Exhibit 4.2
EXECUTION COPY
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 October 9, 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 ...................................... 6
Section 2.03 Closing .................................................. 6
Section 2.04 Books and Records ........................................ 6
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 .......................... 7
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.01 Collections and Allocations .............................. 7
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 ............................................. 12
Section 4.04 Additional Information to be Furnished to Issuer ......... 12
Section 4.05 Independence of Administrator ............................ 12
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
Section 4.10 Indemnification .......................................... 13
ARTICLE V
THE TRANSFEROR
Section 5.01 Representations of Transferor ............................ 14
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 ......... 17
Section 5.04 Transferor May Own Notes ................................. 17
Section 5.05 Tax Treatment ............................................ 17
ARTICLE VI
ACQUISITION OF TRUST ASSETS
Section 6.01 Acquisition of COMT Collateral Certificate ............... 18
Section 6.02 Acquisition of Additional Trust Assets ................... 18
ARTICLE VII
INSOLVENCY EVENTS
Section 7.01 Rights Upon the Occurrence of an Insolvency Event ........ 19
ARTICLE VIII
TERMINATION
Section 8.01 Termination of Agreement ................................. 19
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment ................................................ 20
Section 9.02 Fees Payable by the Transferor ........................... 20
Section 9.03 Notices .................................................. 21
Section 9.04 Assignment ............................................... 21
Section 9.05 Limitations on Rights of Others .......................... 21
Section 9.06 Severability ............................................. 21
Section 9.07 Separate Counterparts .................................... 22
Section 9.08 Headings ................................................. 22
Section 9.09 GOVERNING LAW ............................................ 22
Section 9.10 Nonpetition Covenants .................................... 22
Section 9.11 Relation to the Trust Agreement .......................... 22
Section 9.12 Integration of Documents ................................. 23
Section 9.13 No Waiver; Cumulative Remedies ........................... 23
Section 9.14 Limitation of Liability .................................. 23
Section 9.15 Acknowledgement and Acceptance of Indenture .............. 23
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EXHIBITS
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EXHIBIT A Form of Assignment
EXHIBIT B Form of Power of Attorney
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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 October 9, 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 "COMT Pooling and
Servicing Agreement"), and a Series 2002-CC Supplement thereto, dated as of
October 9, 2002 (as the same may be amended, supplemented or otherwise modified
from time to time, the "Series 2002-CC 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 1 Notes (the "Notes")
pursuant to the Indenture, dated as of October 9, 2002 (as amended, supplemented
or otherwise modified from time to time, the "Indenture"), and the COMT Asset
Pool Supplement, dated as of October 9, 2002 (as amended, supplemented or
otherwise modified from time to time, the "Asset Pool 1 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 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 October 9,
2002 (the "Trust Agreement") between Capital One Funding, LLC, as beneficiary
(the "Beneficiary"), and Deutsche Bank Trust Company Delaware, as owner trustee
(in its capacity as owner trustee, and not in its individual capacity unless
expressly provided herein, the "Owner Trustee") (this Agreement, the Trust
Agreement, the Indenture, the Asset Pool 1 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 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 1 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 (i) any day on which the Invested Amount (as such
term is defined in the Series 2002-CC Supplement) of the COMT Collateral
Certificate or Additional Collateral Certificate is increased due to an issuance
of Notes pursuant to the Indenture or (ii) the date of the addition of any
Additional Collateral Certificate to the Trust Assets pursuant to Section 6.02.
"Additional Collateral Certificate" means each Investor Certificate (as
defined in the Indenture) issued by a Master Trust (as defined in the Indenture)
whose transferor or seller is the Transferor or an Affiliate of the Transferor
that has been designated for inclusion to the Trust Assets as an Additional
Collateral Certificate pursuant to Section 6.02.
"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 1" has the meaning specified in the Asset Pool 1
Supplement.
"Asset Pool 1 Supplement" has the meaning specified in the preamble to
this Agreement.
"Assignment" has the meaning specified in subsection 6.02(b)(ii).
