Exhibit 4.5
EXECUTION COPY
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CAPITAL ONE MULTI-ASSET EXECUTION TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
----------------------
ASSET POOL 1 SUPPLEMENT
dated as of October 9, 2002
to
INDENTURE
dated as of October 9, 2002
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions............................................... 2
Section 1.2. Effect of Headings and Table of Contents.................. 7
Section 1.3. Successors and Assigns.................................... 7
Section 1.4. Separability.............................................. 7
Section 1.5. Governing Law............................................. 7
Section 1.6. Counterparts.............................................. 7
Section 1.7. Ratification of Indenture................................. 7
ARTICLE II
COLLATERAL
Section 2.1. Collateral................................................ 8
Section 2.2. Recording, Etc............................................ 8
Section 2.3. Trust Indenture Act Requirements.......................... 9
Section 2.4. Suits To Protect the Collateral........................... 10
Section 2.5. Purchaser Protected....................................... 10
Section 2.6. Powers Exercisable by Receiver or Indenture Trustee....... 10
Section 2.7. Determinations Relating to Collateral..................... 10
Section 2.8. Release of all Collateral................................. 11
Section 2.9. Certain Actions by Indenture Trustee...................... 11
Section 2.10. Opinions as to Collateral................................. 12
Section 2.11. Certain Commercial Law Representations and Warranties..... 12
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.1. Collections and Allocations............................... 13
Section 3.2. Allocations of Finance Charge Amounts and Defaulted
Amounts................................................... 13
Section 3.3. Allocations of Principal Amounts.......................... 13
Section 3.4. Allocations of the Asset Pool 1 Servicing Fee............. 14
Section 3.5. Final Payment............................................. 14
Section 3.6. Payments within a Series, Class or Tranche................ 15
Section 3.7. Allocations of Collections of Finance Charge Receivables
Allocable to the Segregated Transferor Interest........... 15
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TABLE OF CONTENTS
(continued)
Page
Section 3.8. Excess Principal Amounts Sharing Groups................... 15
Section 3.9. Excess Finance Charge Amounts Sharing Groups.............. 15
Section 3.10. Excess Finance Charges.................................... 15
ARTICLE IV
ISSUER ACCOUNTS AND INVESTMENTS
Section 4.1. Issuer Accounts........................................... 15
Section 4.2. Investment of Funds in the Issuer Accounts................ 16
ARTICLE V
MISCELLANEOUS
Section 5.1. Custody of the Collateral................................. 18
Section 5.2. Monthly Noteholders' Statement............................ 18
Section 5.3. Payment Instruction to Master Trust....................... 18
Section 5.4. Amendments to the COMT Pooling and Servicing Agreement.... 18
Section 5.5. Limitations on Liability.................................. 19
Section 5.6. Termination of Issuer..................................... 19
Section 5.7. Termination Distributions................................. 20
Section 5.8. Derivative Counterparty, Supplemental Credit Enhancement
Provider and Supplemental Liquidity Provider as
Third-Party Beneficiary................................... 20
Section 5.9. Acknowledgement and Acceptance of Indenture............... 20
Section 5.10. Amendments................................................ 20
EXHIBITS
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EXHIBIT A [Form of] Monthly Noteholders' Statement
EXHIBIT B [Form of] Monthly Administrator's Certificate
EXHIBIT C [Form of] Payment Instructions
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND ASSET POOL SUPPLEMENT PROVISIONS*
Trust Indenture Asset Pool
Act Section Supplement Section
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314(b).................................... 210
(c)(1)................................. 208
(c)(2)................................. 208
(c)(3)................................. 208
(d)(1)................................. 208
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* This reconciliation and tie shall not, for any purpose be part of the within
asset pool supplement.
THIS ASSET POOL 1 SUPPLEMENT between CAPITAL ONE MULTI-ASSET EXECUTION
TRUST, a statutory trust organized under the laws of the State of Delaware (the
"Issuer" or the "Trust"), having its principal office at E.A. Delle Donne
Corporate Center, Montgomery Building, 1011 Centre Road, Wilmington, DE 19805,
and THE BANK OF NEW YORK, a New York banking corporation, in its capacity as
Indenture Trustee (the "Indenture Trustee"), is made and entered into as of
October 9, 2002.
