certificates and opinions as it shall
be the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to any Transaction Document. 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, any Indenture
Supplement and the Asset Pool One Supplement, including such of the foregoing as
are required with respect to the following matters under the Indenture, any
Indenture Supplement and the Asset Pool One Supplement (parenthetical references
are to Articles or Sections of the Indenture):
(A) causing the Note Register to be kept, and notifying the Indenture
Trustee of any appointment of a new Note Registrar and the location, or
change in location, of the Note Registrar (subsection 305(a));
(B) preparing or obtaining the documents, legal opinions and
instruments required for execution, authentication and delivery of the
Notes, and delivery of the same to the Indenture Trustee for authentication
(Sections 303, 304 and 310), providing for the replacement of mutilated,
destroyed, lost or stolen Notes (Section 306), providing for the exchange
or transfer of Notes (Section 305) and, to the extent set forth in the
related Indenture Supplement, notifying each Note Rating Agency in writing
of the issuance of any Tranche, Class or Series of Notes;
(C) directing the Indenture Trustee with respect to the investment of
funds in the Issuer Accounts (Section 403);
(D) preparing or obtaining the documents, legal opinions and
instruments required to be delivered to the Indenture Trustee with respect
to the satisfaction and discharge of the Indenture (subsection 501(c)) and
preparing the documents necessary for the Indenture Trustee to acknowledge
the same (subsection 501(a));
(E) on the resignation or removal of any Indenture Trustee, giving
written notice of such resignation or removal and appointment to each
Noteholder (subsection 710(f));
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(F) preparing or causing to be prepared tax returns for the Issuer
(if required) and the reporting information for the Noteholders (Section
715);
(G) preparing on behalf of the Issuer written instructions regarding
any action proposed to be taken or omitted by the Indenture Trustee upon
the Indenture Trustee's application therefor (Section 718);
(H) furnishing to the Indenture Trustee a list of the names and
addresses of the Registered Noteholders not more than 15 days after each
Record Date or at such other times as the Indenture Trustee may request in
writing (Section 801);
(I) establishing reasonable rules for matters relating to Action by
or a meeting of Noteholders not otherwise set forth in Section 804 of the
Indenture (subsection 804(g));
(J) preparing for the Issuer such filings for filing with the
Commission, and providing the Indenture Trustee with copies thereof once
filed, as required by the Securities Exchange Act of 1934, as amended, or
otherwise as in accordance with rules and regulations prescribed from time
to time by the Commission (Section 805);
(K) preparing, completing and delivering to the Indenture Trustee and
the trustee for the Master Trust (with a copy to each Note Rating Agency),
a Monthly Noteholders' Statement (Section 806);
(L) preparing for the Issuer the Payment Instruction after the Issuer
receives each Monthly Servicer's Certificate under the Series Supplement,
delivering a copy thereof to the Indenture Trustee and the trustee for the
Master Trust and compiling such other information for the Issuer
(subsection 807(a));
(M) preparing or obtaining any necessary Opinion of Counsel, Issuer
Tax Opinion, Officer's Certificate, or other document or instrument as may
be required in connection with any supplemental indenture or amendment to
the Indenture, any Indenture Supplement or the Asset Pool One Supplement
(Article IX);
(N) giving notice to each Note Rating Agency and collecting the vote
of Noteholders, as necessary, in connection with any supplemental indenture
or amendment to the Indenture, any Indenture Supplement or the Asset Pool
One Supplement (Article IX);
(O) causing any Paying Agents to execute and deliver to the Indenture
Trustee an instrument pursuant to which it agrees to act as Paying Agent as
set forth in Section 1003 of the Indenture;
(P) preparing Officer's Certificates of the Issuer directing the
Paying Agent to pay to the Indenture Trustee sums held in trust by the
Issuer or such Paying Agent for the purpose of discharging the Indenture
(Section 1003);
(Q) preparing written statements for execution by an Authorized
Officer as required by Section 1004 of the Indenture;
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(R) performing or causing to be performed all things necessary to
preserve and keep in full force and effect the legal existence of the
Issuer (Section 1005);
(S) giving prompt written notice to the Indenture Trustee and each
Note Rating Agency of each Event of Default under the Indenture, each
breach on the part of the Servicer or the Master Trust Transferor of its
respective obligations under the Pooling and Servicing Agreement or any
default of a Derivative Counterparty (Section 1008);
(T) providing to Noteholders and prospective Noteholders information
required to be provided by the Issuer pursuant to Rule 144A under the
Securities Act (Section 1011);