"Beneficiary" has the meaning specified in the preamble to this
Agreement.
"Capital One Bank" has the meaning specified in the preamble to this
Agreement.
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"Closing Date" means October 9, 2002.
"Collateral" has the meaning specified in the Asset Pool 1 Supplement.
"Collection Account" has the meaning specified in the Asset Pool 1
Supplement.
"COMT Collateral Certificate" means the Series 2002-CC Certificate
issued pursuant to the COMT Pooling and Servicing Agreement and the Series
2002-CC Supplement, as amended, supplemented, restated or otherwise modified
from time to time.
"COMT Pooling and Servicing Agreement" has the meaning specified in the
preamble to this Agreement.
"Determination Date" has the meaning specified in the COMT Pooling and
Servicing Agreement.
"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 1 Noteholder (as defined in the Asset
Pool 1 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
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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.
"Payment Instruction" has the meaning specified in the Indenture.
"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.
"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 2002-CC 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.
"Trustee Bank" has the meaning specified in the Trust Agreement.
"Trust Estate" has the meaning specified in the Trust 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.
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(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."
(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 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.
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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
Orrick, Herrington & Sutcliffe LLP, 3050 K Street, Suite 200, Washington, D.C.
20007 on the Closing Date, simultaneously with the closing of the transactions
contemplated by the COMT Pooling and Servicing Agreement, the Series 2002-CC
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 New York. 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, 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 1 Supplement, the Indenture Trustee shall be the Series
2002-CC Certificateholder for all purposes under the COMT Pooling and Servicing
Agreement and the Series 2002-CC 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 1 Supplement, such transferee shall be the Series
2002-CC Certificateholder for all purposes under the COMT Pooling and Servicing
Agreement and the Series 2002-CC 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.
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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 1 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 1 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 or any Additional Collateral Certificate
shall be deposited in the Collection Account for Asset Pool 1, which amounts
shall be applied by the Indenture Trustee pursuant to the Asset Pool 1
Supplement.
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 1 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 1 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
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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));
(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 the Payment Instruction for the Issuer after the
Issuer receives each Monthly Servicer's Certificate under the Series
2002-CC Supplement, delivering a copy of the Payment Instruction 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 1 Supplement (Article IX);
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(N) giving notice to each Note Rating Agency and collecting
the votes of Noteholders, as necessary, in connection with any
supplemental indenture or amendment to the Indenture, any Indenture
Supplement or the Asset Pool 1 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 which
direct 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 Issuer
Authorized Officer as required by Section 1004 of the Indenture;
(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 COMT 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 1
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 1
Supplement, preparing for execution and delivery or filing by the
Issuer of all supplements and amendments to this Agreement and the
Asset Pool 1 Supplement and all instruments of further assurance; and
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(Z) to the extent set forth in the Asset Pool 1 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 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 B, 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.
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(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;
(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.
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Section 4.03 Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement, the Administrator shall be
entitled to $1,500 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 other 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
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 even though such Person 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); or
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(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.
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 (c), 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.
Section 4.10 Indemnification. To the fullest extent permitted by law,
the Administrator hereby agrees, whether or not any of the transactions
contemplated by this Agreement or the Trust Agreement will be consummated, to
assume liability for, and hereby indemnifies, protects, saves and keeps harmless
the Owner Trustee (as such and in its individual capacity), and its officers,
directors, successors, assigns, legal representatives, agents and servants (each
an "Indemnified Person"), from and against any and all liabilities, obligations,
losses, damages, penalties, taxes, claims, actions, investigations, proceedings,
costs, expenses or disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted at any time against an Indemnified Person (whether or not also
indemnified against by any other Person) in any way relating to or arising out
of this Agreement, the Trust Agreement or any other related documents or the
enforcement of any of the terms of any thereof, the administration of the Trust
Estate or the action or inaction of the Owner Trustee, or the Trustee Bank under
the Trust Agreement, and the manufacture, purchase, acceptance, nonacceptance,
rejection, ownership, delivery, lease, possession, use, operation, condition,
sale, return or other disposition of any property (including any strict
liability, any liability without fault and any latent and other defects, whether
or
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not discoverable), except, in any such case, to the extent that any such
liabilities, obligations, losses, damages, penalties, taxes, claims, actions,
investigations, proceedings, costs, expenses and disbursements are the result of
any of the matters described in the third sentence of Section 6.01 of the Trust
Agreement; provided, however, that the Administrator shall not be liable for or
required to indemnify an Indemnified Person from and against expenses arising or
resulting from (i) the Indemnified Party's own willful misconduct, bad faith or
negligence, or (ii) the inaccuracy of any representation or warranty contained
in Section 6.07 of the Trust Agreement made by the Indemnified Person. The
indemnification set forth herein will survive the termination of this Agreement,
the Trust Agreement and the Trust and the resignation or removal of the Owner
Trustee. In the event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section 4.10, the Owner Trustee's choice of
legal counsel shall be subject to the approval of the Administrator, which
approval shall not be unreasonably withheld.