All things necessary to make this Asset Pool 1 Supplement a valid agreement of
the Issuer, in accordance with its terms, have been done. Asset Pool 1 shall be
designated as a Non-Receivables Asset Pool.
GRANTING CLAUSE
The Issuer hereby grants to the Indenture Trustee for the benefit and
security of the following: (a) the Asset Pool 1 Noteholders and (b) the
Indenture Trustee, in its individual capacity, a security interest in all of its
right, title and interest, whether now owned or hereafter acquired, in and to
the following:
(i) the COMT Collateral Certificate;
(ii) the Collection Account established for Asset Pool 1;
(iii) each Supplemental Issuer Account (including all Sub-Accounts
thereof) established from time to time for Asset Pool 1;
(iv) all Eligible Investments and all investment property, money and
other property held in or through the Collection Account or any
Supplemental Issuer Account (including all Sub-Accounts thereof);
(v) all rights, benefits and powers under any Derivative Agreement
relating to any Tranche of Asset Pool 1 Notes;
(vi) all rights, benefits and powers under any Supplemental Credit
Enhancement Agreement or Supplemental Liquidity Agreement relating
to any Tranche of Asset Pool 1 Notes;
(vii) all rights, benefits and powers under the Transfer and
Administration Agreement;
(viii) all present and future claims, demands, causes of and choses in
action in respect of any of the foregoing and all interest,
principal, payments and distributions of any nature or type on any
of the foregoing;
(ix) all accounts, general intangibles, chattel paper, instruments,
documents, goods, money, investment property, deposit accounts,
letters of credit, letter-of-credit rights and oil, gas and other
minerals consisting of, arising from, or relating to any of the
foregoing; and
(x) all proceeds of the foregoing.
The property described in the preceding sentence is collectively referred
to as the "Collateral." The Security Interest in the Collateral is granted to
secure the Asset Pool 1 Notes (and the related obligations under the Indenture
and this Asset Pool 1 Supplement), equally and ratably without prejudice,
priority or distinction between any Asset Pool 1 Note by reason of difference in
time of issuance or otherwise, except as otherwise expressly provided in the
Indenture, or in the Indenture Supplement which establishes any Series, Class or
Tranche of Notes, and to secure (i) the payment of all amounts due on such Asset
Pool 1 Notes in accordance with their respective terms, (ii) the payment of all
other sums payable by the Issuer under the Indenture, any Indenture Supplement
and this Asset Pool 1 Supplement relating to the Asset Pool 1 Notes and (iii)
compliance by the Issuer with the provisions of the Indenture, any Indenture
Supplement or this Asset Pool 1 Supplement relating to the Asset Pool 1 Notes.
This Asset Pool 1 Supplement is a security agreement within the meaning of the
UCC.
The Indenture Trustee acknowledges the grant of such Security Interest, and
accepts the Collateral in trust hereunder in accordance with the provisions
hereof and agrees to perform the duties herein to the end that the interests of
the Asset Pool 1 Noteholders may be adequately and effectively protected.
