EXHIBIT 4.2
EXECUTION COPY
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CAPITAL ONE MASTER TRUST
RECEIVABLES PURCHASE AGREEMENT
between
Capital One, F.S.B.
and
CAPITAL ONE FUNDING, LLC
Dated as of August 1, 2002
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions ............................................................ 1
Section 1.02. Other Definitional Provisions .......................................... 9
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase ............................................................... 10
Section 2.02. Addition of Accounts ................................................... 11
Section 2.03. Removal and Deletion of Accounts ....................................... 12
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price ......................................................... 14
Section 3.02. Adjustments to Purchase Price .......................................... 14
Section 3.03. Use of Name, Logo and Marks ............................................ 14
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of Capital One Relating to Capital One .. 15
Section 4.02. Representations and Warranties of Capital One Relating to the
Agreement and the Receivables .......................................... 16
Section 4.03. Representations and Warranties of Funding .............................. 18
ARTICLE V
COVENANTS
Section 5.01. Covenants of Capital One ............................................... 20
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables ................................. 23
Section 6.02. Reassignment of Other Receivables ...................................... 23
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to Funding's Obligations Regarding Initial Receivables ...... 25
Section 7.02. Conditions Precedent to Capital One's Obligations ...................... 25
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TABLE OF CONTENTS
continued
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ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01. Term ................................................................... 27
Section 8.02. Purchase Termination ................................................... 27
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment .............................................................. 28
Section 9.02. Governing Law .......................................................... 28
Section 9.03. Notices ................................................................ 28
Section 9.04. Severability of Provisions ............................................. 28
Section 9.05. Assignment ............................................................. 28
Section 9.06. Acknowledgement and Agreement of Capital One ........................... 29
Section 9.07. Further Assurances ..................................................... 29
Section 9.08. No Waiver; Cumulative Remedies ......................................... 29
Section 9.09. Counterparts ........................................................... 29
Section 9.10. Binding; Third-Party Beneficiaries ..................................... 29
Section 9.11. Merger and Integration ................................................. 30
Section 9.12. Headings ............................................................... 30
Section 9.13. Schedules and Exhibits ................................................. 30
Section 9.14. Survival of Representations and Warranties ............................. 30
Section 9.15. Nonpetition Covenant ................................................... 30
EXHIBIT A ........................................................................ 1
FORM OF SUPPLEMENTAL CONVEYANCE .................................................. 1
Schedule 1 ....................................................................... 1
LIST OF ACCOUNTS ................................................................. 1
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RECEIVABLES PURCHASE AGREEMENT, dated as of August 1, 2002, by and
between Capital One, F.S.B., a federal savings bank (together with its permitted
successors and assigns, "Capital One"), and CAPITAL ONE FUNDING, LLC, a Virginia
limited liability company (together with its permitted successors and assigns,
"Funding").
W I T N E S S E T H:
WHEREAS, Funding desires to purchase, from time to time, certain
Receivables (hereinafter defined) existing or arising in designated credit card
accounts of Capital One;
WHEREAS, Capital One desires to sell and assign, from time to time,
certain Receivables to Funding upon the terms and conditions hereinafter set
forth;
WHEREAS, it is contemplated that the Receivables purchased hereunder
will be transferred by Funding to the Trustee under the terms of the Pooling and
Servicing Agreement and that the Trust created under the Pooling and Servicing
Agreement will issue certificates representing beneficial interests in the Trust
(each capitalized term as hereinafter defined); and
WHEREAS, Capital One agrees that all representations, warranties,
covenants and agreements made by Capital One herein with respect to the Accounts
and the Receivables shall also be for the benefit of the Trust, the Trustee and
the Certificateholders (each capitalized term as hereinafter defined).
NOW, THEREFORE, it is hereby agreed by and between Capital One and
Funding as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. All capitalized terms used herein or in any
certificate, or document made or delivered pursuant hereto, and not defined
herein or therein, shall have the following meanings:
"Account" shall mean (a) each Initial Account, (b) each Additional
Account (but only from and after the Addition Date with respect thereto), and
(c) each Related Account. The term "Account" shall not include Deleted Accounts
and any Account all of the Receivables in which are reassigned to Capital One
pursuant to Section 6.01 or Section 6.02.
"Account Schedule" shall mean a computer file or microfiche list
containing a true and complete list of Accounts, identified by account number,
and setting forth, with respect to each Account, the aggregate amount
outstanding in such Account, the aggregate amount of Principal Receivables
outstanding in such Account and any amount on deposit in and/or credited to any
related Deposit Account, each (a) on the Initial Cut-Off Date (for the Account
Schedule delivered on the Closing Date), (b) on or prior to the Determination
Date immediately succeeding the related Monthly Period (for any Account Schedule
relating to Additional Accounts designated under Subsection 2.02(a)(ii)) and (c)
on the Additional Cut-Off Date (for any Account Schedule relating to Additional
Accounts designated under Subsection 2.02(a)(i)).
"Addition Date" shall mean (a) with respect to Additional Accounts
designated under Subsection 2.02(a)(i), the date from and after which such
Additional Accounts are included as Accounts pursuant to such subsection, and
(b) with respect to Additional Accounts designated under Subsection 2.02(a)(ii),
the later of the dates on which such Additional Accounts are originated or
designated.
"Additional Account" shall mean each VISA(R) and MasterCard(R)1/
consumer revolving credit card account or other consumer revolving credit
account owned by Capital One that is designated pursuant to Subsection 2.02(a)
to be included as an Account and is identified on an Account Schedule delivered
pursuant to Sections 2.01 and 2.02.
"Additional Cut-Off Date" shall mean (a) with respect to Additional
Accounts designated under Subsection 2.02(a)(i), the date specified as such in
the notice delivered with respect thereto, and (b) with respect to Additional
Accounts designated under Subsection 2.02(a)(ii), the later of the dates on
which such Additional Accounts are originated or designated.
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" shall mean the
power to direct the management and policies of a Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" shall have meanings correlative to
the foregoing.
"Agreement" shall mean this Receivables Purchase Agreement as the same
may be amended and supplemented from time to
time.
"Annual Membership Fees" shall have the meaning specified in the
Lending Agreement applicable to each Account for annual membership fees or
similar terms.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, Richmond, Virginia, or
Glen Allen, Virginia, are authorized or obligated by law or executive order to
be closed.
"Capital One" shall have the meaning specified in the initial
paragraph of this Agreement.
"Cash Advance Fees" shall have the meaning specified in the Lending
Agreement applicable to each Account for fees and charges for cash advances or
similar terms.
"Closing Date" shall mean August 1, 2002.
"Collection Account" shall have the meaning specified in the Pooling
and Servicing Agreement.
"Collections" shall mean all payments received (including Recoveries
and Insurance Proceeds) in respect of the Receivables, in the form of cash,
checks, wire transfers, electronic transfers, ATM transfers or any other form of
payment.
______________
/1/ MasterCard and VISA are registered trademarks of MasterCard International
Incorporated and of VISA USA, Inc., respectively.
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"Conveyance" shall have the meaning specified in Subsection 2.01(a).
"Debtor Relief Laws" shall mean (a) the United States Bankruptcy Code
and (b) all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, suspension
of payments, readjustment of debt, marshalling of assets, assignment for the
benefit of creditors and similar debtor relief laws from time to time in effect
in any jurisdiction affecting the rights of creditors generally or the rights of
creditors of banks.
"Defaulted Receivable" shall mean a Principal Receivable which is
charged-off as uncollectible in accordance with the Lending Guidelines and the
Servicer's customary and usual servicing procedures for servicing consumer
revolving credit accounts. A Principal Receivable shall become a Defaulted
Receivable no later than the day on which such Principal Receivable is recorded
as charged-off on the Servicer's computer file of consumer revolving credit
accounts.
"Deleted Account" shall mean any Removed Account as to which there are
no Receivables arising therein owned by Funding.
"Deposit Account" shall mean the deposit account or accounts at the
Depository into which Funds are deposited by or on behalf of an Obligor pursuant
to the Deposit Documents, together with all money and other properties on
deposit therein or credited thereto, and all interest, dividends earnings,
income and other distributions from time to time received, receivable or
otherwise distributed to or in respect thereof.
"Deposit Documents" shall mean the Security Agreement, the
Supplemental Deposit Agreement and all other documents, books, credit files,
records and other information (including, without limitation, computer programs,
tapes, discs, punch cards, data processing software and related property and
rights) maintained with respect to the Deposit Account and the Funds.
"Depository" shall mean Capital One and/or any such other depository
institution selected by Capital One and Funding organized under the laws of the
United States or any one of the states thereof, including the District of
Columbia (or any domestic branch of a foreign bank), which at all times is a
member of the Federal Deposit Insurance Corporation.
"Determination Date" shall have the meaning specified in the Pooling
and Servicing Agreement.
"Distribution Date" shall have the meaning specified in the Pooling
and Servicing Agreement.
