EXHIBIT 4.3
EXECUTION COPY
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CAPITAL ONE MULTI-ASSET EXECUTION TRUST
AMENDED AND RESTATED TRUST AGREEMENT
Dated as of October 9, 2002
between
CAPITAL ONE FUNDING, LLC,
as Beneficiary and as a Transferor
and
DEUTSCHE BANK TRUST COMPANY DELAWARE,
as Owner Trustee
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions.......................................................................1
Section 1.02. Generic Terms.....................................................................5
ARTICLE II
ORGANIZATION; DECLARATION OF TRUST BY THE OWNER TRUSTEE
Section 2.01. Continuation of Trust; Name.......................................................5
Section 2.02. Transfer of Property to Trust; Initial Capital Contribution of Trust
Estate............................................................................5
Section 2.03. Purposes and Powers; Trust To Operate as a Single Purpose Entity..................6
Section 2.04. Appointment of Owner Trustee......................................................8
Section 2.05. Declaration of Trust..............................................................9
Section 2.06. Title to Trust Estate.............................................................9
Section 2.07. Nature of Interest in the Trust Estate............................................9
Section 2.08. Continuation of Trust; Principal Office of Owner Trustee..........................9
Section 2.09. Tax Matters.......................................................................9
Section 2.10. Fiscal Year.......................................................................9
Section 2.11. Closing..........................................................................10
Section 2.12. Books and Records................................................................10
Section 2.13. Limitation on Liability of Transferors and Others................................10
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BENEFICIARY
Section 3.01. Representations and Warranties of the Beneficiary................................10
ARTICLE IV
DISTRIBUTIONS OF FUNDS
Section 4.01. Distribution of Funds............................................................11
Section 4.02. Payments from Trust Estate Only..................................................12
Section 4.03. Method of Payment................................................................12
Section 4.04. Establishment of Account.........................................................12
Section 4.05. Transferor Interest; Transferor Certificates.....................................12
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ARTICLE V
DUTIES OF THE OWNER TRUSTEE
Section 5.01. Action Upon Instructions.........................................................13
Section 5.02. No Duty to Act Under Certain Circumstances.......................................14
Section 5.03. No Duties Except Under Specified Agreements or Instructions......................14
Section 5.04. Trust Operation..................................................................15
Section 5.05. Execution of Documents...........................................................16
ARTICLE VI
CONCERNING THE TRUSTEE BANK
Section 6.01. Acceptance of Trust and Duties...................................................16
Section 6.02. Furnishing of Documents..........................................................17
Section 6.03. No Representations and Warranties as to the Trust Estate.........................17
Section 6.04. Signature of Returns.............................................................18
Section 6.05. Reliance; Advice of Counsel......................................................18
Section 6.06. Not Acting in Individual Capacity................................................18
Section 6.07. Representations and Warranties...................................................18
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.01. Termination of Trust Agreement...................................................19
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES, CO-TRUSTEES AND
SEPARATE OWNER TRUSTEES
Section 8.01. Resignation and Removal of the Owner Trustee; Appointment of Successors..........19
Section 8.02. Transfer Procedures..............................................................20
Section 8.03. Qualification of Owner Trustee...................................................20
Section 8.04. Co-trustees and Separate Owner Trustees..........................................20
ARTICLE IX
AMENDMENTS
Section 9.01. Amendments.......................................................................21
ARTICLE X
BENEFICIAL INTERESTS AND CERTIFICATES
Section 10.01. Issuance of Trust Certificates...................................................22
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TABLE OF CONTENTS
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Section 10.02. Beneficial Interest; Prohibitions on Transfer....................................23
Section 10.03. Lost or Destroyed Trust Certificate..............................................23
ARTICLE XI
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 11.01. Trustee Bank Fees and Expenses...................................................24
Section 11.02. Indemnification..................................................................24
ARTICLE XII
MISCELLANEOUS
Section 12.01. Conveyance by the Owner Trustee is Binding.......................................25
Section 12.02. Instructions; Notices............................................................25
Section 12.03. Severability.....................................................................26
Section 12.04. Limitation of Liability..........................................................26
Section 12.05. Separate Counterparts............................................................27
Section 12.06. Successors and Assigns...........................................................27
Section 12.07. Headings.........................................................................27
Section 12.08. Governing Law....................................................................27
Section 12.09. Nonpetition Covenants............................................................27
Section 12.10. No Recourse......................................................................27
Section 12.11. Acceptance of Terms of Agreement.................................................27
Section 12.12. Acknowledgement and Acceptance of Indenture......................................28
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EXHIBITS
EXHIBIT A [FORM OF] TRUST CERTIFICATE......................................................A-1
EXHIBIT B CERTIFICATE OF TRUST OF CAPITAL ONE
MULTI-ASSET EXECUTION TRUST......................................................B-1
EXHIBIT C [FORM OF] TRANSFEROR CERTIFICATE.................................................C-1
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CAPITAL ONE MULTI-ASSET EXECUTION TRUST AMENDED AND RESTATED TRUST
AGREEMENT, dated as of October 9, 2002, between CAPITAL ONE FUNDING, LLC
("Capital One Funding"), a Virginia limited liability company, as Beneficiary
and as a Transferor, and DEUTSCHE BANK TRUST COMPANY DELAWARE, a Delaware
banking corporation, as owner trustee (the "Owner Trustee").
WHEREAS, Capital One Funding and the Owner Trustee have heretofore
created a statutory trust pursuant to the Delaware Statutory Trust Act (as
hereinafter defined) by filing the Certificate of Trust (as hereinafter defined)
with the Secretary of State (as hereinafter defined) on December 6, 2001, and
entered into a Trust Agreement, dated as of December 5, 2001 (the "Original
Trust Agreement");
WHEREAS, the Owner Trustee filed a corrected certificate of trust with
the office of the Secretary of State on December 10, 2001, changing the name of
the Trust from Capital One Universal Note Trust to Capital One Multiple Issuance
Trust and further filed a second corrected Certificate of Trust with the office
of the Secretary of State on December 17, 2001, changing the name of the Trust
(as hereinafter defined) from Capital One Multiple Issuance Trust to Capital One
Multi-asset Execution Trust; and
WHEREAS, the parties hereto desire to continue the Trust as a statutory
trust under the Delaware Statutory Trust Act and to amend and restate the
Original Trust Agreement of the Trust in its entirety, and to reflect the change
of the name of the Trust from Capital One Multiple Issuance Trust to Capital One
Multi-asset Execution Trust.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For purposes of this Agreement, the
following terms have the following meanings:
"Addition Date" is defined in the related Transfer and Administration
Agreement.
"Adverse Effect" means, whenever used in this Agreement with respect to
any Series, Class or Tranche of Notes with respect to any action, that such
action will (a) at the time of its occurrence or at any future date result in
the occurrence of an Early Redemption Event or Event of Default (each as defined
in the Indenture) relating to such Series, Class or Tranche of Notes, as
applicable, (b) adversely affect the amount of funds available to be distributed
to the Noteholders of any such Series, Class or Tranche of Notes pursuant to the
Indenture or the timing of such distributions, or (c) adversely affect the
security interest of the Indenture Trustee in the collateral securing the Notes.
"Affiliate" is defined in the Indenture.
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"Agreement" means this Capital One Multi-asset Execution Trust Amended
and Restated Trust Agreement, as the same may be amended, modified or
supplemented from time to time.
"Asset Pool" is defined in the Indenture.
"Asset Pool Supplement" is defined in the Indenture.
"Beneficial Interest" means the undivided beneficial interest of the
Beneficiary in the assets of the Trust which, with respect to each Asset Pool
shall be the Transferor Interest in that Asset Pool.
"Beneficiary" means Capital One Funding, as beneficial owner of the
Trust, and each Permitted Affiliate Transferee and other transferee under
Section 10.02.
"Beneficiary Trust Account" means the account established by the Owner
Trustee on behalf of the Trust in accordance with Section 4.04.
"Certificate of Trust" means the Certificate of Trust of the Trust in
the form attached hereto as Exhibit B which has been filed for the Trust
pursuant to Section 3810(a) of the Delaware Statutory Trust Act.
"Class" means, with respect to any Note, the Class specified in the
applicable Indenture Supplement.
"Code" means the Internal Revenue Code of 1986, as it may be amended
from time to time.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del.C.ss.ss. 3801, et seq., as amended from time to time, and
any successor statute thereto.
"Deliveries" is defined in Section 12.02.
"Disqualification Event," with respect to the Owner Trustee, means (a)
the bankruptcy, insolvency or dissolution of the Owner Trustee, (b) the
occurrence of the date of resignation of the Owner Trustee, as set forth in a
notice of resignation given pursuant to Section 8.01, (c) the delivery to the
Owner Trustee of the instrument or instruments of removal referred to in Section
8.01 (or, if such instruments specify a later effective date of removal, the
occurrence of such later date), or (d) failure of the Owner Trustee to qualify
under the requirements of Section 8.03.
"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.
"Indemnified Person" is defined in Section 11.02.
"Indenture" means the Indenture dated as of October 9, 2002, between
the Trust and the Indenture Trustee, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
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"Indenture Supplement" is defined in the Indenture.