The Asset Pool 1 Notes, Derivative Agreements, Supplemental Credit
Enhancement Agreements, Supplemental Liquidity Agreements and other obligations
under the Indenture, this Asset Pool 1 Supplement and any Indenture Supplement
relating to the Asset Pool 1 Notes will benefit from the Security Interest to
the extent (and only to the extent) proceeds of and distributions on the
Collateral are allocated for their benefit pursuant to the Indenture, this Asset
Pool 1 Supplement and the applicable Indenture Supplement.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. For all purposes of this Asset Pool 1 Supplement,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article, and, along with any other term defined in any Section of this
Asset Pool 1 Supplement, include the plural as well as the singular;
(2) all other terms used herein which are defined in the Indenture, the
applicable Indenture Supplement, the Transfer and Administration Agreement, the
COMT Pooling and Servicing Agreement or the Series 2002-CC Supplement, either
directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
and, except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder means such accounting principles as are generally accepted in the
United States of America at the date of such computation;
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(4) all references in this Asset Pool 1 Supplement to designated
"Articles," "Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Asset Pool 1 Supplement as originally
executed. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Asset Pool 1 Supplement as a whole and not to any
particular Article, Section or other subdivision;
(5) in the event that any term or provision contained herein shall conflict
with or be inconsistent with any term or provision contained in the Indenture or
the Transfer and Administration Agreement, the terms and provisions of this
Asset Pool 1 Supplement shall be controlling;
(6) each capitalized term defined herein shall relate only to the Asset
Pool 1 Notes and no other notes issued by the Issuer; and
(7) "including" and words of similar import will be deemed to be followed
by "without limitation."
"Administrator" has the meaning specified in the Transfer and
Administration Agreement.
"Asset Pool 1" means the Collateral granted to the Indenture Trustee
pursuant to this Asset Pool 1 Supplement.
"Asset Pool 1 Defaulted Amount" means, for Asset Pool 1 for any Monthly
Period, the sum of the Collateral Certificate Defaulted Amounts for each
Collateral Certificate in Asset Pool 1 for such Monthly Period.
"Asset Pool 1 Excess Finance Charges" is the sum of the Excess Finance
Charges (as defined in the related Indenture Supplement) for each Series of
Asset Pool 1 Notes.
"Asset Pool 1 Finance Charge Amounts" means, for any Monthly Period, the
sum of the amount distributed to the Series 2002-CC Certificateholder pursuant
to Sections 4.02(a) and 4.05 of the Series 2002-CC Supplement, plus any amounts
included as Asset Pool 1 Finance Charge Amounts pursuant to any Indenture
Supplement.
"Asset Pool 1 Finance Charge Shortfall" is the sum of the Finance Charge
Shortfalls (as defined in the related Indenture Supplement) for each Series of
Asset Pool 1 Notes.
"Asset Pool 1 Notes" means the Notes designated in an Indenture Supplement
as being secured by the Collateral of Asset Pool 1.
"Asset Pool 1 Noteholder" means any person in whose name an Asset Pool 1
Note is registered.
"Asset Pool 1 Principal Amounts" means, for any Monthly Period, the amount
distributed to the Series 2002-CC Certificateholder pursuant to Section
4.02(b)(i) of the Series 2002-CC Supplement for such Monthly Period plus any
amounts included as Asset Pool 1 Principal Amounts pursuant to any Indenture
Supplement.
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"Asset Pool 1 Principal Shortfall" is the sum of the Principal Shortfalls
(as defined in the related Indenture Supplement) for each Series of Asset Pool 1
Notes.
"Asset Pool 1 Servicing Fee" has the meaning specified in Section 3.4.
"Asset Pool 1 Supplement" means this Asset Pool 1 Supplement as originally
executed and as amended, supplemented, restated or otherwise modified from time
to time.
"Beneficiary" has the meaning specified in the Trust Agreement.
"Collateral" has the meaning specified in the Granting Clause of this Asset
Pool 1 Supplement.
"Collateral Certificate Defaulted Amount" means, for any Collateral
Certificate for any Monthly Period, an amount equal to the product of (a) the
Defaulted Amount (as defined in the related Pooling and Servicing Agreement) and
(b) the floating allocation percentage used for allocating defaulted amounts to
the related Collateral Certificate pursuant to the related Pooling and Servicing
Agreement and Series Supplement for such Monthly Period (which, in the case of
the COMT Collateral Certificate, is the Floating Allocation Percentage, as
defined in the Series 2002-CC Supplement).
"Collection Account" has the meaning specified in subsection 4.1(a).
"Commission" means the U.S. Securities and Exchange Commission.
