CAPITAL ONE FINANCIAL CORPORATION
, dated as of April 23, 2002 (the "Agreement") by
and between Capital One Financial Corporation, a Delaware corporation (the
"Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the "Remarketing Agent"), and
confirmed and accepted by BNY Midwest Trust Company, not individually but solely
as Forward Purchase Contract Agent (the "Forward Purchase Contract Agent") and
as attorney-in-fact of the Holders of Forward Purchase Contracts (as defined in
the Forward Purchase Contract Agreement (as defined herein)).
WHEREAS, the Company issued $747,500,000 aggregate stated amount of its
Upper DECS (the "Upper DECS") under the Forward Purchase Contract Agreement,
dated as of April 23, 2002, by and between the Forward Purchase Contract Agent
and the Company (the "Forward Purchase Contract Agreement"); and
WHEREAS, the notes forming a part of the Upper DECS (the "Notes") have
been pledged pursuant to the Pledge Agreement (the "Pledge Agreement"), dated as
of April 23, 2002, by and among the Company, BNY Midwest Trust Company, as
collateral agent (the "Collateral Agent"), custodial agent and securities
intermediary and the Forward Purchase Contract Agent, to secure the Upper DECS
Holders' obligations under the related Forward Purchase Contracts on the Stock
Purchase Date; and
WHEREAS, the Remarketing Agent will attempt on the Remarketing Date and
on any Accelerated Remarketing Date to remarket all of (i) the Notes of Upper
DECS Holders, other than the Notes of Upper DECS Holders who elect not to
participate in the remarketing, and (ii) the Separate Notes of Holders who elect
to participate in the remarketing, pursuant respectively to the procedures set
forth in Sections 5.2(b) and 5.9 of the Forward Purchase Contract Agreement and
Section 4.5(d) of the Pledge Agreement (each of which Sections is incorporated
herein by reference); and
WHEREAS, in the event the remarketing on the Remarketing Date is
unsuccessful, the Remarketing Agent will remarket the Notes to be included in
the remarketing on each of the two Business Days immediately following the
Remarketing Date, and, if necessary, will attempt to remarket such Notes on each
of the three Business Days immediately preceding the 17th day of each following
month until, in either case, the earlier of (A) a successful remarketing or (B)
the Scheduled Stock Purchase Date, provided, however, if the initial remarketing
begins on or before May 17, 2004, the Remarketing Agent will attempt to remarket
such Notes on each of the three Business Days immediately preceding each Payment
Date falling on or prior to May 17, 2005; and
WHEREAS, in the event the remarketing on any Initial Capital Category
Accelerated Remarketing Date is unsuccessful, the Remarketing Agent will
remarket the Notes to be included in the remarketing on each of the two Business
Days immediately
following the Initial Capital Category Accelerated Remarketing Date, and, if
necessary, will attempt to remarket such Notes on each of the three Business
Days immediately preceding either (A) if the Initial Capital Category
Accelerated Remarketing Date occurs prior to May 17, 2004, each subsequent
Payment Date or (B) the 17th day of each following month until, in either case,
the earlier of (x) a successful remarketing or (y) the Scheduled Stock Purchase
Date; and
WHEREAS, if the Notes have not been successfully remarketed prior to a
Secondary Acceleration Event, the Remarketing Agent will remarket the Notes to
be included in the remarketing as soon as practicable, but in no event later
than seven Business Days after such Secondary Acceleration Event, and, if
necessary, will attempt to remarket such Notes on each of the two Business Days
immediately following the Secondary Capital Category Accelerated Remarketing
Date, and, if necessary, will attempt to remarket such Notes on each of the
three Business Days immediately preceding the Accelerated Stock Purchase Date;
and
WHEREAS, in the event of a successful remarketing on the Remarketing
Date, any Accelerated Remarketing Date or any Subsequent Remarketing Date, as
the case may be, the applicable interest rate on the Notes included in such
successful remarketing will be reset on such Remarketing Date, Accelerated
Remarketing Date or Subsequent Remarketing Date to the Reset Rate to be
determined by the Remarketing Agent such that the then current aggregate market
value of the Notes will equal at least 100.5% of the Remarketing Value or
Accelerated Remarketing Value, as applicable (as described in the Forward
Purchase Contract Agreement), as of such Remarketing Date, Accelerated
Remarketing Date or Subsequent Remarketing Date, provided that in the
determination of such Reset Rate, the Company shall, if applicable, limit the
Reset Rate to the maximum rate permitted by applicable law; and
WHEREAS, the Company has requested ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. to act as
the Remarketing Agent, and as such to perform the services described herein; and
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. is willing to act as the Remarketing
Agent and as such to perform such duties on the terms and conditions expressly
set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. Definitions.