(U) preparing and causing the Issuer to file UCC financing statements
and amendments thereto (Section 1012);
(V) preparing or obtaining the instruments, documents, agreements and
legal opinions required to be delivered by the Issuer and preparing any
notice required to be given to the Note Rating Agencies, in connection with
the merger or consolidation of the Issuer with any other Person (subsection
1013(a)) or the conveyance or transfer of any of the Issuer's property or
assets (subsection 1013(b));
(W) giving written notice to the affected Noteholders of any optional
repurchase by the Transferor (Section 1102) and to the Indenture Trustee
and each Note Rating Agency with respect to any such optional repurchase or
Early Amortization Event (Section 1103);
(X) to the extent set forth herein or in the Asset Pool One
Supplement, preparing or obtaining the instruments, documents, agreements
and legal opinions required to be delivered by the Issuer and preparing any
notice required to be given by the Issuer to the Note Rating Agencies and
the Indenture Trustee in connection with addition or removal of Collateral;
(Y) to the extent set forth herein or in the Asset Pool One
Supplement, preparing for execution and delivery or filing by the Issuer
all supplements and amendments to this Agreement and the Asset Pool One
Supplement and all instruments of further assurance; and
(Z) to the extent set forth in the Asset Pool One Supplement,
establishing and maintaining or causing to be established and maintained
certain Issuer Accounts.
(c) Additional Duties.
(i) In addition to the duties of the Administrator set forth
above, but subject to Sections 4.01(d) and 4.05, the Administrator
shall perform all ministerial duties and obligations of the Issuer
under the Transaction Documents and shall perform such calculations
and shall prepare for execution by the Issuer and the Owner Trustee
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 Transaction Documents, and at
the request of the Issuer or the Owner Trustee shall take all
appropriate action that it is the duty of the Issuer or the Owner
Trustee to
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take pursuant to the Transaction Documents. Subject to
Sections 4.01(d) and 4.05 of this Agreement, and in accordance
with the directions of the Issuer, the Owner Trustee or the
Transferor, the Administrator shall administer, perform or
supervise the performance of such other activities in
connection with the Collateral (including the Transaction
Documents) as are not covered by any of the foregoing
provisions and as are expressly requested by the Owner Trustee
or the Transferor and are reasonably within the capability of
the Administrator.
(ii) Subject to Sections 4.01(d) and 4.05, the
Administrator shall perform the duties of the Administrator
specified in subsection 5.01(b) required to be performed in
connection with the resignation or removal of the Owner
Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(iii) In carrying out the foregoing duties or any of
its other obligations under this Agreement, the Administrator
may enter into transactions with or otherwise deal with any of
its Affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer or the Transferor and
shall be, in the Administrator's opinion, no less favorable to
the Issuer than would be available from unaffiliated parties.
(iv) Subject to Sections 4.01(d) and 4.05, it is the
intention of the parties hereto that the Administrator shall,
and the Administrator hereby agrees to, execute 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 Transaction
Documents. 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 __, 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.
(d) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action except upon direction
of the Transferor. For the purpose of the preceding sentence,
"non-ministerial matters" shall include:
(1) the amendment of or any supplement to the
Indenture;
(2) 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;
(3) the amendment, change or modification of the
Transaction Documents;
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(4) the appointment of successor Note 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 Note
Registrar, the Paying Agent or the Indenture Trustee of its
obligations under the Indenture;
(5) the removal of the Indenture Trustee;
(6) the timing or amount of any allocation, deposit,
withdrawal or payment of funds under any Transaction Document;
(7) the redemption or payment of any Note, or the
initiation, suspension or termination of any revolving,
redemption or other period under any Transaction Document;
(8) the waiver of any default under any Transaction
Document;
(9) the release of any part of the Collateral; and
(10) any matter that is reserved to the discretion of
the Issuer under any Transaction Document or that could have a
material impact on the financial condition of the Issuer or
the Transferor.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not,
(x) make any payments to the Noteholders or any other Person under the
Transaction Documents or (y) take any other action that the Issuer or
the Owner Trustee directs the Administrator not to take on its behalf.
