Exhibit 4.1
EXECUTION COPY
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SERIES 2002-CC SUPPLEMENT
Dated as of October 9, 2002
to
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of September 30, 1993, amended and restated as of August 1, 2002
CAPITAL ONE MASTER TRUST
SERIES 2002-CC
among
CAPITAL ONE BANK
Servicer
CAPITAL ONE FUNDING, LLC
Transferor
and
THE BANK OF NEW YORK
Trustee
on behalf of the Series 2002-CC Certificateholder
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TABLE OF CONTENTS
Page
ARTICLE I
Creation of the Series 2002-CC Certificate
Section 1.01. Designation ................................................................ 1
ARTICLE II
Definitions
Section 2.01. Definitions ................................................................ 2
Section 2.02. Amendment to Section 2.08 of the Agreement ................................. 7
ARTICLE III
Servicer and Trustee
Section 3.01. Servicing Compensation ..................................................... 8
ARTICLE IV
Rights of Series 2002-CC Certificateholders and Allocation and
Application of Collections
Section 4.01. Collections and Allocations ................................................ 8
Section 4.02. Application of Available Funds and Available Investor
Principal Collections ...................................................... 10
Section 4.03. Excess Finance Charges ..................................................... 10
Section 4.04. Shared Principal Collections ............................................... 10
Section 4.05. Collections of Finance Charge Receivables Allocable to
Segregated Transferor Interest ............................................. 11
ARTICLE V
Distributions and Reports to Series 2002-CC Certificateholders
Section 5.01. Distributions .............................................................. 11
Section 5.02. Reports and Statements to Series 2002-CC Certificateholders ................ 11
ARTICLE VI
Additional Pay Out Events
Section 6.01. Additional Pay Out Events ................................................... 12
ARTICLE VII
[Reserved]
ARTICLE VIII
Final Distributions
Section 8.01. Transfer of Receivables or Certificateholders' Interest pursuant to
Section 2.06 or 10.01 of the Agreement ...................................... 13
Section 8.02. Distribution of Proceeds of Sale, Disposition or Liquidation of the
Receivables pursuant to Section 9.02 of the Agreement ....................... 14
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TABLE OF CONTENTS
(continued)
Page
ARTICLE IX
Sale of Receivables
Section 9.01. Sale of Receivables .................................................................. 15
ARTICLE X
New Issuances
Section 10.01. New Issuances ........................................................................ 15
ARTICLE XI
Miscellaneous Provisions
Section 11.01. Ratification of Agreement ............................................................ 15
Section 11.02. Counterparts ......................................................................... 15
Section 11.03. GOVERNING LAW ........................................................................ 15
Section 11.04. Certain Tax Related Amendments ....................................................... 16
Section 11.05. Treatment of Noteholders ............................................................. 16
Section 11.06. Transfer of the Series 2002-CC Certificate ........................................... 16
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TABLE OF CONTENTS
(continued)
EXHIBITS
EXHIBIT A Form of Series 2002-CC Certificate
EXHIBIT B Form of Monthly Certificateholders' Statement
EXHIBIT C Form of Monthly Servicing Officer's Certificate
EXHIBIT D List of Account Designation
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SERIES 2002-CC SUPPLEMENT, dated as of October 9, 2002 (the
"Supplement"), among CAPITAL ONE BANK, a Virginia savings bank, as the Servicer,
CAPITAL ONE FUNDING, LLC, a Virginia limited liability company, as the
Transferor, and THE BANK OF NEW YORK, a New York banking corporation, as the
Trustee.
Pursuant to the Amended and Restated Pooling and Servicing Agreement,
dated as of September 30, 1993, as amended and restated as of August 1, 2002 (as
amended and restated and as amended and supplemented, the "Agreement"), among
the Transferor, the Servicer and the Trustee, the Transferor has created Capital
One Master Trust (the "Trust"). Section 6.03 of the Agreement provides that the
Transferor may from time to time direct the Trustee to authenticate one or more
new Series of Investor Certificates representing fractional undivided interests
in the Trust. The Principal Terms of any new Series are to be set forth in a
Supplement to the Agreement.
Pursuant to this Supplement, the Transferor and the Trustee shall
create a new Series of Investor Certificates and specify the Principal Terms
thereof.
ARTICLE I
Creation of the Series 2002-CC Certificate
Section 1.01. Designation.
(a) There is hereby created a Series consisting of an Investor
Certificate to be issued pursuant to the Agreement and this Supplement to be
known as "Capital One Master Trust, Series 2002-CC." The Series 2002-CC
Certificate shall be known as the "Asset Backed Certificate, Series 2002-CC."
The Series 2002-CC Certificate shall constitute a "security" within the meaning
of (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15)
thereof) as in effect from time to time in the State of New York and (ii) the
Uniform Commercial Code of any other applicable jurisdiction that presently or
hereafter substantially includes the 1994 revisions to Article 8 thereof as
adopted by the American Law Institute and the National Conference of
Commissioners on Uniform State Laws and approved by the American Bar Association
on February 14, 1995.
(b) Series 2002-CC shall be included in Group One and shall be a
Principal Sharing Series. Series 2002-CC shall not be subordinated to any other
Series. Notwithstanding any provision in the Agreement or in this Supplement to
the contrary, the first Distribution Date with respect to Series 2002-CC shall
be the November 2002 Distribution Date.
(c) In the event that any term or provision contained herein shall
conflict with or be inconsistent with any term or provision contained in the
Agreement, the terms and provisions of this Supplement shall govern.
(d) This Supplement is the Series 2002-CC Supplement referred to in
the Transfer and Administration Agreement, dated as of October 9, 2002, among
Capital One Multi-asset Execution Trust, as issuer, the Transferor, as
transferor, Capital One Bank, as administrator, and The Bank of New York, as
indenture trustee.
(e) Except as expressly provided herein, (i) the provisions of
Article VI and Article XII of the Agreement relating to the registration,
authentication, delivery, presentation, cancellation and surrender of Registered
Certificates and (ii) the provisions of Section 3.07 of the Agreement shall not
apply to cause the Series 2002-CC Certificate to be treated as debt for federal,
state and local income and franchise tax purposes, but rather the Transferor
intends and, together with the Series 2002-CC Certificateholder, agrees to treat
the Series 2002-CC Certificate for federal, state and local income and franchise
tax purposes as representing an equity interest in the assets of the Trust.
ARTICLE II
Definitions
Section 2.01. Definitions.
(a) Whenever used in this Supplement, the following words and phrases
shall have the following meanings, and the definitions of such terms are
applicable to the singular as well as the plural forms of such terms and the
masculine as well as the feminine and neuter genders of such terms.
"Adjusted Outstanding Dollar Principal Amount" shall have the meaning
specified in the Indenture.
"Asset Pool 1" shall mean the Asset Pool (as such term is defined in
the Indenture) designated pursuant to the Asset Pool 1 Supplement.
"Asset Pool 1 Excess Finance Charges" is defined in the Asset Pool 1
Supplement.
"Asset Pool 1 Finance Charge Shortfall" is defined in the Asset Pool 1
Supplement.
"Asset Pool 1 Principal Shortfall" is defined in the Asset Pool 1
Supplement.
"Asset Pool 1 Supplement" shall mean the Asset Pool 1 Supplement to
the Indenture, dated as of October 9, 2002, between Capital One Multi-asset
Execution Trust, as issuer, and The Bank of New York, as indenture trustee, as
amended and supplemented from time to time.
"Available Funds" shall mean, with respect to any Monthly Period, an
amount equal to the Collections of Finance Charge Receivables (other than
Finance Charge Receivables allocated to Servicer Interchange with respect to
such Monthly Period) allocated to the Series 2002-CC Certificate (including any
investment earnings that are to be treated as Collections of Finance Charge
Receivables in accordance with the Agreement and this Supplement).