Capitalized terms used and not defined in this Agreement, in the
recitals hereto or in the paragraph preceding such recitals shall have the
meanings assigned to them in the Forward Purchase Contract Agreement or, if not
therein defined, the Pledge Agreement.
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Section 2. Appointment and Obligations of Remarketing Agent.
(a) The Company hereby appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. hereby accepts such appointment, (i) as the Remarketing Agent
to determine, in consultation with the Company, in the manner provided for
herein, in the Forward Purchase Contract Agreement and in the Notes, the Reset
Rate that, in the opinion of the Remarketing Agent, will, when applied to the
Notes (assuming, even if not true, that all of the Notes are included in the
remarketing), enable the then current aggregate market value of the Notes to
have a value equal to at least 100.5% of the Remarketing Value or Accelerated
Remarketing Value, as applicable, as of the Remarketing Date, any Accelerated
Remarketing Date or as of any Subsequent Remarketing Date, as the case may be,
provided that the Company, by notice to the Remarketing Agent prior to (A) the
tenth Business Day preceding the Remarketing Date, with respect to any
remarketing to occur on either the Remarketing Date or the two Business Days
immediately following such Remarketing Date, (B) the fifth Business Day
preceding any Accelerated Remarketing Date, with respect to any remarketing to
occur on either such Accelerated Remarketing Date or on the two Business Days
immediately following such Accelerated Remarketing Date, and (C) the thirteenth
Business Day preceding any subsequent Remarketing Period, shall, if applicable,
limit the Reset Rate so that it does not exceed the maximum rate permitted by
applicable law, and (ii) as the exclusive Remarketing Agent (subject to the
right of such Remarketing Agent to appoint additional remarketing agents
hereunder as described below) to remarket the Notes to be included in the
remarketing on the Remarketing Date, any Accelerated Remarketing Date or during
any subsequent Remarketing Period, as the case may be. The Remarketing Agent
shall have the right, on 15 Business Days' notice to the Company, to appoint one
or more additional remarketing agents so long as any such additional remarketing
agents shall be reasonably acceptable to the Company. Upon any such appointment,
the parties shall enter into an appropriate amendment to this Agreement to
reflect the addition of any such additional remarketing agent.