"Eligible Account" shall mean a MasterCard or VISA consumer revolving
credit card account or other consumer revolving credit account owned by Capital
One which (i) in the case of the Initial Accounts, as of the cut-off date
related to its date of designation as an "Account" under the Prior PSA or (ii)
in the case of the Additional Accounts, as of the applicable Additional Cut-Off
Date, in each case, meets the following requirements:
(a) which is in existence and maintained by Capital One;
(b) which is payable in United States dollars;
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(c) which has not been identified by Capital One as an account the
credit cards or checks, if any, with respect to which have been lost or stolen;
(d) the Obligor on which has provided, as his or her most recent
billing address, an address which is located in the United States or its
territories or possessions or a military address;
(e) which has not been, and does not have any Receivables which have
been, sold, pledged, assigned or otherwise conveyed to any Person (except
pursuant to this Agreement or the Prior PSA);
(f) which does not have any Receivables which are Defaulted
Receivables;
(g) which does not have any Receivables which have been identified by
Capital One or the relevant Obligor as having been incurred as a result of the
fraudulent use of any related credit card or check;
(h) which relates to an Obligor who is not identified by Capital One
in its computer files as being the subject of a voluntary or involuntary
bankruptcy proceeding; and
(i) which is not an account with respect to which the Obligor has
requested discontinuance of responsibility.
"Eligible Receivable" shall mean a Receivable:
(a) which has arisen in an Eligible Account;
(b) which was created in compliance in all material respects with the
Lending Guidelines and all Requirements of Law applicable to Capital One and
pursuant to a Lending Agreement which complies with all Requirements of Law
applicable to Capital One;
(c) with respect to which all material consents, licenses, approvals
or authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by Capital One in
connection with the creation of such Receivable or the execution, delivery and
performance by Capital One of its obligations, if any, under the related Lending
Agreement have been duly obtained, effected or given and are in full force and
effect;
(d) as to which, at the time of its sale of such Receivable to
Funding, Capital One has good and marketable title thereto and which itself is
free and clear of all Liens;
(e) which has been the subject of a valid sale and assignment from
Capital One to Funding of all Capital One's right, title and interest therein;
(f) which is the legal, valid and binding payment obligation of the
Obligor thereon, enforceable against such Obligor in accordance with its terms,
except as such enforceability may be limited by applicable Debtor Relief Laws
and except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
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(g) which constitutes an "account" as defined in Article 9 of the UCC
as then in effect in the State of New York and the Commonwealth of Virginia;
(h) which, at the time of its sale to Funding, has not been waived or
modified;
(i) which, at the time of its sale to Funding, is not subject to any
right of rescission, setoff, counterclaim or any other defense of the Obligor
(including the defense of usury), other than defenses arising out of applicable
Debtor Relief Laws and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity);
(j) as to which, at the time of its sale to Funding, Capital One has
satisfied all obligations on its part to be fulfilled under the Lending
Agreement; and
(k) as to which, at the time of its sale to Funding, Capital One has
not taken any action which, or failed to take any action the omission of which,
would, at the time of its sale to Funding, impair in any material respect the
rights of Funding therein.
"Finance Charge Receivables" shall mean Receivables created in respect
of Periodic Rate Finance Charges, Cash Advance Fees, Late Charge Fees, Overlimit
Fees, Returned Check Charges, Annual Membership Fees, and all other incidental
and miscellaneous fees and charges, including charges for credit insurance.
"Funding" shall have the meaning specified in the initial paragraph of
this Agreement.
"Funds" shall mean the money, instruments and other properties
provided by or on behalf of an Obligor from time to time under the Security
Agreement in respect of the Receivables.
"Funds Collateral" shall mean, to the extent allocable to a Receivable
sold to Funding under this Agreement, (a) the Deposit Account and the Funds; (b)
each Deposit Document, including, without limitation, all monies due or to
become due to Capital One under or in connection with such related Deposit
Document, and all rights, remedies, powers, privileges, benefits and claims of
Capital One under or with respect to such related Deposit Document (whether
arising pursuant to the terms of such related Deposit Document or otherwise
available at law or in equity); (c) all guarantees, indemnities, warranties,
insurance policies and proceeds and premium refunds and other arrangements of
whatever character from time to time under or with respect to the Funds, the
Secured Account, the Deposit Account or the Deposit Documents; (d) all other
security interests or liens from time to time purporting to secure an Obligor's
obligations under or with respect to the Secured Account; and (e) all
substitutions for and proceeds of any of the foregoing.
"Governmental Authority" shall mean 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.
"Initial Account" shall mean each VISA and MasterCard consumer
revolving credit card account existing on the Initial Cut-Off Date and
established pursuant to a Lending
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Agreement between Capital One and any Obligor, which account is identified on
the Account Schedule delivered to Funding by Capital One on the Closing Date.
"Initial Cut-Off Date" shall mean the close of business on July 26,
2002.
"Insolvency Event" shall have the meaning specified in Section 8.02.
"Insurance Proceeds" shall mean any amounts recovered pursuant to any
credit insurance policies covering any Obligor with respect to any Receivable
under such Obligor's Account.
"Interchange" shall mean all interchange fees payable to Capital One,
in its capacity as credit card issuer, through VISA, MasterCard or any other
similar entity in connection with cardholder charges for goods or services with
respect to the Receivables, the amount of which shall be calculated as provided
in Subsection 5.01(f).
"Late Charge Fees" shall have the meaning specified in the Lending
Agreement applicable to each Account for late payment fees or similar terms.
"Lending Agreement" shall mean, with respect to a consumer revolving
credit account, the agreements between Capital One and the related Obligor
governing the terms and conditions of such account, as such agreements may be
amended, modified or otherwise changed from time to time in conformance with all
Requirements of Law, the failure to comply with which would have a material
adverse effect on the interests of Funding hereunder, and as distributed
(including any amendments and revisions thereto) to holders of such account.
"Lending Guidelines" shall mean Capital One's established policies and
procedures (a) relating to the operation of its credit card business, which are
applicable to its entire portfolio of VISA and MasterCard and other consumer
revolving credit accounts and are consistent with reasonably prudent practice,
including the established policies and procedures for determining the
creditworthiness of credit card or other consumer revolving credit account
customers and the extension of credit to credit card and other consumer
revolving credit account customers and (b) relating to the maintenance of credit
card and other consumer revolving credit accounts and the collection of
receivables with respect thereto, as such policies and procedures may be
amended, modified, or otherwise changed from time to time in conformance with
all Requirements of Law, the failure to comply with which would have a material
adverse effect on the interests of Funding hereunder.
"Lien" shall mean any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, deposit arrangement, equity interest,
encumbrance, lien (statutory or other), preference, participation interest,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever, including any conditional sale or other title retention
agreement, or any financing lease having substantially the same economic effect
as any of the foregoing; provided, however, that the lien created in favor of
the Trustee under the Prior PSA shall not be deemed to constitute a Lien.
"Monthly Period" shall mean the period from and including the first
day of a calendar month to and including the last day of such calendar month.
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"Obligor" shall mean, with respect to any Account, the Person or
Persons obligated to make payments with respect to such Account, including any
guarantor thereof but excluding any merchant.
"Officer's Certificate" shall mean a certificate delivered to Funding
signed by any Vice President or more senior officer of Capital One.
"Overlimit Fees" shall have the meaning specified in the Lending
Agreement applicable to each Account for overlimit fees or similar terms.
"Pay Out Event" shall have the meaning specified in the Pooling and
Servicing Agreement.
"Periodic Rate Finance Charges" shall have the meaning specified in
the Lending Agreement applicable to each Account for finance charges (due to
periodic rate) or any similar term.
"Person" shall mean any person or entity, including any individual,
corporation, limited liability company, partnership, limited liability
partnership, limited partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, Governmental Authority, or other
entity of any nature.
"Pooling and Servicing Agreement" shall mean the Amended and Restated
Pooling and Servicing Agreement, dated as of September 30, 1993, as amended and
restated as of August 1, 2002, among Funding, as Transferor, Capital One, as
Servicer, and The Bank of New York, as Trustee, as amended and supplemented from
time to time.
"Principal Receivables" shall mean all Receivables other than Finance
Charge Receivables. In calculating the aggregate amount of Principal Receivables
on any day, the amount of Principal Receivables shall be reduced by the
aggregate amount of credit balances in the Accounts on such day.
"Prior PSA" shall have the meaning specified in the Pooling and
Servicing Agreement.
"Proceeding" shall mean any suit in equity, action at law or other
judicial or administrative proceeding.
"Purchase Price" shall have the meaning specified in Subsection
3.01(a).
"Purchase Price Adjustment" shall have the meaning specified in
Section 3.02.
"Purchase Price Payment Date" shall have the meaning specified in
Subsection 3.01(a).
"Purchased Assets" shall have the meaning specified in Subsection
2.01(a).
"Rating Agency" shall mean the nationally-recognized statistical
rating agency or agencies, if any, selected by Funding to rate any securities
issued by the Trust.
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"Receivables" shall mean all amounts shown on Capital One's records as
amounts payable by Obligors on any Account from time to time, including amounts
payable for Principal Receivables and Finance Charge Receivables.