"Available Investor Principal Collections" shall mean, with respect to
any Monthly Period, an amount equal to the sum of (a) an amount equal to the
Principal Allocation Percentage of all Collections of Principal Receivables
received during such Monthly Period, plus (b) the amount of Miscellaneous
Payments, if any, for such Monthly Period that are allocated to Series 2002-CC
pursuant to Section 4.03 of the Agreement, plus (c) any Shared Principal
Collections with respect to
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other Series that are allocated to Series 2002-CC in accordance with Section
4.04 of the Agreement and Section 4.04 hereof.
"Certificate Representative" shall mean (a) if there is one Holder of
the Series 2002-CC Certificate, such Holder or the designee of such Holder, and
(b) if there is more than one Holder of the Series 2002-CC Certificate, the
designee of the Holders of a majority of the outstanding principal balance of
the Series 2002-CC Certificate.
"Certificateholder Servicing Fee" shall have the meaning specified in
Section 3.01.
"Collateral Certificate" shall have meaning specified in the
Indenture.
"Closing Date" shall mean October 9, 2002.
"Cut-Off Date" shall mean October 1, 2002.
"Excess Shared Principal Collections" shall mean the excess of the
Shared Principal Collections over the aggregate amount of Principal Shortfalls
for all Series, as defined in each related Supplement, which are Principal
Sharing Series for such Distribution Date.
"Finance Charge Shortfall" shall have the meaning specified in Section
4.03.
"Floating Allocation Amount" shall mean, on any date of determination
during any Monthly Period, an amount equal to the sum of the numerators used in
the calculation of the Floating Allocation Percentage (as defined in the Asset
Pool 1 Supplement) for all series of Notes for such Monthly Period minus the sum
of the numerators used to calculate the floating allocation percentage (as
defined in the related series supplement) for each Collateral Certificate (other
than the Series 2002-CC Certificate) included in Asset Pool 1.
"Floating Allocation Percentage" shall mean, with respect to any
Monthly Period, the percentage equivalent (which percentage shall never exceed
100%) of a fraction, the numerator of which is the Floating Allocation Amount as
of the last day of the preceding Monthly Period and the denominator of which is
the sum of (a) the total amount of Principal Receivables in the Trust as of the
close of business on the last day of the preceding Monthly Period (or, with
respect to the first Monthly Period, the Cut-Off Date) and (b) the principal
amount on deposit in the Excess Funding Account as of the close of business on
the last day of the preceding Monthly Period; provided, however, that the amount
calculated above pursuant to clause (a) of the denominator shall be increased by
the aggregate amount of Principal Receivables in Additional Accounts added to
the Trust during such Monthly Period as though such Receivables had been added
to the Trust as of the first day of such Monthly Period and decreased by the
aggregate amount of Principal Receivables removed from the Trust during such
Monthly Period as though such Receivables had been removed from the Trust as of
the first day of such Monthly Period.
"Group One" shall mean Series 2002-CC and each other series specified
in the related Supplement to be included in Group One.
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"Indenture" shall mean the Indenture, dated as of October 9, 2002,
between Capital One Multi-asset Execution Trust, as issuer, and The Bank of New
York, as indenture trustee, as amended and supplemented from time to time.
"Indenture Supplement" shall have the meaning specified in the
Indenture.
"Initial Invested Amount" shall mean, with respect to Series 2002-CC
on any date of determination, the Principal Allocation Amount on such date of
determination.
"Insolvency Proceeds" shall mean any proceeds arising out of a sale,
disposition or liquidation of Receivables (or interests therein) pursuant to
subsection 9.02(a) of the Agreement.
"Invested Amount" shall mean, with respect to Series 2002-CC, on any
date of determination, an amount equal to the sum of the Nominal Liquidation
Amounts for each tranche of Asset Pool 1 Notes Outstanding as of such date of
determination minus the aggregate invested amounts (as defined in the related
series supplement) for each Collateral Certificate (other than the Series
2002-CC Certificate) included in Asset Pool 1.
"Legal Maturity Date," with respect to any tranche of Asset Pool 1
Notes, shall have the meaning specified in the Indenture.
"Monthly Interest Proxy Amount" shall mean, with respect to any
Monthly Period, as determined on any date of determination, an amount equal to
the amount that would be deposited into the Interest Funding sub-Accounts for
all Outstanding Tranches of Notes for such Monthly Period minus the sum of the
monthly interest proxy amounts, if any, for each Collateral Certificate (other
than the Series 2002-CC Certificate) included in Asset Pool 1 assuming, unless
the Servicer shall have knowledge to the contrary, that (i) the Floating
Allocation Amount on such date of determination will be the Floating Allocation
Amount on each day remaining in such Interest Period and (ii) the rate at which
amounts are deposited into the Interest Funding sub-Accounts for all Outstanding
Tranches of Notes for such Monthly Period is 120% of the corresponding rate for
the immediately preceding Interest Period.
"Monthly Interest Target" shall mean, with respect to each Monthly
Period, an amount equal to the aggregate Targeted Interest Deposit Amounts (as
defined in the Asset Pool 1 Supplement) for all series of Asset Pool 1 Notes for
such Monthly Period minus the sum of the monthly interest targets (as defined in
the related series supplement), if any, for each Collateral Certificate (other
than the Series 2002-CC Certificate) included in Asset Pool 1.
"Monthly Principal Target" shall mean, with respect to each Monthly
Period, an amount equal to the aggregate Targeted Principal Deposit Amounts (as
defined in the Asset Pool 1 Supplement) for all series of Notes for such Monthly
Period minus the sum of the monthly principal targets (as defined in the related
series supplement), if any, for each Collateral Certificate (other than the
Series 2002-CC Certificate) included in Asset Pool 1.
"Monthly Servicing Fee" shall have the meaning specified in Section
3.01.
"Monthly Servicing Fee Proxy Amount" shall mean, with respect to any
Monthly Period, as determined on any date of determination, an amount equal to
the Monthly Servicing Fee
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calculated assuming, unless the Servicer shall have knowledge to the contrary,
that the Floating Allocation Amount on such date of determination will be the
Floating Allocation Amount on each day remaining in such Monthly Period.
"Net Servicing Fee Rate" shall mean (a) so long as Capital One or The
Bank of New York is the Servicer, 1.25% per annum and (b) if Capital One or The
Bank of New York is no longer the Servicer, 2.0% per annum.
"Netting Conditions" shall mean, with respect to any date of
determination (i) no Series 2002-CC Adverse Event shall have occurred and be
continuing, (ii) the Servicer shall have a long-term unsecured debt rating of
not lower than Baa3 by Moody's and (iii) all amounts required to be deposited by
the Transferor into the Excess Funding Account shall be on deposit in the Excess
Funding Account on such date of determination.
"Nominal Liquidation Amount," with respect to any tranche of Notes,
shall have the meaning specified in the Indenture or any supplement thereto.
"Nonvariable Accumulation Series" shall mean each outstanding Series
that is not a Variable Funding Series or a Variable Accumulation Series.
"Note" shall mean any Asset Pool 1 Note (as defined in the Asset Pool
1 Supplement).
"Outstanding" shall have the meaning specified in the Indenture.
"Outstanding Dollar Principal Amount" shall have the meaning specified
in the Indenture.
"Permitted Assignee" shall mean any Person who, if it were the holder
of an interest in the Trust, would not cause the Trust to be taxable as a
publicly traded partnership for federal income tax purposes.