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 1 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 company 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.
(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 company
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.
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(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 obligations 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 other Transaction
Documents, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the other 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 other Transaction
Documents, or (iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement or the other
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.
(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
15
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 1 Supplement, comply
with the provisions of the COMT Pooling and Servicing Agreement relating to
transfers of the COMT Collateral Certificate.
(j) This Agreement creates a valid and continuing security interest (as
defined in the applicable 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 applicable UCC.
(l) 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.
(m) 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.
(n) 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.
(o) 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.
(p) None of the representations and warranties contained in subsections
5.01(j) through 5.01(o) 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
16
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 shall have been delivered 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.
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 or any Additional 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.
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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 2002-CC 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 1 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.
Section 6.02 Acquisition of Additional Trust Assets.
(a) The Transferor or an Affiliate of the Transferor may, but shall not
be obligated to, subject to the conditions in paragraph (b) below, designate
from time to time Additional Collateral Certificates to be included as Trust
Assets and Collateral in Asset Pool 1. Such additional Trust Assets shall be
transferred to the Issuer on the Addition Date.
(b) On the close of business on the applicable Addition Date, the
applicable Additional Collateral Certificate shall be designated as an
additional Trust Asset to be included as Collateral in Asset Pool 1, subject to
the satisfaction of the following conditions:
(i) on or before the fifth Business Day (as defined in the
Indenture) prior to the Addition Date, the Transferor or the applicable
Affiliate of the Transferor shall have delivered to the Owner Trustee,
the Indenture Trustee, the Administrator and each Note Rating Agency
written notice (unless such notice requirement is otherwise waived)
that such Additional Collateral Certificate will be included in the
Trust Assets, which notice shall specify the principal amount of such
Additional Collateral Certificate and the Addition Date;
(ii) on or before the Addition Date, the Transferor or the
applicable Affiliate of the Transferor shall have delivered to the
Owner Trustee, on behalf of the Issuer, a written assignment
substantially in the form of Exhibit A (the "Assignment") and such
Additional Collateral Certificate shall be registered in the name of
the Issuer;
(iii) as of the Addition Date, no Insolvency Event with respect to
the Transferor or the applicable Affiliate of the Transferor shall have
occurred nor shall the transfer to the Issuer of such Additional
Collateral Certificate have been made in contemplation of the
occurrence thereof;
(iv) as of the Addition Date, the Assignment constitutes either (x)
a sale of such Additional Collateral Certificate from the Transferor or
the applicable Affiliate of the Transferor to the Issuer or (y) a grant
of a perfected security interest therein from the Transferor to the
Issuer;
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(v) as of the Addition Date, the Owner Trustee, the Transferor,
the Administrator, the Indenture Trustee and the Issuer shall have
received written confirmation that such Assignment will not have a
Ratings Effect; and
(vi) as of the Addition Date, the Transferor or the applicable
Affiliate of the Transferor shall have delivered to the Owner Trustee,
the Administrator, the Indenture Trustee and the Issuer an Officer's
Certificate (x) to the effect that the Transferor or the applicable
Affiliate of the Transferor reasonably believes that the Assignment of
such Additional Collateral Certificate will not have an Adverse Effect
and is not reasonably expected to have an Adverse Effect at any time in
the future, and (y) confirming the items set forth in clauses (ii)
through (v) above.