"Indenture Trustee" means The Bank of New York, not in its individual
capacity but solely as Indenture Trustee under the Indenture, and each successor
Indenture Trustee under such Indenture, or such other party identified as the
Indenture Trustee within the Indenture.
"Issuer Tax Opinion" is defined in the Indenture.
"Master Trust" is defined in the Indenture.
"Master Trust Tax Opinion" is defined in the Indenture.
"Master Trust Trustee" means the trustee under the applicable Pooling
and Servicing Agreement and each successor trustee under such Pooling and
Servicing Agreement.
"Moody's" is defined in the Indenture.
"Note" means each "Note" designated as such in the Indenture.
"Noteholder" means each "Noteholder" designated as such in the
Indenture.
"Note Rating Agency" means each "Note Rating Agency" designated as such
in the Indenture.
"Original Trust Agreement" has the meaning assigned to such term in the
recitals of this Agreement.
"Outstanding Dollar Principal Amount" means, for any Series, Class or
Tranche of Notes, the "Outstanding Dollar Principal Amount" (as such term is
defined in the Indenture) of such Series, Class or Tranche of Notes.
"Owner Trustee" means Deutsche Bank Trust Company Delaware, a Delaware
banking corporation, not in its individual capacity but solely as owner trustee
under this Agreement (unless otherwise specified herein), and each successor
trustee under Article VIII, in its capacity as owner trustee hereunder, and each
co-trustee under and to the extent provided in Section 8.04, in its capacity as
owner trustee hereunder.
"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.
"Periodic Filing" means any filing or submission that the Trust is
required to make with any federal, state or local authority or regulatory
agency.
"Permitted Affiliate Transferee" is defined in Section 10.02.
"Pooling and Servicing Agreement" means a pooling and servicing
agreement, indenture or other agreement for the issuance of securities from time
to time from a Master Trust and the
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servicing of the receivables in such Master Trust, as such agreement may be
amended, restated and supplemented from time to time.
"Requirements of Law" shall mean, 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).
"Secretary of State" means the Office of the Secretary of State of the
State of Delaware.
"Securities Act" means the Securities Act of 1933, as amended.
"Series" means, with respect to any Note, the Series specified in the
applicable Indenture Supplement.
"Standard & Poor's" is defined in the Indenture.
"Tranche" means, with respect to any Class of Notes, Notes of such
Class which have identical terms, conditions and Tranche designation. Notes of a
single Tranche may be issued on different dates.
"Transaction Documents" means the Indenture, any Asset Pool Supplement
thereto, any Indenture Supplement thereto, any Transfer and Administration
Agreement, the Transferor Certificate, the Trust Certificate, the Certificate of
Trust and other documents delivered in connection herewith and therewith.
"Transfer and Administration Agreement" means any Transfer and
Administration Agreement between the Trust, the applicable Transferor or
Transferors and the applicable administrator, which by its terms is identified
as being a Transfer and Administration Agreement referred to herein, as the same
may be amended, restated, supplemented or otherwise modified from time to time.
"Transferor" means Capital One Funding and its successors and assigns,
and any other Transferor designated in the applicable Transfer and
Administration Agreement.
"Transferor Certificate" is defined in Section 4.05(b).
"Transferor Interest" is defined in Section 4.05(a).
"Trust" means the statutory trust created by the Original Trust
Agreement and the filing of the Certificate of Trust with the Secretary of State
and continued hereby.
"Trust Certificate" is defined in Section 10.01.
"Trust Estate" is defined in Section 2.05.
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"Trustee Bank" means Deutsche Bank Trust Company Delaware in its
individual capacity, each bank appointed as successor Owner Trustee under
Article VIII in its individual capacity and each bank appointed as co-trustee
under and to the extent provided in Section 8.04 in its individual capacity.
"UCC" means the Uniform Commercial Code as in effect in the State of
Delaware and any other applicable jurisdiction.
Section 1.02. Generic Terms. (a) The terms "hereby," "hereof,"
"hereto," "herein," "hereunder" and any similar terms will refer to this
Agreement.
(b) Unless otherwise indicated in context, the terms "Section,"
"Exhibit" or "Schedule" will refer to a Section of, or an Exhibit or Schedule
to, this Agreement.
(c) Words of the masculine, feminine or neuter gender mean and
include the correlative words of other genders, and words importing the singular
number mean and include the plural number and vice versa.
(d) The terms "include," "including" and similar terms will be
construed as if followed by the phrase "without limitation."
(e) All terms defined in this Agreement will have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or in connection herewith unless otherwise defined therein.
(f) Any agreement, instrument or statute defined or referred to
herein or in any certificate or other document made or delivered pursuant hereto
or in connection herewith means such agreement, instrument or statute as from
time to time amended, modified or supplemented and includes (in the case of
agreements or instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
ORGANIZATION;
DECLARATION OF TRUST BY THE OWNER TRUSTEE
Section 2.01. Continuation of Trust; Name. The Original Trust
Agreement is hereby amended and restated in its entirety. The Trust heretofore
created and continued hereby is named "Capital One Multi-asset Execution Trust,"
under which name the Owner Trustee or the Beneficiary may conduct any activities
and business of the Trust contemplated hereby, execute contracts and other
instruments on behalf of the Trust and sue and be sued on behalf of the Trust.
All action taken by the Owner Trustee in connection with the filing of the
corrected certificates of trust referenced in the recitals to this Agreement is
hereby ratified.
Section 2.02. Transfer of Property to Trust; Initial Capital
Contribution of Trust Estate. The Beneficiary has assigned, granted and
transferred, over to the Owner Trustee, as of the date of the Original Trust
Agreement, $1.00. The Owner Trustee hereby acknowledges
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receipt in trust from the Beneficiary, as of the date of the Original Trust
Agreement, of the foregoing contribution, which constituted the initial Trust
Estate.
Section 2.03. Purposes and Powers; Trust To Operate as a Single
Purpose Entity. (a) The purpose of the Trust is to engage solely in a program of
acquiring the Trust Estate and issuing Notes under the Indenture and related
activities. Without limiting the generality of the foregoing, the Trust may and
shall have the power and authority to:
(i) acquire and hold the Trust Estate;
(ii) from time to time, grant a security interest in the Trust
Estate, and grant a security interest in accounts established for the benefit of
indebtedness of the Trust under the Indenture;
(iii) from time to time authorize and approve the issuance of,
and to issue, Notes pursuant to the Indenture without limitation to aggregate
amounts and, in connection therewith, determine the terms and provisions of such
Notes and of the issuance and sale thereof, including the following:
(A) determining the principal amount of the Notes;
(B) determining the maturity date of the Notes;
(C) determining the rate of interest, if any, to be paid
on the Notes;
(D) determining the price or prices at which such Notes
will be sold by the Trust;
(E) determining the provisions, if any, for the redemption
of such Notes;
(F) determining the form, terms and provisions of the
indentures, fiscal agency agreements or other instruments under which
the Notes may be issued and the banks or trust companies to act as
trustees, fiscal agents and paying agents thereunder;
(G) preparing and filing all documents necessary or
appropriate in connection with the registration of the Notes under the
Securities Act, the qualification of indentures under the Trust
Indenture Act of 1939, as amended, and the qualification under any
other applicable federal, foreign, state, local or other governmental
requirements;
(H) preparing any prospectus, offering memorandum, private
placement memorandum or other descriptive material relating to the
offering or issuance of the Notes;
(I) listing the Notes on any United States or non-United
States securities exchange;
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(J) entering into one or more interest rate, basis or
currency swaps, caps, collars, guaranteed investment contracts or other
derivative agreements with counterparties to manage interest rate or
currency risk relating to the Notes;
(K) appointing a paying agent or agents for purposes of
payments on the Notes; and
(L) arranging for the underwriting, subscription, purchase
or placement of the Notes and selecting underwriters, managers and
purchasers or agents for that purpose;
(iv) from time to time receive payments and proceeds with
respect to the Trust Estate and the Indenture and either invest or distribute
those payments and proceeds;
(v) from time to time make deposits to and withdrawals from
accounts established under the Indenture;
(vi) from time to time make and receive payments pursuant to
derivative agreements, supplemental credit enhancement agreements and
supplemental liquidity agreements;
(vii) from time to time make payments on the Notes;
(viii) from time to time acquire additional collateral to be
included in the Trust Estate;
(ix) from time to time perform such obligations and exercise and
enforce such rights and pursue such remedies as may be appropriate by virtue of
the Trust being party to any of the agreements contemplated in clauses (i)
through (viii) above;
(x) execute, deliver and perform the Transaction Documents and
all other documents, certificates and agreements necessary or incidental in
connection therewith (including, without limitation, the documents listed in
Section 2.03(b));
(xi) issue the Trust Certificate to the Beneficiary in
accordance with Section 10.01; and
(xii) subject to compliance with the Transaction Documents,
engage in such other related activities as may be required or convenient in
connection with conservation of the Trust Estate and the making of payments to
the Noteholders and distributions to the applicable Transferor, which activities
shall not be contrary to the status of the Trust as a qualified special purpose
entity.
In connection with any of the foregoing, the Trust may (x) execute and deliver,
and/or accept, such instruments, agreements, certificates, UCC financing
statements and other documents, and create such security interests, as may be
necessary or desirable in connection therewith, and (y) subject to the terms of
this Agreement, take such other action as may be necessary or incidental to the
foregoing.