Section 4.02 Records. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer,
the Owner Trustee, the Indenture Trustee, the Collateral Agent and the
Transferor at any time during normal business hours.
Section 4.03 Compensation. As compensation for the performance of
the Administrator's obligations under this Agreement, the Administrator shall be
entitled to $____ per month from the Transferor, in addition to reimbursement
for its liabilities and extra out-of-pocket expenses related to its performance
hereunder or under any Transaction Document. Such amounts shall be paid by the
Transferor directly to the Administrator.
Section 4.04 Additional Information to be Furnished to Issuer. The
Administrator shall furnish to the Issuer, the Indenture Trustee or the
Transferor from time to time such additional information regarding the
Transaction Documents and the Trust as each of them shall reasonably request.
Section 4.05 Independence of Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer or the Transferor, the
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Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
Section 4.06 No Joint Venture. Nothing contained in this Agreement
shall (i) constitute the Administrator and either of the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of them
any express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
Section 4.07 Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Owner
Trustee or the Indenture Trustee.
Section 4.08 Termination, Resignation and Removal of Administrator.
(a) Subject to subsection 4.08(d), the Administrator may resign
its duties hereunder by providing the Issuer and the Transferor with at least 60
days prior written notice.
(b) Subject to subsection 4.08(d), the Issuer or the Transferor
may, with written notice to each Note Rating Agency, remove the Administrator
without cause by providing the Administrator with at least 60 days prior written
notice.
(c) Subject to subsection 4.08(d), at the sole option of the
Issuer or the Transferor and with written notice to each Note Rating Agency, the
Administrator may be removed immediately upon written notice of termination from
the Issuer or the Transferor 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 10 days (or, if such default cannot
be cured in such time, shall not give within 10 days such assurance of
cure as shall be reasonably satisfactory to the Issuer and the
Transferor);
(ii) (A) the Administrator shall file a petition or commence a
proceeding (I) to take advantage of any bankruptcy, conservatorship,
receivership, insolvency, or similar laws or (II) for the appointment
of a trustee, conservator, receiver, liquidator, or similar official
for or relating to the Administrator or all or substantially all of its
property, (B) the Administrator shall consent or fail to object to any
such petition filed or proceeding commenced against or with respect to
it or all or substantially all of its property, or any such petition or
proceeding shall not have been dismissed or stayed within sixty (60)
days of its filing or commencement, or a court, agency, or other
supervisory authority with jurisdiction shall have decreed or ordered
relief with respect to any such petition or proceeding, (C) the
Administrator shall admit in writing its inability to pay its debts
generally as they become due, (D) the Administrator shall make an
assignment for the benefit of its creditors, or (E) the Administrator
shall voluntarily suspend payment of its obligations.
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The Administrator agrees that if any of the events specified in clause
(i) or (ii) of this subsection 4.08(c) shall occur, it shall give written notice
thereof to the Issuer, the Owner Trustee, the Indenture Trustee and the
Transferor within seven days after the happening of such event.
(d) No termination, resignation or removal of the Administrator
pursuant to this Section shall be effective until (i) a successor Administrator
shall have been appointed by the Issuer and the Transferor 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.
Section 4.09 Action Upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of the Administrator pursuant to
subsection 4.08(c) or the resignation or removal of the Administrator pursuant
to subsection 4.08(a) or (b), respectively, the Administrator shall be entitled
to be paid all fees and reimbursable expenses accruing to it to the date of such
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to subsection 4.08(c) deliver to the Issuer all property and documents
of or relating to the Collateral then in the custody of the Administrator. In
the event of the resignation or removal of the Administrator pursuant to
subsection 4.08(a), (b) or (d), respectively, the Administrator shall cooperate
with the Issuer and the Transferor and take all reasonable steps requested to
assist the Issuer and the Transferor in making an orderly transfer of the duties
of the Administrator.
ARTICLE V
THE TRANSFEROR
Section 5.01 Representations of Transferor. The Transferor makes the
following representations and warranties as to the COMT Collateral Certificate
on which the Trust is deemed to have relied in acquiring the COMT Collateral
Certificate. Such representations and warranties speak as of the execution and
delivery of this Agreement and as of each Distribution Date, but shall survive
the transfer and assignment of the COMT Collateral Certificate to the Trust and
the pledge thereof to the Indenture Trustee pursuant to the Indenture and the
Asset Pool One Supplement.