"Principal Allocation Amount" shall mean, on any date of determination
during any Monthly Period, an amount equal to the sum of the numerators used in
the calculation of the Principal Allocation Percentage (as defined in the Asset
Pool 1 Supplement) for all series of Notes for such Monthly Period minus the sum
of the numerators used to calculate the principal allocation percentage (as
defined in the related series supplement) for each Collateral Certificate (other
than the Series 2002-CC Certificate) included in Asset Pool 1.
"Principal Allocation Percentage" shall mean, with respect to any day
during a Monthly Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is the Principal Allocation
Amount for such date and the denominator of which is the greater of (a) the sum
of the total amount of Principal Receivables in the Trust as of the last day of
the immediately preceding Monthly Period and the principal amount on deposit in
the Excess Funding Account as of such last day (or, in the case of the first
Monthly Period, the Cut-Off Date) and (b) the sum of the numerators used to
calculate the principal allocation percentages for all Series outstanding as of
the date as to which such determination is being made; provided, however, that
the amount calculated above pursuant to clause (a) of the denominator shall be
increased by the
5
aggregate amount of Principal Receivables in Additional Accounts added to the
Trust during such Monthly Period as though such Receivables had been added to
the Trust as of the first day of such Monthly Period and decreased by the
aggregate amount of Principal Receivables removed from the Trust during such
Monthly Period as though such Receivables had been removed from the Trust as of
the first day of such Monthly Period.
"Principal Shortfall" shall have the meaning specified in Section
4.04.
"Reallocation Amount" shall mean, with respect to any Monthly Period,
the sum of the Reallocated Principal Amounts (as defined in the Asset Pool 1
Supplement) for Asset Pool 1 for such Monthly Period minus the sum of the
reallocation amounts (as defined in the related series supplement), if any, for
each Collateral Certificate (other than the Series 2002-CC Certificate) included
in Asset Pool 1.
"Reassignment Amount" shall mean, with respect to any Distribution
Date, the sum of (a) the Adjusted Outstanding Dollar Principal Amount of all
Notes on such Distribution Date, (b) the Monthly Interest Target with respect to
the immediately preceding Monthly Period and (c) any other fees and expenses of
the Indenture Trustee payable by the Capital One Multi-asset Execution Trust
pursuant to the Indenture, each after giving effect to any deposits and
distributions otherwise to be made on such Distribution Date minus the sum of
the reassignment amounts (as defined in the related series supplement), if any,
for each Collateral Certificate (other than the Series 2002-CC Certificate)
included in Asset Pool 1.
"Required Deposit Amount" shall mean, with respect to any Monthly
Period, as determined on any date of determination, the sum of (a) the Monthly
Interest Proxy Amount for the related Interest Period plus, (b) the Monthly
Servicing Fee Proxy Amount for such Monthly Period and any Monthly Servicing Fee
previously due but not distributed to the Servicer pursuant to the Indenture or
any supplement thereto, plus (c) the Series Default Proxy Amount for such
Monthly Period, plus (d) the aggregate amount of Nominal Liquidation Amount
Deficits (as defined in the Asset Pool 1 Supplement), plus (e) any other amounts
identified in the Asset Pool 1 Supplement minus the sum of the required deposit
amounts (as defined in the related series supplement), if any, for each
Collateral Certificate (other than the Series 2002-CC Certificate) included in
Asset Pool 1.
"Segregated Transferor Interest" shall mean a dollar amount of the
Transferor Interest equal to the aggregate prefunded amounts on deposit in the
principal funding accounts for each series of Notes minus the sum of the
segregated transferor interests, if any, for each Collateral Certificate (other
than the Series 2002-CC Certificate) included in Asset Pool 1, as notified to
the Servicer pursuant to Section 4.05.
"Series 2002-CC" shall mean the Series of Investor Certificates, the
terms of which are specified in this Supplement, represented by the Series
2002-CC Certificate.
"Series 2002-CC Adverse Event" shall mean any of the following events:
(i) a Pay Out Event with respect to Series 2002-CC;
(ii) an Early Redemption Event as described in Section
4.01(a)(i) of the Card Series Indenture Supplement with respect to any
Card Series Notes or similar
6
early redemption event relating to excess spread amounts or portfolio
yield as described in the Indenture Supplement for any other
Outstanding Series of Notes in Asset Pool 1; or
(iii) an Event of Default and acceleration as described in
Section 601(a) or (b) of the Indenture with respect to any Outstanding
Notes.
"Series 2002-CC Certificate" shall mean the Certificate executed by
the Transferor and authenticated by or on behalf of the Trustee, substantially
in the form of Exhibit A.
"Series 2002-CC Certificateholder" shall mean a Person in whose name
the Series 2002-CC Certificate is registered in the Certificate Register.
"Series 2002-CC Monthly Principal Payment" shall mean, with respect to
each Monthly Period, an amount equal to the aggregate Monthly Principal Payments
(as defined in the Asset Pool 1 Supplement) for each series of Notes for such
Monthly Period minus the sum of the series monthly principal payments (as
defined in the related series supplement), if any, for each Collateral
Certificate (other than the Series 2002-CC Certificate) included in Asset Pool 1
for such Monthly Period.
"Series Default Proxy Amount" shall mean, with respect to any Monthly
Period, as determined on any date of determination, an amount equal to 200% of
the Asset Pool 1 Defaulted Amount (as defined in the Indenture or any supplement
thereto) for the prior Monthly Period minus the sum of the series default proxy
amounts (as defined in the related series supplement), if any, for each
Collateral Certificate (other than the Series 2002-CC Certificate) included in
Asset Pool 1 for such Monthly Period.
"Servicing Base Amount" shall have the meaning specified in Section
3.01.
"Servicing Fee Rate" shall mean 2.00%.
"Subordinated Interest Percentage" means, with respect to any date of
determination during any Monthly Period, the percentage equivalent of a
fraction, the numerator of which is the sum of the numerators used in the
calculation of the Principal Allocation Percentage (as defined in the related
Indenture Supplements) for such date calculated for those Notes that are
subordinated to any senior Notes and the denominator of which is the sum of the
numerators used in the calculation of the Principal Allocation Percentage (as
defined in the related Indenture Supplements) for such date calculated for all
the Notes.
"Targeted Reallocation Deposit" shall mean, with respect to each
Monthly Period, an amount equal to the excess, if any, of (a) the sum of (i) the
Monthly Interest Proxy Amount for the related Interest Period, plus (ii) the
Monthly Servicing Fee Proxy Amount for such Monthly Period and any Monthly
Servicing Fee previously due but not distributed to the Servicer pursuant to the
Indenture or any supplement thereto, minus (iii) the sum of the targeted
reallocation deposit, if any, for each Collateral Certificate (other than the
Series 2002-CC Certificate) included in Asset Pool 1 over (b) the aggregate
amount of Collections of Finance Charge Receivables allocated to the Series
2002-CC Certificateholders for the preceding Monthly Period assuming, unless the
Servicer shall
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have knowledge to the contrary, that the Floating Allocation Amount on such date
of determination was the Floating Allocation Amount for each day during such
preceding Monthly Period.
"Termination Date" shall mean the date designated by the Transferor
following the last Legal Maturity Date of any series, class or tranche of Asset
Pool 1 Notes.
"Variable Accumulation Series" shall mean each outstanding Series,
other than any Variable Funding Series, for which, pursuant to the terms of the
related Supplement, at the time a determination is made pursuant to Section
4.03(f), the commencement date of the Accumulation Period may be changed.
"Variable Funding Series" shall mean any Series designated in the
related Supplement as a Variable Funding Series.
(b) Notwithstanding anything to the contrary in this Supplement or
the Agreement, the term "Rating Agency" shall mean, whenever used in this
Supplement or the Agreement with respect to Series 2002-CC, Moody's and Standard
& Poor's and Fitch. As used in this Supplement and in the Agreement with respect
to Series 2002-CC, "highest investment ratings category" shall mean (i) in the
case of Standard & Poor's, A-1+, AAA, AAAm or AAAm-G, as applicable, (ii) in the
case of Moody's, P-1 or Aaa, as applicable and (iii) in the case of Fitch, if
rated by Fitch, F1+ or AAA, as applicable.