"Recoveries" shall mean all amounts received with respect to
Receivables which have previously been charged off.
"Related Account" shall mean each VISA and MasterCard consumer
revolving credit card account or other consumer revolving credit account which
is related to an Account and which (a) was established in compliance with the
Lending Guidelines pursuant to a Lending Agreement; (b) the related Obligor or
Obligors are the same Person or Persons as the Obligor or Obligors of such
Account; (c) is originated (i) as a result of the credit card with respect to
such Account being lost or stolen; (ii) as a result of the related Obligor
requesting a change in his or her billing cycle; (iii) as a result of the
related Obligor requesting the discontinuance of responsibility with respect to
such Account; (iv) as a result of the related Obligor requesting a product
change; or (v) for any other reasons permitted by the Lending Guidelines; and
(d) can be traced or identified by reference to or by way of the Account
Schedule and the computer or other records of Capital One.
"Removed Account" shall mean any Account as to which Capital One has
received notice from the Servicer that such Account is a "Removed Account" as
defined in the Pooling and Servicing Agreement.
"Requirements of Law" shall mean, for any Person, the certificate of
incorporation, certificate of formation or articles of association and by-laws,
limited liability company agreement 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
(including usury laws, the Federal Truth in Lending Act and Regulation Z and
Regulation B of the Board of Governors of the Federal Reserve System).
"Returned Check Charges" shall mean the charges specified in the
Lending Agreement payable for returned payment checks drawn on an Account.
"Secured Account" shall mean an Account owned by Capital One under
which the obligations of the Obligor are secured by the Funds Collateral.
"Security Agreement" shall mean each security agreement between
Capital One and an Obligor of a Secured Account pursuant to which such Obligor
pledges or grants a security interest in the Funds, the Deposit Account and any
other Funds Collateral to secure its obligations under its Secured Account, as
amended, supplemented or otherwise modified from time to time.
"Servicer" shall mean the entity acting as Servicer under the Pooling
and Servicing Agreement.
"Stop Date" shall have the meaning specified in Subsection 2.03(a).
"Supplemental Conveyance" shall have the meaning specified in
Subsection 2.02(b)(v).
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"Supplemental Deposit Agreement" shall mean an agreement with respect
to the Deposit Account at the Depository, as amended, supplemented or otherwise
modified from time to time.
"Transfer Restriction Event" shall mean that Capital One is unable for
any reason to transfer Receivables to Funding in accordance with the provisions
of this Agreement, including by reason of the application of the provisions in
Section 8.02 or any order of any Governmental Authority.
"Trust" shall mean the Capital One Master Trust, heretofore created
and continued by the Pooling and Servicing Agreement.
"Trustee" shall mean the Trustee under the Pooling and Servicing
Agreement.
"UCC" shall mean the Uniform Commercial Code as in effect in the
applicable jurisdiction.
Section 1.02. Other Definitional Provisions.
The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; and Section, Subsection, Schedule
and Exhibit references contained in this Agreement are references to Sections,
Subsections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
[END OF ARTICLE I]
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ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase.
(a) In consideration of the payment of the Purchase Price as provided
herein, Capital One does hereby sell, transfer, assign, set over and otherwise
convey to Funding (collectively, the "Conveyance"), without recourse except as
provided herein, all of its right, title and interest, whether now owned or
hereafter acquired, in, to and under the Receivables existing at the close of
business on the Initial Cut-Off Date, in the case of Receivables arising in the
Initial Accounts (including Related Accounts with respect to such Initial
Accounts), and at the close of business on the related Additional Cut-Off Date,
in the case of Receivables arising in the Additional Accounts (including Related
Accounts with respect to such Additional Accounts), and in each case thereafter
created from time to time in such Accounts, all Interchange, Insurance Proceeds
and Recoveries allocable to such Receivables, any Funds Collateral securing such
Receivables, all monies due or to become due and all amounts received or
receivable with respect thereto, all Collections with respect thereto, and all
proceeds (including, without limitation, "proceeds" as defined in the UCC)
thereof (collectively, the "Purchased Assets"). The Receivables existing in the
Initial Accounts at the close of business on the Initial Cut-Off Date and
thereafter arising in the Initial Accounts on or prior to the Closing Date, and
the related Purchased Assets, shall be sold by Capital One and purchased by
Funding on the Closing Date. Receivables arising after the Closing Date in the
Initial Accounts and the related Purchased Assets shall be sold by Capital One
and purchased by Funding on the date such Receivables arise. The Receivables
existing in Additional Accounts at the close of business on the related
Additional Cut-Off Date and thereafter arising in such Additional Accounts on or
prior to the related Addition Date, and the related Purchased Assets, shall be
sold by Capital One and purchased by Funding on the related Addition Date.
Receivables arising after such Addition Date in such Additional Accounts and the
related Purchased Assets shall be sold by Capital One and purchased by Funding
on the date such Receivables arise.
(b) Capital One shall (i) record and file, at its own expense, any
financing statements (and amendments with respect to such financing statements
when applicable) with respect to the Purchased Assets meeting the requirements
of applicable state law in such manner and in such jurisdictions as are
necessary to perfect, and maintain perfection of, the Conveyance of such
Purchased Assets from Capital One to Funding, (ii) cause such financing
statements and amendments to name Capital One, as seller, and Funding, as
purchaser, of the Purchased Assets and (iii) deliver a file-stamped copy of such
financing statements or amendments or other evidence of such filings to Funding
as soon as is practicable after filing.
(c) Capital One shall, at its own expense, (i) on or prior to (x) the
Closing Date, in the case of Initial Accounts, and (y) the applicable Addition
Date, in the case of Additional Accounts, indicate in its books and records
(including its computer files) that Receivables created in connection with such
Accounts and the related Purchased Assets have been sold to Funding in
accordance with this Agreement and have been conveyed by Funding to the Trustee
pursuant to the Pooling and Servicing Agreement, and (ii) on or prior to the
Closing Date, in the case of Initial Accounts, and on or prior to the applicable
Addition Date, in the case of Additional Accounts, deliver to Funding an Account
Schedule (provided that such Account Schedule shall be provided in respect of
Additional Accounts designated pursuant to Subsection
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2.02(a)(ii) on or prior to the Determination Date immediately succeeding the
related Monthly Period during which their respective Addition Dates occur)
containing a true and complete list of all such Accounts. Capital One shall not
alter the indication referenced in clause (i) of this paragraph with respect to
any Account during the term of this Agreement unless and until such Account is
no longer an Account or Capital One has taken such action as is necessary or
advisable to cause the interest of Funding in the Purchased Assets to continue
to be perfected and of first priority. The Account Schedules, as supplemented
and amended, collectively shall be marked as Schedule 1 to this Agreement and
shall be updated by Capital One on each Addition Date (or with respect to
Additional Accounts designated pursuant to Subsection 2.02(a)(ii), on or prior
to the Determination Date immediately succeeding the related Monthly Period
during which their respective Addition Dates occur), but not later than on a
quarterly basis to include any new Related Accounts.
(d) The parties hereto intend that the conveyance of Capital One's
right, title and interest in and to the Purchased Assets shall constitute an
absolute sale, conveying good title free and clear of any liens, claims,
encumbrances or rights of others, from Capital One to Funding. It is the
intention of the parties hereto that the arrangements with respect to the
Purchased Assets shall constitute a purchase and sale of such Purchased Assets
and not a loan, including for accounting purposes. In the event, however, that
it were to be determined that the transactions evidenced hereby constitute a
loan and not a purchase and sale, it is the intention of the parties hereto that
this Agreement shall constitute a security agreement under applicable law, and
that Capital One shall be deemed to have granted, and Capital One does hereby
grant, to Funding a first priority perfected security interest in all of Capital
One's right, title and interest, whether now owned or hereafter acquired, in, to
and under the Purchased Assets to secure the obligations of Capital One
hereunder.
(e) To the extent that Capital One retains any interest in the
Purchased Assets, Capital One hereby grants to the Trustee a security interest
in all of Capital One's right, title and interest, whether now owned or
hereafter acquired, in, to and under the Purchased Assets, to secure the
performance of all of the obligations of Capital One hereunder and under the
Pooling and Servicing Agreement. With respect to such security interest and such
collateral, the Trustee shall have all of the rights that it has under the
Pooling and Servicing Agreement. The Trustee shall also have all of the rights
of a secured creditor under the UCC.
(f) Capital One hereby acknowledges and agrees to perform its
obligations under Section 2.01 of the Pooling and Servicing Agreement.
Section 2.02. Addition of Accounts.
(a) (i) If, from time to time, Funding (A) becomes obligated to
designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling
and Servicing Agreement, or (B) elects to designate Additional Accounts
pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then
in either case Funding may, at its option, give Capital One written notice
thereof on or before the eighth Business Day prior to the Addition Date
therefor, and upon receipt of such notice Capital One shall on or before
the Addition Date, designate sufficient Eligible Accounts to be included as
Additional Accounts as requested by Funding.
11
(ii) Additionally, Capital One may, at its option and with the
consent of Funding, designate newly originated Eligible Accounts to be
included as Additional Accounts.