(b) Subject to the terms and conditions set forth herein and in the
Forward Purchase Contract Agreement, the Remarketing Agent shall use its
commercially reasonable best efforts to (i) remarket on the Remarketing Date or
any Accelerated Remarketing Date the Notes that the Forward Purchase Contract
Agent or the Custodial Agent shall have notified the Remarketing Agent are to be
remarketed at a Reset Rate such that the then current aggregate market value of
the Notes is equal to at least 100.5% of the Remarketing Value or the
Accelerated Remarketing Value, as applicable, (ii) in the event the Remarketing
Agent cannot establish such a Reset Rate on the Remarketing Date, attempt to
remarket such Notes on each of the two Business Days immediately following the
Remarketing Date and, if necessary, on each of the three Business Days
immediately preceding the 17th day of each following month until the earlier to
occur of (1) a successful remarketing or (2) the Scheduled Stock Purchase Date,
in each case at a Reset Rate such that the then current aggregate market value
of the Notes is equal to at least 100.5% of the Remarketing Value, (iii) in the
event of an Initial Acceleration Event or Secondary Acceleration Event, to
remarket the Notes on any Accelerated Remarketing
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Date or Subsequent Remarketing Date in accordance with Section 5.9 of the
Forward Purchase Contract Agreement and (iv) in the event of a Last Failed
Remarketing or a Last Failed Accelerated Remarketing, promptly return the
Pledged Notes, if any, included in such Last Failed Remarketing or Last Failed
Accelerated Remarketing to the Collateral Agent to be held by the Collateral
Agent in accordance with Section 4.5(b) of the Pledge Agreement (which Section
is incorporated herein by reference) and return any Separate Notes included in
the remarketing to the Custodial Agent in accordance with Section 4.5(d) of the
Pledge Agreement and Section 5.2(e) of the Forward Purchase Contract Agreement
(which Sections are incorporated herein by reference). After deducting the fee
specified in Section 3 below, the proceeds of any such successful remarketing
shall be delivered to the Forward Purchase Contract Agent or the Custodial
Agent, as applicable, in accordance with Section 4.5(a) of the Pledge Agreement
(which Section is incorporated herein by reference) and Sections 5.2(b) and 5.9
of the Forward Purchase Contract Agreement (which Sections are incorporated
herein by reference). The right of each Holder of Upper DECS or Separate Notes
to have Notes included in any remarketing shall be subject to the conditions
that (i) the Remarketing Agent conducts a remarketing on such date pursuant to
the terms of this Agreement, (ii) the Notes included in a remarketing have not
been called for redemption upon the occurrence of a Tax Event, (iii) the
Remarketing Agent is able to find a purchaser or purchasers for the Notes
included in a remarketing at a Reset Rate such that the then current aggregate
market value of the Notes is equal to at least 100.5% of the Remarketing Value
or the Accelerated Remarketing Value, as applicable, and (iv) such purchaser or
purchasers deliver the purchase price therefor to the Remarketing Agent as and
when required.
(c) It is understood and agreed that the Remarketing Agent shall not
have any obligation whatsoever to purchase any Notes, whether in a remarketing
held on the Remarketing Date or an Accelerated Remarketing Date or on any
Subsequent Remarketing Date or otherwise, and shall in no way be obligated to
provide funds to make payment upon tender of Notes for remarketing or to
otherwise expend or risk its own funds or incur or be exposed to financial
liability in the performance of its duties under this Agreement. The Company
shall not be obligated in any case to provide funds to make payment upon
delivery of Notes for remarketing.
Section 3. Fees.
In the event of a successful remarketing, the Remarketing Agent shall
retain as a remarketing fee (the "Remarketing Fee") an amount not exceeding 25
basis points (0.25%) of the total proceeds received in connection with the
remarketing. Payment of such Remarketing Fee shall be made by the Company on the
date of any such successful remarketing in immediately available funds or, upon
the instructions of the Remarketing Agent, by certified or official bank check
or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent.
(a) The Company may in its absolute discretion replace ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. as the Remarketing Agent by giving notice prior to 3:00 p.m., New
York City time
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on (i) the eleventh Business Day immediately prior to the Remarketing Date in
the case of a remarketing to occur on the Remarketing Date or either of the two
Business Days immediately following the Remarketing Date, (ii) the seventh
Business Day immediately prior to an Accelerated Remarketing Date in the case of
a Remarketing to occur on such Accelerated Remarketing Date or either of the two
Business Days immediately following such Accelerated Remarketing Date, or (iii)
the seventh Business Day prior to the commencement of any subsequent Remarketing
Period. Any such replacement shall become effective upon the Company's
appointment of a successor to perform the services that would otherwise be
performed hereunder by the Remarketing Agent. Upon providing such notice, the
Company shall use all reasonable efforts to appoint such a successor and to
enter into a with such successor as soon as reasonably
practicable.