"COMT Collateral Certificate" means the Series 2002-CC Certificate issued
pursuant to the COMT Pooling and Servicing Agreement and the Series 2002-CC
Supplement, as amended, supplemented, restated or otherwise modified from time
to time.
"COMT Pooling and Servicing Agreement" has the meaning specified in the
Transfer and Administration Agreement.
"Distribution Date" has the meaning specified in the Transfer and
Administration Agreement.
"Excess Finance Charge Amounts Sharing Group" means all Excess Finance
Charge Amount Sharing Series that have the same Excess Finance Charge Amounts
Sharing Group designation.
"Excess Finance Charge Amounts Sharing Series" means a Series that,
pursuant to the Indenture Supplement therefor, will share certain Asset Pool 1
Finance Charge Amounts or other specified amounts with other series in the same
Excess Finance Charge Amounts Sharing Group, as more specifically specified in
such Indenture Supplement.
"Excess Principal Amounts Sharing Group" means all Excess Principal Amount
Sharing Series that have the same Excess Principal Amounts Sharing Group
designation.
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"Excess Principal Amounts Sharing Series" means a Series that, pursuant to
the Indenture Supplement therefor, will share certain Asset Pool 1 Principal
Amounts or other specified amounts with other series in the same Excess
Principal Amounts Sharing Group, as more specifically specified in such
Indenture Supplement.
"Floating Allocation Amount" means, for any Series of Asset Pool 1 Notes,
the numerator used to calculate the Floating Allocation Percentage for such
Series in the related Indenture Supplement.
"Floating Allocation Percentage" means, for any Series of Asset Pool 1
Notes, the percentage equivalent of a fraction, the numerator of which is the
Floating Allocation Amount for such Series of Asset Pool 1 Notes and the
denominator of which is the sum of the Floating Allocation Amounts for all
Series of Notes in Asset Pool 1.
"Holder" with respect to any Note has the meaning specified in the
Indenture, or with respect to Investor Certificates has the meaning specified in
the related Pooling and Servicing Agreement.
"Indenture" means the Indenture, dated as of October 9, 2002, between the
Issuer and the Indenture Trustee, as the same may be amended, supplemented or
otherwise modified from time to time.
"Indenture Supplement" means any Indenture Supplement (as defined in the
Indenture) relating to any Series of Asset Pool 1 Notes.
"Invested Amount" means, for Asset Pool 1, the sum of the Invested Amounts
of each Collateral Certificate in Asset Pool 1.
"Investor Certificate" has the meaning specified in the related Pooling and
Servicing Agreement.
"Investor Certificateholder" has the meaning specified in the related
Pooling and Servicing Agreement.
"Issuer" has the meaning specified in the first paragraph of this Asset
Pool 1 Supplement.
"Issuer Accounts" means, collectively, the Collection Account and any
Supplemental Issuer Account, including any Sub-Accounts thereof.
"Master Trust Excess Sharing Amounts" has, for each Series of Asset Pool 1
Notes, the meaning specified in the applicable Indenture Supplement for such
Series of Asset Pool 1 Notes.
"Master Trust Trustee" has the meaning specified in the Transfer and
Administration Agreement.
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"Monthly Noteholders' Statement" means a report substantially in the form
of Exhibit A, as the same may be supplemented as set forth in the related
Indenture Supplement.
"Monthly Principal Payment" has, with respect to any Series, Class or
Tranche of Asset Pool 1 Notes, the meaning specified in the applicable Indenture
Supplement for the related Series of Asset Pool 1 Notes.
"Monthly Servicer's Certificate" means the certificate substantially in the
form of Exhibit B to the Series 2002-CC Supplement.
"Nominal Liquidation Amount Deficit" has, with respect to any Series, Class
or Tranche of Asset Pool 1 Notes, the meaning specified in the applicable
Indenture Supplement for such Series, Class or Tranche of Asset Pool 1 Notes.
"Note Rating Agency" means, with respect to any Outstanding Asset Pool 1
Notes, each statistical rating agency selected by the Issuer to rate such Notes.
"Owner Trustee" has the meaning specified in the Transfer and
Administration Agreement.