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(b) The Trust, and each of the Beneficiary, on behalf of the
Trust, and the Owner Trustee, on behalf of the Trust, is hereby authorized and
shall have the power to execute and deliver from time to time loan agreements,
underwriting agreements, terms agreements, selling agent agreements, purchase
agreements, private placement agreements, swap and other derivative agreements,
including performance agreements, indentures, indenture supplements, terms
documents, notes, security agreements, and other agreements and instruments as
are consistent with the purposes of the Trust. Without limiting the generality
of the foregoing, the Trust, and each of the Beneficiary, on behalf of the
Trust, and the Owner Trustee, on behalf of the Trust, is specifically authorized
to execute and deliver without any further act, vote or approval, and
notwithstanding any other provision of this Agreement, the Delaware Statutory
Trust Act or other applicable law, rule or regulation, agreements, documents or
securities relating to the purposes of the Trust including:
(i) the Transaction Documents and each Issuer Certificate (as
defined in the Indenture);
(ii) the Notes;
(iii) each interest rate, basis or currency swap, cap, collar,
guaranteed investment contract or other derivative agreement, including
agreements related thereto, between the Trust and a counterparty to manage
interest rate or currency risk relating to the Notes; and
(iv) the Trust Certificate;
(v) any documents relating to listing securities on the
Luxembourg Stock Exchange; and
(vi) any other document necessary or desirable in connection
with the fulfillment of the purposes of the Trust described in, and pursuant to,
Section 2.03(a).
The authorization set forth in the preceding sentence will not be deemed a
restriction on the power and authority of the Beneficiary and the Owner Trustee,
on behalf of the Trust, to execute and deliver other agreements, documents,
instruments and securities or to take other actions on behalf of the Trust in
connection with the fulfillment of the purposes of the Trust described in, and
pursuant to, Section 2.03(a).
(c) Each of the Beneficiary, on behalf of the Trust, and the
Owner Trustee, at the written direction of the Beneficiary and on behalf of the
Trust, is hereby authorized and shall have the power to execute and file any
Periodic Filings on behalf of the Trust.
(d) Either the Owner Trustee or the Beneficiary will at all
times maintain the books, records and accounts of the Trust separate and apart
from those of any other Person, and will cause the Trust to hold itself out as
being a Person separate and apart from any other Person.
(e) The Trust will not engage in any business or own any assets
unrelated to the purposes of the Trust.
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Section 2.04. Appointment of Owner Trustee. The Beneficiary hereby
appoints Deutsche Bank Trust Company Delaware as Owner Trustee of the Trust
effective as of the date of the Original Trust Agreement, to have all the
rights, powers and duties set forth herein and in the Delaware Statutory Trust
Act.
Section 2.05. Declaration of Trust. The Owner Trustee hereby
declares that it will hold the contribution described in Section 2.02, and the
other documents and assets described in Section 2.03, together with any
payments, proceeds or income of any kind from such documents or assets or any
other source and any other property transferred, assigned, set over, pledged or
otherwise conveyed to, and held by, the Trust pursuant to this Agreement, any
Transfer and Administration Agreement, the Indenture, or any Asset Pool
Supplement (collectively, the "Trust Estate"), upon the trust set forth herein
and for the sole use and benefit of the Beneficiary. It is the intention of the
parties hereto that the Trust constitute a statutory trust under the Delaware
Statutory Trust Act and that this Agreement constitute the governing instrument
of such statutory trust. The parties hereto agree that they will take no action
contrary to the foregoing intention. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein and, to the
extent not inconsistent herewith, in the Delaware Statutory Trust Act with
respect to accomplishing the purposes of the Trust.
Section 2.06. Title to Trust Estate. Title to all of the Trust
Estate will be vested in the Trust as a separate legal entity until this
Agreement terminates pursuant to Article VII; provided, however, that if the
laws of any jurisdiction require that title to any part of the Trust Estate be
vested in the trustees of a trust, then title to that part of the Trust Estate
will be deemed to be vested in the Owner Trustee or any co-trustee or separate
trustee, as the case may be, appointed pursuant to Article VIII.
Section 2.07. Nature of Interest in the Trust Estate. The
Beneficiary will not have any legal title to or right to possession of any part
of the Trust Estate.
Section 2.08. Continuation of Trust; Principal Office of Owner
Trustee. The Owner Trustee has filed the Certificate of Trust with the Secretary
of State and will maintain the Owner Trustee's principal office in the State of
Delaware. Nothing herein, however, shall restrict or prohibit the Owner Trustee
from having employees within or without the State of Delaware. Payments will be
received by the Trust only in Delaware or New York, and payments will be made by
the Trust only from Delaware or New York. The Trust will be located in Delaware
and administered in Delaware and New York.
Section 2.09. Tax Matters. The parties hereto intend that, for
income and franchise tax purposes, the Trust will be treated as a security
device and disregarded as an entity and its assets shall be treated as owned in
whole by the Beneficiary, and the parties hereto will file all their tax returns
in a manner consistent with that intent unless otherwise required by a taxing
authority. Except as otherwise expressly provided herein, any tax elections
required or permitted to be made by the Trust under the Code or otherwise will
be made by the Beneficiary. The Trust will not elect to be treated as a
corporation for any tax purpose.
Section 2.10. Fiscal Year. The fiscal year of the Trust will end
on the last day of December of each year.
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Section 2.11. Closing. The transfer, assignment, set-over, pledge
and conveyance of the Trust Estate and the initial issuance of Notes shall take
place on October 9, 2002 at the offices of Orrick, Herrington & Sutcliffe LLP,
3050 K Street, N.W., Washington, D.C. 20007.
Section 2.12. Books and Records. The Beneficiary 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 Trust Estate assigned by any Transferor pursuant to this
Agreement and any Transfer and Administration Agreement, 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 Trust Estate to the Trust, and to deliver
a file-stamped copy of such financing statements or amendments or other evidence
of such filings to the Trust (excluding such amendments, which shall be
delivered promptly after filing).
Section 2.13. Limitation on Liability of Transferors and Others.
Any Transferor and any director or officer or employee or agent of such
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. Any Transferor, in its capacity as such, 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. The Beneficiary shall
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF THE BENEFICIARY
Section 3.01. Representations and Warranties of the Beneficiary.
The Beneficiary hereby represents and warrants to the Owner Trustee as of the
date of this Agreement and as of each Addition Date:
(a) The Beneficiary 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 Beneficiary is duly qualified to do business and is in
good standing (or is exempt from such requirement) in any state required in
order to conduct its business, and has obtained all necessary licenses and
approvals with respect to the Beneficiary, 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,
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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 Beneficiary of this
Agreement and the consummation by the Beneficiary of the transactions provided
for in this Agreement and in the other Transaction Documents to which the
Beneficiary is a party have been duly authorized by the Beneficiary by all
necessary company action on its part and each of this Agreement and the other
Transaction Documents to which the Beneficiary is a party will remain, from the
time of its execution, an official record of the Beneficiary; the Beneficiary
has the power and authority to assign the property to be assigned to and
deposited with the Trust.
(d) The execution and delivery by the Beneficiary of this
Agreement, the performance by the Beneficiary of the transactions contemplated
by this Agreement and the fulfillment 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 Beneficiary 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
Beneficiary's ability to perform its obligation under this Agreement).
(e) The execution and delivery by the Beneficiary of this
Agreement, the performance by the Beneficiary of the transactions contemplated
by this Agreement and the fulfillment by the Beneficiary of the terms hereof
will not conflict with or violate any Requirements of Law applicable to the
Beneficiary.
(f) There are no proceedings or investigations pending or, to
the Beneficiary's knowledge, threatened against the Beneficiary before any
court, regulatory body, administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over the Beneficiary 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 Beneficiary,
would materially and adversely affect the performance by the Beneficiary 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.
ARTICLE IV
DISTRIBUTIONS OF FUNDS
Section 4.01. Distribution of Funds. All funds received by the
Trust to the extent not encumbered by the Indenture and otherwise available for
distribution (or if
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encumbered by the Indenture, which have been released by the relevant parties
benefiting from such encumbrance) will be distributed to the Beneficiary.
Section 4.02. Payments from Trust Estate Only. All payments to be
made by the Trust under this Agreement will be made only from the income and the
capital proceeds derived from the Trust Estate and only to the extent that the
Trust will have received income or capital proceeds from the Trust Estate. The
Beneficiary agrees that it will look solely to the income and capital proceeds
derived from the Trust Estate (to the extent available for payment as herein
provided) and that, except as specifically provided herein, the Owner Trustee
will not be subject to any liability in its individual capacity under this
Agreement to the Beneficiary or to any other Person.
Section 4.03. Method of Payment. All amounts payable to the
Beneficiary pursuant to this Agreement will be paid by the Owner Trustee on
behalf of the Trust to the Beneficiary or a nominee therefor in such manner as
the Beneficiary may from time to time designate in written instructions to the
Owner Trustee. All funds received by the Owner Trustee on behalf of the Trust
not later than 2:00 p.m. (New York City time) on a Business Day will be applied
by the Owner Trustee on that Business Day. Funds received after that time will
be applied on the next following Business Day.