(a) The Transferor is a limited liability company duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Virginia and has full corporate power, authority and legal right to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement and any other documents related hereto to which
it is a party.
(b) The Transferor is duly qualified to do business and is in good
standing (or is exempt from such requirement), and has obtained all necessary
licenses and approvals with respect to the Transferor, in each jurisdiction in
which failure to so qualify or to obtain such licenses or approvals would have a
material adverse effect on the interests of the Noteholders hereunder or under
the Indenture; provided, however, that no representation or warranty is made
with respect to any qualifications, licenses or approvals which the Owner
Trustee or the Indenture Trustee has or may be required at any time to obtain,
if any, in connection with the transactions contemplated hereby or by any other
Transaction Document to which the Owner Trustee or the Indenture Trustee, as the
case may be, is a party.
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(c) The execution and delivery by the Transferor of this Agreement and
the consummation by the Transferor of the transactions provided for in this
Agreement and in the other Transaction Documents to which the Transferor is a
party have been duly authorized by the Transferor by all necessary corporate
action on its part and each of this Agreement and the other Transaction
Documents to which the Transferor is a party will remain, from the time of its
execution, an official record of the Transferor; the Transferor has the power
and authority to assign the property to be assigned to and deposited with the
Trust pursuant to this Agreement.
(d) The execution and delivery by the Transferor of this Agreement, the
performance by the Transferor of the transactions contemplated by this Agreement
and the fulfillment by the Transferor of the terms hereof will not conflict
with, result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material default
under, any indenture, contract, agreement, mortgage, deed of trust, or other
instrument to which the Transferor is a party or by which it or any of its
properties are bound (other than violations of such indentures, contracts,
agreements, mortgages, deeds of trust or other instruments which, individually
or in the aggregate, would not have a material adverse effect on the
Transferor's ability to perform its obligation under this Agreement).
(e) The execution and delivery by the Transferor of this Agreement, the
performance by the Transferor of the transactions contemplated by this Agreement
and the fulfillment by the Transferor of the terms hereof will not conflict with
or violate any Requirements of Law applicable to the Transferor.
(f) There are no proceedings or investigations pending or, to the
Transferor's knowledge, threatened against the Transferor before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over the Transferor or its properties (i)
asserting the invalidity of this Agreement or any of the Transaction Documents,
(ii) seeking to prevent the consummation of any of the transactions contemplated
by this Agreement or any of the Transaction Documents, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Transferor,
would materially and adversely affect the performance by the Transferor of its
obligations under this Agreement or the Transaction Documents, or (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement or the Transaction Documents.
(g) The transfer and assignment herein contemplated constitute either
(i) a sale of the COMT Collateral Certificate from the Transferor to the Trust
or (ii) a grant of a perfected security interest therein from the Transferor to
the Trust. The COMT Collateral Certificate has not been sold, transferred,
assigned or pledged by the Transferor to any Person other than pursuant to this
Agreement. Immediately prior to the transfer and assignment herein contemplated,
the Transferor had good and marketable title to the COMT Collateral Certificate,
free and clear of all liens and rights of others and, immediately upon the
transfer thereof pursuant to this Agreement, the Trust shall have good and
marketable title to the COMT Collateral Certificate, free and clear of all liens
and rights of others or a first priority perfected security interest therein;
and the transfer has been perfected, by the filing of appropriate financing
statements and the taking of such other action pursuant to the UCC, under the
UCC. The Transferor has no knowledge of any current statutory or other
non-consensual liens to which the COMT Collateral Certificate is subject.
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(h) All approvals, authorizations, consents, orders or other actions of
any Person or of any Governmental Authority required to be obtained, effected or
given by the Transferor in connection with the execution and delivery by the
Transferor of this Agreement or any other Transaction Document to which it is a
party, the performance by the Transferor of the transactions contemplated by
this Agreement or any other Transaction Document to which it is a party and the
fulfillment by the Transferor of the terms hereof or thereof, have been obtained
or have been completed and are in full force and effect (other than approvals,
authorizations, consents, orders and other actions which if not obtained or
completed or in full force or effect would not have a material adverse effect on
the Transferor or the Trust or upon the collectibility of the COMT Collateral
Certificate or upon the ability of the Transferor to perform its obligations
under this Agreement).