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. may resign at any time and be discharged
from its duties and obligations hereunder as the Remarketing Agent by giving
notice prior to 3:00 p.m., New York City time on (i) the eleventh Business Day
immediately prior to the Remarketing Date in the case of a remarketing to occur
on the Remarketing Date or any of the two Business Days immediately following
the Remarketing Date, (ii) the seventh Business Day immediately prior to an
Accelerated Remarketing Date in the case of a remarketing to occur on such
Accelerated Remarketing Date or either of the two Business Days immediately
following such Accelerated Remarketing Date, or (iii) the seventh Business Day
prior to the commencement of any subsequent Remarketing Period. Any such
resignation shall become effective upon the Company's appointment of a successor
to perform the services that would otherwise be performed hereunder by the
Remarketing Agent. Upon receiving notice from the Remarketing Agent that it
wishes to resign hereunder, the Company shall use all reasonable efforts to
appoint such a successor and enter into a with it as soon
as reasonably practicable.
(c) The Company shall give the Forward Purchase Contract Agent, the
Collateral Agent, the Custodial Agent and the Trustee prompt written notice of
any replacement of the Remarketing Agent pursuant to this section.
Section 5. Dealing in the Securities.
The Remarketing Agent, when acting hereunder or when acting in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold or deal in any of the Notes, Stripped DECS, Upper DECS or any other
securities of the Company. With respect to any Notes, Stripped DECS, Upper DECS
or any other securities of the Company owned by it, the Remarketing Agent may
exercise any vote or join in any action with like effect as if it did not act in
any capacity hereunder. The Remarketing Agent, in its individual capacity,
either as principal or agent, may also engage in or have an interest in any
financial or other transaction with the Company as freely as if it did not act
in any capacity hereunder.
The Company or its affiliates may, to the extent permitted by law,
purchase any Notes that are remarketed by the Remarketing Agent.
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Section 6. Registration Statement and Prospectus.
(a) In connection with any remarketing to occur on the Remarketing
Date, an Accelerated Remarketing Date or any Subsequent Remarketing Date, if and
to the extent required, in the view of counsel (which need not be an opinion)
for each of the Remarketing Agent and the Company, by applicable law,
regulations or interpretations in effect at the time of the Remarketing Date or
Subsequent Remarketing Date, as the case may be, the Company (i) shall use its
reasonable efforts (A) to have a registration statement relating to the Notes
effective under the Securities Act of 1933 and (B) to furnish a current
preliminary prospectus or, if applicable, a current preliminary prospectus
supplement (in such quantities as the Remarketing Agent may reasonably request),
to be used by the Remarketing Agent in a remarketing hereunder, in each case by
a date that is no later than (x) seven Business Days prior to the Remarketing
Date or an Accelerated Remarketing Date in the case of a remarketing to occur on
the Remarketing Date, an Accelerated Remarketing Date or such Accelerated
Remarketing Date or on any of the two Business Days immediately following the
Remarketing Date or such Accelerated Remarketing Date, and (y) ten Business Days
prior to the commencement of each subsequent Remarketing Period, if any (or in
each such case, at such earlier date as the Remarketing Agent may reasonably
request), and (ii) if requested by the Remarketing Agent, shall furnish a
current final prospectus or, if applicable, a final prospectus supplement, to be
used by the Remarketing Agent in the remarketing hereunder, by a date that is no
later than (x) five Business Days prior to the Remarketing Date or an
Accelerated Remarketing Date in the case of a remarketing to occur on the
Remarketing Date or on any of the two Business Days immediately following the
Remarketing Date or such Accelerated Remarketing Date, and (y) eight Business
Days prior to each subsequent Remarketing Period, if any (or in each such case,
at such earlier date as the Remarketing Agent may reasonably request). The
Company shall pay all expenses relating thereto.