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.
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.
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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 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,
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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, 140 East Shore
Drive, Room 1048, Glen Allen, Virginia 23059, (b) in the case of the
Administrator, to Capital One Bank, in care of Capital One Services, Inc.,
8000 Jones Branch Drive, McLean, Virginia 22102, 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, 101 Barclay Street, Floor 8 West, New York,
New York 10286, 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, 1011 Centre Road,
Wilmington, DE 19805-1266 with a copy to Deutsche Bank Trust Company Americas,
c/o DB Services New Jersey Inc., 100 Plaza One, Mail Stop: JC408-0606, Jersey
City, NJ 11311 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.
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, any Additional 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.
21
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, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATION LAW, 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 VI 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 VI 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 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 VI 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.
22
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 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 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]
23
IN WITNESS WHEREOF, the parties hereto have caused this Transfer and
Administration 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: /s/ Michele Voon
--------------------------------------
Name: Michele Voon
Title: Attorney-in-Fact
CAPITAL ONE FUNDING, LLC,
as Transferor
By: /s/ Bonnie A. Seideman
--------------------------------------
Name: Bonnie A. Seideman
Title: President and Chief Executive
Officer
CAPITAL ONE BANK,
as Administrator
By: /s/ Bonnie A. Seideman
--------------------------------------
Name: /s/ Bonnie A. Seideman
Title: Manager of Securitization
THE BANK OF NEW YORK,
as Indenture Trustee and not in its
individual capacity
By: /s/ Scott J. Tepper
--------------------------------------
Name: Scott J. Tepper
Title: Assistant Vice President
[Signature Page to Transfer and Administration Agreement]
EXHIBIT A
[FORM OF] ASSIGNMENT OF AN ADDITIONAL COLLATERAL CERTIFICATE
(As required by Section 6.02 of
the Transfer & Administration Agreement)
ASSIGNMENT No. ___ OF AN ADDITIONAL COLLATERAL CERTIFICATE,
dated as of _______ __, ___/1/ (the "Assignment"), by and among CAPITAL ONE
FUNDING, LLC ("Funding"), a Virginia limited liability company, as Transferor
(the "Transferor), and CAPITAL ONE MULTI-ASSET EXECUTION TRUST (the "Trust"),
pursuant to the Transfer & Administration Agreement referred to below.
WITNESSETH
WHEREAS, Funding, as Transferor, Capital One Bank, as
Administrator, The Bank of New York, as Indenture Trustee and the Trust, as
Issuer are parties to the Transfer & Administration Agreement dated as of
October 9, 2002 (as amended and supplemented from time to time, the
"Agreement");
WHEREAS, pursuant to subsection 6.02(a) of the Agreement, the
Transferor wishes to designate an Additional Collateral Certificate (as such
term is defined in the Agreement) to the Trust for designation pursuant to the
applicable Asset Pool Supplement; and
WHEREAS, the Owner Trustee, on behalf of the Trust, is willing
to accept such designation and conveyance subject to the terms and conditions
hereof;
NOW, THEREFORE, the Transferor and the Owner Trustee, on
behalf of the Trust, hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall
have the meanings ascribed to them in the Agreement unless otherwise defined
herein.
"Additional Cut-Off Date" shall mean, with respect to the
Additional Collateral Certificate designated hereby, _______ __, ___.
"Addition Date" shall mean, with respect to the Additional
Collateral Certificate designated on Schedule 1 hereto, ________ __, ___.
"Notice Date" shall mean, with respect to the Additional
Collateral Certificate designated on Schedule 1 hereto, ________ __, ___ (which
shall be a date on or prior to the fifth Business Day prior to the Addition
Date).