Section 4.04. Establishment of Account. The Beneficiary hereby
authorizes the Owner Trustee to establish and maintain an account on behalf of
the Trust into which all funds received by the Owner Trustee on behalf of the
Trust shall be deposited. Such account shall be designated the Beneficiary Trust
Account.
Section 4.05. Transferor Interest; Transferor Certificates.
(a) The Transferors shall hold an undivided beneficial interest
in the Trust Estate, having such rights as are set forth in this Agreement and
the other Transaction Documents (such undivided beneficial interest, the
"Transferor Interest"). Such Transferor Interest includes the right to receive
amounts specified in the Indenture, any Asset Pool Supplement or any Transfer
and Administration Agreement to be distributed to the holders of the Transferor
Interest.
(b) At the election of each Transferor (which election may,
from time to time, be changed or otherwise revised by the applicable Transferor
upon written notice by such Transferor to the Owner Trustee), a Transferor
Certificate representing all or a portion of such Transferor's interest in the
Transferor Interest may be issued to such electing Transferor in registered
form, substantially in the form attached as Exhibit C (each, a "Transferor
Certificate"). No Transferor Certificate shall entitle its holder to any benefit
under this Agreement, or be valid for any purpose, unless there shall appear on
such Transferor Certificate a certificate of authentication substantially in the
form provided in Exhibit C, executed by the Owner Trustee or the Owner Trustee's
authentication agent, by manual signature; such authentication shall constitute
conclusive evidence that the Certificate shall have been duly authenticated and
delivered hereunder. Each Transferor Certificate shall be dated the date of its
authentication.
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(c) To the fullest extent permitted by applicable law, neither
the Transferor Certificates (or any interest therein) nor the Transferor
Interest (or any interest therein) may be sold, transferred, assigned,
participated, pledged or otherwise disposed of to any Person; provided, however,
that a Transferor Certificate (or any interest therein) may be sold,
transferred, assigned, participated, pledged or otherwise disposed of if the
transferor thereof has provided the Owner Trustee and the Indenture Trustee with
a Master Trust Tax Opinion and an Issuer Tax Opinion relating to such sale,
transfer, assignment, participation, pledge or other disposition.
(d) If (i) a mutilated Transferor Certificate shall be
surrendered to the Owner Trustee, or if the Owner Trustee shall receive evidence
to its satisfaction of the destruction, loss or theft of a Transferor
Certificate and (ii) in the case of a destroyed, lost or stolen Transferor
Certificate, there shall be delivered to the Owner Trustee (as such and in its
individual capacity) such security or indemnity as may be required by it to save
it harmless, then the Owner Trustee on behalf of the Trust shall execute and the
Owner Trustee shall authenticate and deliver, in exchange for or in lieu of the
mutilated, destroyed, lost or stolen Transferor Certificate, a new Transferor
Certificate of like tenor and denomination. In connection with the issuance of
any new Transferor Certificate under this Section 4.05(d), the Owner Trustee may
require the payment of a sum sufficient to cover any tax or other governmental
charge or expense that may be imposed in connection therewith. Any duplicate
Transferor Certificate issued pursuant to this Section 4.05(d) shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Transferor Certificate shall be found at
any time.
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
Section 5.01. Action Upon Instructions. (a) It is the intention of
the Beneficiary that the powers and duties of the Owner Trustee are to be purely
ministerial only. Accordingly, subject to Section 5.01(b) and 5.01(c), and
Article XII, the Beneficiary will direct the Owner Trustee in the management of
the Trust and the Trust Estate. Such direction shall be exercised at any time
only by written instruction of the Beneficiary delivered to the Owner Trustee
pursuant to this Article V. Notwithstanding any other provision of this
Agreement, the Owner Trustee shall not take any action including but not limited
to the execution of any documents, certificates or other instruments (other than
the Transaction Documents and any documents, certificates or other instruments
attached thereto or contemplated thereby), unless it receives written
instructions from the Beneficiary.
(b) The Owner Trustee will take such action or actions as may
be specified in any instructions delivered in accordance with Section 5.01(a);
provided, however, that the Owner Trustee will not be required to take any such
action if the Trustee Bank will have been advised by counsel that such action
(i) is contrary to the terms hereof or of any document contemplated hereby to
which the Trust or the Owner Trustee is a party or is otherwise contrary to law,
or (ii) is reasonably likely to result in liability on the part of the Trustee
Bank, unless the Trustee Bank will have received additional indemnification or
security satisfactory to the Trustee Bank from the Beneficiary against all
costs, expenses and liabilities arising from the Owner Trustee's taking such
action.
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(c) The Beneficiary will not direct the Owner Trustee to take
or refrain from taking any action contrary to this Agreement, nor will the Owner
Trustee be obligated to follow any such direction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Transaction Document, or
such provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action to be adopted, the Owner Trustee will promptly give notice to
the Beneficiary requesting written instructions as to the course of action to be
adopted and, to the extent the Owner Trustee acts in good faith in accordance
with such written instructions received from the Beneficiary, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owner
Trustee will not have received appropriate written instructions within 30 days
of such notice (or within such shorter period of time as reasonably may be
specified in such notice) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement, as it deems to be
in the best interests of the Beneficiary, and will have no liability to any
Person for such action or inaction.
(e) The Owner Trustee will, subject to this Section 5.01, act
in accordance with the instructions given to it by the Beneficiary pursuant to
Section 5.01(b), and to the extent the Owner Trustee acts in good faith in
accordance with such instructions, the Owner Trustee will not be liable on
account of such action to any Person.
Section 5.02. No Duty to Act Under Certain Circumstances.
Notwithstanding anything contained herein to the contrary, neither the Trustee
Bank nor the Owner Trustee, except a Trustee Bank authorized as co-trustee, will
be required to take any action in any jurisdiction other than in the State of
Delaware if the taking of such action would (i) require the consent or approval
or authorization or order of or the giving of notice to, or the registration
with or taking of any action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or governmental charge under the laws of any jurisdiction
or any political subdivisions thereof in existence on the date hereof other than
the State of Delaware becoming payable by the Trustee Bank; or (iii) subject the
Trustee Bank to personal jurisdiction in any jurisdiction other than the State
of Delaware for causes of action arising from acts unrelated to the consummation
of the transactions by the Trustee Bank or the Owner Trustee, as the case may
be, contemplated hereby. The Owner Trustee shall be entitled to obtain advice of
counsel (which advice shall be at the expense of the Beneficiary) to determine
whether any action required to be taken pursuant to this Agreement results in
the consequences described in clauses (i), (ii) and (iii) of the preceding
sentence. In the event that said counsel advises the Owner Trustee that such
action will result in such consequences, the Owner Trustee may, or if instructed
to do so by the Beneficiary, shall, appoint an additional trustee pursuant to
Section 8.04 hereby to proceed with such action.
Section 5.03. No Duties Except Under Specified Agreements or
Instructions.
(a) The Owner Trustee will not have any duty or obligation to
manage, control, use, make any payment in respect of, register, record, insure,
inspect, sell, dispose of, create, maintain or perfect any security interest or
title in or otherwise deal with any part of the
14
Trust Estate, prepare, file or record any document or report (including any tax
related filing for any holder of Notes), or to otherwise take or refrain from
taking any action under, or in connection with, this Agreement, the Trust or any
document contemplated hereby to which the Trust or the Owner Trustee is a party,
except as expressly provided by the terms of this Agreement or in written
instructions from the Beneficiary received pursuant to Section 5.01; and no
implied duties or obligations will be read into this Agreement against the Owner
Trustee. Unless otherwise directed by the Beneficiary in accordance with Section
5.01(a), the Owner Trustee shall have no obligation or duty to take any action
the Trust is authorized and empowered to take pursuant to Section 2.03(a). The
Owner Trustee nevertheless agrees that it will, in its individual capacity and
at its own cost and expense, promptly take all action as may be necessary to
discharge any lien, pledge, security interest or other encumbrance on any part
of the Trust Estate which results from actions by or claims against the Trustee
Bank not related to the ownership of any part of the Trust Estate.
(b) The Owner Trustee agrees that it will not manage, control,
use, lease, sell, dispose of or otherwise deal with any part of the Trust Estate
except (i) in accordance with the powers granted to, or the authority conferred
upon, the Owner Trustee pursuant to this Agreement, or (ii) in accordance with
the express terms hereof or with written instructions from the Beneficiary
pursuant to Section 5.01. Unless otherwise directed by the Beneficiary in
accordance with Section 5.01(a), the Owner Trustee shall not be required to
perform any obligations or duties of the Trust under the Indenture, which duties
and obligations shall be the sole responsibility of the Beneficiary.