(c) Notwithstanding any provision of the Agreement or this
Supplement, the term "Paying Agent" when used in the Agreement or this
Supplement with respect to Series 2002-CC, shall mean, the Paying Agent
specified pursuant to the Agreement, and any successor paying agents with
respect to the Series 2002-CC Certificate as the Transferor may appoint from
time to time in accordance with the provisions of the Agreement.
(d) All capitalized terms used herein and not otherwise defined
herein have the meanings ascribed to them in the Agreement.
(e) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Supplement shall refer to this Supplement as a whole
and not to any particular provision of this Supplement; references to any
Article, Section or Exhibit are references to Articles, Sections and Exhibits in
or to this Supplement unless otherwise specified; and the term "including" means
"including without limitation."
Section 2.02. Amendment to Section 2.08 of the Agreement. Subsection
2.08(c)(i) of the Agreement is hereby amended and restated in its entirety to
read as follows:
(a) Automatic Additional Accounts. (i) The Transferor may from time
to time, at its sole discretion, subject to and in compliance with the
limitations specified in clause (ii) below and the applicable conditions
specified in paragraph (d) below, designate Eligible Accounts to be included as
Accounts as of the applicable Addition Date. For purposes of this paragraph,
Eligible Accounts shall be deemed to include only revolving credit card accounts
or other revolving credit accounts which (x) are originated by an Account Owner
or any Affiliate of an Account Owner, (y) are of a type included as Initial
Accounts or which have previously been included in any Addition which has been
effected in accordance with all of the conditions specified in paragraph (d)
below
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and (z) have a designation in the Transferor's credit card master file other
than the designations listed on Exhibit D, as such exhibit may be supplemented,
revised or amended in writing by the Transferor.
ARTICLE III
Servicer and Trustee
Section 3.01. Servicing Compensation. The share of the Servicing Fee
allocable to the Series 2002-CC Certificateholders with respect to any
Distribution Date (the "Monthly Servicing Fee") shall be equal to one-twelfth of
the product of (a) the Servicing Fee Rate and (b) the Floating Allocation Amount
for the Monthly Period preceding such Distribution Date (the amount calculated
pursuant to this clause (b) is referred to as the "Servicing Base Amount");
provided, however, with respect to the first Distribution Date, the Monthly
Servicing Fee shall be equal to the product of (i) the Servicing Base Amount for
the first Monthly Period, (ii) the Servicing Fee Rate and (iii) a fraction, the
numerator of which is 22 and the denominator of which is 360. On each
Distribution Date, but only if a Transferor or The Bank of New York is the
Servicer, Servicer Interchange with respect to the related Monthly Period that
is on deposit in the Collection Account shall be withdrawn from the Collection
Account and paid to the Servicer in payment of a portion of the Monthly
Servicing Fee with respect to such Monthly Period. In the case of any
insufficiency of Servicer Interchange on deposit in the Collection Account, a
portion of the Monthly Servicing Fee with respect to such Monthly Period will
not be paid to the extent of such insufficiency of Servicer Interchange. The
share of the Monthly Servicing Fee allocable to the Series 2002-CC
Certificateholders (after giving effect to the distribution of Servicer
Interchange, if any, to the Servicer) with respect to any Distribution Date (the
"Certificateholder Servicing Fee") shall be equal to one-twelfth of the product
of (a) the Net Servicing Fee Rate and (b) the Servicing Base Amount; provided,
however, that with respect to the first Distribution Date, the Certificateholder
Servicing Fee shall be equal to the product of (i) the Servicing Base Amount for
the first Monthly Period, (ii) the Net Servicing Fee Rate and (iii) a fraction,
the numerator of which is 22 and the denominator of which is 360. The remainder
of the Servicing Fee shall be paid by the Transferor or the Certificateholders
of other Series (as provided in the related Supplements) and in no event shall
the Trust, the Trustee or the Series 2002-CC Certificateholders be liable for
the share of the Servicing Fee to be paid by the Transferor or the
Certificateholders of any other Series.
ARTICLE IV
Rights of Series 2002-CC Certificateholders and
Allocation and Application of Collections
Section 4.01. Collections and Allocations.
(a) Collections. The Servicer will apply, or will instruct the
Trustee to apply, all funds on deposit in the Collection Account allocable to
the Series 2002-CC Certificate as described in this Article IV.
(b) Allocations of Collections of Finance Charge Receivables to the
Series 2002-CC Certificateholders. Notwithstanding any provisions of Section
4.03 of the Agreement to the contrary, the Servicer shall, prior to the close of
business on any Date of Processing during any
9
Monthly Period, allocate Collections of Finance Charge Receivables to the Series
2002-CC Certificateholders, for deposit into the Collection Account on such date
and application as provided herein, in an amount equal to the product of (A) the
Floating Allocation Percentage for such Monthly Period and (B) the aggregate
amount of Collections of Finance Charge Receivables received by the Servicer on
the Date of Processing relating to such Date of Processing; provided that so
long as the Netting Conditions are satisfied, after the date on which an amount
of such Collections of Finance Charge Receivables equal to the Required Deposit
Amount for such Monthly Period has been deposited into the Collection Account
and allocated to the Series 2002-CC Certificateholders, any amounts in excess
thereof may be withdrawn from the Collection Account and retained by the
Servicer until applied pursuant to Section 4.02 on the related Distribution
Date.
(c) Allocations of Collections of Principal Receivables to the Series
2002-CC Certificateholders. Notwithstanding any provisions of Section 4.03 of
the Agreement to the contrary, the Servicer shall, prior to the close of
business on any Date of Processing during each Monthly Period, allocate
Collections of Principal Receivables to the Series 2002-CC Certificateholders,
for deposit into the Collection Account on such date and application as provided
herein, in an amount equal to the product of (A) the Principal Allocation
Percentage for such Monthly Period and (B) the aggregate amount of Collections
of Principal Receivables received by the Servicer on such Date of Processing;
provided that, so long as (x) a Pay Out Event with respect to Series 2002-CC
shall not have occurred and be continuing and (y) an event as described in
clause (ii) of the definition of Series 2002-CC Adverse Event shall not have
occurred with respect to all Outstanding Notes, after the date on which an
amount of such Collections of Principal Receivables equal to the sum of:
(i) the Monthly Principal Target for such Monthly Period,
(ii) an amount equal to the lesser of (i) the Targeted Reallocation
Deposit, if any, on the related Distribution Date and (ii) the product of
(x) the Principal Allocation Percentage for such Monthly Period, (y) the
aggregate amount of Collections of Principal Receivables received by the
Servicer on or prior to such Date of Processing and (z) the Subordinated
Interest Percentage for such Monthly Period, and
(iii) if any other Principal Sharing Series is outstanding and in its
revolving period or accumulation period, the amount necessary to be treated
as Shared Principal Collections, for such other Series, if any, on the
related Distribution Date,
has been deposited into the Collection Account and allocated to the Series
2002-CC Certificateholders, any amounts in excess thereof may be withdrawn from
the Collection Account and paid to the Transferor, but only if (i) the
Transferor's Participation Amount exceeds the Required Transferor's Interest and
the aggregate amount of Principal Receivables exceeds the Required Principal
Balance, and otherwise such amounts shall be deposited into the Excess Funding
Account.