(i) Each of (i) the transfer of the COMT Collateral Certificate by the
Transferor to the Trust pursuant to the terms of this Agreement and (ii) the
pledge of the COMT Collateral Certificate by the Trust to the Indenture Trustee
pursuant to the terms of the Indenture and the Asset Pool One Supplement, comply
with the provisions of the Pooling and Servicing Agreement relating to transfers
of the COMT Collateral Certificate.
(j) To the extent the New York UCC applies, this Agreement creates a
valid and continuing security interest (as defined in the New York UCC) in favor
of the Trust in the COMT Collateral Certificate, which security interest is
prior to all other liens, and is enforceable as such as against creditors of and
purchasers from the Transferor.
(k) The COMT Collateral Certificate constitutes either an "account," a
"general intangible," an "instrument," or a "certificated security," each within
the meaning of the New York UCC.
(l) At the time of the transfer and assignment of the COMT Collateral
Certificate to the Trust pursuant to this Agreement, the Transferor owned and
had good and marketable title to the COMT Collateral Certificate free and clear
of any lien, claim or encumbrance of any Person.
(m) The Transferor has caused or will have caused, within ten days of
the execution of this Agreement, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the security interest in the COMT Collateral
Certificate granted to the Trust pursuant to this Agreement.
(n) Other than the interests transferred and assigned to the Trust
pursuant to this Agreement, the Transferor has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed, the COMT Collateral
Certificate. The Transferor has not authorized the filing of and is not aware of
any financing statements against the Transferor that include a description of
the COMT Collateral Certificate other than any financing statement relating to
the security interest granted to the Trust pursuant to this Agreement or any
financing statement that has been terminated. The Transferor is not aware of any
judgment or tax lien filings against the Transferor.
(o) At the time of the transfer and assignment of the COMT Collateral
Certificate to the Trust pursuant to this Agreement, all original executed
copies of the COMT Collateral Certificate have been delivered to the Trust.
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(p) At the time of the transfer and assignment of the COMT Collateral
Certificate to the Trust pursuant to this Agreement, the COMT Collateral
Certificate had no marks or notations indicating that it has been pledged,
assigned or otherwise conveyed to any Person other than the Trust.
(q) None of the representations and warranties contained subsections
5.01(j) through 5.01(p) shall be waived by any of the parties to this Agreement
unless the Transferor has obtained written confirmation from each Note Rating
Agency that there will be no Ratings Effect (as defined in the Indenture) with
respect to such waiver.
Section 5.02 Merger or Consolidation of, or Assumption of the
Obligations of, Transferor. Any Person (a) into which the Transferor may be
merged or consolidated, (b) which may result from any merger or consolidation to
which the Transferor shall be a party or (c) which may succeed to the properties
and assets of the Transferor substantially as a whole, which Person in any of
the foregoing cases executes an agreement of assumption to perform every
obligation of the Transferor under this Agreement, shall be the successor to the
Transferor hereunder without the execution or filing of any other document or
any further act by any of the parties to this Agreement; provided, however, that
(i) the Transferor shall have delivered to the Owner Trustee and the Indenture
Trustee an Officer's Certificate of the Transferor and an Opinion of Counsel
each stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section 5.02 and that all conditions precedent
provided for in this Agreement relating to such transaction have been complied
with, (ii) written confirmation from each Note Rating Agency that such
transaction will not result in such Note Rating Agency reducing or withdrawing
its then existing rating of the Notes and (iii) the Transferor shall have
delivered to the Owner Trustee and the Indenture Trustee an Opinion of Counsel
either (A) stating that, in the opinion of such counsel, all actions necessary
to perfect the interests of the Trust have been taken, including that all
financing statements and amendments thereto have been executed and filed that
are necessary fully to preserve and protect the interest of the Trust in the
COMT Collateral Certificate and reciting the details of such filings, or (B)
stating that, in the opinion of such counsel, no such action shall be necessary
to preserve and protect such interest. Following the effectiveness of the
succession provided for in this Section 5.02, the predecessor Transferor shall
be released from any obligations and liabilities provided for under the
Transaction Documents other than any obligations or liabilities incurred by such
predecessor Transferor prior to the effectiveness of such succession.