Section 5.04. Trust Operation. The operations of the Trust will be
conducted in accordance with the following standards:
(a) the Trust will act solely in its own name through the Owner
Trustee or the Beneficiary;
(b) the Trust will not incur any indebtedness for money
borrowed or incur any obligations except in connection with the purposes set
forth in Section 2.03 of this Agreement;
(c) the Trust's funds and assets will at all times be
maintained separately from those of the Beneficiary and its affiliates;
(d) the Trust will take all reasonable steps to continue its
identity as a separate legal entity and to make it apparent to third persons
that it is an entity with assets and liabilities distinct from those of the
Beneficiary, the Beneficiary's affiliates or any other third person, and will
use stationery and other business forms of the Owner Trustee or the Trust and
not that of the Beneficiary or any of its affiliates, and will use its best
efforts to avoid the appearance (i) of conducting business on behalf of the
Beneficiary or any affiliates thereof, or (ii) that the assets of the Trust are
available to pay the creditors of the Beneficiary or any affiliates thereof;
(e) the Trust will not hold itself out as being liable for the
debts of the Beneficiary or any affiliates thereof;
(f) the Trust will not engage in any transaction with the
Beneficiary or any affiliates thereof, except as required, or specifically
permitted, by this Agreement or unless such
15
transaction is otherwise on terms neither more favorable nor less favorable
than the terms and conditions available at the time to the Trust for comparable
transactions with other Persons; and
(g) to the fullest extent permitted by applicable law, the
Trust will not enter into any voluntary bankruptcy or insolvency proceeding
without a finding by the Owner Trustee that the Trust's liabilities exceed its
assets or that the Trust is unable to pay its debts in a timely manner as they
become due.
Section 5.05. Execution of Documents. The Owner Trustee will, at
the written direction of the Beneficiary, execute and deliver on behalf of the
Trust such instruments, agreements and certificates contemplated hereby to which
the Trust is a party (such direction to be conclusively evidenced by the Owner
Trustee's execution and delivery of such documents to, and acceptance by, the
Beneficiary or its counsel). The Beneficiary hereby instructs the Owner Trustee
to execute, on behalf of the Trust, the Transaction Documents to which the Trust
is a party and any documents, certificates or other instruments attached thereto
or contemplated thereby.
ARTICLE VI
CONCERNING THE TRUSTEE BANK
Section 6.01. Acceptance of Trust and Duties. The Trustee Bank
accepts the trust hereby created and agrees to perform the same but only upon
the terms of this Agreement. The Trustee Bank also agrees to disburse all moneys
actually received by it constituting part of the Trust Estate in accordance with
the terms of this Agreement. The Trustee Bank will not be answerable or
accountable under any circumstances in its individual capacity, except (i) for
its own willful misconduct, bad faith or negligence, (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 6.07, (iii)
for the failure by the Owner Trustee to perform obligations expressly undertaken
by it in the last sentence of Section 5.03(a), or (iv) for taxes, fees or other
charges on, based on or measured by, any fees, commissions or other compensation
earned by the Trustee Bank for acting as trustee hereunder. In particular, but
not by way of limitation:
(a) The Trustee Bank will not be personally liable for any
error of judgment made in good faith by an authorized officer of the Owner
Trustee so long as the same will not constitute negligence, bad faith or willful
misconduct;
(b) The Trustee Bank will not be personally liable with respect
to any action taken or omitted to be taken by the Owner Trustee in good faith in
accordance with the instructions of the Beneficiary;
(c) No provision of this Agreement or any Transaction Document
will require the Trustee Bank to expend or risk its personal funds or otherwise
incur any financial liability in the performance of any of its rights or powers
hereunder, if the Trustee Bank will have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it, including such advances as the Trustee
Bank may reasonably request;
16
(d) Under no circumstance will the Trustee Bank be personally
liable for the accuracy or performance of any representation, warranty,
covenant, agreement or other obligation, including any indebtedness, of the
Trust;
(e) The Trustee Bank will not be personally responsible or
liable for or in respect of the validity or sufficiency of this Agreement or for
the due execution hereof by the Beneficiary or with respect to any agreement
entered into by the Trust;
(f) Under no circumstances will the Trustee Bank be responsible
or liable for the action or inaction of the Beneficiary, nor will the Trustee
Bank be responsible for monitoring the performance of the Beneficiary's duties
hereunder or of any other Person acting for or on behalf of the Trust;
(g) In no event shall the Trustee Bank be personally liable for
special, consequential or punitive damages unless such damages result from its
willful misconduct, bad faith or negligence, for the acts or omissions of its
nominees, correspondents, clearing agencies or securities depositories, for the
acts or omissions of brokers or dealers, and for any losses due to forces beyond
the control of the Trustee Bank, including strikes, work stoppages, acts of war
or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts
of God and interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services. The Trustee Bank shall have no
responsibility for the accuracy of any information provided to the Beneficiary
or any other Person that has been obtained from, or provided to the Trustee Bank
by, any other Person;
(h) The Trustee Bank shall not be liable for the default or
misconduct of the Indenture Trustee under any of the Transaction Documents or
otherwise, and the Trustee Bank shall have no obligation or liability to perform
the obligations of the Trust under this Agreement or the Transaction Documents,
in each case that are required to be performed by the Indenture Trustee under
the Indenture; and
(i) The Trustee Bank shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Transaction Document, at the request, order or
direction of the Beneficiary, unless the Beneficiary has offered to the Trustee
Bank security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Trustee Bank therein or thereby. The
right of the Trustee Bank to perform any discretionary act enumerated in this
Agreement or in any Transaction Document shall not be construed as a duty, and
the Trustee Bank shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee will
furnish to the Beneficiary, within a reasonable time under the circumstances
after receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee with respect to the Trust or the Trust Estate.
Section 6.03. No Representations and Warranties as to the Trust
Estate. The Owner Trustee makes no representation or warranty as to, and shall
not be liable for, the title,
17
value, condition, design, operation, merchantability or fitness for use of the
Trust Estate (or any part thereof) or any other representation or warranty,
express or implied, whatsoever with respect to the Trust Estate (or any part
thereof) except that the Owner Trustee, in its individual capacity, hereby
represents and warrants to the Beneficiary that it will comply with the last
sentence of Section 5.03(a).
Section 6.04. Signature of Returns. The Beneficiary will sign on
behalf of the Trust any Periodic Filings of the Trust or other documents
relating to the Trust prepared by, or on behalf of, the Beneficiary.
Section 6.05. Reliance; Advice of Counsel. The Owner Trustee will
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. The Owner Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any entity as
conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or matter the manner
of ascertainment of which is not specifically prescribed herein, the Owner
Trustee may for all purposes rely on an officer's certificate of the relevant
party, as to such fact or matter, and such officer's certificate will constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon. In the administration of the Trust, the
Owner Trustee may, at the expense of the Trust (i) execute the trust or any of
the powers hereof and perform its powers and duties hereunder directly or
through agents or attorneys, and the Owner Trustee will not be liable for the
default or misconduct of any agent or attorney selected by the Owner Trustee
with reasonable care; and (ii) consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it, and the
Owner Trustee will not be liable for anything done, suffered or omitted in good
faith by it in accordance with the advice or opinion of any such counsel,
accountants or other skilled persons.
Section 6.06. Not Acting in Individual Capacity. Except as
provided in this Article VI, in accepting the trust hereunder the Trustee Bank
acts solely as Owner Trustee hereunder and not in its individual capacity; and
all Persons having any claim against the Trust or the Owner Trustee, whether by
reason of the transactions contemplated by this Agreement or otherwise, will
look only to the Trust Estate (or a part thereof, as the case may be) for
payment or satisfaction thereof, except as specifically provided in this Article
VI.
Section 6.07. Representations and Warranties. The Trustee Bank,
other than a Trustee Bank appointed as a co-trustee, hereby represents and
warrants to the Beneficiary that:
(a) The Trustee Bank is a Delaware banking corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware. The Trustee Bank has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(b) The Trustee Bank has taken all corporate action necessary
to authorize the execution and delivery by it of this Agreement, and this
Agreement will be executed and
18
delivered by one of its officers who is duly authorized to execute and deliver
this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by the Trustee Bank with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment or
order binding on the Trustee Bank, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which the Trustee Bank is a party or by which the Trustee Bank or
any of the Trustee Bank's properties may be bound.
(d) The Trustee Bank complies with all of the requirements of
Chapter 38, Title 12 of the Delaware Code relating to the qualification of a
trustee of a Delaware statutory trust.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.01. Termination of Trust Agreement.
(a) The Trust shall dissolve upon the final distribution by the
Owner Trustee of all moneys or other property or proceeds of the Trust Estate in
accordance with the Delaware Statutory Trust Act. Any money or other property
held as part of the Trust Estate following such distribution shall be
distributed to the Beneficiary. The bankruptcy, liquidation, dissolution,
termination, death or incapacity of the Beneficiary shall not (x) operate to
terminate this Agreement or the Trust, or (y) entitle the Beneficiary's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Trust Estate or (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) The Beneficiary shall not be entitled to revoke or
terminate the Trust.
(c) Upon completion of the winding up of the Trust in
accordance with the Delaware Statutory Trust Act, the Owner Trustee shall cause
the Certificate of Trust to be canceled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section 3810 of
the Delaware Statutory Trust Act and thereupon the Trust and this Agreement
(other than Article XI) shall terminate.
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES, CO-TRUSTEES
AND SEPARATE OWNER TRUSTEES
Section 8.01. Resignation and Removal of the Owner Trustee;
Appointment of Successors. Upon the occurrence of a Disqualification Event with
respect to the Owner Trustee, the Beneficiary shall appoint a successor Owner
Trustee by an instrument signed by the
19
Beneficiary. If a successor Owner Trustee has not been appointed within 30 days
after the giving of written notice of such resignation or the delivery of the
written instrument with respect to such removal, the Owner Trustee or the
Beneficiary may apply to any court of competent jurisdiction to appoint a
successor Owner Trustee to act until such time, if any, as a successor Owner
Trustee has been appointed as above provided. Any successor Owner Trustee so
appointed by such court will immediately and, except as provided in Section 8.02
below, without further act be superseded by any successor Owner Trustee
appointed as above provided within one year from the date of the appointment by
such court. The Owner Trustee may resign at any time without cause by giving at
least thirty (30) days prior written notice to the Beneficiary. No such removal
or resignation shall become effective until a successor Owner Trustee, however
appointed, becomes vested as Owner Trustee hereunder pursuant to Section 8.02.