2. Conveyance of Additional Collateral Certificates. (a) The
Transferor does hereby transfer, assign, set over and otherwise convey to the
Trust, without recourse, all of its right, title and interest in, to and under
the Additional Collateral Certificate existing at the close
- --------
/1/ To be dated as of the applicable Addition Date
A-1
of business on the Additional Cut-Off Date. The foregoing does not constitute
and is not intended to result in the creation or assumption by the Trust, the
Owner Trustee (as such or in its individual capacity), the Indenture Trustee,
any Noteholders, any Supplemental Credit Enhancer or any Derivative Counterparty
of any obligation of the Transferor or any other Person in connection with the
Additional Collateral Certificate or under any agreement or instrument relating
thereto, including any obligation to Obligors, merchant banks, merchants
clearance systems, VISA, MasterCard or insurers.
(b) If necessary, the Transferor agrees to record and file, at
its own expense, financing statements (and continuation statements when
applicable) with respect to the Additional Collateral Certificate existing on
the Addition Cut Off Date meeting the requirements of applicable state law in
such manner and in such jurisdictions as are necessary to perfect, and maintain
perfection of, the sale and assignment of its interest in such Additional
Collateral Certificate to the Trust, and to deliver a file-stamped copy of each
such financing statement or other evidence of such filing to the Owner Trustee
on or prior to the Addition Date. None of the Owner Trustee or the Indenture
Trustee shall be under any obligation whatsoever to file such financing or
continuation statements or to make any filing under the UCC in connection with
such sale and assignment.
(c) The Transferor does hereby grant to the Trust a security
interest in all of its right, title and interest, whether now owned or hereafter
acquired, in and to the Additional Collateral Certificate designated for sale on
the Addition Cut Off Date. This Assignment constitutes a security agreement
under the UCC.
3. Acceptance by Owner Trustee. The Owner Trustee hereby
acknowledges its acceptance on behalf of the Trust of all right, title and
interest to the property existing on the Additional Cut-Off Date which has been
conveyed to the Trust pursuant to Section 2(a) of this Agreement.
4. Representations and Warranties of the Transferor.
The Transferor hereby represents and warrants to the Trust, as of the Addition
Date, that:
(a) Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Transferor
enforceable against the Transferor in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, receivership, conservatorship
or other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general or the rights of creditors
of a Virginia limited liability company and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(b) Insolvency. As of each of the Additional Cut-Off Date and
the Addition Date, no Insolvency Event with respect to the Transferor
has occurred and the transfer by the Transferor of Additional
Collateral Certificates to the Trust has not been made in contemplation
of the occurrence thereof.
A-2
(c) Security Interest. This Assignment constitutes a valid
sale, transfer and assignment to the Trust of all right, title and
interest of the Transferor in the Additional Collateral Certificate
designated on the Additional Cut-Off Date and such Additional
Collateral Certificate will be held by the Owner Trustee, on behalf of
the Trust, free and clear of any Lien of any Person claiming through or
under the Transferor or any of its Affiliates, or, if this Assignment
does not constitute a sale of such property, it constitutes a grant of
a security interest in all of the Transferor's right, title and
interest in such Additional Collateral Certificate to the Owner
Trustee, on behalf of the Trust which is enforceable upon execution and
delivery of this Assignment. Upon the filing of the appropriate
financing statements, the Trust shall have a first priority perfected
security or ownership interest in the Transferor's rights in such
property and proceeds.
(d) No Conflict. The execution and delivery by the Transferor
of this Assignment, the performance of the transactions contemplated by
this Assignment and the fulfillment of the terms hereof applicable to
the Transferor, will not conflict with or violate any Requirements of
Law applicable to the Transferor or conflict with, result in any breach
of any of the 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 its
properties are bound.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Transferor, threatened against
the Transferor, before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality (i) asserting
the invalidity of this Assignment, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this
Assignment, (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
Assignment or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Assignment.
(f) All Consents. All authorizations, consents, orders or
other actions of any Person or of any Governmental Authority required
to be obtained by the Transferor in connection with the execution and
delivery of this Assignment by the Transferor and the performance of
the transactions contemplated by this Assignment by the Transferor,
have been obtained.