In addition, on each Distribution Date, the Transferor will deposit in
the Collection Account for application in accordance with Section 4.02 an amount
equal to the lesser of (i) the product of (x) the Principal Allocation
Percentage for such Monthly Period, (y) the aggregate amount of Collections of
Principal Receivables received by the Servicer for such Monthly Period and (z)
the Subordinated Interest Percentage for such Monthly Period, and (ii) the
Reallocation
10
Amount for such Distribution Date minus the amount, if any, previously deposited
in clause (c)(ii) above.
Section 4.02. Application of Available Funds and Available Investor
Principal Collections. The Servicer shall cause the Trustee to apply, on each
Distribution Date, Available Funds and Available Investor Principal Collections
with respect to such Distribution Date to make the following distributions:
(a) On each Distribution Date, an amount equal to the Available Funds
with respect to such Distribution Date will be distributed to the Series
2002-CC Certificateholders.
(b) On each Distribution Date, an amount equal to the Available
Investor Principal Collections deposited in the Collection Account for the
related Monthly Period will be distributed in the following priority:
(i) an amount equal to the Series 2002-CC Monthly Principal Payment
for the related Monthly Period shall be distributed to the Series 2002-CC
Certificateholders; and
(ii) for each Distribution Date, after giving effect to paragraph (i)
above, an amount equal to the balance, if any, of such Available Investor
Principal Collections then on deposit in the Collection Account shall be
treated as Shared Principal Collections and applied in accordance with
Section 4.04 of the Agreement.
Section 4.03. Excess Finance Charges. Series 2002-CC shall be
included in Group One. Subject to Section 4.05 of the Agreement, Excess Finance
Charges with respect to the Series in Group One for any Distribution Date will
be allocated to Series 2002-CC in an amount equal to the product of (x) the
aggregate amount of Excess Finance Charges with respect to all the Series in
Group One for such Distribution Date and (y) a fraction, the numerator of which
is the Finance Charge Shortfall for Series 2002-CC for such Distribution Date
and the denominator of which is the aggregate amount of Finance Charge
Shortfalls for all the Series in Group One for such Distribution Date. The
amount of Excess Finance Charges for Series 2002-CC for any Distribution Date
shall be an amount equal to the Asset Pool 1 Excess Finance Charges minus the
excess finance charges (as defined in the related series supplement), if any,
for each Collateral Certificate (other than the Series 2002-CC Certificate)
included in Asset Pool 1. The "Finance Charge Shortfall" for Series 2002-CC for
any Distribution Date will be equal to the Asset Pool 1 Finance Charge Shortfall
minus the finance charge shortfall, if any, for each Collateral Certificate
(other than the Series 2002-CC Certificate) included in Asset Pool 1.
Section 4.04. Shared Principal Collections. Subject to Section 4.04
of the Agreement, Shared Principal Collections for any Distribution Date will be
allocated to Series 2002-CC in an amount equal to the product of (x) the
aggregate amount of Shared Principal Collections with respect to all Series for
such Distribution Date and (y) a fraction, the numerator of which is the
Principal Shortfall for Series 2002-CC for such Distribution Date and the
denominator of which is the aggregate amount of Principal Shortfalls for all the
Series which are Principal Sharing Series for such Distribution Date. The
"Principal Shortfall" for Series 2002-CC will be equal to, for any Distribution
Date, the excess, if any, of the Asset Pool 1 Principal Shortfall minus the
principal
11
shortfall, if any, for each Collateral Certificate (other than the Series
2002-CC Certificate) included in Asset Pool 1.
Section 4.05. Collections of Finance Charge Receivables Allocable to
Segregated Transferor Interest. The Certificate Representative may from time to
time notify the Servicer of the existence of a prefunding target amount and of
the amount of the Transferor Interest that is to be the Segregated Transferor
Interest in an amount equal to the prefunded amounts on deposit in the Principal
Funding Accounts (as defined in the Indenture and any supplement thereto) for
any series of Notes minus the sum of the segregated transferor amounts, if any,
for each Collateral Certificate (other than the Series 2002-CC Certificate)
included in Asset Pool 1. Prior to the close of business on the day any
Collections are deposited in the Collection Account during the Monthly Period in
which such notice was given from and after the date of such notice, the Servicer
will:
(a) allocate to the Segregated Transferor Interest and deposit in the
Collection Account the aggregate amount of all Collections of Finance Charge
Receivables allocable to the Segregated Transferor Interest with respect to such
Monthly Period, and
(b) on the following Distribution Date, (i) pay to the Series 2002-CC
Certificateholders an amount equal to the lesser of (x) the aggregate amount
deposited in the Collection Account pursuant to clause (a) above, and (y) the
aggregate amount of all Prefunding Earnings Shortfalls (as defined in the
Indenture and the related supplements thereto) for all tranches of Notes with
respect to such Monthly Period minus the aggregate amount paid to the Capital
One Multi-asset Execution Trust in respect of segregated transferor interest
finance charge collections, if any, for each Collateral Certificate (other than
the Series 2002-CC Certificate) included in Asset Pool 1 and (ii) pay to the
Holder of the Transferor Interest an amount equal to any excess; provided,
however, that within two (2) Business Days of the occurrence of an Insolvency
Event, the aggregate amount deposited into the Collection Account pursuant to
clause (a) on or prior to the occurrence of such Insolvency Event will, to the
extent not previously paid to the Series 2002-CC Certificateholders, be paid to
the Series 2002-CC Certificateholders.
ARTICLE V
Distributions and Reports to Series 2002-CC Certificateholders
Section 5.01. Distributions.
(a) On each Distribution Date, the Paying Agent shall distribute to
the Certificate Representative the aggregate amount payable to the Series
2002-CC Certificateholders pursuant to Section 4.02 and Section 4.05 to the
account of the Certificate Representative, as specified in writing by the
Certificate Representative, in immediately available funds.
(b) The distributions to be made pursuant to this Section 5.01 are
subject to the provisions of Sections 2.06, 9.02, 10.01 and 12.02 of the
Agreement and Sections 8.01 and 8.02 of this Supplement.
Section 5.02. Reports and Statements to Series 2002-CC
Certificateholders.
12
(a) On each Distribution Date, the Paying Agent, on behalf of the
Trustee, shall make available for inspection upon request to each Series 2002-CC
Certificateholder free of charge at the office of such Paying Agent a statement
substantially in the form of Exhibit C prepared by the Servicer for a period of
six months commencing on such Distribution Date.
(b) Not later than each Determination Date, the Servicer shall
deliver to the Certificate Representative, the Trustee, the Paying Agent, the
Transferor and each Rating Agency (i) a statement substantially in the form of
Exhibit B prepared by the Servicer and (ii) a certificate of a Servicing Officer
substantially in the form of Exhibit C.