Section 5.03 Limitation on Liability of Transferor and Others. The
Transferor and any director, officer, employee or agent of the Transferor may
rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Transferor shall not be under any obligation to appear
in, prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in any
expense or liability.
Section 5.04 Transferor May Own Notes. The Transferor and any Affiliate
thereof may in its individual or any other capacity become the owner or pledgee
of Notes with the same rights as it would have if it were not the Transferor or
an Affiliate thereof, except as expressly provided herein or in any Transaction
Document (including, without limitation, the definition of "Outstanding"
contained in the Indenture). The Transferor agrees that it shall not transfer
any interest in Notes or any rights hereunder without delivering to the Owner
Trustee a Master Trust Tax Opinion and an Issuer Tax Opinion.
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Section 5.05 Tax Treatment. The Transferor has structured this
Agreement, the Trust Agreement, the Indenture and any related agreement with the
intention that the Notes qualify under applicable federal, state, and local
income and franchise tax law and for purposes of any other tax imposed on or
measured by income as indebtedness of the Transferor secured by the COMT
Collateral Certificate and the Issuer shall be disregarded as a separate entity
for such purposes. The Transferor, the Administrator and the Issuer agree to
treat the Notes and the Issuer accordingly and to take no action inconsistent
with such treatment.
ARTICLE VI
ACQUISITION OF TRUST ASSETS
Section 6.01 Acquisition of COMT Collateral Certificate. If the Master
Trust Transferor exercises its option to accept retransfer of the COMT
Collateral Certificate pursuant to the terms of the Series Supplement, the
Master Trust Transferor shall (a) acquire the COMT Collateral Certificate, which
acquisition shall be effective as of the date on which such retransfer occurs,
(b) deliver notice of such acquisition to the Owner Trustee and the Indenture
Trustee on or prior to the Determination Date following the applicable Monthly
Period for which the option is deemed exercised and (c) deposit in the
Collection Account for Asset Pool One on or prior to the Distribution Date
following such Monthly Period an amount equal to the Invested Amount of the COMT
Collateral Certificate on such date and all other amounts payable to the
Noteholders of each Outstanding Series of Notes including accrued interest on
the Notes.
ARTICLE VII
INSOLVENCY EVENTS
Section 7.01 Rights Upon the Occurrence of an Insolvency Event. If (A)
the Transferor shall file a petition or commence a proceeding (I) to take
advantage of any bankruptcy, conservatorship, receivership, insolvency, or
similar laws or (II) for the appointment of a trustee, conservator, receiver,
liquidator, or similar official for or relating to the Transferor or all or
substantially all of its property, (B) the Transferor shall consent or fail to
object to any such petition filed or proceeding commenced against or with
respect to it or all or substantially all of its property, or any such petition
or proceeding shall not have been dismissed or stayed within sixty (60) days of
its filing or commencement, or a court, agency, or other supervisory authority
with jurisdiction shall have decreed or ordered relief with respect to any such
petition or proceeding, (C) the Transferor shall admit in writing its inability
to pay its debts generally as they become due, (D) the Transferor shall make an
assignment for the benefit of its creditors, or (E) the Transferor shall
voluntarily suspend payment of its obligations (each, an "Insolvency Event"),
the Transferor shall on the day of such Insolvency Event (the "Appointment
Date") immediately cease to increase the Invested Amount of the COMT Collateral
Certificate and shall promptly give notice to the Owner Trustee and the
Indenture Trustee of such Insolvency Event.
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ARTICLE VIII
TERMINATION
Section 8.01 Termination of Agreement. This Agreement and the
respective obligations and responsibilities of the Trust, the Transferor, the
Administrator and the Indenture Trustee under this Agreement shall terminate on
the earlier of (a) the date on which the Trust Agreement terminates pursuant to
the terms set forth therein and (b) the date specified in writing by the
Transferor to the Owner Trustee and the Indenture Trustee following either (i)
the date on which the principal amount of the Notes are paid in full and (ii)
the date which is the last Legal Maturity Date of all Outstanding Notes.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment.
