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EX-3.1
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AMENDED&RESTATED LIMITED LIABILITY AGREEMENT
EXHIBIT 3.1
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CAPITAL ONE FUNDING, LLC
This Amended and Restated Limited Liability Company Agreement (together
with the schedules attached hereto, this "Agreement") of CAPITAL ONE FUNDING,
LLC (the "Company"), is entered into by CAPITAL ONE BANK, as the sole equity
member (the "Member"), and Evelyn Echevarria, as Independent Director of the
Company. Capitalized terms used and not otherwise defined herein have the
meanings set forth on Schedule A hereto.
The Member, by execution of a Limited Liability Company Agreement dated
as of November 30, 2001, formed the Company as a limited liability company
pursuant to and in accordance with the Virginia Limited Liability Company Act,
as amended from time to time (the "Act"), and the Limited Liability Company
Agreement. The Member and Evelyn Echevarria agree to amend and restate the
Limited Liability Company Agreement as set forth herein:
Section 1. Name.
----
The name of the limited liability company formed hereby is Capital One
Funding, LLC.
Section 2. Principal Business Office.
-------------------------
The principal business office of the Company shall be located at 140
East Shore Drive, Room 1048, Glen Allen, Virginia 23059, or such other location
as may hereafter be determined by the Board of Directors.
Section 3. Registered Office.
-----------------
The address of the initial registered office of the Company in the
Commonwealth of Virginia is c/o Beverly L. Crump, Esq., 11 South 12th Street,
Richmond, Virginia 23219.
Section 4. Registered Agent.
----------------
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The name and address of the initial registered agent of the Company for
service of process on the Company in the Commonwealth of Virginia is Beverly L.
Crump, Esq., who is a resident of the Commonwealth of Virginia and a member of
the Virginia State Bar and whose business office is identical with the Company's
initial registered office.
Section 5. Members.
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(a) The mailing address of the Member is set forth on Schedule
B attached hereto. The Member was admitted to the Company as a member of the
Company upon its execution of a counterpart signature page to this Agreement.
(b) Subject to Section 9(j), the Member may act by written
------------
consent.
(c) Upon the occurrence of any event that causes the Member to
cease to be a member of the Company (other than (i) upon an assignment by the
Member of all of its limited liability company interest in the Company and the
admission of the transferee pursuant to Sections 21 and 23, or (ii) the
------------------
resignation of the Member and the admission of an additional member of the
Company pursuant to Sections 22 and 23), each person acting as an Independent
------------------
Director pursuant to Section 10 shall, without any action of any Person and
----------
simultaneously with the Member ceasing to be a member of the Company,
automatically be admitted to the Company as a Special Member and shall continue
the Company without dissolution. No Special Member may resign from the Company
or transfer its rights as a Special Member unless (i) a successor Special Member
has been admitted to the Company as Special Member by executing a counterpart to
this Agreement, and (ii) such successor has also accepted its appointment as
Independent Director pursuant to Section 10; provided, however, a Special Member
----------
shall automatically cease to be a member of the Company upon the admission to
the Company of a substitute Member. Each Special Member shall be a member of the
Company that has no interest in the profits, losses and capital of the Company
and has no right to receive any distributions of Company assets. Pursuant to
Section 13.1-1038.1 of the Act, a Special Member shall not be required to make
any capital contributions to the Company and shall not receive a limited
liability company interest in the Company. A Special Member, in its capacity as
Special Member, may not bind the Company. Except as required by any mandatory
provision of the Act, each Special Member, in its capacity as Special Member,
shall have no right to vote on, approve or otherwise consent to any action by,
or matter relating to, the Company, including, without limitation, the merger,
consolidation or conversion of the Company. In order to implement the admission
to the Company of each Special Member, each person acting as an Independent
Director pursuant to Section 10 shall execute a counterpart of this Agreement.
----------
Prior to its admission to the Company as a Special Member, each person acting as
an Independent Director pursuant to Section 10 shall not be a member of the
----------
Company.
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Section 6. Certificates.
------------
M. Leah Hudson, organizer, executed, delivered and filed the Articles
of Organization of the Company with the Clerk of the SCC on November 13, 2001.
Upon the filing of the Articles of Organization with the Clerk of the SCC, her
powers to form the Company or file documents on its behalf ceased. An Officer
shall execute, deliver and file any other articles or certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in any jurisdiction other than the Commonwealth of Virginia in which
the Company may wish to conduct business.
The existence of the Company as a separate legal entity shall continue
until cancellation of the Articles of Organization as provided in the Act.
Section 7. Purposes.
--------
The purpose to be conducted or promoted by the Company is to engage in
the following activities:
(a)
(i) to execute and deliver and to perform its
obligations under a Receivables Purchase
Agreement with Capital One Bank, a Virginia
banking corporation (together with any
successor in interest by merger or
otherwise, the "Bank") (the Receivables
----
Purchase Agreement as from time to time
amended, supplemented or otherwise modified,
the "Purchase Agreement"), to purchase or
------------------
otherwise acquire credit card receivables
and related assets from the Bank (the
"Purchased Assets"), to execute and deliver
----------------
and to perform its obligations under, any
amendments and or supplements, including any
supplemental conveyances relating to the
Purchase Agreement, and to engage in any
activities necessary, appropriate or
convenient in connection with the rights and
obligations of the Company under the
Purchase Agreement and in connection with
the acquisition of the Purchased Assets from
the Bank and to authorize, execute, deliver
and perform any other agreement, notice or
document, in connection with, relating to or
contemplated by the Purchase Agreement or
the acquisition of assets from the Bank;
(ii) to purchase, acquire, own, hold, sell,
dispose of, endorse, transfer, assign,
pledge and finance the Purchased Assets
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including, without limitation, to grant a
security interest in the Purchased Assets;
(iii) to engage in any activities necessary to
hold, receive, exchange, otherwise dispose
of and otherwise deal in and exercise all
rights, powers, privileges, and all other
incidents of ownership or possession with
respect to, all of the Company's property,
including without limitation, the Purchased
Assets and any property or interest which
may be acquired by the Company as a result
of any distribution in respect of the
Purchased Assets and any property received
by the Company as a contribution from the
Member;
(iv) to execute, deliver, incur debt and other
obligations and perform its obligations
under a Revolving Credit Agreement to be
entered into by and between the Bank and the
Company (as such may be amended,
supplemented or otherwise modified from time
to time, the "Credit Agreement"), to execute
----------------
and deliver, and to perform its obligations
under, any amendments or supplements
relating to the Credit Agreement, and to
engage in any activities necessary,
appropriate or convenient, and to authorize,
execute, deliver and perform any other
agreement, notice or document, in connection
with, relating to or contemplated by the