"Payment Instructions" means the instructions substantially in the form of
Exhibit C, as the same may be supplemented as set forth in the related Indenture
Supplement.
"Principal Allocation Amount" means, for any Series of Asset Pool 1 Notes,
the numerator used to calculate the Principal Allocation Percentage for such
Series in the related Indenture Supplement.
"Reallocated Principal Amount" (a) for Asset Pool 1, means the sum of the
Reallocated Principal Amounts for all Series of Asset Pool 1 Notes and (b) for
any Series of Asset Pool 1 Notes, has the meaning specified in the related
Indenture Supplement.
"Security Interest" means the security interest granted pursuant to the
Granting Clause.
"Series" means, with respect to any Note, the series specified in the
applicable Indenture Supplement.
"Series 2002-CC Certificateholder" has the meaning specified in the Series
2002-CC Supplement.
"Series 2002-CC Supplement" has the meaning specified in the Transfer and
Administration Agreement.
"Servicer" has the meaning specified in the Transfer and Administration
Agreement.
"Supplemental Issuer Account" means the trust account or accounts
designated as such and established pursuant to subsection 4.1(a).
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"Targeted Interest Deposit Amount," for each Series, Class or Tranche of
Asset Pool 1 Notes, has the meaning specified in the related Indenture
Supplement.
"Targeted Principal Deposit Amount," for each Series, Class or Tranche of
Asset Pool 1 Notes, has the meaning specified in the related Indenture
Supplement.
"Transfer and Administration Agreement" means the Transfer and
Administration Agreement dated as of October 9, 2002, among the Issuer, Capital
One Funding, LLC, as Transferor, Capital One Bank, as Administrator, and The
Bank of New York, as Indenture Trustee, as amended, supplemented or restated
from time to time.
"Transferor" has the meaning specified in the Transfer and Administration
Agreement.
"Trust" has the meaning specified in the first paragraph of this Asset Pool
1 Supplement.
"Trust Agreement" means the Capital One Multi-asset Execution Trust Amended
and Restated Trust Agreement, dated as of October 9, 2002, between Capital One
Funding, LLC, as Beneficiary, and Deutsche Bank Trust Company Delaware, as Owner
Trustee, as amended, restated or supplemented from time to time.
Section 1.2. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
will not affect the construction hereof.
Section 1.3. Successors and Assigns. All covenants and agreements in this
Asset Pool 1 Supplement by the Issuer will bind its successors and assigns,
whether so expressed or not. All covenants and agreements of the Indenture
Trustee in this Asset Pool 1 Supplement shall bind the successors and agents of
the Indenture Trustee.
Section 1.4. Separability. In case any provision in this Asset Pool 1
Supplement will be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
Section 1.5. Governing Law. THIS ASSET POOL 1 SUPPLEMENT WILL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY 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 1.6. Counterparts. This Asset Pool 1 Supplement may be executed in
any number of counterparts, each of which so executed will be deemed to be an
original, but all such counterparts will together constitute but one and the
same instrument.
Section 1.7. Ratification of Indenture. As supplemented by this Asset Pool
1 Supplement, the Indenture is in all respects ratified and confirmed and the
Indenture as so
7
supplemented by this Asset Pool 1 Supplement shall be read, taken and construed
as one and the same instrument.
[END OF ARTICLE I]
ARTICLE II
COLLATERAL
Section 2.1. Collateral. The COMT Collateral Certificate shall be
registered in the name of the Indenture Trustee and delivered to the Indenture
Trustee in the State of New York.
Section 2.2. Recording, Etc.