(a) This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Transferor, the Administrator, the
Indenture Trustee and the Issuer, without the consent of any Noteholders, upon
the delivery of a Master Trust Tax Opinion and an Issuer Tax Opinion to the
Indenture Trustee by the Transferor and written confirmation that such amendment
will not have a Ratings Effect; provided, however, that the Transferor shall
deliver to the Indenture Trustee and the Owner Trustee an Officer's Certificate
of the Transferor to the effect that the Transferor reasonably believes that
such amendment will not have an Adverse Effect and is not reasonably expected to
have an Adverse Effect at any time in the future.
(b) This Agreement may also be amended from time to time by a
written instrument duly executed and delivered by the Transferor, the
Administrator, the Indenture Trustee and the Issuer, with prior written notice
to each Note Rating Agency, upon the delivery of a Master Trust Tax Opinion and
an Issuer Tax Opinion to the Indenture Trustee by the Transferor and with the
consent of holders of not less than 662/3% of the Outstanding Dollar Principal
Amount (as defined in the Indenture) of each series, class and tranche of Notes
affected by such change; 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 in respect of the Collateral or distributions
that are required to be made for the benefit of the Noteholders or (b) reduce
the aforesaid percentage of the Outstanding Dollar Principal Amount (as defined
in the Indenture) of the Notes, the holders of which are required to consent to
any such amendment.
(c) Promptly after the execution of any such amendment or consent,
the Transferor shall furnish written notification of the substance of such
amendment or consent to the Indenture Trustee and each Note Rating Agency.
(d) It shall not be necessary for the consent of the Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such
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consents and of evidencing the authorization of the execution thereof by
Noteholders shall be subject to such reasonable requirements as the Indenture
Trustee may prescribe.
(e) Any Indenture Supplement executed in accordance with the
provisions of Article IX of the Indenture shall not be considered an amendment
of this Agreement for the purposes of this Section 9.01.
Section 9.02 Fees Payable by the Transferor. Notwithstanding anything
contained in any other Transaction Document (unless such document specifically
refers to this Section), the Transferor shall pay out of its own funds, without
reimbursement, all expenses, fees and disbursements of the Owner Trustee (as
such and in its individual capacity), the Administrator and the Indenture
Trustee (including, in each case, the reasonable fees and expenses of its
outside counsel) and independent accountants and all other fees and expenses
relating to the Trust, including the costs of filing UCC continuation
statements, the costs and expenses relating to obtaining and maintaining the
listing of any Notes on any stock exchange, the costs and expenses relating to
maintaining Issuer Accounts, and any stamp, documentary, excise, property
(whether on real, personal or intangible property) or any similar tax levied on
the Trust or the Trust's assets that are not expressly stated in this Agreement
to be payable by the Trust (other than federal, state, local and foreign income
and franchise taxes, if any, or any interest or penalties with respect thereto,
assessed on the Trust, which shall be paid by the Trust).
Section 9.03 Notices. (a) All demands, notices and communications upon
or to the Transferor, the Issuer, the Owner Trustee, the Indenture Trustee, or
any Note Rating Agency under this Agreement shall be in writing, personally
delivered, mailed by certified mail, return receipt requested, or sent by
facsimile transmission, and shall be deemed to have been duly given upon receipt
(a) in the case of the Transferor, to Capital One Funding, LLC, [address], (b)
in the case of the Administrator, to Capital One Bank, in care of Capital One
Services, Inc., 0000 Xxxxx Xxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000, Attention of
General Counsel, with a copy to Director of Securitization, (c) in the case of
the Indenture Trustee, to The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 0
Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Securities Unit, (d) in
the case of the Issuer, to the Capital One Multi-asset Execution Trust, c/o
Deutsche Bank Trust Company Delaware, E.A. Delle Donne Corporate Center, 0000
Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000-0000 with a copy to Deutsche Bank Trust
Company Americas, c/o DB Services New Jersey Inc., 100 Plaza One, Mail Stop:
JC408-0606, Xxxxxx Xxxx, XX 00000 or, as to each of the foregoing, at such other
address as shall be designated by written notice to the other parties. All
demands, notices and communications directed to the Issuer shall be directed to
a Responsible Officer of the Owner Trustee and the Administrator.