(b) On the Addition Date with respect to any designation of
Additional Accounts, such Additional Accounts shall become Accounts, and Funding
shall purchase Capital One's right, title and interest in, to and under the
Receivables in such Additional Accounts and the related Purchased Assets as
provided in Section 2.01, subject to the satisfaction of the following
conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC
financing statements covering such Additional Accounts, if necessary to
perfect Funding's interest in the Receivables arising therein and the
related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date,
no Insolvency Event with respect to Capital One shall have occurred nor
shall the sale of the Receivables arising in the Additional Accounts and
the related Purchased Assets to Funding have been made in contemplation of
the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer's
Certificate of Capital One, dated the Addition Date, to the effect that (A)
Capital One reasonably believes that such addition will not, based on the
facts known to such officer at the time of such certification, then cause a
Pay Out Event under the Pooling and Servicing Agreement or any event to
occur that, after the giving of notice or the lapse of time would
constitute a Pay Out Event under the Pooling and Servicing Agreement and
(B) in the case of Additional Accounts, no selection procedure was utilized
by Capital One that would result in a selection of Additional Accounts
(from the available Eligible Accounts owned by Capital One) that would be
materially adverse to the interests of Funding as of the date of the
addition;
(iv) Capital One shall have indicated in its computer files that
Receivables created in connection with such Additional Accounts and the
related Purchased Assets have been sold to Funding and shall have delivered
to Funding the Account Schedule with respect to such Additional Accounts
(in the case of Additional Accounts designated pursuant to Subsection
2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed,
written assignment, substantially in the form of Exhibit A (the
"Supplemental Conveyance"); and
(vi) Capital One shall have delivered to Funding an Officer's
Certificate of Capital One, dated the Addition Date, confirming, to the
extent applicable, the items set forth in clauses (i) through (v) above.
Section 2.03. Removal and Deletion of Accounts.
(a) If an Account becomes a Removed Account, then Capital One shall
stop selling to Funding Principal Receivables arising in such Removed Account
effective on the Business Day (the "Stop Date") after the date such Account
becomes a Removed Account. Notwithstanding the cessation of the sale to Funding
of additional Principal Receivables arising
12
in such Removed Account, Principal Receivables sold to Funding prior to the Stop
Date, Funds Collateral and Collections in respect of such Principal Receivables,
Finance Charge Receivables whenever created that accrue in respect of such
Principal Receivables, and Funds Collateral and Collections in respect of such
Finance Charge Receivables, shall continue to be property of Funding available
for transfer by Funding to the Trustee pursuant to the Pooling and Servicing
Agreement. To the extent that it is not clear to Capital One whether collections
or funds collateral relate to a Principal Receivable that was sold to Funding or
to a principal receivable that Capital One did not sell to Funding, Capital One
shall allocate payments and funds collateral on each such Removed Account with
respect to the principal balance of such Removed Account first to the oldest
principal balance of such Removed Account.
(b) On and after the Stop Date for a Removed Account, Capital One may
xxxx its books and records to indicate that such Account is a Removed Account,
but Capital One shall not (i) alter the indication referenced in clause (i) of
Subsection 2.01(c) with respect to such Removed Account unless and until such
Account becomes a Deleted Account or Capital One has taken such action as is
necessary or advisable to cause the interest of Funding in the Purchased Assets
to continue to be perfected and of first priority, or (ii) delete such Removed
Account from Schedule 1 hereto or any Account Schedule.
(c) Once a Removed Account becomes a Deleted Account, Capital One
shall promptly delete such Deleted Account from Schedule 1 hereto and shall
indicate in its computer files that such Deleted Account is no longer an
Account.
[END OF ARTICLE II]
13
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price.
(a) The "Purchase Price" for the Receivables in the Initial Accounts
existing at the close of business on the Initial Cut-Off Date, and the related
Purchased Assets, that are conveyed to Funding under this Agreement shall be
payable in cash on the Closing Date in an amount equal to the fair market value
of such Receivables and the related Purchased Assets as mutually agreed upon by
Capital One and Funding. This computation of initial purchase price shall assume
no reinvestment in new Receivables. The Purchase Price for the Receivables
(including Receivables in Additional Accounts) and the related Purchased Assets
conveyed to Funding under this Agreement which come into existence after the
Initial Cut-Off Date (i) shall be payable on a date (the "Purchase Price Payment
Date") mutually agreed to by Capital One and Funding, but no later than the
second Business Day following the calendar month in which such Receivables and
the related Purchased Assets are conveyed by Capital One to Funding and (ii)
shall be an amount equal to 100% of the aggregate balance of the Principal
Receivables so conveyed, adjusted to reflect such factors as Capital One and
Funding mutually agree will result in a Purchase Price determined to be the fair
market value of such Principal Receivables and the related Purchased Assets.
(b) Notwithstanding any other provision of this Agreement, Capital
One shall not be obligated to continue to sell Receivables or other Purchased
Assets to Funding to the extent that Capital One is not paid the Purchase Price
therefor as provided herein.
Section 3.02. Adjustments to Purchase Price. The Purchase Price shall
be reduced on the Purchase Price Payment Date (a "Purchase Price Adjustment")
with respect to any Receivable previously conveyed to Funding by Capital One
which is reduced by Capital One or the Servicer because of a rebate, refund,
unauthorized charge or billing error to an Obligor, other than by reason of a
Servicer error. The amount of such reduction shall equal the reduction in the
principal balance of such Receivable resulting from the occurrence of such
event. In the event that a reduction pursuant to this Section 3.02 causes the
Purchase Price to be a negative number, Capital One agrees that on the Purchase
Price Payment Date, Capital One shall pay or cause to be paid to Funding an
amount equal to the amount by which the Purchase Price Adjustment exceeds the
unadjusted Purchase Price; provided that if the reduction relating to such
Purchase Price Adjustment also gives rise to an obligation on the part of
Funding as Transferor to make a deposit in the Collection Account pursuant to
Section 3.09 of the Pooling and Servicing Agreement, then Capital One and
Funding hereby agree that the date that Funding is required to make such deposit
pursuant to Section 3.09 of the Pooling and Servicing Agreement shall be a
Purchase Price Payment Date.
Section 3.03. Use of Name, Logo and Marks. Capital One does hereby
grant to Funding a non-exclusive license to use the name "Capital One" and all
related identifying trade or service marks, signs, symbols, logos, designs,
servicing software, customer lists and other intangibles in connection with the
servicing of the Receivables purchased hereunder. The license granted shall be
co-extensive with the term of the Agreement.
[END OF ARTICLE III]
14
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of Capital One Relating
to Capital One.
(a) Representations and Warranties. Capital One hereby represents
and warrants to, and agrees with, Funding as of the Closing Date and on each
Addition Date, that:
(i) Organization and Good Standing. Capital One is a federal savings
bank validly existing under the laws of the United States of America and
has, in all material respects, full power and authority to own its
properties and conduct its business as presently owned or conducted, and to
execute, deliver and perform its obligations under this Agreement.
(ii) Due Qualification. Capital One is duly qualified to do business
and is in good standing as a foreign corporation or foreign limited
liability company and has obtained all necessary licenses and approvals, in
each jurisdiction in which failure to so qualify or to obtain such licenses
and approvals would have a material adverse effect on this Agreement or the
transactions contemplated hereby or on the ability of Capital One to
perform its obligations under this Agreement.
(iii) Due Authorization. The execution and delivery by Capital One of
this Agreement and any other document or instrument delivered by Capital
One pursuant hereto, including any Supplemental Conveyance, and the
consummation by Capital One of the transactions provided for in this
Agreement and any such Supplemental Conveyance have been duly authorized by
Capital One by all necessary action on the part of Capital One.
(iv) No Conflict. The execution and delivery by Capital One of this
Agreement and the performance by Capital One of the transactions
contemplated by this Agreement and the fulfillment by Capital One of the
terms hereof applicable to Capital One, will not conflict with or violate
any organizational documents or by-laws applicable to Capital One or
conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time or both) a default
under, any material indenture, contract, agreement, mortgage, deed of trust
or other instrument to which Capital One is a party or by which it or its
properties are bound (other than violations of such mortgages, indentures,
contracts and other agreements which do not affect the legality, validity
or enforceability of any of such agreements or the Receivables and which,
individually or in the aggregate, would not have a material adverse effect
on Capital One or the transactions contemplated by, or its ability to
perform its obligations under, this Agreement).
(v) No Violation. The execution, delivery and performance by Capital
One of this Agreement and each Supplemental Conveyance, the performance by
Capital One of the transactions contemplated by this Agreement and each
Supplemental Conveyance and
15
the fulfillment by Capital One of the terms hereof and thereof applicable
to Capital One will not conflict with or violate any Requirements of Law
applicable to Capital One.
(vi) No Proceedings. There are no Proceedings or investigations
pending or, to the best knowledge of Capital One, threatened, against
Capital One before any Governmental Authority (i) asserting the invalidity
of this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that, in the reasonable judgment of Capital One,
would materially and adversely affect the performance by Capital One of its
obligations under this Agreement or (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement which, in each case, if adversely
determined would be reasonably likely to result in a material adverse
effect on the transactions contemplated by, or Capital One's ability to
perform its respective obligations under, this Agreement.
(vii) All Consents. All authorizations, consents, orders or approvals
of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by Capital One in connection
with the execution and delivery by Capital One of this Agreement and the
performance of the transactions contemplated by this Agreement by Capital
One have been duly obtained, effected or given and are in full force and
effect, except for those which the failure to obtain would not have a
material adverse effect on this Agreement or the transactions contemplated
hereby or on the ability of Capital One to perform its obligations under
this Agreement.
(viii) Insolvency. No Insolvency Event with respect to Capital One has
occurred and the transfer of the Receivables and the related Purchased
Assets by Capital One to Funding has not been made in contemplation of the
occurrence thereof.
(b) Notice of Breach. The representations and warranties set forth in
this Section 4.01 shall survive the sale of the Purchased Assets to Funding.
Upon discovery by Capital One or Funding of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
written notice to the other party and the Trustee within three (3) Business Days
following such discovery.
Section 4.02. Representations and Warranties of Capital One Relating
to the Agreement and the Receivables.
(a) Representations and Warranties. Capital One hereby represents and
warrants to Funding as of the Closing Date with respect to the Initial Accounts
(and the Receivables arising therein), and as of the related Addition Date with
respect to Additional Accounts (and the Receivables arising therein), that:
(i) this Agreement and, in the case of Additional Accounts, the
related Supplemental Conveyance, each constitutes a legal, valid and
binding obligation of Capital One enforceable against Capital One in
accordance with its terms, except as such enforceability may be limited by
applicable Debtor Relief Laws or general principles of equity;
16
(ii) as of the Initial Cut-Off Date with respect to the Initial
Accounts (and the Receivables arising thereunder), as of the related
Additional Cut-Off Date with respect to Additional Accounts designated
pursuant to Subsection 2.02(a)(i) and as of the Determination Date
immediately succeeding the Monthly Period in which Additional Accounts were
designated pursuant to Subsection 2.02(a)(ii) with respect to such
Additional Accounts, Schedule 1 to this Agreement, as supplemented to such
date, is an accurate and complete listing in all material respects of all
the Accounts as of such applicable date, and the information contained
therein with respect to the identity of such Accounts and the Receivables
existing thereunder is true and correct in all material respects as of such
applicable date;
(iii) each Receivable conveyed to Funding has been conveyed to
Funding free and clear of any Lien;
(iv) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required to
be obtained, effected or given by Capital One in connection with the
conveyance of Receivables to Funding have been duly obtained, effected or
given and are in full force and effect;
(v) this Agreement and, in the case of Additional Accounts, the
related Supplemental Conveyance, constitutes a valid sale to Funding of all
right, title and interest of Capital One in the Purchased Assets, and such
sale is perfected under the UCC;
(vi) on the cut-off date related to its date of designation as an
"Account" under the Prior PSA, with respect to each Initial Account, and on
the applicable Additional Cut-Off Date, with respect to each Additional
Account, each such Account is an Eligible Account;
(vii) on the Initial Cut-Off Date, with respect to each Initial
Account, and on the applicable Additional Cut-Off Date, with respect to
each Additional Account, each Receivable contained in such Account on such
applicable date and sold to Funding by Capital One is an Eligible
Receivable;
(viii) as of the date of the creation of any new Receivable sold to
Funding by Capital One, such Receivable is an Eligible Receivable; and
(ix) no selection procedures reasonably believed by Capital One to
be materially adverse to the interests of Funding or its transferees have
been used in selecting such Accounts.
(b) Notice of Breach. The representations and warranties set forth
in this Section 4.02 shall survive the sale of the Purchased Assets to Funding.
Upon discovery by either Capital One or Funding of a breach of any of the
representations and warranties set forth in this Section 4.02, the party
discovering such breach shall give written notice to the other party and the
Trustee within three (3) Business Days following such discovery. Capital One
hereby acknowledges that Funding intends to rely on the representations
hereunder in connection with representations made by Funding to secured parties,
assignees or subsequent transferees
17
including but not limited to transfers made by Funding to the Trustee pursuant
to the Pooling and Servicing Agreement, and Capital One hereby consents to such
reliance.
Section 4.03. Representations and Warranties of Funding. As of the
Closing Date and each Addition Date, Funding hereby represents and warrants to,
and agrees with, Capital One that:
(a) Organization and Good Standing. Funding is a limited liability
company duly organized and validly existing under the laws of the Commonwealth
of Virginia and has, in all material respects, full power and authority 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.
(b) Due Authorization. The execution and delivery by Funding of this
Agreement and any other document or instrument delivered pursuant hereto,
including any Supplemental Conveyance, to which Funding is a party, and the
consummation by Funding of the transactions provided for in this Agreement and
any such Supplemental Conveyance, have been duly authorized by Funding by all
necessary company action on the part of Funding.
(c) No Conflict. The execution and delivery of this Agreement by
Funding, the performance by Funding of the transactions contemplated by this
Agreement, and the fulfillment by Funding of the terms of this Agreement
applicable to Funding, 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 Funding is a
party or by which it or any of its properties are bound.
(d) No Violation. The execution, delivery and performance of this
Agreement by Funding and the fulfillment by Funding of the terms hereof
applicable to Funding will not conflict with or violate any Requirements of Law
applicable to Funding.
(e) No Proceedings. There are no Proceedings or investigations
pending, or to the best knowledge of Funding, threatened, against Funding,
before any Governmental Authority (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, (iii) seeking any determination or ruling that,
in the reasonable judgment of Funding, would materially and adversely affect the
performance by Funding of its obligations under this Agreement or (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement.
(f) All Consents. All authorizations, consents, orders or approvals
of or registrations or declarations with any Governmental Authority required to
be obtained, effected or given by Funding in connection with the execution and
delivery by Funding of this Agreement and the performance by Funding of the
transactions contemplated by this Agreement have been duly obtained, effected or
given and are in full force and effect.
The representations and warranties set forth in this Section 4.03
shall survive the sale of the Purchased Assets to Funding. Upon discovery by
Capital One or Funding of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall
18
give written notice to the other party and the Trustee within three (3) Business
Days following such discovery.
[END OF ARTICLE IV]
19
ARTICLE V
COVENANTS
Section 5.01. Covenants of Capital One. Capital One hereby covenants
and agrees with Funding as follows:
(a) Receivables Not To Be Evidenced by Instruments or Chattel Paper.
Except in connection with its enforcement or collection of an Account, Capital
One will take no action to cause any Receivable sold to Funding hereunder to be
evidenced by any instrument or chattel paper (as defined in the UCC), and if any
Receivable is so evidenced as a result of any action by Capital One it shall be
deemed to be a Receivable described in Subsection 6.01(a) and shall be
reassigned to Capital One in accordance with Subsection 6.01(b).
(b) Security Interests. Except for the conveyances hereunder, Capital
One will not sell, pledge, assign or transfer to any other Person, or take any
other action inconsistent with Funding's ownership of, the Purchased Assets, or
grant, create, incur, assume or suffer to exist any Lien arising through or
under Capital One on any Purchased Asset or any interest therein, and Capital
One shall not claim any ownership interest in any Purchased Asset and shall
defend the right, title and interest of Funding in, to and under the Purchased
Assets against all claims of third parties claiming through or under Capital
One.
(c) Account Allocations. If a Transfer Restriction Event occurs,
then, in any such event, Capital One agrees (except as prohibited by any such
order or any Requirement of Law) to allocate and pay to Funding, after the date
of such Transfer Restriction Event, all Collections with respect to Principal
Receivables previously sold to Funding. To the extent that it is not clear to
Capital One whether collections or funds collateral relate to a Principal
Receivable that was sold to Funding or to a principal receivable that Capital
One is unable to sell to Funding, Capital One agrees that it shall allocate
payments and funds collateral on each Account with respect to the principal
balance of such Account first to the oldest principal balance of such Account.
Notwithstanding any cessation of the sale to Funding of additional Principal
Receivables, Principal Receivables sold to Funding prior to the occurrence of
the event giving rise to such inability, Funds Collateral and Collections in
respect of such Principal Receivables, Finance Charge Receivables whenever
created that accrue in respect of such Principal Receivables, and Funds
Collateral and Collections in respect of such Finance Charge Receivables, shall
continue to be property of Funding available for transfer by Funding to the
Trustee pursuant to the Pooling and Servicing Agreement.
(d) Delivery of Collections. In the event that Capital One receives
Collections or any other amounts in respect of the Purchased Assets sold to
Funding hereunder, Capital One agrees to pay to Funding (or to the Servicer or
the Trustee if Funding so directs) all such Collections and other amounts
promptly after receipt thereof.
(e) Notice of Liens. Capital One shall notify Funding promptly after
becoming aware of any Lien arising through or under Capital One on any Purchased
Asset other than the conveyances hereunder.
20
(f) Interchange. Not later than 12:00 p.m., New York City time, on
each Distribution Date, Capital One shall pay to Funding, in immediately
available funds, the amount of Interchange allocable to the Receivables. Such
amount of Interchange shall be equal to the product of (a) the total amount of
interchange fees paid or payable to Capital One during the preceding Monthly
Period through MasterCard and VISA (and any similar entity) and (b) a fraction
the numerator of which is the aggregate amount of cardholder charges for goods
and services in the Accounts with respect to such Monthly Period and the
denominator of which is the aggregate amount of cardholder charges for goods and
services in all MasterCard and VISA (and any similar entity) accounts owned by
Capital One with respect to such Monthly Period.
(g) Documentation of Transfer. Capital One shall timely file in all
appropriate filing offices the documents which are necessary or advisable to
perfect and maintain the perfection of the sale of the Purchased Assets to
Funding.
(h) Periodic Rate Finance Charges. Except (i) as otherwise required
by any Requirements of Law or (ii) as is deemed by Capital One to be necessary
in order for it to maintain its credit card business or a program operated by
such credit card business on a competitive basis based on a good faith
assessment by it of the nature of the competition with respect to the credit
card business or such program, Capital One shall not at any time reduce the
annual percentage rate of the Periodic Rate Finance Charges assessed on the
Receivables or other fees charged on any of the Accounts if, as a result of any
such reduction, either (i) Capital One's reasonable expectation is that such
reduction will cause a Pay Out Event to occur or (ii) such reduction is not also
applied to any comparable segment of consumer revolving credit accounts owned by
Capital One which have characteristics the same as, or substantially similar to,
such Accounts.
(i) Lending Agreements and Guidelines. Capital One shall comply with
and perform its obligations under the Lending Agreements relating to the
Accounts and the Lending Guidelines and all applicable rules and regulations of
MasterCard and VISA or their respective substantial equivalents except insofar
as any failure so to comply or perform would not materially and adversely affect
the ability of Capital One to comply with its obligations under this Agreement
or the ability of Funding to comply with its obligations under the Pooling and
Servicing Agreement. Subject to compliance with all Requirements of Law and
paragraph (h) above, Capital One may change the terms and provisions of the
applicable Lending Agreements or the applicable Lending Guidelines in any
respect (including the calculation of the amount or the timing of charge-offs
and the Periodic Rate Finance Charges to be assessed thereon). Notwithstanding
the above, unless required by Requirements of Law or as permitted by paragraph
(h) above, Capital One will not take any such action unless (i) at the time of
such action, Capital One reasonably believes that such action will not cause a
Pay Out Event to occur, and (ii) such change is made applicable to the
comparable segment of the revolving credit card accounts owned by Capital One
which have characteristics the same as, or substantially similar to, the
Accounts that are the subject of such change.
(j) MasterCard and VISA. Capital One shall use all commercially
reasonable efforts to remain, either directly or indirectly, a member in good
standing of the MasterCard System, the VISA System and any other similar
entity's or organization's system relating to any other type of revolving credit
card accounts included as Accounts.
21
(k) Name and Type and Jurisdiction of Organization. Capital One shall
not change its name or its type or jurisdiction of organization without
previously having delivered to Funding an opinion of counsel to the effect that
all actions have been taken, and all filings have been made, as are necessary to
continue and maintain the first-priority perfected ownership interest of Funding
in the Purchased Assets.
(l) Annual Opinion. On or before April 30th of each calendar year,
commencing April 30, 2003, Capital One shall deliver to Funding, with a copy to
the Trustee, an opinion of counsel to the effect that (i) no further action with
respect to the recording or filing of any financing statements, any amendments
to financing statements, or any other documents or filings is then necessary to
perfect the ownership interest of Funding in the Purchased Assets, and (ii) no
further action with respect to the recording or filing of any financing
statements, any amendments to financing statements, or any other documents or
filings will be necessary prior to April 30 of the next calendar year to perfect
the ownership interest of Funding in the Purchased Assets or stating what such
filings will be necessary prior to such April 30th.
[END OF ARTICLE V]
22
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables.
(a) In the event any representation or warranty under Subsection
4.02(a)(ii), (iii), (iv), (vi) or (vii) is not true and correct in any material
respect as of the date specified therein with respect to any Receivable or the
related Account and as a result of such breach Funding is required under
Subsection 2.05(a) of the Pooling and Servicing Agreement to accept reassignment
of such Receivables previously sold by Capital One to Funding pursuant to this
Agreement, Capital One shall accept reassignment of such Receivables on the
terms and conditions set forth in Subsection 6.01(b).
(b) Capital One shall accept reassignment of any Receivables
described in Subsection 6.01(a) from Funding on the date on which such
Receivables are reassigned to Funding pursuant to Subsection 2.05(a) of the
Pooling and Servicing Agreement, and shall pay for such reassigned Receivables
by paying to Funding in immediately available funds prior to the fifth (5th)
succeeding Business Day, an amount equal to the unpaid balance of such
Receivables. Upon reassignment of such Receivables, Funding shall automatically
and without further action sell, transfer, assign, set-over and otherwise convey
to Capital One, without recourse, representation or warranty, all the right,
title and interest of Funding in and to such Receivables, all Interchange,
Insurance Proceeds and Recoveries allocable to such Receivables, any Funds
Collateral securing such Receivables, all monies due or to become due and all
amounts received or receivable with respect thereto, all Collections with
respect thereto, and all proceeds (including, without limitation, "proceeds" as
defined in the UCC) thereof. Such reassigned Receivables shall be treated by
Funding as collected in full as of the date on which they were reassigned.
Funding shall execute such documents and instruments of transfer or assignment
and take such other actions as shall reasonably be requested by Capital One to
effect the conveyance of such Receivables and other property pursuant to this
Subsection.
Section 6.02. Reassignment of Other Receivables.
(a) In the event any representation or warranty set forth in
Subsection 4.02(a)(i) or (v) is not true and correct in any material respect and
as a result of such breach Funding is required under Section 2.06 of the Pooling
and Servicing Agreement to accept a reassignment of all of the Receivables
previously sold by Capital One to Funding pursuant to this Agreement, Capital
One shall accept a reassignment of such Receivables on the terms and conditions
set forth in Subsection 6.02(b).
(b) Capital One shall accept reassignment of any Receivables
described in Subsection 6.02(a) from Funding on the date on which such
Receivables are reassigned to Funding, and shall pay for such reassigned
Receivables by paying to Funding, not later than 11:00 a.m., New York City time,
on the first Distribution Date following the Monthly Period in which such
reassignment obligation arises, an amount equal to the unpaid balance of such
Receivables. Upon reassignment of such Receivables, Funding shall automatically
and without further action sell, transfer, assign, set-over and otherwise convey
to Capital One, without recourse, representation or warranty, all the right,
title and interest of Funding in and to such
23
Receivables, all Interchange, Insurance Proceeds and Recoveries allocable to
such Receivables, any Funds Collateral securing such Receivables, all monies due
or to become due and all amounts received or receivable with respect thereto,
all Collections with respect thereto, and all proceeds (including, without
limitation, "proceeds" as defined in the UCC) thereof. Such reassigned
Receivables shall be treated by Funding as collected in full as of the date on
which they were reassigned. Funding shall execute such documents and instruments
of transfer or assignment and take such other actions as shall reasonably be
requested by Capital One to effect the conveyance of such Receivables and other
property pursuant to this Section.
[END OF ARTICLE VI]
24
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to Funding's Obligations Regarding Initial
Receivables. The obligations of Funding to purchase the Receivables in the
Initial Accounts on the Closing Date shall be subject to the satisfaction of the
following conditions:
(a) All representations and warranties of Capital One contained in
this Agreement shall be true and correct on the Closing Date with the same
effect as though such representations and warranties had been made on such date
(except that, to the extent any such representation or warranty expressly
relates to an earlier date, such representation or warranty was true and correct
on such earlier date);
(b) All information concerning the Initial Accounts provided to
Funding shall be true and correct as of the Initial Cut-Off Date in all material
respects;
(c) Capital One shall have (i) delivered to Funding a true and
correct Account Schedule with respect to the Initial Accounts, and (ii)
performed all other obligations required to be performed by Capital One on or
before the Closing Date by the provisions of this Agreement;
(d) Capital One shall have recorded and filed, at its expense, any
financing statement with respect to the Purchased Assets meeting the
requirements of applicable law in such manner and in such jurisdictions as are
necessary to perfect the sale of the Purchased Assets from Capital One to
Funding, and shall deliver a file-stamped copy of such financing statements or
other evidence of such filings to Funding; and
(e) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to Funding, and Funding shall have received
from Capital One copies of all documents (including, without limitation, records
of corporate proceedings) relevant to the transactions herein contemplated as
Funding may reasonably have requested.