(b) If in connection with any remarketing, it shall not be possible, in
the view of counsel (which need not be an opinion) for each of the Remarketing
Agent and the Company, under applicable law, regulations or interpretations in
effect as of the Remarketing Date, Accelerated Remarketing Date or subsequent
Remarketing Period, as the case may be, to register the offer and sale by the
Remarketing Agent of the Notes under the Securities Act of 1933 as otherwise
contemplated by this Section 6, the Company (i) shall use its reasonable efforts
to take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper and advisable to permit and effectuate the offer and
sale of the Notes in connection with any remarketing hereunder without
registration under the Securities Act of 1933 pursuant to an exemption
therefrom, if available, including the exemption afforded by Rule 144A
promulgated under the Securities Act of 1933 by the Securities and Exchange
Commission, and (ii) if requested by the Remarketing Agent, shall furnish a
current preliminary remarketing memorandum and a current final remarketing
memorandum (in such quantities as the Remarketing Agent may reasonably request)
to be used by the Remarketing Agent in any remarketing hereunder, in each case
by a date that is not later than (A) seven Business Days prior to
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the Remarketing Date or an Accelerated Remarketing Date, in the case of a
remarketing to occur on the Remarketing Date or such Accelerated Remarketing
Date or on any of the two Business Days immediately following the Remarketing
Date or such Accelerated Remarketing Date, and (B) ten Business Days prior to
the commencement of each subsequent Remarketing Period, if any (or in either
case such earlier date as the Remarketing Agent may reasonably request). The
Company shall pay all expenses relating thereto.
(c) The Company shall also take all such actions as may (upon advice of
counsel to the Company or the Remarketing Agent) be necessary or desirable under
state securities or blue sky laws in connection with any remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations.
(a) The obligations of the Remarketing Agent under this Agreement shall
be subject to the terms and conditions hereof, including, without limitation,
the following conditions: (i) the Notes to be included in any remarketing have
not been called for redemption, (ii) the Remarketing Agent is able to find a
purchaser or purchasers for the Notes included in any remarketing at a price not
less than 100.5% of the Remarketing Value or Accelerated Remarketing Value, as
applicable, (iii) the Forward Purchase Contract Agent, the Collateral Agent, the
Custodial Agent, the Securities Intermediary, the Company and the Trustee shall
have performed their respective obligations in connection with any remarketing
hereunder and pursuant to the Forward Purchase Contract Agreement, the Pledge
Agreement and the Indenture (including, without limitation, the Forward Purchase
Contract Agent's and the Custodial Agent's giving the Remarketing Agent notice
of the aggregate number of Notes to be remarketed, no later than 10:00 a.m., New
York City time, on the third Business Day preceding the Remarketing Date or any
Accelerated Remarketing Date, as applicable, and concurrently delivering the
Notes to be remarketed to the Remarketing Agent), (iv) no Event of Default (as
defined in the Indenture) shall have occurred and be continuing, (v) the
performance by the Company of its covenants and other obligations included
herein, (vi) the receipt of assurances, in form and substance reasonably
satisfactory to the Remarketing Agent, from each pension, profit-sharing or
other employee benefit plan as defined in Section 3 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), each individual retirement
account subject to Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code"), and each entity whose assets include plan assets under Title I of
ERISA, in each case that is participating in the remarketing, that the
participation of such employee benefit plan, individual retirement account or
plan asset entity in the remarketing will not constitute a prohibited
transaction under ERISA or the Code or other similar laws for which an exemption
is not available and (vii) the satisfaction of the other conditions set forth in
this Agreement.
(b) If at any time during the term of this Agreement, any Event of
Default (as defined in the Indenture) or event that with the passage of time or
the giving of notice or both would become an Event of Default has occurred and
is continuing under the Indenture, then the obligations and duties of the
Remarketing Agent under this
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Agreement shall be suspended until such default or event has been cured. The
Company will promptly give the Remarketing Agent notice of all such defaults and
events of which the Company is aware.