(b) Any Notice required or permitted to be given to a Holder of
Registered Notes shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Note Register. No Notice shall be
required to be mailed to a Holder of Bearer Notes but shall be given as provided
in the related Indenture Supplement. Any Notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Noteholder receives such Notice.
Section 9.04 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 5.02 of this Agreement, this
Agreement may not be assigned by the Transferor.
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Section 9.05 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Transferor, the Issuer, the Owner
Trustee, the Indenture Trustee, the Administrator and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
COMT Collateral Certificate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 9.06 Severability. Any provision of this Agreement that 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, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 9.07 Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 9.08 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 9.09 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.
Section 9.10 Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, none of
the Transferor, the Administrator, the Owner Trustee or the Indenture Trustee
shall at any time with respect to the Issuer acquiesce, petition or otherwise
invoke or cause the Issuer to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Issuer
under any federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect or appointing a receiver, conservator, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Issuer; provided, however, that this subsection 9.10(a) shall
not operate to preclude any remedy described in Article VII of the Indenture.
(b) Notwithstanding any prior termination of this Agreement, none of
the Trust, the Administrator, the Owner Trustee or the Indenture Trustee shall
at any time with respect to the Transferor acquiesce, petition or otherwise
invoke or cause the Transferor to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Transferor under any federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect or appointing a receiver,
conservator, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Transferor or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Transferor;
provided, however, that this subsection 9.10(b) shall not operate to preclude
any remedy described in Article VII of the Indenture.
(c) Notwithstanding any prior termination of this Agreement, none of
the Transferor, the Trust, the Administrator, the Owner Trustee or the Indenture
Trustee shall at any
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time with respect to the Master Trust acquiesce, petition or otherwise invoke or
cause the Master Trust to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Master
Trust under any federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect or appointing a receiver, conservator, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Master Trust or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Master Trust; provided, however, that this
subsection 9.10(c) shall not operate to preclude any remedy described in Article
VII of the Indenture.
Section 9.11 Relation to the Trust Agreement. This Agreement is one of the
Transfer and Administration Agreements (as such term is defined in the Trust
Agreement) referred to in the Trust Agreement.
Section 9.12 Integration of Documents. This Agreement, together with the
Trust Agreement, constitutes the entire agreement of the parties hereto and
thereto with respect to the subject matter hereof and thereof and supersedes all
prior agreements relating to the subject matter hereof and thereof.
Section 9.13 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Trust, the Owner Trustee, the Indenture
Trustee, the Transferor or the Administrator, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided under this Agreement are cumulative and not exhaustive of
any rights, remedies, powers and privileges provided by law.
Section 9.14 Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (i) this Transfer and Administration Agreement
is executed and delivered by the Owner Trustee not individually or personally
but solely as Owner Trustee, in the exercise of the powers and authority
conferred and vested in it, (ii) each of the representations, undertakings and
agreements herein made on the part of the Issuer is made and intended not as a
personal representation, undertaking or agreement by the Owner Trustee but is
made and intended for the purpose of binding only the Issuer, (iii) nothing
herein contained will be construed as creating any liability on the Owner
Trustee individually or personally, to perform any covenant of the Issuer either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties to this Indenture and by any Person claiming by,
through or under them and (iv) under no circumstances will the Owner Trustee be
personally liable for the payment of any indebtedness or expenses of the Issuer
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Issuer under this Transfer and
Administration Agreement or any related documents.
Section 9.15 Acknowledgement and Acceptance of Indenture. Capital One
Bank, as Administrator, by its signature hereto, acknowledges and accepts the
Indenture.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Transfer and
Servicing Agreement to be duly executed by their respective officers as of the
day and year first above written.
CAPITAL ONE MULTI-ASSET EXECUTION
TRUST, as Issuer
By: DEUTSCHE BANK TRUST COMPANY,
DELAWARE, not in its individual capacity but
solely as Owner Trustee on behalf of the Trust
By: ___________________________________________
Name:
Title:
CAPITAL ONE FUNDING, LLC,
as Transferor
By: ___________________________________________
Name:
Title:
CAPITAL ONE BANK,
as Administrator
By: ___________________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Indenture Trustee and not in its individual
capacity
By: ___________________________________________
Name:
Title:
[Signature Page to Transfer and Servicing Agreement]