ARTICLE VI
Additional Pay Out Events
Section 6.01. Additional Pay Out Events. If any one of the following
events shall occur with respect to the Series 2002-CC Certificate:
(a) failure on the part of the Transferor (i) to make any payment or
deposit required by the terms of the Agreement or this Supplement on or before
the date occurring five Business Days after the date such payment or deposit is
required to be made therein or herein or (ii) duly to observe or perform any
other covenants or agreements of the Transferor set forth in the Agreement or
this Supplement, which failure has a material adverse effect on the Holders of
the Series 2002-CC Certificate and which continues unremedied for a period of 60
days after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Transferor by the Trustee, or to
the Transferor and the Trustee by any Holder of the Series 2002-CC Certificate;
(b) any representation or warranty made by the Transferor in the
Agreement or this Supplement, or any information contained in the Account
Schedule required to be delivered by the Transferor pursuant to Section 2.01 of
the Agreement, shall prove to have been incorrect in any material respect when
made or when delivered, which continues to be incorrect in any material respect
for a period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Transferor by
the Trustee, or to the Transferor and the Trustee by any Holder of the Series
2002-CC Certificateholder's Interest and as a result of which the interests of
the Holders of the Series 2002-CC Certificate are materially and adversely
affected and continue to be materially and adversely affected for such period;
provided, however, that a Pay Out Event pursuant to this subsection 6.01(b)
shall not be deemed to have occurred hereunder if the Transferor has accepted
reassignment of the related Receivable, or all of such Receivables, if
applicable, during such period in accordance with the provisions of the
Agreement;
(c) a failure by the Transferor to convey Receivables in Additional
Accounts or Participation Interests to the Trustee within five Business Days
after the day on which it is required to convey such Receivables or
Participation Interests pursuant to subsection 2.08(a) of the Agreement;
(d) any Servicer Default shall occur; or
13
(e) a Transfer Restriction Event shall occur;
then, in the case of any event described in subparagraph (a), (b) or (d), after
the applicable grace period, if any, set forth in such subparagraphs, either the
Trustee or the holders of Investor Certificates of Series 2002-CC evidencing
more than 50% of the aggregate unpaid principal amount of Investor Certificates
by notice then given in writing to the Transferor and the Servicer (and to the
Trustee if given by the holders of Investor Certificates of Series 2002-CC) may
declare that a Pay Out Event has occurred with respect to Series 2002-CC as of
the date of such notice, and, in the case of any event described in subparagraph
(c) or (e) a Pay Out Event shall occur with respect to Series 2002-CC without
any notice or other action on the part of the Trustee or holders of Investor
Certificates of Series 2002-CC immediately upon the occurrence of such event.
ARTICLE VII
[Reserved]
ARTICLE VIII
Final Distributions
Section 8.01. Transfer of Receivables or Certificateholders' Interest
pursuant to Section 2.06 or 10.01 of the Agreement.
(a) Acquisition Price. (i) The amount to be paid by the Transferor
with respect to Series 2002-CC in connection with a reassignment of
Receivables to the Transferor pursuant to Section 2.06 of the Agreement
shall equal the Reassignment Amount for the first Distribution Date
following the Monthly Period in which the reassignment obligation arises
under the Agreement.
(ii) The amount to be paid by the Transferor with respect to Series
2002-CC in connection with a reassignment of the Certificateholders'
Interest pursuant to Section 10.01 of the Agreement shall equal the sum of
(x) the Reassignment Amount for the Distribution Date of such reassignment
and (y) the excess, if any, of (I) a price equivalent to the average of
bids quoted on the Record Date preceding the date of repurchase (or, if not
a Business Day, on the next succeeding Business Day) by at least two
recognized dealers selected by the Trustee at the written direction of the
Servicer, for the purchase by such dealers of a security which is similar
to the Notes with a remaining maturity approximately equal to the remaining
maturity of the Notes and rated by each rating agency in the rating
category originally assigned to the Notes over (II) the portion of the
Reassignment Amount attributable to the Series 2002-CC Certificate.
(b) Distributions Pursuant to Section 10.01 of the Agreement. With
respect to the Reassignment Amount deposited into the Collection Account
pursuant to subsection 8.01(a)(ii) or any amounts allocable to the Series
2002-CC Certificateholders' Interest deposited into the Collection Account
pursuant to Section 12.02, the Trustee shall, not later than 12:00 noon,
Richmond, Virginia time, on the related Distribution Date, make deposits or
distributions of the following amounts (in the priority set forth below and, in
each case, after giving effect to any deposits and distributions otherwise to be
made on such date) in immediately available funds: (i) the
14
aggregate Outstanding Dollar Principal Amount of all Outstanding Asset Pool 1
Notes on such Distribution Date will be distributed to the Series 2002-CC
Certificateholders and (ii) an amount equal to the Monthly Interest Target for
such Distribution Date will be distributed to the Series 2002-CC
Certificateholders. Notwithstanding anything to the contrary contained in this
Supplement or the Agreement, the amount of any excess determined pursuant to
paragraph (a)(ii)(y) shall be distributed to the Series 2002-CC
Certificateholders.
(c) Distributions Pursuant to Section 2.06 of the Agreement. With
respect to any amounts deposited into the Collection Account pursuant to
subsection 8.01(a)(i), the Trustee shall, not later than 12:00 noon, Richmond,
Virginia time, on the related Distribution Date, distribute the portion of such
amounts that are allocable to the Holders of the Series 2002-CC Certificate to
the Series 2002-CC Certificateholder.
(d) Notwithstanding anything to the contrary in this Supplement or
the Agreement, all amounts distributed to the Paying Agent pursuant to
subsection 8.01(b) for payment to the Holders of the Series 2002-CC Certificate
shall be deemed distributed in full to the Holders of the Series 2002-CC
Certificate on the date on which such funds are distributed to the Paying Agent
pursuant to this Section and shall be deemed to be a final distribution pursuant
to Section 12.02 of the Agreement.
Section 8.02. Distribution of Proceeds of Sale, Disposition or
Liquidation of the Receivables pursuant to Section 9.02 of the Agreement.
(a) Not later than 12:00 noon, Richmond, Virginia time, on the
Distribution Date following the date on which the Insolvency Proceeds are
deposited into the Collection Account pursuant to subsection 9.02(b) of the
Agreement, the Trustee shall (in the following priority and, in each case, after
giving effect to any deposits and distributions otherwise to be made on such
Distribution Date), deduct an amount equal to the aggregate Outstanding Dollar
Principal Amount of all Outstanding Asset Pool 1 Notes on such Distribution Date
from the portion of the Insolvency Proceeds allocated to Collections of
Principal Receivables and distribute such amount to the Paying Agent for payment
to the Series 2002-CC Certificateholders, provided that the amount of such
distribution shall not exceed the product of (x) the portion of the Insolvency
Proceeds allocated to Collections of Principal Receivables and (y) the Principal
Allocation Percentage with respect to the related Monthly Period.
(b) Not later than 12:00 noon, Richmond, Virginia time, on such
Distribution Date, the Trustee shall (in the following priority and, in each
case, after giving effect to any deposits and distributions otherwise to be made
on such Distribution Date) deduct an amount equal to the Monthly Interest Target
for such Distribution Date, from the portion of the Insolvency Proceeds
allocated to Collections of Finance Charge Receivables and distribute such
amount to the Paying Agent for payment to the Series 2002-CC Certificateholder,
provided that the amount of such distribution shall not exceed the product of
(A) the portion of the Insolvency Proceeds allocated to Collections of Finance
Charge Receivables and (B) the Floating Allocation Percentage with respect to
the related Monthly Period.
(c) Notwithstanding anything to the contrary in this Supplement or
the Agreement, all amounts distributed to the Paying Agent pursuant to this
Section for payment to the Holders of the Series 2002-CC Certificate shall be
distributed in full to the Holders of the Series
15
2002-CC Certificate on the date on which funds are distributed to the applicable
Paying Agents pursuant to this Section and shall be deemed to be a final
distribution pursuant to Section 12.02 of the Agreement.
(d) Notwithstanding any provision of the Agreement or this Supplement,
for purposes of subsection 9.02(a) of the Agreement, the Holders of the Series
2002-CC Certificate shall be deemed to have irrevocably disapproved a
liquidation of the Receivables following an Insolvency Event with respect to the
Transferor.
ARTICLE IX
Sale of Receivables
Section 9.01. Sale of Receivables. Upon notice to the Servicer and the
Transferor by the Certificate Representative pursuant to the Indenture with
respect to any tranche of accelerated Notes or any tranche of Notes which has
reached its Legal Maturity Date, the Trustee will sell to a Permitted Assignee
Principal Receivables and the related Finance Charge Receivables (or interests
therein) in an amount specified by the Certificate Representative which shall be
a portion of the Invested Amount of Series 2002-CC equal to the Nominal
Liquidation Amount of the affected tranche of Notes, calculated as of the end of
the prior Monthly Period (after giving effect to deposits and distributions
otherwise to be made with respect to such Monthly Period, minus the aggregate
amount of principal receivables to be sold upon the providing of a related
notice by the trustee of another master trust or securitization special purpose
entity which has transferred a Collateral Certificate to the Capital One
Multi-asset Execution Trust for inclusion in Asset Pool 1). The proceeds from
such sale shall be immediately paid to the Certificate Representative.