Section 8. Termination of .
This Agreement shall terminate as to any Remarketing Agent which is
replaced on the effective date of its replacement pursuant to Section 4(a)
hereof or pursuant to Section 4(b) hereof. Notwithstanding the foregoing, the
obligations set forth in Section 3 hereof shall survive and remain in full force
and effect until all amounts payable under Section 3 shall have been paid in
full; provided, however, that if any Remarketing Agent resigns, then, with
respect to such Remarketing Agent, the obligations set forth in Section 3 hereof
shall not survive the termination of this Agreement and no fee shall be payable
to such Remarketing Agent in such capacity. In addition, each current and former
Remarketing Agent shall be entitled to the rights and benefits under Sections 9,
10 and 12(b) of this Agreement notwithstanding the replacement or resignation of
such Remarketing Agent or termination of this Agreement.
Section 9. Remarketing Agent's Performance; Duty of Care.
The duties and obligations of the Remarketing Agent shall be determined
solely by the express provisions hereof. No implied covenants or obligations of
or against the Remarketing Agent shall be read into this Agreement. In the
absence of a final judicial determination of willful misconduct, bad faith or
gross negligence on the part of the Remarketing Agent, the Remarketing Agent may
conclusively rely upon any document furnished to it which purports to conform to
the requirements hereunder as to the truth of the statements expressed therein.
The Remarketing Agent shall be protected in acting upon any document or
communication reasonably believed by it to be signed, presented or made by the
proper party or parties. The Remarketing Agent shall not have any obligation to
determine whether there is any limitation under applicable law on the Reset Rate
on the Notes or, if there is any such limitation, the maximum permissible Reset
Rate on the Notes, and it shall rely solely upon timely written notice from the
Company pursuant to Section 2(a) hereof as to whether or not there is any such
limitation and, if so, the maximum permissible Reset Rate. The Remarketing Agent
shall not incur any liability under this Agreement to any beneficial owner or
holder of Notes, or other securities, either in its individual capacity or as
Remarketing Agent, as the case may be, for any action or failure to act in
connection with the remarketing of the Notes or otherwise in connection with the
transactions contemplated by this Agreement, except to the extent that such
liability has, by final judicial determination, resulted from the willful
misconduct, bad faith or gross negligence of the Remarketing Agent or from its
failure to fulfill its express obligations hereunder. The provisions of this
Section 9 shall survive any termination of this Agreement and shall also
continue to apply to every Remarketing Agent notwithstanding its resignation or
removal. The Remarketing Agent will act as the agent of the Holders.
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Section 10. Indemnification.
The Company agrees to indemnify the Remarketing Agent for, and to hold
it harmless from and against, any loss, liability or reasonable out-of-pocket
expense incurred without gross negligence, willful misconduct or bad faith on
its part, arising out of or in connection with the acceptance or administration
of its powers and duties under this Agreement, including the reasonable
out-of-pocket costs and expenses (including reasonable fees and expenses of
counsel) of defending itself against any claim or liability in connection with
the exercise or performance of such powers and duties or collecting such
amounts. The Remarketing Agent shall promptly notify the Company of any third
party claim which may give rise to the indemnity hereunder and give the Company
the opportunity to participate in the defense of such claim with counsel
reasonably satisfactory to the indemnified party, and no such claim shall be
settled without the written consent of the Company, which consent shall not be
unreasonably withheld.
Section 11. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Section 12. Term of Agreement.
(a) Unless otherwise terminated in accordance with the provisions
hereof and except as otherwise provided herein, this Agreement shall remain in
full force and effect from the date hereof until the third Business Day
immediately following the earlier of (i) a successful remarketing, and (ii) a
Stock Purchase Date. Anything herein to the contrary notwithstanding, the
provisions of the second and third sentences of Section 8 hereof and the
provisions of Sections 3, 9, 10 and 12(b) hereof shall survive any termination
of this Agreement and remain in full force and effect.