Credit Agreement;
(v) to be substituted for the Bank as Seller and
to become a Seller and assume all of the
rights and obligations of a Seller under the
terms of an Amended and Restated Pooling and
Servicing Agreement by and among the
Company, as Transferor, the Bank, as
Servicer, and The Bank of New York, as
trustee (the "Trustee") with respect to
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Capital One Master Trust (the "Trust") (as
-----
such may be amended, supplemented or
otherwise modified from time to time, the
"Pooling and Servicing Agreement") and under
-------------------------------
the terms of each Series Supplement thereto
and to assume all of the rights and
obligations of the Seller under and with
respect to other documents and agreements
previously entered into by the Bank or its
predecessor, as Seller, related to the Trust
and Trust Obligations issued by the Trust;
(vi) to be substituted for the Bank as Transferor
and to assume all of the rights and
obligations of the Transferor under existing
Transfer and Administration Agreements each
by and between the Bank as Transferor and
Administrator and a separate Delaware
business trust (each such agreement
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as it may be amended, supplemented or
otherwise modified from time to time, a
"Transfer Agreement");
------------------
(vii) to be substituted for the Bank as Owner and
to assume all of the rights and obligations
of the Owner under existing Trust Agreements
each of which relates to a separate Delaware
business trust and each of which is by and
between the Bank as Transferor and Bankers
Trust (Delaware) as owner trustee (each such
agreement as it may be amended, supplemented
or otherwise modified from time to time, a
"Trust Agreement");
---------------
(viii) to execute and deliver, and to perform its
obligations under the Pooling and Servicing
Agreement, to sell or otherwise transfer all
or any of the Purchased Assets to the
Trustee in connection therewith, to execute
Trust Obligations issued under the Pooling
and Servicing Agreement and any Series
Supplements, to execute and deliver, and to
perform its obligations under, any
amendments, supplements or assignments,
reassignments or reconveyances of
receivables and related assets related to
the Pooling and Servicing Agreement, to
provide for the issuance of additional
Series Supplement and other documents
related to the issuance of Trust Obligations
and to engage in any activities necessary,
appropriate or convenient, and to authorize,
execute, deliver and perform any other
agreement, notice or document, in connection
with, relating to or contemplated by the
Pooling and Servicing Agreement and the
Series Supplements thereto;
(ix) to execute and deliver, and to perform its
obligations under each document or agreement
to which it becomes a party by substitution
for the Bank as Transferor or as Owner and
to execute and deliver, and to perform its
obligations under any amendments or
supplements related to the Transfer
Agreements and Trust Agreements, and to
engage in any activities necessary,
appropriate or convenient, and to authorize,
execute, deliver and perform any other
agreement, notice or document, in
connection, relating to or contemplated by
the Transfer Agreements and the Trust
Agreements;
(x) to acquire, hold, enjoy, transfer and grant
rights in all of the rights and privileges
of any certificate, interest or other
indicia of beneficial ownership issued by
the Trust or any similar trust to the
Company pursuant to any trust
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agreement, purchase agreement, pooling and
servicing agreement, transfer and servicing
agreement, transfer and administration
agreement, indenture or other document;
(xi) to engage in any activities necessary,
appropriate or convenient, and to authorize,
execute and deliver any other agreement,
notice or document, in connection with or
relating to the activities described above,
including the filing of any notices,
applications, financing statements,
continuation statements, amendments to
financing statements, and other documents
necessary, advisable or convenient to comply
with any applicable laws, statutes, rules
and regulation;
(xii) to acquire, own, hold, sell, transfer,
service, convey, safekeep, dispose of,
pledge, assign, borrow money against,
finance, refinance or otherwise deal with,
publicly or privately issued securities and
whether with unrelated third parties or with
affiliated entities;
(xiii) to own equity interests in other limited
liability companies or partnerships whose
purposes are restricted to those set forth
in clauses (i) through (xii) above; and
(xiv) to engage in any lawful act or activity and
to exercise any powers permitted to limited
liability companies organized under the laws
of the Commonwealth of Virginia that are
related or incidental to and necessary,
convenient or advisable for the
accomplishment of the above-mentioned
purposes (including the entering into of
interest rate or basis swap, cap, floor or
collar agreements, currency exchange
agreements or similar hedging transactions
and referral, management, servicing and
administration agreements).
(b) The Company, or any Director or Officer on behalf of the
Company, may enter into and perform the Basic Documents and all documents,
agreements, certificates, or financing statements contemplated thereby or
related thereto, all without any further act, vote or approval of any Member,
Director, Officer or other Person notwithstanding any other provisions of this
Agreement, the Act or applicable law, rule or regulation. The foregoing
authorization shall not be deemed a restriction on the powers of any Director or
Officer to enter into other agreements on behalf of the Company.
6
Section 8. Powers.
------
Subject to Section 9(j), the Company, and the Board of Directors and
the Officers of the Company on behalf of the Company, (i) shall have and
exercise all powers necessary, convenient or incidental to accomplish its
purposes as set forth in Section 7, and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed pursuant to
the Act.
Section 9. Management.
----------
(a) Board of Directors. Subject to Section 9(j), the business
------------
and affairs of the Company shall be managed by or under the direction of a Board
of one or more Directors designated by the Member. Subject to Section 10, the
----------
Member may determine at any time in its sole and absolute discretion the number
of Directors to constitute the Board. The authorized number of Directors may be
increased or decreased by the Member at any time in its sole and absolute
discretion, upon notice to all Directors, and subject in all cases to Section
-------
10. The initial number of Directors shall be three, one of whom shall be an
--
Independent Director pursuant to Section 10. Each Director elected, designated
or appointed by the Member shall hold office until a successor is elected and
qualified or until such Director's earlier death, resignation, expulsion or
removal. Each Director shall execute and deliver the Management Agreement.
Directors need not be a Member. The initial Directors designated by the Member
are listed on Schedule D hereto.
(b) Powers. Subject to Section 9(j), the Board of Directors
------ -----------
shall have the power to do any and all acts necessary, convenient or incidental
to or for the furtherance of the purposes described herein, including all
powers, statutory or otherwise. Subject to Section 7, the Board of Directors has
---------
the authority to bind the Company.
(c) Meetings of the Board of Directors. The Board of Directors
----------------------------------
of the Company may hold meetings, both regular and special, within or outside
the Commonwealth of Virginia. Regular meetings of the Board may be held without
notice at such time and at such place as shall from time to time be determined
by the Board. Special meetings of the Board may be called by the President on
not less than one day's notice to each Director by telephone, facsimile, mail,
telegram or any other means of communication, and special meetings shall be
called by the President or Secretary in like manner and with like notice upon
the written request of any one or more of the Directors.