The Beneficiary will notify the Note Rating Agencies promptly after the
resignation or removal of the Owner Trustee and promptly after the appointment
of a successor Owner Trustee.
Section 8.02. Transfer Procedures. Any successor Owner Trustee,
however appointed, will execute and deliver to the predecessor Owner Trustee an
instrument accepting such appointment, and such other documents of transfer as
may be necessary, and thereupon such successor Owner Trustee, without further
act, will become vested with all the estates, properties, rights, powers, duties
and trust of the predecessor Owner Trustee in the trust hereunder with like
effect as if originally named an Owner Trustee herein and the predecessor Owner
Trustee will be fully discharged of its duties and obligations to serve as Owner
Trustee hereunder. The predecessor Owner Trustee shall promptly deliver to the
successor Owner Trustee all documents, statements and monies held by it under
this Agreement. The successor Owner Trustee shall promptly file an amendment to
the Certificate of Trust with the Secretary of State identifying the name and
principal place of business of such successor Owner Trustee in the State of
Delaware.
Section 8.03. Qualification of Owner Trustee. Any Owner Trustee
will at all times (i) be a trust company or a banking corporation under the laws
of its state of incorporation or a national banking association, having all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on a trust business in the State of
Delaware, (ii) comply with Section 3807 (and any other applicable Section) of
the Delaware Statutory Trust Act, (iii) have a combined capital and surplus of
not less than $50,000,000 (or have its obligations and liabilities irrevocably
and unconditionally guaranteed by an affiliated Person having a combined capital
and surplus of at least $50,000,000) and (iv) have (or have a parent which has)
a rating of at least Baa3 by Moody's, at least BBB- by Standard & Poor's or, if
not rated, otherwise satisfactory to each Note Rating Agency.
Section 8.04. Co-trustees and Separate Owner Trustees. Whenever
the Owner Trustee or the Beneficiary shall deem it necessary or prudent in order
either to conform to any law of any jurisdiction in which all or any part of the
Trust Estate shall be situated or to make any claim or bring any suit with
respect to the Trust Estate, or whenever the Owner Trustee or the Beneficiary
shall be advised by counsel satisfactory to them that such action is necessary
or prudent, the Owner Trustee and the Beneficiary shall execute and deliver an
agreement supplemental hereto and all other instruments and agreements, and
shall take all other actions, necessary or proper to appoint one or more Persons
either as co-trustee or co-trustees jointly with the Owner Trustee of all or any
part of the Trust Estate, or as a separate trustee or separate
20
trustees of all or any part of the Trust Estate, and to vest in such Persons,
in such capacity, such title to the Trust Estate or any part thereof, and such
rights or duties, as may be necessary or desirable, all for such period and
under such terms and conditions as are satisfactory to the Owner Trustee and the
Beneficiary. In case a Disqualification Event shall occur with respect to any
such co-trustee or separate trustee, the title to the Trust Estate and all
rights and duties of such co-trustee or separate trustee shall, so far as
permitted by law, vest in and be exercised by the Owner Trustee, without the
appointment of a successor to such co-trustee or separate trustee.
ARTICLE IX
AMENDMENTS
Section 9.01. Amendments.
(a) This Agreement may be amended from time to time, by a
written instrument executed by the Owner Trustee, at the written direction of
the Beneficiary, and the Beneficiary, without the consent or the entitlement to
vote of the Indenture Trustee or any Noteholders, upon issuance of a Master
Trust Tax Opinion and an Issuer Tax Opinion to the Master Trust Trustee and the
Indenture Trustee, which shall not be an expense of the Owner Trustee or the
Trustee Bank; provided, however, that the Trust shall deliver to the Indenture
Trustee and the Owner Trustee an officer's certificate to the effect that the
Trust 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; provided further, however, that such amendment will not significantly
change the permitted activities of the Trust as set forth in Section 2.03. The
Owner Trustee shall not be responsible for determining whether any such
amendment to this Agreement will significantly change the permitted activities
of the Trust as set forth in Section 2.03.
(b) This Agreement may also be amended from time to time, by a
written instrument executed by the Owner Trustee, at the written direction of
the Beneficiary, and the Beneficiary, with prior written notice to each Note
Rating Agency, upon issuance of a Master Trust Tax Opinion and an Issuer Tax
Opinion to the Master Trust Trustee, the Owner Trustee and the Indenture Trustee
and (A) in the case of a significant change to Section 2.03(a) which the Trust
reasonably believes will not have an Adverse Effect, with the consent of holders
of a majority of the Outstanding Dollar Principal Amount of each Series, Class
or Tranche of Notes affected by such change, and (B) in all other cases, with
the consent of holders of not less than 662/3% of the Outstanding Dollar
Principal Amount of each Series, Class or 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 Trust Estate 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 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 Beneficiary, on behalf of the Trust, shall furnish written
notification of the substance of such amendment or consent to the Indenture
Trustee and each Note Rating Agency.
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(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.
(e) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such amendment
with the Secretary of State.
(f) The Owner Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an officer's certificate of the Trust to the
effect that the conditions to such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
ARTICLE X
BENEFICIAL INTERESTS AND CERTIFICATES
Section 10.01. Issuance of Trust Certificates. (a) Promptly
following the execution and delivery of this Agreement, the Owner Trustee on
behalf of the Trust will issue and deliver to the Beneficiary a certificate of
beneficial ownership of the Trust Estate substantially in the form of Exhibit A
hereto (the "Trust Certificate") evidencing the Beneficiary's Beneficial
Interest in the Trust. The Beneficiary, in its capacity as the holder of the
Trust Certificate, (i) shall be the sole beneficial owner of the Trust and (ii)
shall be bound by the provisions of this Agreement.
(a) Concurrently with the execution of this Agreement, the
Owner Trustee shall cause a single Trust Certificate to be executed on behalf of
the Trust, authenticated and delivered to or upon the written order of Capital
One Funding, as a Transferor, signed by any Vice President or more senior
officer of such Transferor, without further corporate action by such Transferor.
The Trust Certificate shall not entitle its holder to any benefit under this
Agreement, or be valid for any purpose, unless there shall appear on the Trust
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee or the Owner Trustee's
authentication agent, by manual signature; such authentication shall constitute
conclusive evidence that the Trust Certificate shall have been duly
authenticated and delivered hereunder. A Trust Certificate bearing the manual
signature of an individual who was, at the time when such signature was affixed,
an authorized officer will bind the Trust, notwithstanding that such individual
has ceased to be so authorized prior to the delivery of such Trust Certificate.
The Trust Certificate will be dated the date of its authentication.
(b) The Beneficiary will be entitled to all rights provided to
it under this Agreement and in the Trust Certificate and will be subject to the
terms and conditions contained in this Agreement and in the Trust Certificate.
(c) The Owner Trustee will maintain at its office referred to
in Section 2.08, or at the office of any agent appointed by it and approved in
writing by the Beneficiary, a register for the registration of the Trust
Certificate. Such register will show the name and address of the
22
holder of the Trust Certificate, and the Owner Trustee will treat such register
as definitive and binding for all purposes hereunder.
(d) When the Trust Certificate is duly executed and issued by
the Trust and duly authenticated by the Owner Trustee in accordance with this
Agreement, the Trust Certificate will be fully paid, validly issued,
non-assessable and entitled to the benefits of this Agreement.
Section 10.02. Beneficial Interest; Prohibitions on Transfer. (a)
The Beneficial Interest will initially be beneficially owned by Capital One
Funding. Transfers of all or a portion of the Beneficial Interest and the Trust
Certificate may be made between Capital One Funding and any other Person who is
an Affiliate of Capital One Funding (a "Permitted Affiliate Transferee") upon
delivery to the Master Trust Trustee and the Owner Trustee of a Master Trust Tax
Opinion and an Issuer Tax Opinion with respect to such transfer. The Beneficiary
may not sell, participate, transfer, assign, exchange or otherwise pledge or
convey all or any part of its right, title and interest in and to the Trust
Certificate or its Beneficial Interest to any other Person, except to any
Permitted Affiliate Transferee. Any purported transfer by the Beneficiary of all
or any part of its right, title and interest in and to the Trust Certificate to
any Person will be effective only upon the issuance of a Master Trust Tax
Opinion and an Issuer Tax Opinion to the Master Trust Trustee and the Owner
Trustee, which will not be an expense of the Owner Trustee or the Trustee Bank.
Any purported transfer by the Beneficiary of all or any part of its right, title
and interest in and to the Trust Certificate which is not in compliance with the
terms of this Section 10.02 will be null and void.
(b) The Trust Certificate will bear a legend setting forth the
restriction on the transferability of the Beneficial Interest substantially as
follows:
"THIS CERTIFICATE MAY NOT BE TRANSFERRED, ASSIGNED, EXCHANGED OR
OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS OF
THE TRUST AGREEMENT REFERRED TO BELOW. IN ADDITION, THE BENEFICIAL
INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE
DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF BY THE
HOLDER HEREOF UNLESS SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER
THE SECURITIES ACT, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED AND
APPLICABLE STATE SECURITIES LAWS."
(c) The Owner Trustee shall not be required to ascertain
whether any purported transfer of the Beneficial Interest and the Trust
Certificate complies with the Securities Act.
Section 10.03. Lost or Destroyed Trust Certificate. If the Trust
Certificate shall become mutilated, destroyed, lost or stolen, the Owner Trustee
on behalf of the Trust will, upon
23
the written request of the Beneficiary, and compliance with all applicable
terms of this paragraph, execute and deliver to such holder in replacement
thereof a new Trust Certificate dated the same date as on the Trust Certificate
so mutilated, destroyed, lost or stolen. If the Trust Certificate being replaced
has been mutilated, destroyed, lost or stolen, the Beneficiary will furnish to
the Owner Trustee such security or indemnity as may be required by the Owner
Trustee to save the Owner Trustee harmless from any damage, loss or liability in
connection with such Trust Certificate, and the Owner Trustee may require from
the Beneficiary payment of a sum to reimburse the Owner Trustee for, or to
provide funds for, the payment of any costs, fees and expenses and any tax or
other governmental charge in connection therewith and any charges paid or
payable by the Owner Trustee.
ARTICLE XI
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 11.01. Trustee Bank Fees and Expenses. The Transferors
will pay to the Trustee Bank all fees and other charges described in a separate
fee agreement dated as of the date hereof between the Transferors and the
Trustee Bank promptly when due thereunder and reimburse the Trustee Bank for all
other reasonable out-of-pocket costs and expenses (including reasonable fees and
expenses of counsel) incurred by it in connection with its acting as Owner
Trustee of the Trust. Except to the extent specifically provided in Section 606
of the Indenture, payment of such fees and expenses will not be a recourse
obligation of the Issuer.
Section 11.02. Indemnification. To the fullest extent permitted by
law, each Transferor hereby agrees, severally and not jointly, whether or not
any of the transactions contemplated by this Agreement will be consummated, to
assume liability for, and hereby indemnifies, protects, saves and keeps harmless
the Trustee Bank 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 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 this 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 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; provided, however, that the applicable Transferor or
Transferors 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 made by the
Indemnified Person.
24
In case any such action, investigation or proceeding will be brought
involving an Indemnified Person, the applicable Transferor or Transferors will
assume the defense thereof, including the employment of counsel and the payment
of all expenses. The Trustee Bank will have the right to employ separate counsel
in any such action, investigation or proceeding and to participate in the
defense thereof and the reasonable counsel fees and expenses of such counsel
will be paid by the applicable Transferor or Transferors. In the event of any
claim, action or proceeding for which indemnity will be sought pursuant to this
Section, the Trustee Bank's choice of legal counsel shall be subject to the
approval of the Beneficiary, which approval shall not be unreasonably withheld.
Except to the extent specifically provided in Section 606 of the
Indenture, the payment of such indemnified amounts will not be a recourse
obligation of the Issuer.
The indemnification set forth herein will survive the termination of
this Agreement and the resignation or removal of the Trustee Bank.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Conveyance by the Owner Trustee is Binding. Any
sale or other conveyance of any part of the Trust Estate by the Owner Trustee on
behalf of the Trust made pursuant to the terms of this Agreement will bind the
Beneficiary and will be effective to transfer or convey all beneficial interest
of the Owner Trustee and Beneficiary in and to such part of the Trust Estate, as
the case may be. No purchaser or other grantee will be required to inquire as to
the authorization, necessity, expediency or regularity of such sale or
conveyance or as to the application of any sale or other proceeds with respect
thereto by the Owner Trustee or the officers.
Section 12.02. Instructions; Notices. All instructions, notices,
requests or other communications ("Deliveries") desired or required to be given
under this Agreement will be in writing and will be sent by (a) certified or
registered mail, return receipt requested, postage prepaid, (b) national prepaid
overnight delivery service, (c) telecopy or other facsimile transmission or (d)
personal delivery, with receipt acknowledged in writing, to the following
addresses:
(i) if to Capital One Funding:
Capital One Funding, LLC
140 East Shore Drive, Room 1048
Glen Allen, Virginia 23059
Facsimile: (804) 967-1000
(ii) if to the Owner Trustee:
Deutsche Bank Trust Company Delaware
E.A. Delle Donne Corporate Center
Montgomery Building
25
1011 Centre Road
Wilmington, Delaware 19805-1266
Attention: Corporate Trust Administration
Facsimile: (302) 636-3222
with a copy to:
Deutsche Bank Trust Company Delaware
c/o DB Services New Jersey Inc.
100 Plaza One, MS JCY 03-0606
Jersey City, New Jersey 07311
Attention: Corporate Trust and Agency Group
All Deliveries will be deemed given when actually received or refused
by the party to whom the same is directed (except to the extent sent by
certified or registered mail, return receipt requested, postage prepaid, in
which event such Deliveries will be deemed given three days after the date of
mailing and except to the extent sent by telecopy or other facsimile
transmission, in which event such Deliveries will be deemed given when answer
back is received). Either party may designate a change of address or
supplemental address by notice to the other party, given at least fifteen (15)
days before such change of address is to become effective.
Section 12.03. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction will, 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 will not invalidate or
render unenforceable any provision hereof in any other jurisdiction.
Section 12.04. Limitation of Liability. (a) To the fullest extent
permitted by applicable law, neither the Beneficiary nor any officer, director,
employee, agent, partner, shareholder, trustee or principal of the Beneficiary,
the Trust or any Person owning, directly or indirectly, any legal or beneficial
interest in the Beneficiary, will have any liability or obligation with respect
to the Trust or the performance of this Agreement or any other agreement,
document or instrument executed by the Trust, and the creditors of the Trust and
all other Persons will look solely to the Trust Estate for the satisfaction of
any claims with respect thereto. The foregoing limitation of liability is
subject to Section 12.06 and is in addition to, and not exclusive of, any
limitation of liability applicable to the Persons referred to above by operation
of law.
(b) All agreements entered into by the Trust under which the Trust
would have any material liability will contain an exculpatory provision
substantially to the following effect:
Neither any trustee nor any beneficiary of Capital One Multi-asset
Execution Trust nor any of their respective officers, directors,
employers or agents will have any liability with respect to this
agreement, and recourse may be had solely to the assets of Capital
One Multi-asset Execution Trust with respect thereto.
26
Section 12.05. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered will be an original, but all such counterparts will
together constitute but one and the same instrument.
Section 12.06. Successors and Assigns. All covenants and
agreements contained herein will be binding upon, and inure to the benefit of,
the Owner Trustee and its successors and assigns and the Beneficiary and its
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Beneficiary will
bind the successors and assigns of the Beneficiary.
Section 12.07. Headings. The headings of the various Sections
herein are for convenience of reference only and will not limit any of the terms
or provisions herein.
Section 12.08. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES OF SUCH STATE
Section 12.09. Nonpetition Covenants. To the fullest extent
permitted by applicable law, notwithstanding any prior termination of the Trust
or this Agreement, the Owner Trustee and the Beneficiary, by its acceptance of
the Beneficial Interest, shall not at any time with respect to the Trust, the
Beneficiary, any applicable Master Trust or any applicable Transferor,
acquiesce, petition or otherwise invoke or cause the Trust, the Beneficiary, any
applicable Master Trust or any applicable Transferor to invoke the process of
any court or government authority for the purpose of commencing or sustaining a
case against the Trust, the Beneficiary, any applicable Master Trust or any
applicable Transferor under any Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, conservator, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Trust, the
Beneficiary, any applicable Master Trust or any applicable Transferor or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Trust, the Beneficiary, any applicable Master Trust or any
applicable Transferor; provided, that this Section 12.09 shall not operate to
preclude any remedy described in Article VI of the Indenture.
Section 12.10. No Recourse. The holder of the Trust Certificate by
accepting the Trust Certificate acknowledges that the Trust Certificate does not
represent an interest in or obligation of the Beneficiary, the Owner Trustee (in
its individual capacity), the Indenture Trustee or any Affiliate thereof, and no
recourse may be had against such parties or their assets, or against the assets
pledged under the Indenture or the applicable Asset Pool Supplement.
Section 12.11. Acceptance of Terms of Agreement. THE RECEIPT AND
ACCEPTANCE OF THE TRUST CERTIFICATE BY THE BENEFICIARY, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE BENEFICIARY OF ALL THE TERMS AND PROVISIONS OF THIS AGREEMENT, AND SHALL
CONSTITUTE THE AGREEMENT OF THE TRUST THAT THE TERMS AND PROVISIONS OF THIS
AGREEMENT SHALL BE
27
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND THE BENEFICIARY.
Section 12.12. Acknowledgement and Acceptance of Indenture.
Capital One Funding, LLC, as Beneficiary, by its signature hereto, acknowledges
and accepts the Indenture.
[Signature Page to Follow]
28
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be duly executed, by their respective officers hereunto duly authorized all
as of the day and year first above written.