ARTICLE X
New Issuances
Section 10.01. New Issuances. The obligation of the Trustee to
authenticate the Investor Certificates of a new Series and to execute and
deliver the related Supplement shall be subject to the conditions set forth in
subsection 6.03(b) of the Agreement and to the additional condition that, as of
the Series Issuance Date and after giving effect to such issuance, the aggregate
amount of Principal Receivables equals or exceeds the Required Principal
Balance.
ARTICLE XI
Miscellaneous Provisions
Section 11.01 Ratification of Agreement. As supplemented by this
Supplement, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
16
Section 11.01. Counterparts. This Supplement may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
Section 11.03 GOVERNING LAW. THIS SUPPLEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATION LAW, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.04. Certain Tax Related Amendments. In addition to being
subject to amendment pursuant to any other provisions relating to amendments in
either the Agreement or this Supplement, this Supplement may be amended by the
Transferor without the consent of the Servicer, the Trustee or any Series
2002-CC Certificateholder if the Transferor provides the Trustee with (i) an
Opinion of Counsel to the effect that such amendment or modification would
reduce the risk the Trust would be treated as taxable as a publicly traded
partnership pursuant to Code section 7704 and (ii) a certificate that such
amendment or modification would not materially and adversely affect any Series
2002-CC Certificateholder; provided, that no such amendment shall be deemed
effective without the Trustee's consent, if the Trustee's rights, duties and
obligations hereunder are thereby modified. Promptly after the effectiveness of
any amendment pursuant to this Section 11.04, the Transferor shall deliver a
copy of such amendment to each of the Servicer, the Trustee and each Rating
Agency.
Section 11.05. Treatment of Noteholders. Subject to subsection 8.02(d),
for purposes of any provision of the Agreement or this Supplement requiring or
permitting actions with the consent of, or at the direction of, Series 2002-CC
Certificateholders holding a specified percentage of the aggregate unpaid
principal amount of Series 2002-CC Certificate (a) each Noteholder (as defined
in the Asset Pool 1 Supplement) will be deemed to be a Series 2002-CC
Certificateholder; (b) each Noteholder will be deemed to be the Holder of an
aggregate unpaid principal amount of the Series 2002-CC Certificate equal to the
Adjusted Outstanding Dollar Principal Amount of such Noteholder's Notes; (c)
each series of Notes under the Indenture will be deemed to be a separate Series
of Investor Certificates and the Holder of a Note of such series will be deemed
to be the Holder of an aggregate unpaid principal amount of such Series of
Investor Certificates equal to the Adjusted Outstanding Dollar Principal Amount
of such Noteholder's Notes of such series; (d) each tranche of Notes under the
Asset Pool 1 Supplement will be deemed to be a separate Class of Investor
Certificates and the Holder of a Note of such tranche will be deemed to be the
Holder of an aggregate unpaid principal amount of such Class of Investor
Certificates equal to the Adjusted Outstanding Dollar Principal Amount of such
Noteholder's Notes of such tranche and (e) any Notes owned by the Capital One
Multi-asset Execution Trust, the Transferor, the Servicer, any other holder of
the Transferor Interest or any Affiliate thereof will be deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such consent or direction, only Notes which the Trustee
knows to be so owned shall be so disregarded. Notes so owned which have been
pledged in good faith shall not be disregarded and may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Notes and that the pledgee is not
the Transferor, the Servicer, any other holder of the Transferor Interest or any
Affiliate thereof.
17
Section 11.06. Transfer of the Series 2002-CC Certificate. After the
Closing Date, the Series 2002-CC Certificate may not be sold, participated,
transferred, assigned, exchanged or otherwise pledged or conveyed in whole or in
part except upon the prior delivery to the Master Trust Trustee and the Owner
Trustee of a Master Trust Tax Opinion and an Issuer Tax Opinion (each as defined
in the Indenture), respectively, with respect thereto.
18
IN WITNESS WHEREOF, the undersigned have caused this Supplement to be
duly executed and delivered by their respective duly authorized officers on the
day and year first above written.
CAPITAL ONE BANK,
Servicer
By: /s/ Bonnie A. Seideman
-----------------------------------------------
Name: Bonnie A. Seideman
Title: Manager of Securitization
CAPITAL ONE FUNDING, LLC,
Transferor
By: /s/ Bonnie A. Seideman
-----------------------------------------------
Name: Bonnie A. Seideman
Title: President and Chief Executive Officer
THE BANK OF NEW YORK,
as Trustee and not in its individual capacity
By: /s/ Scott J. Tepper
-----------------------------------------------
Name: Scott J. Tepper
Title: Assistant Vice President
[Signature Page to Series 2002-CC Supplement]
EXHIBIT A
FORM OF CERTIFICATE
THE HOLDER HEREOF, BY PURCHASING THIS SERIES 2002-CC CERTIFICATE,
AGREES THAT IT IS ACQUIRING THIS SERIES 2002-CC CERTIFICATE FOR ITS OWN ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS) AND NOT WITH A VIEW TO, OR FOR SALE IN
CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF AND THAT NEITHER THIS SERIES
2002-CC CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED, EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF
THE SECURITIES ACT OF 1933, AS AMENDED AND ANY APPLICABLE PROVISIONS OF ANY
STATE SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
PROVISIONS. THE TRANSFER OF THIS SERIES 2002-CC CERTIFICATE IS SUBJECT TO
CERTAIN CONDITIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THIS SERIES
2002-CC CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED, ASSIGNED,
EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED, EXCEPT IN ACCORDANCE WITH THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
No.__
CAPITAL ONE MASTER TRUST
SERIES 2002-CC CERTIFICATE
ASSET BACKED CERTIFICATE, SERIES 2002-CC
Evidencing an Undivided Interest in a trust, the corpus of which consists of a
portfolio of MasterCard(R) and VISA(R) credit card receivables acquired by
Capital One Funding, LLC and other assets and interests constituting the Trust
under the Pooling and Servicing Agreement described below.
(Not an interest in or obligation of
Capital One Funding, LLC or any Affiliate thereof.)
This certifies that _____________________________________ (the
"Investor Certificateholder") is the registered owner of an Undivided Interest
in a trust (the "Trust"), the corpus of which consists of a portfolio of
receivables (the "Receivables") existing in the consumer revolving credit card
accounts and other consumer revolving credit accounts identified under the
Pooling and Servicing Agreement from time to time (the "Accounts"), all
Receivables generated under the Accounts from time to time thereafter, funds
collected or to be collected from accountholders in respect of the Receivables,
all funds which are from time to time on deposit in a Collection Account and in
the Series Accounts, an interest in any Funds Collateral relating to
A-1
Secured Accounts, the benefits of any Series Enhancements issued and to be
issued by Series Enhancers with respect to one or more series of Investor
Certificates, the rights, remedies, powers, privileges and claims of the
Transferor with respect to (A) the Receivables Purchase Agreement dated as of
August 1, 2002 between Capital One Bank and Capital One Funding, LLC and (B) the
Receivables Purchase Agreement dated as of August 1, 2002, between Capital One,
F.S.B. and Capital One Funding, LLC, and all other assets and interests
constituting the Trust Assets pursuant to an Amended and Restated Pooling and
Servicing Agreement, dated as of September 30, 1993, as amended and restated as
of August 1, 2002, as supplemented by the Series 2002-CC Supplement, dated as of
October 9, 2002 (collectively, the "Pooling and Servicing Agreement"), by and
between Capital One Funding, LLC, as Transferor (the "Transferor"), Capital One
Bank, as Servicer (the "Servicer"), and The Bank of New York, as Trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereinbelow.