(d) Quorum; Acts of the Board. At all meetings of the Board, a
-------------------------
majority of the Directors shall constitute a quorum for the transaction of
business and, except as otherwise provided in any other provision of this
Agreement, the act of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board. If a quorum shall not be
present at any meeting of the Board, the Directors
7
present at such meeting may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Any action required or permitted to be taken at any meeting of the Board or of
any committee thereof may be taken without a meeting if all members of the Board
or committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee, as
the case may be.
(e) Electronic Communications. Members of the Board, or any
-------------------------
committee designated by the Board, may participate in meetings of the Board, or
any committee, by means of telephone conference or similar communications
equipment that allows all Persons participating in the meeting to hear each
other, and such participation in a meeting shall constitute presence in person
at the meeting. If all the participants are participating by telephone
conference or similar communications equipment, the meeting shall be deemed to
be held at the principal place of business of the Company.
(f) Committees of Directors.
-----------------------
(i) The Board may, by resolution passed by a
majority of the whole Board, designate one
or more committees, each committee to
consist of one or more of the Directors of
the Company. The Board may designate one or
more Directors as alternate members of any
committee, who may replace any absent or
disqualified member at any meeting of the
committee.
(ii) In the absence or disqualification of a
member of a committee, the member or members
thereof present at any meeting and not
disqualified from voting, whether or not
such members constitute a quorum, may
unanimously appoint another member of the
Board to act at the meeting in the place of
any such absent or disqualified member.
(iii) Any such committee, to the extent provided
in the resolution of the Board, and subject
to, in all cases, Sections 9(j) and 10,
shall have and may exercise all the powers
and authority of the Board in the management
of the business and affairs of the Company.
Such committee or committees shall have such
name or names as may be determined from time
to time by resolution adopted by the Board.
Each committee shall keep regular minutes of
its meetings and report the same to the
Board when required.
(g) Compensation of Directors; Expenses. The Board shall
----------------------------------- have the authority to
fix the compensation of Directors. The Directors may be paid their expenses, if
any, of attendance at meetings of the Board, which may be a fixed sum for
8
attendance at each meeting of the Board or a stated salary as Director. No such
payment shall preclude any Director from serving the Company in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
(h) Removal of Directors. Unless otherwise restricted by law,
--------------------
any Director or the entire Board of Directors may be removed or expelled, with
or without cause, at any time by the Member, and subject to Section 10, any
----------
vacancy caused by any such removal or expulsion may be filled by action of the
Member.
(i) Directors as Agents. To the extent of their powers set
-------------------
forth in this Agreement and subject to Section 9(j), the Directors are agents of
------------
the Company for the purpose of the Company's business, and the actions of the
Directors taken in accordance with such powers set forth in this Agreement shall
bind the Company. Except as provided in this Agreement or in a resolution of the
Directors, a Director may not bind the Company.
(j) Limitations on the Company's Activities.
---------------------------------------
(i) This Section 9(j) is being adopted in order
------------
to comply with certain provisions required
in order to qualify the Company as a
"special purpose" entity.
(ii) The Member shall not, so long as any
Obligation is outstanding, amend, alter,
change or repeal the definition of
"Independent Director" or Sections 5(c), 7,
-------------------- ------------ -
8, 9, 10, 16, 20, 21, 22, 23, 24, 25, 26, 29
- - -- -- -- -- -- -- -- -- -- --
or 31 or Schedule A of this Agreement,
-- ----------
without the unanimous consent of the Board
(including each Independent Director).
Subject to this Section 9(j), the Member
------------
reserves the right to amend, alter, change
or repeal any provisions contained in this
Agreement in accordance with Section 31.
----------
(iii) Notwithstanding any other provision of this
Agreement and any provision of law that
otherwise so empowers the Company, the
Member, the Board, any Officer or any other
Person, neither the Member nor the Board nor
any Officer nor any other Person shall be
authorized or empowered, nor shall they
permit the Company, without the prior
unanimous consent of the Member and all
members of the Board (including each
Independent Director), to take any Material
Action, provided, however, that the Board
-----------------
may not vote on, or authorize the taking of,
any Material Action unless there is at least
one Independent Director then serving in
such capacity.
9
(iv) The Board and the Member shall cause the
Company to do or cause to be done all things
necessary to preserve and keep in full force
and effect its existence, rights (charter
and statutory) and franchises; provided,
--------
however, that the Company shall not be
-------
required to preserve any such right or
franchise if: (1) the Board shall determine
that the preservation thereof is no longer
desirable for the conduct of its business
and that the loss thereof is not
disadvantageous in any material respect to
the Company and (2) the Rating Agency
Condition is satisfied. The Board also shall
cause the Company to:
(A) maintain its own separate office,
books and records and bank accounts;
(B) at all times hold itself out to the
public and all other Persons as a
legal entity separate from the
Member and any other Person;
(C) have a Board of Directors separate
from that of the Member and any
other Person;
(D) file its own tax returns, if any, as
may be required under applicable
law, to the extent (1) not part of a
consolidated group filing a
consolidated return or returns or
(2) not treated as a division for
tax purposes of another taxpayer,
and pay any taxes so required to be
paid under applicable law;
(E) except as contemplated by the Basic
Documents, not commingle its assets
with assets of any other Person;
(F) conduct its business in its own name
and strictly comply with all
organizational formalities to
maintain its separate existence;
(G) maintain separate financial
statements and prepare and maintain
its financial records in accordance
with generally accepted accounting
principles;
(H) pay its own liabilities only out of
its own funds;
(I) maintain an arm's length
relationship with its Affiliates and
the Member;
(J) pay the salaries of its own
employees, if any;
10
(K) not hold out its credit or assets as
being available to satisfy the
obligations of others;
(L) allocate fairly and reasonably any
overhead for shared office space;
(M) use separate stationery, invoices
and checks;
(N) except as contemplated by the Basic
Documents, not pledge its assets for
the benefit of any other Person;
(O) correct any known misunderstanding
regarding its separate identity;
(P) maintain adequate capital in light
of its contemplated business
purpose, transactions and
liabilities;
(Q) cause its Board of Directors to meet
at least annually or act pursuant to
written consent and keep minutes of
such meetings and actions and
observe all other Virginia limited
liability company formalities;
(R) not acquire any securities of the
Member; and
(S) cause the Directors, Officers,
agents and other representatives of
the Company to act at all times with
respect to the Company consistently
and in furtherance of the foregoing
and in the best interests of the
Company. Failure of the Company, or
the Member or Board on behalf of the
Company, to comply with any of the
foregoing covenants or any other
covenants contained in this
Agreement shall not affect the
status of the Company as a separate
legal entity or the limited
liability of the Member or the
Directors.