(g) No Adverse Effect. The acquisition by the Trust of the
Additional Collateral Certificate shall not, in the reasonable belief
of the applicable Transferor, result in an Adverse Effect.
5. Conditions Precedent. The acceptance by the Trustee set
forth in Section 3 and the amendment of the Transfer and Administration
Agreement set forth in Section 6 are subject to the satisfaction, on or prior to
the Addition Date, of the conditions described in subsection 6.02(b)(ii) of the
Agreement.
A-3
6. Amendment of the Transfer & Administration Agreement. The
Agreement is hereby amended to provide that all references therein to the
"Transfer and Administration Agreement," to "this Agreement" and "herein" shall
be deemed from and after the Addition Date to be a dual reference to the
Agreement as supplemented by this Assignment and all references therein to
Additional Collateral Certificates shall be deemed to include the Additional
Collateral Certificate designated hereby. Except as expressly amended hereby,
all of the representations, warranties, terms, covenants and conditions of the
Agreement shall remain unamended and shall continue to be, and shall remain, in
full force and effect in accordance with its terms and except as expressly
provided herein shall not constitute or be deemed to constitute a waiver of
compliance with or a consent to noncompliance with any term or provision of the
Agreement.
7. Counterparts. This Assignment may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which shall constitute one and the same
instrument.
8. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
9. Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Assignment has been executed and delivered
by Deutsche Bank Trust Company Delaware on behalf of the Trust, not in its
individual capacity, but solely in its capacity as Owner Trustee, in no event
shall Deutsche Bank Trust Company Delaware in its individual capacity have any
liability in respect of the representations, warranties, or obligations of the
Trust hereunder or under any other document, as to all of which recourse shall
be had solely to the assets of the Trust, and for all purposes of this
Assignment and each other document, the Owner Trustee (as such or in its
individual capacity) shall be subject to, and entitled to the benefits of, the
terms and provisions of the Trust Agreement.
A-4
IN WITNESS WHEREOF, the Transferor and the Owner Trustee, on
behalf of the Trust, have caused this Assignment to be duly executed by their
respective officers as of the day and year first above written.
CAPITAL ONE FUNDING, LLC,
as Transferor
By
----------------------------------
Name:
Title:
CAPITAL ONE MULTI-ASSET EXECUTION
TRUST
By: Deutsche Bank Trust Company
Delaware, not in its individual
capacity, but solely as Owner
Trustee on behalf of the Trust
By
----------------------------------
Name:
Title:
Schedule 1 to Exhibit A
List of Additional Collateral Certificates
EXHIBIT B
[FORM OF] POWER OF ATTORNEY
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that Capital One Multi-asset Execution Trust, a
Delaware statutory trust (the "Trust") does hereby make, constitute and appoint
Capital One Bank, as Administrator under the Transfer & Administration Agreement
(as defined below), and its agents and attorneys, as Attorneys in Fact to
execute on behalf of the Trust all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Trust to
prepare, file or deliver pursuant to the Transaction Documents (as defined in
the Transfer & Administration Agreement) including, without limitation, to
appear for and represent the Trust in connection with the preparation, filing
and audit of federal, state and local tax returns pertaining to the Trust, and
audits that the Trust could perform including, without limitation, the right to
distribute and receive confidential information, defend and assert positions in
response to deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements. For the purpose of this Power of
Attorney, the term "Transfer & Administration Agreement" means the Transfer &
Administration Agreement dated as of October 9, 2002, among the Trust, Capital
One Funding, LLC, as Transferor, Capital One Bank, as Administrator and The Bank
of New York, as Indenture Trustee, as such may be amended from time to time.
All powers of attorney for this purpose heretofore filed or executed by the
Trust are hereby revoked.
EXECUTED this ____ day of __________, 2002
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
By: Deutsche Bank Trust Company Delaware,
not in its individual capacity, but
solely as Owner Trustee on behalf of
the Trust
By:
----------------------------------------
Name:
Title: