EXHIBIT 4.6.1
DECLARATION OF TRUST
OF
CAPITAL ONE CAPITAL I
THIS DECLARATION OF TRUST is made as of January 28, 1997, (this "Declaration"),
by and among Capital One Bank, a limited purpose Virginia state chartered
credit card bank, as sponsor (the "Sponsor"), The First National Bank of
Chicago, a national banking association, as property trustee (the "Property
Trustee") and First Chicago Delaware Inc., a Delaware corporation, as Delaware
trustee (the "Delaware Trustee") (the Property Trustee and the Delaware
Trustee, collectively, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "Capital One
Capital I" (the "Trust"), in which name the Trustees or the Sponsor, to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over
to the Trust the sum of $10. Such amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801, et seq. (The "Business Trust Act"), and that
this document constitute the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in such form as the Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and
restated Trust Agreement or Declaration satisfactory to each such party to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Capital Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement or Declaration, the Trustees shall not have any duty or obligation
hereunder or with respect of the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees may take all actions
deemed proper as are necessary to effect the transactions contemplated herein.
4. The Sponsor and the Trustees also hereby authorize the
Sponsor, as sponsor of the Trust, in its discretion, (I) to prepare one or more
offering memoranda in preliminary and final form relating to the offering and
sale of Capital Securities of the Trust in a transaction exempt from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act"), and such other forms or filings as may be required by the 1933 Act, the
Securities Exchange Act of 1934, as amended, or the Trust Indenture Act of
1939, as amended, in each case relating to the Capital Securities of the Trust;
(ii) to file and execute on behalf of the Trust, such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents that shall be necessary or desirable to
register or establish the exemption from registration of the Capital Securities
of the Trust under the securities or "Blue Sky" laws of such jurisdictions as
the Sponsor, on behalf of the Trust, may deem necessary or desirable; (iii) to
execute and file an application, and all other applications, statements,
certificates, agreements and other instruments that shall be necessary or
desirable, to the Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market and, if and at such time as determined by the
Sponsor, to the New York Stock Exchange or any
other national stock exchange or the Nasdaq National Market for listing or
quotation of the Capital Securities of the Trust; (iv) to execute and deliver
letters or documents to, or instruments for filing with, a depository relating
to the Capital Securities of the Trust; and (v) to execute, deliver and perform
on behalf of the Trust one or more purchase agreements, registrations rights
agreements, dealer manager agreements, escrow agreements and other related
agreements providing for or relating to the sale of the Capital Securities of
the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Securities and Exchange Commission (the
"Commission"), PORTAL or state securities or Blue Sky laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity as
Trustees of the Trust, are hereby authorized and directed to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that the Trustees, in their capacity as Trustees of the Trust,
shall not be required to join in any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission, PORTAL or state securities or Blue Sky laws.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be two and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall be either a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware and other wise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Sponsor is entitled to appoint or
remove without cause any trustee of the Trust at any time. Any trustee of the
Trust may resign upon thirty days prior notice to the Sponsor.
7. First Chicago Delaware Inc., in its capacity as Delaware
Trustee of the Trust shall not have any of the powers or duties of the Trustees
set forth herein and shall be a trustee of the Trust for the sole purpose of
satisfying the requirements of Section 3807 of the Business Trust Act.
8. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware (with regard to conflict of
laws principles).
2
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
CAPITAL ONE BANK,
as Sponsor
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Director of Capital Markets
THE FIRST NATIONAL BANK OF CHICAGO
not in its individual capacity but solely as Property
Trustee of the Trust
By: /s/ Xxxx X. Xxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
FIRST CHICAGO DELAWARE, INC., not in its
individual capacity but solely as Delaware Trustee
of the Trust
By: /s/ Xxxx X. Xxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
3
CERTIFICATE OF TRUST
OF
CAPITAL ONE CAPITAL I
THIS Certificate of Trust of Capital One Capital I (the "Trust"), dated
as of January 28, 1997, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust act (12
Del. C. Section 3801, et seq.).
1. Name. The name of the business trust formed hereby is Capital
One Capital I.
2. Delaware Trustee. The name and business of the trustee of the
Trust with a principal place of business in the State of Delaware is First
Chicago Delaware, Inc., 000 Xxxx Xxxxxx, Xxxxxxxxxx Xxxxxxxx 00000.
3. Effective Date. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first-above written.
THE FIRST NATIONAL BANK OF CHICAGO, not
in its individual capacity but solely as Property
Trustee of the Trust.
By:
---------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
FIRST CHICAGO DELAWARE, INC., not in its
individual capacity but solely as Delaware Trustee
of the Trust.
By:
---------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