(v) So long as any Obligation is outstanding,
the Board shall not cause or permit the
Company to:
(A) except as contemplated by the Basic
Documents, guarantee any obligation
of any Person, including any
Affiliate;
(B) engage, directly or indirectly, in
any business other than the actions
required or permitted to be
performed
11
under Section 7, the Basic Documents
---------
or this Section 9(j);
------------
(C) incur, create or assume any
indebtedness other than as expressly
permitted under the Basic Documents;
(D) make or permit to remain outstanding
any loan or advance to, or own or
acquire any stock or securities of,
any Person, except that the Company
may invest in those investments
permitted under the Basic Documents
and may make any advance required or
expressly permitted to be made
pursuant to any provisions of the
Basic Documents and permit the same
to remain outstanding in accordance
with such provisions;
(E) to the fullest extent permitted by
law, engage in any dissolution,
liquidation, consolidation, merger,
asset sale or transfer of ownership
interests other than such activities
as are expressly permitted pursuant
to any provision of the Basic
Documents; or
(F) form, acquire or hold any subsidiary
(whether corporate, partnership,
limited liability company or other).
Section 10. Independent Director.
--------------------
As long as any Obligation is outstanding, the Member shall cause the
Company at all times to have at least one Independent Director who will be
appointed by the Member. To the fullest extent permitted by law, the Independent
Director shall consider only the interests of the Company, including its
respective creditors, in acting or otherwise voting on the matters referred to
in Section 9(j)(iii). No resignation or removal of an Independent Director, and
-----------------
no appointment of a successor Independent Director, shall be effective until
such successor (i) shall have accepted his or her appointment as an Independent
Director by a written instrument, which may be a counterpart signature page to
the Management Agreement, and (ii) shall have executed a counterpart to this
Agreement as required by Section 5(c). In the event of a vacancy in the position
------------
of Independent Director, the Member shall, as soon as practicable, appoint a
successor Independent Director. All right, power and authority of the
Independent Director shall be limited to the extent necessary to exercise those
rights and perform those duties specifically set forth in this Agreement. Except
as provided in the second sentence of this Section 10, in exercising his or her
----------
rights and performing their duties under this Agreement, any Independent
Director shall have a fiduciary duty of loyalty and care similar to that of a
director of a business corporation organized under the Virginia Stock
12
Corporation Act. No Independent Director shall at any time serve as trustee in
bankruptcy for any Affiliate of the Company.
Section 11. Officers.
--------
(a) Officers. The initial Officers of the Company shall be
--------
designated by the Board and shall consist of at least a President, a Secretary
and a Treasurer. The Board of Directors may also choose one or more Vice
Presidents, Assistant Secretaries and Assistant Treasurers. Any number of
offices may be held by the same person. The Board may appoint such other
Officers and agents as it shall deem necessary or advisable who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board. The salaries of all Officers
and agents of the Company shall be fixed by or in the manner prescribed by the
Board. The Officers of the Company shall hold office until their successors are
chosen and qualified. Any Officer may be removed at any time, with or without
cause, by the affirmative vote of a majority of the Board. Any vacancy occurring
in any office of the Company shall be filled by the Board.
(b) President. The President shall be the chief executive
---------
officer of the Company, shall preside at all meetings of the Board, shall be
responsible for the general and active management of the business of the Company
and shall see that all orders and resolutions of the Board are carried into
effect. The President or any other Officer authorized by the President or the
Board shall execute all Trust Obligations, bonds, notes, mortgages and other
contracts, except: (i) where required or permitted by law or this Agreement to
be otherwise signed and executed, including Section 7(b); (ii) where signing
------------
and execution thereof shall be expressly delegated by the Board to some
other Officer or agent of the Company, and (iii) as otherwise permitted in
Section 11(c).
-------------
(c) Vice President. In the absence of the President or in the
--------------
event of the President's inability to act, the Vice President, if any (or in the
event there be more than one Vice President, the Vice Presidents in the order
designated by the Directors, or in the absence of any designation, then in the
order of their election), shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. The Vice Presidents, if any, shall perform such other duties and
have such other powers as the Board may from time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be
---------------------------------
responsible for filing legal documents and maintaining records for the Company.
The Secretary shall attend all meetings of the Board and record all the
proceedings of the meetings of the Company and of the Board in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given, notice of all
meetings of the Member, if any, and meetings of the Board, and shall perform
such other duties as may be prescribed by the Board or the President, under
whose supervision the Secretary shall serve. The
13
Assistant Secretary, or if there be more than one, the Assistant Secretaries in
the order determined by the Board (or if there be no such determination, then in
order of their election), shall, in the absence of the Secretary or in the event
of the Secretary's inability to act, perform the duties and exercise the powers
of the Secretary and shall perform such other duties and have such other powers
as the Board may from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall
---------------------------------
have the custody of the Company funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Company and shall deposit all moneys and other valuable effects in the name and
to the credit of the Company in such depositories as may be designated by the
Board. The Treasurer shall disburse the funds of the Company as may be ordered
by the Board, taking proper vouchers for such disbursements, and shall render to
the President and to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their
------------------
powers set forth in this Agreement or otherwise vested in them by action of the
Board not inconsistent with this Agreement, are agents of the Company for the
purpose of the Company's business and, subject to Section 9(j), the actions of
------------
the Officers taken in accordance with such powers shall bind the Company.
(g) Duties of the Board and Officers. Except to the extent
--------------------------------
otherwise provided herein, each Director and Officer shall have a fiduciary duty
of loyalty and care similar to that of directors and officers of business
corporations organized under the Virginia Stock Corporation Act. Each Director
and Officer shall discharge his or her duties in accordance with such Person's
good faith business judgment of the best interests of the Company.
Section 12. Limited Liability.
-----------------
Except as otherwise expressly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be the debts, obligations and liabilities solely of the
Company, and neither the Member nor the Special Members nor any Director or
Officer shall be obligated personally for any such debt, obligation or liability
of the Company solely by reason of being a Member, Special Member, Director or
Officer of the Company.
14
Section 13. Capital Contributions.
---------------------
The Member has contributed to the Company property of an agreed value
as listed on Schedule B attached hereto. In accordance with Section 5(c), the
---------- ------------
Special Members shall not be required to make any capital contributions to the
Company.
Section 14. Additional Contributions.
------------------------
The Member is not required to make any additional capital contribution
to the Company. However, the Member may make additional capital contributions to
the Company at any time upon the written consent of such Member. To the extent
that the Member makes an additional capital contribution to the Company, the
Member shall revise Schedule B of this Agreement accordingly. The provisions of
----------
this Agreement, including this Section 14, are intended to benefit the Member
----------
and any Special Member and, to the fullest extent permitted by law, shall not be
construed as conferring any benefit upon any creditor of the Company (and no
such creditor of the Company shall be a third-party beneficiary of this
Agreement) and the Member and any Special Member shall not have any duty or
obligation to any creditor of the Company to make any contribution to the
Company or to issue any call for capital pursuant to this Agreement.
Section 15. Allocation of Profits and Losses.
--------------------------------
The Company's profits and losses shall be allocated to the Member.
Section 16. Distributions.
-------------
Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Board. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not be required to make
a distribution to the Member on account of its interest in the Company if such
distribution would violate Section 13.1-1035 of the Act or any other applicable
law or any Basic Document.
Section 17. Books and Records.
-----------------
The Board shall keep or cause to be kept complete and accurate books of
account and records with respect to the Company's business. The books of the
Company shall at all times be maintained by the Board. The Member and its duly
authorized representatives shall have the right to examine the Company books,
records and documents during normal business hours. The Company's books of
account shall be kept using the method of accounting determined by the Board.
The Company's
15
independent auditor, if any, shall be an independent public accounting firm
selected by the Board.
Section 18. Reports.
-------
(a) Within 60 days after the end of each fiscal quarter, the
Board shall cause to be prepared an unaudited report setting forth as of the end
of such fiscal quarter:
(i) unless such quarter is the last fiscal
quarter, a balance sheet of the Company; and
(ii) unless such quarter is the last fiscal
quarter, an income statement of the Company
for such fiscal quarter.
(b) The Board shall use diligent efforts to cause to be
prepared and mailed to the Member, within 90 days after the end of each fiscal
year, an audited or unaudited report setting forth as of the end of such fiscal
year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such
fiscal year; and
(iii) a statement of the Member's capital account.
(c) The Board shall, after the end of each fiscal year, use
reasonable efforts to cause the Company's independent accountants, if any, to
prepare and transmit to the Member as promptly as possible any such tax
information as may be reasonably necessary to enable the Member to prepare its
federal, state and local income tax returns relating to such fiscal year.
Section 19. Other Business.
--------------
The Member, any Special Member and any Affiliate of the Member or any
Special Member may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently or
with others. The Company shall not have any rights in or to such independent
ventures or the income or profits therefrom by virtue of this Agreement.
16
Section 20. Exculpation and Indemnification.
-------------------------------
(a) For purposes of this Section 20, the following
----------
definitions shall apply:
"expenses" includes counsel fees, expert witness fees
--------
and costs of investigation, litigation and appeal, as well as any
amounts expended in asserting a claim for indemnification.
"liability" means the obligation to pay a judgment,
---------
settlement, penalty, fine or other such obligation, including, without
limitation, any excise tax assessed with respect to an employee benefit
plan.
"legal entity" means a corporation, limited liability
------------
company, partnership, joint venture, trust, employee benefit plan or
other enterprise.
"proceeding" means any threatened, pending or
----------
completed action, suit, proceeding or appeal whether civil, criminal,
administrative or investigative and whether formal or informal.
(b) In every instance in which the Act, as it exists on the
date hereof or may hereafter be amended or supplemented, permits the limitation
or elimination of liability of Covered Persons (as hereinafter defined) of a
limited liability company to the limited liability company or its members, the
Directors and Officers of the Company shall not be liable to the Company or the
Member or any Special Member.
(c) To the full extent permitted and in the manner prescribed
by the Act and any other applicable law, but only to the extent funds are
available, the Company shall indemnify any Member, Special Member, Officer,
Director, employee or agent of the Company and any employee, representative,
agent or Affiliate of the Member or Special Members (collectively, the "Covered
-------
Persons") who is, was or is threatened to be made a party to any proceeding
-------
(including a proceeding by or in the right of the Company or by or on behalf of
the Member) by reason of the fact that he, she or it is or was a Special Member,
Director or Officer of the Company, is or was acting on behalf of the Company in
good faith or is or was serving, at the request of the Company, as a director,
manager, officer, employee or agent of any other legal entity, or is a fiduciary
of any employee benefit plan established at the direction of the Company,
against all liabilities and reasonable expenses incurred in the proceeding
except such liabilities and expenses as are incurred because of such
individual's willful misconduct or knowing violation of the criminal law.
Service as a director, manager or officer of a legal entity controlled by the
Company shall be deemed service at the request of the Company. The determination
that indemnification under this paragraph (c) is permissible and the evaluation
as to the reasonableness of expenses in a specific case shall be made, in the
case of a Director, as provided by law, and, in the case of an Officer, as
provided in paragraph (d) of this Section 20; provided, however, that if a
---------- -------- -------
majority of Directors of the Company has changed after the date of the alleged
conduct giving rise to a claim for
17
indemnification, such determination and evaluation shall, at the option of the
person claiming indemnification, be made by special legal counsel agreed upon by
the Directors of the Company and such person. The Company shall make advances
and reimbursements for expenses incurred by any Covered Person of the Company in
a proceeding upon receipt of an undertaking from such Covered Person to repay
the same if it is ultimately determined that such Covered Person is not entitled
to indemnification. Such undertaking shall be an unlimited, unsecured general
obligation of such Covered Person and shall be accepted without reference to
such Covered Person's ability to make repayment. The termination of a proceeding
by judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent shall not of itself create a presumption that a Covered Person
acted in such a manner as to make such Covered Person ineligible for
indemnification. Indemnification pursuant to this Section 20(c) shall not be
-------------
payable from the Trust Assets.
(d) The Directors of the Company are hereby empowered to cause
the Company to indemnify or contract in advance to indemnify any person not
specified in paragraph (c) of this Section 20 who is, was or is threatened to be
made a party to any proceeding by reason of the fact that he or she is or was an
employee or agent of the Company, or is or was serving at the request of the
Company as a director, manager, officer, employee or agent of another legal
entity, to the same extent as if such person were specified as one to whom
indemnification and advancement of expenses shall be granted pursuant to
paragraph (c) of this Section 20. The determination that indemnification under
----------
this Section 20 is permissible, the authorization of such indemnification and
----------
the evaluation as to the reasonableness of expenses in a specific case shall be
made as authorized from time to time by general or specific action of the
Directors of the Company, which action may be taken before or after a claim for
indemnification is made, or as otherwise provided by law. No person's rights
under paragraph (c) of this Section 20 shall be limited by the provisions of
----------
this paragraph (d).
(e) The Company may purchase and maintain insurance to
indemnify it against all or any portion of the liability assumed by the Company
in accordance with this Section 20 and may also purchase and maintain insurance,
----------
in such amounts as the Directors of the Company may determine, on behalf of any
person who is or was a Covered Person, or is or was serving at the request of
the Company as a director, manager, officer, employee or agent of another legal
entity, against any liability asserted against or incurred by any such person in
any such capacity or arising from his or her status as such, whether or not the
Company would have the power to indemnify him or her against such liability
under the provisions of this Section 20; provided, however, that no person shall
---------- -------- -------
be entitled to indemnification by the Company to the extent such person is
indemnified by an insurer or any other legal entity.
(f) The rights of each person entitled to indemnification
hereunder shall inure to the benefit of such person's successors, assigns,
heirs, executors and administrators. Special legal counsel selected to make
determinations under this Section 20 may be counsel for the Company.
----------
Indemnification pursuant to this Section 20 shall not be exclusive of any other
----------
right of indemnification to which any person may
18
be entitled, including indemnification pursuant to a valid contract,
indemnification by legal entities other than the Company, and indemnification
under policies of insurance purchased and maintained by the Company or others;
provided, however, that no person shall be entitled to indemnification by the
-------- -------
Company to the extent such person is indemnified by an insurer or any other
legal entity. No amendment, modification or repeal of this Section 20 shall
----------
diminish the rights provided hereunder to any person arising from conduct or
events occurring before the adoption of such amendment, modification or repeal.
The provisions of this Section 20 shall not be deemed to preclude the Company
----------
from entering into contracts otherwise permitted by law with any individuals or
legal entities, including those named above. If any provision of this Section 20
or its application to any person or circumstance is held invalid by a court of
competent jurisdiction, the invalidity shall not affect other provisions or
applications of this Section 20, and, to this end, the provisions of this
----------
Section 20 are severable. Reference herein to managers, officers, employees or
----------
agents shall include former managers, officers, employees and agents.
(g) A Covered Person shall be fully protected in relying in
good faith upon the records of the Company and upon such information, opinions,
reports or statements, including financial statements and other financial data,
presented to the Company by any Person as to matters the Covered Person
reasonably believes are reliable and within such other Person's professional or
expert competence and who has been selected with reasonable care by or on behalf
of the Company, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
(h) To the extent that, at law or in equity, a Covered Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any other Covered Person that is a party to or is otherwise bound
by this Agreement, a Covered Person acting under this Agreement shall not be
liable to the Company or to any other Covered Person for its good faith reliance
on the provisions of this Agreement or any such approval or authorization
granted by the Company or any other Covered Person. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the Member
and the Special Members to replace such other duties and liabilities of such
Covered Person.
(i) Notwithstanding any prior termination of this Agreement,
each Covered Person shall not, in its capacity as a creditor of the Company,
prior to the date which is one year and one day after the termination of this
Agreement, file or consent to the filing of any bankruptcy, insolvency or
reorganization petition naming the Company as debtor or otherwise institute
bankruptcy or insolvency proceedings by or against the Company or otherwise seek
with respect to the Company relief under any laws relating to the relief from
debts or the protection of debtors generally.
19
(j) The foregoing provisions of this Section 20 shall
----------
survive any termination of this Agreement.
Section 21. Assignments.
-----------
Subject to Section 23 and the satisfaction of the Rating Agency
Condition, the Member may assign in whole or in part its limited liability
company interest in the Company. If the Member transfers all of its limited
liability company interest in the Company pursuant to this Section 21, the
----------
transferee shall be admitted to the Company as a member of the Company upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement, which instrument may be a counterpart signature
page to this Agreement. Such admission shall be deemed effective immediately
prior to the transfer and, immediately following such admission, the transferor
Member shall cease to be a member of the Company. Notwithstanding anything in
this Agreement to the contrary, any successor to the Member by merger or
consolidation in compliance with the Basic Documents shall, without further act,
be the Member hereunder, and such merger or consolidation shall not constitute
an assignment for purposes of this Agreement and the Company shall continue
without dissolution.
Section 22. Resignation.
-----------
So long as any Obligation is outstanding, the Member may not resign,
except as permitted under the Basic Documents and if the Rating Agency Condition
is satisfied. If the Member is permitted to resign pursuant to this Section 22,
----------
an additional member of the Company shall be admitted to the Company, subject to
Section 23, upon its execution of an instrument signifying its agreement to be
----------
bound by the terms and conditions of this Agreement, which instrument may be a
counterpart signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the resignation and, immediately following such
admission, the resigning Member shall cease to be a member of the Company.
Section 23. Admission of Additional Members.
-------------------------------
One or more additional members of the Company may be admitted to the
Company with the written consent of the Member; provided, however, that,
-------- -------
notwithstanding the foregoing, so long as any Obligation remains outstanding, no
additional Member may be admitted to the Company unless the Rating Agency
Condition is satisfied.
20
Section 24. Dissolution.
-----------
(a) Subject to Section 9(j), the Company shall be dissolved,
------------
and its affairs shall be wound up upon the first to occur of the following: (i)
the termination of the legal existence of the last remaining member of the
Company or the occurrence of any other event which terminates the continued
membership of the last remaining member of the Company in the Company unless the
business of the Company is continued in a manner permitted by this Agreement or
the Act, (ii) the unanimous consent of the Member(s), (iii) the entry of a
decree of judicial dissolution under Section 13.1-1047 of the Act or (iv) the
automatic cancellation of its certificate of organization pursuant to Section
13.1-1064 of the Act. Upon the occurrence of any event that causes the last
remaining Member of the Company to cease to be a member of the Company, to the
fullest extent permitted by law, the personal representative of such Member is
hereby authorized to, and shall, within 90 days after the occurrence of the
event that terminated the continued membership of such Member in the Company,
agree in writing (i) to continue the Company and (ii) to the admission of the
personal representative or its nominee or designee, as the case may be, as a
substitute member of the Company, effective as of the occurrence of the event
that terminated the continued membership of the last remaining Member of the
Company in the Company.
(b) Notwithstanding any other provision of this Agreement, the
Bankruptcy of the Member or a Special Member shall not cause the Member or
Special Member, respectively, to cease to be a member of the Company and upon
the occurrence of such an event, the business of the Company shall continue
without dissolution.
(c) Notwithstanding any other provision of this Agreement,
each of the Member and the Special Members waives any right it might have to
agree in writing to dissolve the Company upon the Bankruptcy of the Member or a
Special Member, or the occurrence of an event that causes the Member or a
Special Member to cease to be a member of the Company.
(d) In the event of dissolution, the Company shall conduct
only such activities as are necessary to wind up its affairs (including the sale
of the assets of the Company in an orderly manner), and the assets of the
Company shall be applied in the manner, and in the order of priority, set forth
in Section 13.1-1049 of the Act.
(e) The Company shall terminate when (i) all of the assets of
the Company, after payment of or due provision for all debts, liabilities and
obligations of the Company shall have been distributed to the Member in the
manner provided for in this Agreement and (ii) the Articles of Organization
shall have been canceled in the manner required by the Act.
21
Section 25. Waiver of Partition; Nature of Interest.
---------------------------------------
Except as otherwise expressly provided in this Agreement, to the
fullest extent permitted by law, each of the Member and any Special Member
hereby irrevocably waives any right or power that such Person might have to
cause the Company or any of its assets to be partitioned, to cause the
appointment of a receiver for all or any portion of the assets of the Company,
to compel any sale of all or any portion of the assets of the Company pursuant
to any applicable law or to file a complaint or to institute any proceeding at
law or in equity to cause the dissolution, liquidation, winding up or
termination of the Company. The Member shall not have any interest in any
specific assets of the Company, and the Member shall not have the status of a
creditor with respect to any distribution pursuant to Section 16 hereof. The
----------
interest of the Member in the Company is personal property.
Section 26. Benefits of Agreement; No Third-Party Rights.
--------------------------------------------
None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company or by any creditor of the Member or a
Special Member. Nothing in this Agreement shall be deemed to create any right in
any Person (other than Covered Persons) not a party hereto, and this Agreement
shall not be construed in any respect to be a contract in whole or in part for
the benefit of any third Person (except as provided in Section 29).
----------
Section 27. Severability of Provisions.
--------------------------
Each provision of this Agreement shall be considered severable and if
for any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Agreement which are valid, enforceable and legal.
Section 28. Entire Agreement.
----------------
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
Section 29. Binding Agreement.
-----------------
Notwithstanding any other provisions of this Agreement, the Member
agrees that this Agreement, including, without limitation, Sections 7, 8, 9, 10,
--------------------
20, 21, 22, 23, 24, 26, 29 and 31, constitutes a legal, valid and binding
-------------------------- --
agreement of the Member, and is enforceable against the Member by the
Independent Director, in accordance with its
22
terms. In addition, the Independent Director shall be an intended beneficiary of
this Agreement.
Section 30. Governing Law.
-------------
This Agreement shall be governed and construed under the laws of the
Commonwealth of Virginia (without regard to conflict of laws principles), all
rights and remedies being governed by said laws.
Section 31. Amendments.
----------
Subject to Section 9(j) and the satisfaction of the Rating Agency
------------
Condition, this Agreement may be modified, altered, supplemented or amended
pursuant to a written agreement executed and delivered by the Member.
Notwithstanding anything to the contrary in this Agreement, so long as any
Obligation is outstanding, this Agreement may not be modified, altered,
supplemented or amended except: (i) to cure any ambiguity or (ii) to convert or
supplement any provision in a manner consistent with the intent of this
Agreement and the other Basic Documents.
Section 32. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement and all of which together
shall constitute one and the same instrument.
Section 33. Notices.
-------
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy, electronic mail or other
similar form of rapid transmission, and shall be deemed to have been duly given
upon receipt (a) in the case of the Company, to the Company at its address in
Section 2, (b) in the case of the Member, to the Member at its address as listed
---------
on Schedule B attached hereto and (c) in the case of either of the foregoing, at
----------
such other address as may be designated by written notice to the other party.
Section 34. Effectiveness.
-------------
This Agreement shall be effective as of the time of the filing of the
Articles of Organization with the Clerk of the SCC on November 13, 2001.
23
IN WITNESS WHEREOF, the undersigned intending to be legally bound
hereby, has duly executed this Amended and Restated Limited Liability Company
Agreement as of the 31st day of July, 2002.
MEMBER:
CAPITAL ONE BANK
By: /s/ Stephen Linehan
-------------------------------
Name: Stephen Linehan
Title: Vice President, Corporate Treasury
and Assistant Treasurer
INDEPENDENT DIRECTOR:
/s/ Evelyn Echevarria
-----------------------------------
Name: Evelyn Echevarria
24
SCHEDULE A
Definitions
-----------
A. Definitions.
-----------
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this
---
Agreement.
"Affiliate" means, with respect to any Person, any other
---------
Person directly or indirectly Controlling or Controlled by or under direct or
indirect common Control with such Person.
"Agreement" means this Amended and Restated Limited Liability
---------
Company Agreement of the Company, together with the schedules attached hereto,
as amended, restated or supplemented or otherwise modified from time to time.
"Articles of Organization" means the Articles of Organization
------------------------
filed with the Clerk of the SCC on November 13, 2001, as amended or amended and
restated from time to time.
"Bank" means Capital One Bank, a Virginia banking corporation,
----
together with any successor in interest by merger, conversion or otherwise.
"Bankruptcy" means, with respect to any Person, if such Person
----------
(i) makes an assignment for the benefit of creditors, (ii) files a voluntary
petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has
entered against it an order for relief, in any bankruptcy or insolvency
proceedings, (iv) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against it in any proceeding of this nature, (vi) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of the Person
or of all or any substantial part of its properties, or (vii) if 120 days after
the commencement of any proceeding against the Person seeking reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any
statute, law or regulation, if the proceeding has not been dismissed, or if
within 90 days after the appointment without such Person's consent or
acquiescence of a trustee, receiver or liquidator of such Person or of all or
any substantial part of its properties, the appointment is not vacated or
stayed, or within 90 days after the expiration of any such stay, the appointment
is not vacated. The foregoing definition of "Bankruptcy" is intended to replace
and shall supersede and replace the definition of "Bankruptcy" set forth in
Sections 13.1-1002 and 13.1-1040.1 of the Act.
25
"Basic Documents" means this Agreement, the Management
---------------
Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the
Credit Agreement, the Series Supplements, the Trust Agreements, the Transfer
Agreements, the Trust Obligations and all documents and certificates
contemplated thereby or delivered in connection therewith, and all amendments
thereto.
"Board" or "Board of Directors" means the Board of Directors
----- ------------------
of the Company.
"Company" means Capital One Funding, LLC, a Virginia limited
-------
liability company.
"Control" means the possession, directly or indirectly, of the
-------
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities or general
partnership or managing member interests, by contract or otherwise.
"Controlling" and "Controlled" shall have correlative meanings. Without limiting
the generality of the foregoing, a Person shall be deemed to Control any other
Person in which it owns, directly or indirectly, a majority of the ownership
interests.