Section 7.02. Conditions Precedent to Capital One's Obligations. The
obligations of Capital One to sell the Receivables in the Initial Accounts on
the Closing Date shall be subject to the satisfaction of the following
conditions:
(a) All representations and warranties of Funding contained in this
Agreement shall be true and correct on the Closing Date with the same effect as
though such representations and warranties had been made on such date (except
that, to the extent any such representation or warranty expressly relates to an
earlier date, such representation or warranty was true and correct on such
earlier date);
(b) Payment or provision for payment of the Purchase Price in
accordance with Section 3.01 hereof shall have been made; and
(c) All company and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to Capital One, and Capital One shall have
received from Funding copies of all documents
25
(including, without limitation, records of company proceedings) relevant to the
transactions herein contemplated as Capital One may reasonably have requested.
[END OF ARTICLE VII]
26
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01. Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue at least until the earlier of
(i) the termination of the Trust as provided in Article XII of the Pooling and
Servicing Agreement and (ii) the Pooling and Servicing Agreement being amended
for the purpose of replacing Funding as Transferor under the Pooling and
Servicing Agreement with an Affiliate of Funding as Transferor under the Pooling
and Servicing Agreement. Thereafter this Agreement may be terminated by the
mutual agreement of the parties hereto.
Section 8.02. Purchase Termination. If (i) Capital One shall file a
petition or commence a Proceeding (A) to take advantage of any bankruptcy,
conservatorship, receivership, insolvency, or similar laws or (B) for the
appointment of a trustee, conservator, receiver, liquidator, or similar official
for or relating to Capital One or all or substantially all of its property, (ii)
Capital One shall consent or fail to object to any such petition filed or
Proceeding commenced against or with respect to it or all or substantially all
of its property, or any such petition or Proceeding shall not have been
dismissed or stayed within sixty (60) days of its filing or commencement, or a
court, agency, or other supervisory authority with jurisdiction shall have
decreed or ordered relief with respect to any such petition or Proceeding, (iii)
Capital One shall admit in writing its inability to pay its debts generally as
they become due, (iv) Capital One shall make an assignment for the benefit of
its creditors or (v) Capital One shall voluntarily suspend payment of its
obligations (each, an "Insolvency Event"); then Capital One shall immediately
cease to sell Principal Receivables to Funding and shall promptly give notice to
Funding and the Trustee of such Insolvency Event. Notwithstanding any cessation
of the sale to Funding of additional Principal Receivables, Principal
Receivables sold to Funding prior to the occurrence of such Insolvency Event,
Funds Collateral and Collections in respect of such Principal Receivables,
Finance Charge Receivables (whenever created) accrued in respect of such
Principal Receivables, and Funds Collateral and Collections in respect of such
Finance Charge Receivables, shall continue to be property of Funding available
for transfer by Funding to the Trustee pursuant to the Pooling and Servicing
Agreement. To the extent that it is not clear to Capital One whether collections
or funds collateral relate to a Principal Receivable that was sold to Funding or
to a principal receivable that Capital One has not sold to Funding, Capital One
agrees that it shall allocate payments and funds collateral on each Account with
respect to the principal balance of such Account first to the oldest principal
balance of such Account.
[END OF ARTICLE VIII]
27
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment. This Agreement may not be changed orally, but
only by an instrument in writing signed by Funding and Capital One in accordance
with this Section 9.01; provided, however, that no amendment shall be effective
unless (x) Capital One and Funding have given prior notice to the Trustee and
each Rating Agency, and (y) written confirmation has been received by Funding
from each Rating Agency that such amendment will not result in the reduction or
withdrawal of the respective ratings of such Rating Agency for any securities
issued by the Trust; provided, further, that Capital One shall have delivered to
Funding an Officer's Certificate of Capital One, dated the date of such action,
stating that Capital One reasonably believes that such action will not cause a
Pay Out Event. Any conveyance (including, without limitation, any Supplemental
Conveyance) or reassignment executed in accordance with the provisions hereof
shall not be considered to be an amendment to this Agreement. A copy of any
amendment to this Agreement shall be sent to each Rating Agency.
Section 9.02. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.03. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by certified mail, return receipt requested
and postage prepaid, to (a) in the case of Capital One, to Capital One, F.S.B.,
0000 Xxxxx Xxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000, Attention: General Counsel
(facsimile: (000) 000-0000), (b) in the case of Funding, Capital One Funding,
LLC, 000 Xxxx Xxxxx Xxxxx, Xxxx 0000, Xxxx Xxxxx, Xxxxxxxx 00000, Attention:
Xxxxxx Xxxxxx (facsimile: (000) 000-0000) and (c) in the case of the Trustee,
The Bank of New York, 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration (facsimile no. (000) 000-0000); or, as
to each party, at such other address as shall be designated by such party in a
written notice to each other party in accordance with this Section 9.03.
Section 9.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, and terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Section 9.05. Assignment. Notwithstanding anything to the contrary
contained herein, other than Funding's assignment of its right, title, and
interest in, to, and under this Agreement to the Trustee as contemplated by the
Pooling and Servicing Agreement and Section 9.06 hereof, this Agreement may not
be assigned by the parties hereto; provided, however, that Capital One shall
have the right to assign its right, title and interest in, to and under this
Agreement to (a) any successor by merger assuming this Agreement and (b) to any
entity;
28
provided, further, that (x) in the case of an assignment pursuant to clauses (a)
and (b), Capital One has given 10 day's prior notice to Funding, the Trustee and
each Rating Agency, and (y) in the case of an assignment pursuant to clause (b),
written confirmation has been received by Funding and the Trustee from each
Rating Agency that such assignment will not result in the reduction or
withdrawal of the respective ratings of such Rating Agency for any securities
issued by the Trust.
Section 9.06. Acknowledgement and Agreement of Capital One. By
execution below, Capital One expressly acknowledges and agrees that all of
Funding's right, title, and interest in, to, and under this Agreement,
including, without limitation, all of Funding's right, title, and interest in
and to the Purchased Assets, may be assigned by Funding to the Trustee, and
Capital One consents to such assignment. Capital One further agrees that
notwithstanding any claim, counterclaim, right of setoff or defense which it may
have against Funding, due to a breach by Funding of this Agreement or for any
other reason, and notwithstanding the bankruptcy of Funding or any other event
whatsoever, Capital One's sole remedy shall be a claim against Funding for money
damages, and then only to the extent of funds available to Funding, and in no
event shall Capital One assert any claim on or any interest in the Purchased
Assets or take any action which would reduce or delay receipt by the Trustee of
Collections with respect to the Purchased Assets. Additionally, Capital One
agrees that any amounts payable by Capital One to Funding hereunder which are to
be paid by Funding to the Trustee or the Servicer shall be paid by Capital One
directly to the Trustee or the Servicer, as applicable, as assignee of Funding.
Section 9.07. Further Assurances. Funding and Capital One agree to do
and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party or the
Trustee more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements or amendments thereto or
equivalent documents relating to the Purchased Assets for filing under the
provisions of the UCC or other law of any applicable jurisdiction.
Section 9.08. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of Funding or Capital One, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 9.09. Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
Section 9.10. Binding; Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. The Trust and the Trustee shall be
considered third-party beneficiaries of this Agreement.
29
Section 9.11. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 9.12. Headings. The headings are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
Section 9.13. Schedules and Exhibits. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this Agreement
and are incorporated into this Agreement for all purposes.
Section 9.14. Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Agreement or
contained in any Supplemental Conveyance shall remain operative and in full
force and effect and shall survive conveyance of the Purchased Assets by Funding
to the Trustee pursuant to the Pooling and Servicing Agreement.
Section 9.15. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, Capital One shall not, prior to the date which is
one year and one day after the termination of this Agreement, acquiesce,
petition or otherwise invoke or cause Funding or the Trust to invoke the process
of any Governmental Authority for the purpose of commencing or sustaining a case
against Funding or the Trust under any Debtor Relief Law or appointing a
receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of Funding or the Trust or any substantial part of its
property or ordering the winding-up or liquidation of the affairs of Funding or
the Trust.
[END OF ARTICLE IX]
30
IN WITNESS WHEREOF, Funding and Capital One have caused this
Receivables Purchase Agreement to be duly executed by their respective officers
as of the date first above written.
CAPITAL ONE, F.S.B.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager of Securitization
CAPITAL ONE FUNDING, LLC
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
Acknowledged and Accepted by:
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.02 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE No. ___ dated as of _______________, by and
between CAPITAL ONE, F.S.B., a federal savings bank ("Capital One"), and CAPITAL
ONE FUNDING, LLC, a Virginia limited liability company ("Funding"), pursuant to
the Receivables Purchase Agreement referred to below.
WITNESSETH:
WHEREAS, Capital One and Funding are parties to a Receivables Purchase
Agreement, dated as of __________ __, 2002 (hereinafter as such agreement may
have been, or may from time to time be, amended, supplemented or otherwise
modified, the "Receivables Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, Capital One
wishes to designate Additional Accounts to be included as Accounts and Capital
One wishes to convey its right, title and interest in the Receivables of such
Additional Accounts, whether existing on the Additional Cut-Off Date or
thereafter created, to Funding pursuant to the Receivables Purchase Agreement;
and
WHEREAS, Funding is willing to accept such designation and conveyance
subject to the terms and conditions hereof.