To the extent not defined herein, capitalized terms used herein have
the respective meanings assigned to them in the Pooling and Servicing Agreement.
This Investor Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the Investor
Certificateholder by virtue of the acceptance hereof assents and by which the
Investor Certificateholder is bound.
Although a summary of certain provisions of the Pooling and Servicing
Agreement is set forth below, this Investor Certificate is qualified in its
entirety by the terms and provisions of the Pooling and Servicing Agreement and
reference is made to that Pooling and Servicing Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee.
Beginning on November 14, 2002 and on each Transfer Date thereafter,
the Trustee shall distribute to the Investor Certificateholders of record as of
the last Business Day of the calendar month preceding such Transfer Date such
amounts as are payable pursuant to the Pooling and Servicing Agreement and as
are requested by the certificate delivered to the Trustee by the Servicer
pursuant to Section 5.01 of the Pooling and Servicing Agreement. The Series
2002-CC Termination Date is the earlier the occur of (i) the date designated by
the Seller following the last occurring Legal Maturity Date of any tranche of
Notes and (ii) the Trust Termination Date. Principal with respect to the Series
2002-CC Certificates will be paid under the circumstances described in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this Investor Certificate shall
not be entitled to any benefit under the Pooling and Servicing Agreement, or be
valid for any purpose.
This Investor Certificate shall constitute a "security" within the
meaning of (i) Article 8 of the Uniform Commercial Code (including Section
8-102(a)(15) thereof) as in effect from time to time in the State of New York
and (ii) the Uniform Commercial Code of any other applicable jurisdiction that
presently or hereafter substantially includes the 1994 revisions to Article 8
thereof as adopted by the American Law Institute and the National Conference of
Commissioners on Uniform State Laws and approved by the American Bar Association
on February 14, 1995.
A-2
This Investor Certificate shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflict of
law principles thereof.
A-3
IN WITNESS WHEREOF, Capital One Funding, LLC has caused this
Series 2002-CC Certificate to be duly executed on this ___ day of _____________.
By:_________________________________________
Name:
Title:
A-4
Form of Trustee's Certificate of Authentication
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2002-CC Certificates referred to in the
within-mentioned Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
Trustee
By:_______________________________________
Authorized Signatory
Date: __________ __, 2002
A-5
EXHIBIT B
FORM OF MONTHLY STATEMENT
CAPITAL ONE MASTER TRUST
SERIES 2002-CC
Pursuant to the Amended and Restated Pooling and Servicing Agreement
dated as of September 30, 1993, as amended and restated as of August 1, 2002
(hereinafter as such agreement may have been or may be from time to time,
supplement, amended or otherwise modified, the "Pooling and Servicing
Agreement"), among Capital One Funding, LLC, as Transferor, Capital One Bank, as
Servicer and The Bank of New York, as Trustee (the "Trustee"), Capital One as
Servicer is required to prepare certain information each month regarding current
distributions to Certificateholders and the performance of the Capital One
Master Trust (the "Trust") during the previous month. The information which is
required to be prepared with respect to the Distribution Date of ________ __,
___, and with respect to the performance of the Trust during the month of ______
___ is set forth below. Certain of the information is presented on the basis of
an original principal amount of $1,0000 per Investor Certificate (a
"Certificate"). Certain other information is presented based on the aggregate
amounts for the Trust as a whole. Capitalized terms used in this monthly
statement have their respective meanings set forth in the Pooling and Servicing
Agreement.
B-1
EXHIBIT C
FORM OF MONTHLY SERVICER'S CERTIFICATE
CAPITAL ONE BANK
________________________________________
CAPITAL ONE MASTER TRUST
SERIES 2002-CC
________________________________________
The undersigned, a duly authorized representative of Capital One
Bank, as Servicer, pursuant to the Amended and Restated Pooling and Servicing
Agreement, dated as of September 30, 1993, as amended and restated as of August
1, 2002 (as amended and supplemented, the "Agreement"), as supplemented by the
Series 2002-CC Supplement (as amended and supplemented, the "Series
Supplement"), dated as of October 9, 2002, each among Capital One Bank, as
Servicer, Capital One Funding, LLC, as Transferor, and The Bank of New York, as
Trustee, does hereby certify as follows:
1. Capitalized terms used in this Certificate have their respective
meanings as set forth in the Agreement or Series Supplement, as applicable.
2. Capital One Bank is, as of the date hereof, the Servicer under
the Agreement.
3. The undersigned is a Servicing Officer.
4. This Certificate relates to the Distribution Date occurring on
________.
5. As of the date hereof, to the best knowledge of the undersigned,
the Servicer has performed in all material respects all its obligations
under the Agreement through the Monthly Period preceding such Distribution
Date [or, if there has been a default in the performance of any such
obligation, set forth in detail the (i) nature of such default, (ii) the
action taken by the Sellers and Servicer, if any, to remedy such default and
(iii) the current status of each such default; if applicable, insert
"None"].
6. As of the date hereof, to the best knowledge of the undersigned,
no Pay Out Event occurred on or prior to such Distribution Date.
7. As of the date hereof, to the best knowledge of the undersigned, no Lien has
been placed on any of the Receivables other than pursuant to the Agreement [or,
if there is a Lien, such Lien consists of_________].
C-1
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Certificate this ______ day of __________, 20__.
CAPITAL ONE BANK,
as Servicer
By:_________________________
Name:
Title:
C-2-
EXHIBIT D
CAPITAL ONE MASTER TRUST
SERIES 2002-CC
LIST OF ACCOUNT DESIGNATIONS
Associate 18 Associate 302 Associate 408 Associate 773
Associate 19 Associate 303 Associate 409 Associate 774
Associate 20 Associate 308 Associate 410 Associate 777
Associate 21 Associate 309 Associate 411 Associate 780
Associate 31 Associate 310 Associate 412 Associate 785
Associate 33 Associate 311 Associate 413 Associate 786
Associate 42 Associate 312 Associate 414 Associate 869
Associate 54 Associate 313 Associate 415 Associate 870
Associate 77 Associate 314 Associate 416 Associate 871
Associate 79 Associate 332 Associate 417 Associate 874
Associate 85 Associate 333 Associate 433 Associate 875
Associate 87 Associate 336 Associate 439 Associate 876
Associate 91 Associate 337 Associate 440 Associate 877
Associate 100 Associate 338 Associate 508 Associate 878
Associate 101 Associate 339 Associate 509 Associate 879
Associate 102 Associate 345 Associate 567 Associate 880
Associate 103 Associate 347 Associate 568
Associate 104 Associate 360 Associate 570
Associate 105 Associate 361 Associate 571
Associate 106 Associate 367 Associate 572
Associate 107 Associate 368 Associate 573
Associate 108 Associate 369 Associate 574
Associate 109 Associate 370 Associate 575
Associate 120 Associate 371 Associate 576
Associate 121 Associate 372 Associate 577
Associate 122 Associate 373 Associate 578
Associate 123 Associate 374 Associate 579
Associate 185 Associate 375 Associate 620
Associate 186 Associate 376 Associate 621
Associate 190 Associate 390 Associate 622
Associate 191 Associate 391 Associate 623
Associate 195 Associate 392 Associate 624
Associate 196 Associate 393 Associate 706
Associate 197 Associate 394 Associate 770
Associate 198 Associate 395 Associate 771
Associate 199 Associate 407 Associate 772
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