"Covered Persons" has the meaning set forth in Section 20(b).
---------------
"Directors" means the Persons elected to the Board of
---------
Directors from time to time by the Member, including the Independent Director,
in their capacity as managers of the Company. A Director is hereby designated as
a "manager" of the Company within the meaning of Section 13.1-1024 of the Act.
"Independent Director" means a natural person who, for the
--------------------
five-year period prior to his or her appointment as Independent Director has not
been, and during the continuation of his or her service as Independent Director
is not: (i) an employee, director, stockholder, partner or officer of the
Company or any of its Affiliates (other than his or her service as an
independent director of the Company or any of its Affiliates that is a special
purpose bankruptcy remote entity); (ii) a customer or supplier of the Company or
any of its Affiliates; or (iii) any member of the immediate family of a person
described in (i) or (ii).
"Management Agreement" means the agreement of the Directors in
--------------------
the form attached hereto as Schedule C. The Management Agreement shall be deemed
----------
incorporated into, and part of, this Agreement.
"Material Action" means to change the business purposes of the
---------------
Company, to consolidate or merge the Company with or into any Person, or sell
all or substantially all of the assets of the Company, or to institute
proceedings to have the Company be adjudicated bankrupt or insolvent, or consent
to the institution of bankruptcy or insolvency proceedings against the Company
or file a petition seeking, or consent to, reorganization or relief with respect
to the Company under any applicable
26
federal or state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or a substantial part of its property, or make any
assignment for the benefit of creditors of the Company, or admit in writing the
Company's inability to pay its debts generally as they become due, or take
action in furtherance of any such action, or, to the fullest extent permitted by
law, dissolve or liquidate the Company.
"Member" means Capital One Bank, as the initial member of the
------
Company, and includes any Person admitted as an additional member of the Company
or a substitute member of the Company pursuant to the provisions of this
Agreement, each in its capacity as a member of the Company, provided, however,
the term "Member" shall not include any Special Member.
"Obligations" shall mean the indebtedness, liabilities and
-----------
obligations of the Company under or in connection with the Agreement, the other
Basic Documents or any related document in effect as of any date of
determination.
"Officer" means an officer of the Company described in Section
------- -------
11.
--
"Officer's Certificate" means a certificate signed by an
---------------------
Officer of the Company who is authorized to act for the Company in matters
relating to the Company.
"Owner" has the meaning assigned thereto in each of the Trust
-----
Agreements.
"Person" means any individual, corporation, partnership, joint
------
venture, limited liability company, limited liability partnership, association,
joint stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
"Rating Agency" has the meaning assigned to that term in the
--------------
Pooling and Servicing Agreement.
"Rating Agency Condition" means, with respect to any action,
-----------------------
that each Rating Agency shall have notified the Company in writing that such
action will not result in a reduction or withdrawal of the rating of any Series
or Class (each as defined in the Pooling and Servicing Agreement) with respect
to which it is a Rating Agency.
"SCC" means the Virginia State Corporation Commission.
---
"Seller" has the meaning assigned thereto in the Pooling and
------
Servicing Agreement.
"Series Supplement" means any supplement to the Pooling and
-----------------
Servicing Agreement executed and delivered in connection with the original
issuance of Investor
27
Certificates (as defined in the Pooling and Servicing Agreement) of a series and
all amendments thereof and supplements thereto.
"Special Member" means upon such person's admission to the
--------------
Company as a member of the Company pursuant to Section 5(c), a person acting as
Independent Director, in such person's capacity as a member of the Company. A
Special Member shall only have the rights and duties expressly set forth in this
Agreement.
"Transferor" has the meaning assigned thereto in each of the
----------
Transfer Agreements.
"Trust Assets" has the meaning assigned thereto in the Pooling
------------
and Servicing Agreement.
"Trust Obligation" means any Investor Certificate (as defined
----------------
in the Pooling and Servicing Agreement) or other interest in the Trust issued
under the Pooling and Servicing Agreement and any supplement thereto.
B. Rules of Construction.
---------------------
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall be
deemed to be followed by the phrase "without limitation." The terms "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and shall
not affect the interpretation of this Agreement. All Section, paragraph, clause,
Exhibit or Schedule references not attributed to a particular document shall be
references to such parts of this Agreement.
28
SCHEDULE B
Member
------
Agreed Value Membership
Name Mailing Address of Capital Contribution Interest
---- --------------- ----------------------- --------
Capital One Bank 2980 Fairview Park Drive $5,000 100%
Suite 1300
Falls Church, Virginia 22042
1
SCHEDULE C
Management Agreement
--------------------
July 31, 2002
Capital One Funding, LLC
140 East Shore Drive
Room 1048
Glen Allen, Virginia 23059
Management Agreement
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Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons,
who have been designated as directors of Capital One Funding, LLC, a Virginia
limited liability company (the "Company"), in accordance with the Amended and
Restated Limited Liability Company Agreement of the Company, dated as of July
31, 2002, as it may be amended or restated from time to time (the "LLC
Agreement"), hereby agrees as follows:
1. Each of the undersigned accepts such Person's rights and authority
as a Director under the LLC Agreement and agrees to perform and discharge such
Person's duties and obligations as a Director under the LLC Agreement, and
further agrees that such rights, authorities, duties and obligations under the
LLC Agreement shall continue until such Person's successor as a Director is
designated or until such Person's resignation or removal as a Director in
accordance with the LLC Agreement. Each of the undersigned agrees and
acknowledges that it has been designated as a "manager" of the Company within
the meaning of the Virginia Limited Liability Company Act.
2. So long as any Obligation is outstanding, each of the undersigned
agrees, solely in its capacity as a creditor of the Company on account of any
indemnification or other payment owing to the undersigned by the Company, not to
acquiesce, petition or otherwise invoke or cause the Company to invoke the
process of any court or governmental authority for the purpose of commencing or
sustaining a case against the Company under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Company or any
substantial part of the property of the Company, or ordering the winding up or
liquidation of the affairs of the Company.
3. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
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VIRGINIA, AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Initially capitalized terms used and not otherwise defined herein have
the meanings set forth in the LLC Agreement.
This Management Agreement may be executed in any number of
counterparts, each of which shall be deemed and original of this Management
Agreement and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
/s/ Thomas A. Feil
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Name: Thomas A. Feil
Title: Director
/s/ Bonnie A. Seideman
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Name: Bonnie A. Seideman
Title: Director
/s/ Evelyn Echevarria
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Name: Evelyn Echevarria
Title: Director
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SCHEDULE D
Directors
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Thomas A. Feil
Bonnie A. Seideman
Evelyn Echevarria (Independent Director)
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