NOW, THEREFORE, Capital One and Funding hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the
meanings ascribed to them in the Receivables Purchase Agreement unless otherwise
defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts,
_____________.
"Additional Accounts" shall mean the Additional Accounts, as defined
in the Receivables Purchase Agreement, that are designated hereby and listed on
Schedule 1 hereto.
"Additional Cut-Off Date" shall mean, with respect to the Additional
Accounts, __________.
"Additional Purchased Assets" shall have the meaning set forth in
Subsection 3(a).
A-1
2. Designation of Additional Accounts. Capital One delivers herewith
an Account Schedule containing a true and complete list of the Additional
Accounts. Such Account Schedule is incorporated into and made part of this
Supplemental Conveyance, shall be Schedule 1 to this Supplemental Conveyance and
shall supplement Schedule 1 to the Receivables Purchase Agreement.
3. Conveyance of Receivables.
(a) Capital One does hereby sell, transfer, assign, set over and
otherwise convey to Funding, without recourse except as provided in the
Receivables Purchase Agreement, all of its right, title and interest, whether
now owned or hereafter acquired, in, to and under the Receivables arising in the
Additional Accounts, existing at the close of business on the Additional Cut-Off
Date and thereafter created, all Interchange, Insurance Proceeds and Recoveries
allocable to such Receivables, any Funds Collateral securing such Receivables,
all monies due or to become due and all amounts received or receivable with
respect thereto, all Collections with respect thereto, and all proceeds
(including, without limitation, "proceeds" as defined in the UCC) thereof
(collectively, the "Additional Purchased Assets").
(b) In connection with such sale and if necessary, Capital One agrees
to record and file, at its own expense, one or more financing statements (and
amendments with respect to such financing statements when applicable) with
respect to the Additional Purchased Assets meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale of the Additional Purchased Assets to Funding, and to
deliver a file-stamped copy of such financing statements or amendments or other
evidence of such filing to Funding.
(c) In connection with such sale, Capital One further agrees, at its
own expense, on or prior to the date of this Supplemental Conveyance, to
indicate in the appropriate computer files that all Receivables created in
connection with the Additional Accounts and the related Additional Purchased
Assets have been conveyed to Funding pursuant to this Supplemental Conveyance.
(d) The parties hereto intend that the conveyance of Capital One's
right, title and interest in and to the Additional Purchased Assets shall
constitute an absolute sale, conveying good title free and clear of any liens,
claims, encumbrances or rights of others from Capital One to Funding. It is the
intention of the parties hereto that the arrangements with respect to the
Additional Purchased Assets shall constitute a purchase and sale of such
Additional Purchased Assets and not a loan, including for accounting purposes.
In the event, however, that it were to be determined that the transactions
evidenced hereby constitute a loan and not a purchase and sale, it is the
intention of the parties hereto that this Supplemental Conveyance shall
constitute a security agreement under applicable law, and that Capital One shall
be deemed to have granted, and Capital One does hereby grant, to Funding a first
priority perfected security interest in all of Capital One's right, title and
interest, whether now owned or hereafter acquired, in, to and under the
Additional Purchased Assets to secure the obligations of Capital One hereunder
and under the Receivables Purchase Agreement.
A-2
(e) To the extent that Capital One retains any interest in the
Additional Purchased Assets, Capital One hereby grants to the Trustee a security
interest in all of Capital One's right, title and interest, whether now owned or
hereafter acquired, in, to and under the Additional Purchased Assets, to secure
the performance of all of the obligations of Capital One hereunder, under the
Receivables Purchase Agreement and under the Pooling and Servicing Agreement.
With respect to such security interest and such collateral, the Trustee shall
have all of the rights that it has under the Pooling and Servicing Agreement.
The Trustee shall also have all of the rights of a secured creditor under the
UCC.
4. Acceptance by Funding. Funding hereby acknowledges that, prior to
or simultaneously with the execution and delivery of this Supplemental
Conveyance, Capital One delivered to Funding the Account Schedule described in
Section 2 of this Supplemental Conveyance with respect to all Additional
Accounts. [To be modified appropriately for Additional Accounts designated
pursuant to Subsection 2.02(a)(ii) of the Receivables Purchase Agreement.]
5. Representations and Warranties of Capital One. Capital One hereby
represents and warrants to Funding as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Supplemental Conveyance
constitutes a legal, valid and binding obligation of Capital One enforceable
against Capital One in accordance with its terms, except as such enforceability
may be limited by applicable Debtor Relief Laws or general principles of equity;
(b) Eligibility of Accounts. On the Additional Cut-Off Date, each
Additional Account designated hereby is an Eligible Account;
(c) No Liens. Each Receivable in an Additional Account has been
conveyed to Funding free and clear of any Lien;
(d) Eligibility of Receivables. On the Additional Cut-Off Date, each
Receivable existing in an Additional Account is an Eligible Receivable, and as
of the date of creation of any Receivable in an Additional Account, such
Receivable is an Eligible Receivable;
(e) Selection Procedures. No selection procedure believed by Capital
One to be adverse to the interests of Funding or its transferees has been used
in selecting the Additional Accounts;
(f) Transfer of Receivables. This Supplemental Conveyance constitutes
a valid sale to Funding of all right, title and interest of Capital One in the
Additional Purchased Assets, and such sale is perfected under the UCC;
(g) No Conflict. The execution and delivery by Capital One of this
Supplemental Conveyance, the performance by Capital One of the transactions
contemplated by this Supplemental Conveyance and the fulfillment by Capital One
of the terms hereof, will not conflict with or violate any organizational
documents or by-laws applicable to Capital One or conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any material indenture,
contract, agreement, mortgage, deed of trust or other instrument to which
Capital One is a party or by which
A-3
it or its properties are bound (other than violations of such mortgages,
indentures, contracts and other agreements which do not affect the legality,
validity or enforceability of any of such agreements or the Receivables and
which, individually or in the aggregate, would not have a material adverse
effect on Capital One or the transactions contemplated by, or its ability to
perform its obligations under, this Supplemental Conveyance);
(h) No Violation. The execution and delivery of this Supplemental
Conveyance by Capital One, the performance by Capital One of the transactions
contemplated by this Supplemental Conveyance and the fulfillment by Capital One
of the terms hereof applicable to Capital One will not conflict with or violate
any Requirements of Law applicable to Capital One;
(i) No Proceedings. There are no Proceedings or investigations
pending or, to the best knowledge of Capital One, threatened, against Capital
One before any Governmental Authority (i) asserting the invalidity of this
Supplemental Conveyance, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Supplemental Conveyance, (iii) seeking any
determination or ruling that, in the reasonable judgment of Capital One, would
materially and adversely affect the performance by Capital One of its
obligations under this Supplemental Conveyance or (iv) seeking any determination
or ruling that would materially and adversely affect the validity or
enforceability of this Supplemental Conveyance which, in each case, if adversely
determined would be reasonably likely to result in a material adverse effect on
the transactions contemplated by this Supplemental Conveyance, or Capital One's
ability to perform its respective obligations under, this Supplemental
Conveyance; and
(j) All Consents. All authorizations, consents, orders or approvals
of or registrations or declarations with any Governmental Authority required to
be obtained, effected or given by Capital One in connection with the execution
and delivery by Capital One of this Supplemental Conveyance and the performance
of the transactions contemplated by this Supplemental Conveyance by Capital One
have been duly obtained, effected or given and are in full force and effect,
except for those which the failure to obtain would not have a material adverse
effect on this Supplemental Conveyance or the transactions contemplated hereby
or on the ability of Capital One to perform its obligations under this
Supplemental Conveyance.
6. Ratification of the Receivables Purchase Agreement. The
Receivables Purchase Agreement is hereby ratified, and all references to the
"Receivables Purchase Agreement," to "this Agreement" and "herein" shall be
deemed from and after the Addition Date to be a reference to the Receivables
Purchase Agreement as supplemented and amended by this Supplemental Conveyance.
Except as expressly amended hereby, all the representations, warranties, terms,
covenants and conditions of the Receivables Purchase Agreement shall remain
unamended and shall continue to be, and shall remain, in full force and effect
in accordance with its terms and except as expressly provided herein shall not
constitute or be deemed to constitute a waiver of compliance with or consent to
non-compliance with any term or provision of the Receivables Purchase Agreement.
7. Counterparts. This Supplemental Conveyance may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument.
A-4
8. GOVERNING LAW. THIS SUPPLEMENTAL CONVEYANCE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-5
IN WITNESS WHEREOF, the undersigned have caused this Supplemental
Conveyance to be duly executed and delivered by their respective duly authorized
officers on the date first above written.
CAPITAL ONE, F.S.B.
By: ___________________________________
Name:
Title:
CAPITAL ONE FUNDING, LLC
By: ___________________________________
Name:
Title:
Acknowledged and Accepted by:
THE BANK OF NEW YORK,
as Trustee
By: ________________________________
Name:
Title:
A-6
Schedule 1 to
Supplemental
Conveyance
ADDITIONAL ACCOUNTS
A-7
Schedule 1
LIST OF ACCOUNTS
I-1