(a) The Issuer intends the Security Interest granted pursuant to this Asset
Pool 1 Supplement in favor of the Indenture Trustee to be prior to all other
liens in respect of the Collateral. Subject to Section 2.3, the Issuer will take
all actions necessary to obtain and maintain a perfected lien on and security
interest in the Collateral in favor of the Indenture Trustee. The Issuer will
from time to time execute, authorize and deliver all such supplements and
amendments hereto and all such financing statements, amendments thereto,
instruments of further assurance and other instruments, all as prepared by the
Issuer, and will take such other action necessary or advisable to:
(i) grant a Security Interest more effectively in all or any portion
of the Collateral;
(ii) maintain or preserve the Security Interest (and the priority
thereof) created by this Asset Pool 1 Supplement or carry out more
effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any grant
made or to be made by this Asset Pool 1 Supplement;
(iv) enforce the COMT Collateral Certificate, any Derivative
Agreements, any Supplemental Credit Enhancement Agreements and any
Supplemental Liquidity Agreements and each other instrument or agreement
designated for inclusion in the Collateral;
(v) preserve and defend title to the Collateral and the rights of the
Indenture Trustee in the Collateral against the claims of all persons and
parties; or
(vi) pay all taxes or assessments levied or assessed upon the
Collateral when due.
(b) The Issuer will from time to time promptly pay and discharge all UCC
recording and filing fees, charges and taxes relating to the Indenture, this
Asset Pool Supplement, any amendments thereto or hereto and any other
instruments of further assurance.
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(c) Without limiting the generality of clause (a)(ii) or (a)(iii):
(i) The Issuer will cause this Asset Pool 1 Supplement, all amendments
and supplements hereto and all financing statements and amendments thereto
and any other necessary documents covering the Indenture Trustee's right,
title and interest in and to the Collateral to be promptly recorded,
registered and filed, and at all times to be kept recorded, registered and
filed, all in such manner and in such places as may be required by law
fully to preserve and protect the right, title and interest of the
Indenture Trustee in and to all property comprising the Collateral. The
Issuer will deliver to the Indenture Trustee file-stamped copies of, or
filing receipts for, any document recorded, registered or filed as provided
above, as soon as available following such recording, registration or
filing.
(ii) Within 30 days after the Issuer makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (d) seriously
misleading within the meaning of Section 9-506 (or any comparable
provision) of the UCC, the Issuer will give the Indenture Trustee notice of
any such change and will file such financing statements or amendments as
may be necessary to continue the perfection of the Indenture Trustee's
interest in the Collateral.
(d) The Issuer will give the Indenture Trustee prompt notice of any
relocation of its state of location, and any change in the jurisdiction of its
organization, and whether, as a result of such relocation or change, the
applicable provision of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and will file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Indenture Trustee's
security interest in the Collateral. The Issuer will at all times maintain its
chief executive office within the United States.
(e) The duty of the Indenture Trustee to execute or authorize any
instrument required pursuant to this Section will arise only if the Indenture
Trustee has actual knowledge of the type described in Section 601(c) of the
Indenture of any default of the Issuer in complying with the provisions of this
Section.
Section 2.3. Trust Indenture Act Requirements. The release of any
Collateral from the lien created by this Asset Pool 1 Supplement or the release,
in whole or in part, of the liens on all Collateral, will not be deemed to
impair the Security Interest in contravention of the provisions hereof if and to
the extent the Collateral or liens are released pursuant to the terms hereof.
The Indenture Trustee and each of the Asset Pool 1 Noteholders are hereby deemed
to acknowledge that a release of Collateral securing an Asset Pool or liens
strictly in accordance with the terms hereof will not be deemed for any purpose
to be an impairment of the remaining Security Interests in contravention of the
terms of this Asset Pool 1 Supplement. To the extent applicable, without
limitation, the Issuer will cause Section 314(d) of the Trust Indenture Act
relating to the release of property or securities from the liens hereof to be
complied with. Any certificate or opinion required by Section 314(d) of the
Trust Indenture Act may be made by an
9
Issuer Authorized Officer, except in cases in which Section 314(d) of the Trust
Indenture Act requires that such certificate or opinion be made by an
independent person.