(b) All representations and warranties included in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Remarketing Agent or any of its
controlling persons, or by or on behalf of the Company or the Forward Purchase
Contract Agent, and shall survive the termination of this Agreement.
Section 13. Successors and Assigns.
The rights and obligations of the Company and the Forward Purchase
Contract Agent (both in its capacity as Forward Purchase Contract Agent and as
attorney-in-fact for the Holders) hereunder may not be assigned or delegated to
any other person (except pursuant to sections 7.9, 7.10 and 7.11 and Article IX
of the Forward Purchase Contract Agreement) without the prior written consent of
the Remarketing Agent, which consent shall not be unreasonably withheld.
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The rights and obligations of the Remarketing Agent hereunder may not
be assigned or delegated to any other person without the prior written consent
of the Company, except that the Remarketing Agent shall have the right to
appoint additional remarketing agents as provided herein. This Agreement shall
inure to the benefit of and be binding upon the Company, the Forward Purchase
Contract Agent and the Remarketing Agent and their respective successors and
permitted assigns. The terms "successors" and "assigns" shall not include any
purchaser of Notes merely because of such purchase.
Section 14. Headings.
Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and such section headings are not a part of this
Agreement and will not be used in the interpretation of any provision of this
Agreement.
Section 15. Severability.
If any provision of this Agreement is invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provisions of any constitution, statute, rule or
public policy or for any other reason, then, to the extent permitted by law,
such circumstances shall not have the effect of rendering the provision in
question invalid, inoperative or unenforceable in any other case, circumstances
or jurisdiction, or of rendering any other provision or provisions of this
Agreement, as the case may be, invalid, inoperative or unenforceable to any
extent whatsoever.
Section 16. Counterparts.
This Agreement may be executed in counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same
document.
Section 17. Amendments.
This Agreement may be amended only by an instrument in writing signed
by the parties hereto.
Section 18. Notices.
Unless otherwise specified, any notices, requests, consents or other
communications given or made hereunder shall be made in writing or transmitted
by any standard form of telecommunication, including telephone or telecopy, and
confirmed in writing. All written notices and confirmations of notices by
telecommunication shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested and
postage prepaid. All such notices, requests, consents or other communications
shall be addressed as follows: if to the Company, to Capital One Financial
Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, fax number: (703)
▇▇▇-▇▇▇▇, Attention: Director of Capital Markets, with a copy to the
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General Counsel; if to the Remarketing Agent, to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, fax number: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: General Counsel; if to the Collateral Agent, to BNY Midwest Trust
Company; and if to the Forward Purchase Contract Agent, to BNY Midwest Trust
Company, or to such other address as any of the above shall specify to the
others in writing.
Section 19. Information.
The Company agrees to furnish the Remarketing Agent with such
information and documents as the Remarketing Agent may reasonably request in
connection with the transactions contemplated by this , and
if the remarketing is effected pursuant to a registration statement in
accordance with Section 6 hereof, make reasonably available to the Remarketing
Agent and any accountant, attorney or other advisor retained by the Remarketing
Agent such information that parties would customarily require in connection with
a due diligence investigation conducted in accordance with applicable securities
laws and cause the Company's officers, directors, employees and accountants to
participate in such discussions and to supply all such information reasonably
requested by the Remarketing Agent and its advisors in connection with such
investigation.
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IN WITNESS WHEREOF, each of the Company, the Forward Purchase Contract
Agent and the Remarketing Agent has caused this Agreement to be executed in its
name and on its behalf by one of its duly authorized signatories as of the date
first above written.
CAPITAL ONE FINANCIAL CORPORATION
By:
------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
BNY MIDWEST TRUST COMPANY
not individually but solely as Forward Purchase Contract Agent
and as attorney-in-fact for the Holders of the Forward Purchase Contracts
By:
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Name:
Title:
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