DEUTSCHE BANK TRUST COMPANY DELAWARE
By: /s/ Michele Voon
---------------------------------------
Name: Michele Voon
Title: Attorney-in-Fact
CAPITAL ONE FUNDING, LLC,
as the Beneficiary and as a Transferor
By: /s/ Bonnie A. Seideman
---------------------------------------
Name: Bonnie A. Seideman
Title: President and Chief Executive
Officer
[Signature Page to Capital One Multi-asset Execution Trust Amended
and Restated Trust Agreement]
EXHIBIT A
[FORM OF] TRUST CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED, ASSIGNED, EXCHANGED OR OTHERWISE
PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE TRUST AGREEMENT
REFERRED TO BELOW. IN ADDITION, THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED
BY THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND
MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF BY
THE HOLDER HEREOF UNLESS SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED AND APPLICABLE
STATE SECURITIES LAWS.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
TRUST CERTIFICATE
(This Certificate does not represent an interest in or obligation of Capital One
Funding, LLC or any of its affiliates, except to the extent described below.)
THIS CERTIFIES THAT Capital One Funding, LLC is the registered
beneficial owner of the Capital One Multi-asset Execution Trust (the "Trust")
created by Capital One Funding, LLC, a Virginia limited liability company
("Capital One Funding").
The Trust was created and exists pursuant to (i) the filing of the
Certificate of Trust with the Secretary of State of the State of Delaware and
(ii) the Capital One Multi-asset Execution Trust Amended and Restated Trust
Agreement, dated as of October 9, 2002 (as amended, the "Trust Agreement"),
between Capital One Funding, as Beneficiary and as a Transferor, and Deutsche
Bank Trust Company Delaware, as owner trustee (the "Owner Trustee"). To the
extent not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Trust Agreement as specified in Section 1.01.
This Certificate is the duly authorized Certificate evidencing a
beneficial interest in the Trust (herein called the "Certificate"). This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Beneficiary by
virtue of the acceptance hereof assents and by which the Beneficiary is bound.
Notwithstanding any prior termination of the Trust Agreement, the
Beneficiary, by its acceptance of this Certificate, covenants and agrees that,
to the fullest extent permitted by applicable law, it shall not at any time with
respect to the Trust, the Beneficiary, any applicable Master Trust or any
applicable Transferor, acquiesce, petition or otherwise invoke or cause the
Trust, the Beneficiary, any applicable Master Trust or any applicable Transferor
to invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Trust, the Beneficiary, any
applicable Master Trust or any applicable Transferor under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver, conservator,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the
A-1
Trust, the Beneficiary, any applicable Master Trust or any applicable Transferor
or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Trust, the Beneficiary, any applicable Master
Trust or any applicable Transferor.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the Holder hereof to any benefit under the
Trust Agreement or any Transaction Document or be valid for any purpose.
THIS CERTIFICATE AND THE TRUST AGREEMENT WILL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO ANY CONFLICT-OF-LAW PROVISIONS AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE BENEFICIARY SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
A-2
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity pursuant to the Trust Agreement, has caused this
Certificate to be issued by the Trust as of the date hereof.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
By: DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity but solely
as Owner Trustee
By:
---------------------------------------
Name:
Title:
Date: _________ __, 200_
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust Agreement.
DEUTSCHE BANK TRUST COMPANY DELAWARE, not in its or DEUTSCHE BANK TRUST COMPANY DELAWARE, not in
individual capacity but solely as Owner Trustee its individual capacity but solely as Owner
Trustee
By:__________________________________
Authenticating Agent
By:______________________________ By:__________________________________
Authorized Signatory Authorized Signatory
ANNEX I to EXHIBIT A
Registered Owner and address:
Capital One Funding, LLC
140 East Shore Drive, Room 1048
Glen Allen, Virginia 23059
Tax Identification Number:
54-2058720
--------------
EXHIBIT B
CERTIFICATE OF TRUST OF
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
THIS Certificate of Trust of Capital One Multi-asset Execution Trust
(the "Trust") has been duly executed and is being filed by Deutsche Bank Trust
Company Delaware, a Delaware banking corporation, as owner trustee, to create a
statutory trust under the Delaware Statutory Trust Act (12 Del. C., ss. 3801 et
seq.).
1. Name. The name of the statutory trust created hereby is Capital
One Multi-asset Execution Trust.
2. Delaware Trustee. The name and business address of the owner
trustee of the Trust in the State of Delaware are Deutsche Bank Trust Company
Delaware, E.A. Delle Donne Corporate Center, Montgomery Building, 1011 Centre
Road, Wilmington, Delaware 19805-1266.
3. Effective Date. This Certificate of Trust shall be effective on
_______ __, 2002.
IN WITNESS WHEREOF, the undersigned, has executed this Certificate of
Trust in accordance with Section 3811(a) of the Delaware Statutory Trust Act.
DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity but
solely as Owner Trustee
By: _____________________________
Name:
Title:
B-1
EXHIBIT C
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
[FORM OF] TRANSFEROR CERTIFICATE
THIS TRANSFEROR CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS TRANSFEROR CERTIFICATE NOR ANY
PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION PROVISIONS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS
TRANSFEROR CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED, EXCHANGED
OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE
TRUST AGREEMENT REFERRED TO HEREIN.
No. R-__ One Unit
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
TRANSFEROR CERTIFICATE
THIS TRANSFEROR CERTIFICATE REPRESENTS AN INTEREST
IN CERTAIN ASSETS OF THE
CAPITAL ONE MULTI-ASSET EXECUTION TRUST (THE "TRUST")
Evidencing an interest in the Trust, the corpus of which consists of the Trust
Estate.
(Not an interest in or obligation of a Transferor
or any affiliate thereof)
This certifies that [NAME OF TRANSFEROR] is the registered
owner of [all of] [a portion], [equal to __%] [or] [in an amount up to $_____],
of the Transferor Interest, subject to the lien of the Notes as provided in the
Indenture, dated as of October 9, 2002 (as amended and supplemented, the
"Indenture"), among The Bank of New York, as Indenture Trustee (the "Indenture
Trustee") and the Trust, existing pursuant to the Capital One Multi-asset
Execution Trust Amended and Restated Trust Agreement, dated as of October 9,
2002 (as amended and supplemented, the "Trust Agreement"), between Capital One
Funding, LLC, as beneficiary and as a transferor, and Deutsche Bank Trust
Company Delaware, as owner trustee (not in its individual capacity, but solely
as owner trustee the "Owner Trustee"). The corpus of the Trust consists of the
Trust Estate (as defined in the Trust Agreement). Although a summary of certain
provisions of the Transfer and Administration Agreement, dated as of October 9,
2002, as amended from time to time (the "Transfer and Administration
Agreement"), among the Transferor, Capital One Bank, as Administrator, and the
Trust, as Issuer, the Trust Agreement and the Indenture (collectively, the
"Agreements") is set forth below, this Transferor Certificate
C-1
does not purport to summarize the Agreements and reference is made to the
Agreements for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Owner Trustee. A copy of the Agreements may be requested from
the Owner Trustee by writing to the Owner Trustee. To the extent not defined
herein, the capitalized terms used herein have the meanings ascribed to them in
the Agreements.
This Transferor Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreements, to which Agreements, as
amended and supplemented from time to time, the Transferor by virtue of the
acceptance hereof assents and is bound.
This Transferor Certificate (this "Transferor Certificate")
represents [all of] [a portion, [equal to __%] [or] [in an amount up to
$________], of] [Name of Transferor]'s interest in the Transferor Interest. The
Transferor Interest represents an undivided beneficial interest in the Trust
Estate, subject to the lien of the Notes, including the right to receive a
portion of the collections and other amounts at the times and in the amounts
specified in the Indenture and any Indenture Supplement to be paid to the
Transferor on behalf of all holders of the Transferor Interest. In addition to
the Transferor Certificate, Notes will be issued to investors pursuant to the
Indenture.
Unless otherwise specified in an Indenture Supplement with
respect to a particular Series of Notes, the Transferor has entered into the
Transfer and Administration Agreement, and this Transferor Certificate is
issued, with the intention that, for federal, state and local income and
franchise tax purposes, (a) the Notes of each Series, Class or Tranche which are
characterized as indebtedness at the time of their issuance will qualify as
indebtedness of the Transferor secured by the applicable portion of the Trust
Estate and (b) the Trust shall not be treated as an association (or a publicly
traded partnership) taxable as a corporation. The Transferor by the acceptance
of this Transferor Certificate, agrees to treat the Notes for federal, state and
local income and franchise tax purposes as indebtedness of the Transferor.
C-2
Unless the certificate of authentication hereon has been
executed by or on behalf of the Owner Trustee, by manual signature, this
Transferor Certificate shall not be entitled to any benefit under the Trust
Agreement or be valid for any purpose.
THIS TRANSFEROR CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Trust has caused this Transferor
Certificate to be duly executed.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
By: DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity,
but solely as Owner Trustee
By: ______________________________________
Name:
Title:
Dated: ____ __, 200_
C-3
CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate referred to in the within-mentioned
Trust Agreement.
Deutsche Bank Trust Company Delaware, or Deutsche Bank Trust Company Delaware,
not in its individual capacity not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee
By ______________________________
Authenticating Agent
By __________________________ By ______________________________
Authorized Signatory Authorized Signatory