Section 2.4. Suits To Protect the Collateral. Subject to the provisions of
this Asset Pool 1 Supplement, the Indenture Trustee will have power to institute
and to maintain such suits and proceedings as it may deem expedient to prevent
any impairment of the Collateral by any acts which may be unlawful or in
violation of this Asset Pool 1 Supplement, and such suits and proceedings as the
Indenture Trustee may deem expedient to preserve or protect the interests of the
Asset Pool 1 Noteholders and the interests of the Indenture Trustee in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the Security Interest or be prejudicial to the interests of the
Asset Pool 1 Noteholders or the Indenture Trustee). No counterparties to a
Derivative Agreement, Supplemental Credit Enhancement Agreement or Supplemental
Liquidity Agreement may direct the Indenture Trustee to enforce the Security
Interest. Each Derivative Counterparty's, Supplemental Credit Enhancement
Provider's and Supplemental Liquidity Provider's rights consist solely of the
right to receive Asset Pool 1 Finance Charge Amounts or Asset Pool 1 Principal
Amounts, as applicable, allocated for such party's benefit pursuant to the
related Indenture Supplement.
Section 2.5. Purchaser Protected. In no event will any purchaser in good
faith of any property purported to be released hereunder be bound to ascertain
the authority of the Indenture Trustee to execute the release or to inquire as
to the satisfaction of any conditions required by the provisions hereof for the
exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor will any purchaser or other
transferee of any property or rights permitted by this Article to be sold be
under any obligation to ascertain or inquire into the authority of the Issuer or
any other obligor, as applicable, to make any such sale or other transfer.
Section 2.6. Powers Exercisable by Receiver or Indenture Trustee. In case
the Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article II upon the Issuer or any other
obligor, as applicable, with respect to the release, sale or other disposition
of such property may be exercised by such receiver or trustee, and an instrument
signed by such receiver or trustee shall be deemed the equivalent of any similar
instrument of the Issuer or any other obligor, as applicable, or of any officer
or officers thereof required by the provisions of this Article II.
Section 2.7. Determinations Relating to Collateral. In the event (i) the
Indenture Trustee shall receive any written request from the Issuer or any other
obligor for consent or approval with respect to any matter or thing relating to
any Collateral or the Issuer's or any other obligor's obligations with respect
thereto or (ii) there shall be due to or from the Indenture Trustee under the
provisions hereof any performance or the delivery of any instrument or (iii) the
Indenture Trustee shall become aware of any nonperformance by the Issuer or any
other obligor of any covenant or any breach of any representation or warranty of
the Issuer or any other obligor set forth in this Asset Pool 1 Supplement, then,
in each such event, the Indenture Trustee shall be entitled to hire experts,
consultants, agents and attorneys to advise the
10
Indenture Trustee on the manner in which the Indenture Trustee should respond to
such request or render any requested performance or response to such
nonperformance or breach (the expenses of which will be reimbursed to the
Indenture Trustee pursuant to Section 707 of the Indenture). The Indenture
Trustee will be fully protected in the taking of any action recommended or
approved by any such expert, consultant, agent or attorney or agreed to by
Holders of more than 66 2/3% of the Outstanding Dollar Principal Amount of the
Outstanding Asset Pool 1 Notes.
Section 2.8. Release of all Collateral.
(a) Subject to the payment of its fees and expenses pursuant to Section 707
of the Indenture, the Indenture Trustee shall, at the request of the Issuer or
when otherwise required by the provisions of this Asset Pool 1 Supplement,
execute instruments to release property from the lien of this Asset Pool 1
Supplement, or convey the Indenture Trustee's interest (which is held by the
Indenture Trustee for the benefit of the Noteholders) in the same, in a manner
and under circumstances which are not inconsistent with the provisions of this
Asset Pool 1 Supplement. No party relying upon an instrument executed by the
Indenture Trustee as provided in this Article II will be bound to ascertain the
Indenture Trustee's authority, inquire into the satisfaction of any conditions
precedent or see to the application of any funds.
(b) Upon delivery of an Officer's Certificate certifying that the Issuer's
obligations under the Indenture and this Asset Pool 1 Supplement have been
satisfied and discharged by complying with the provisions of this Article II,
the Indenture Trustee shall (i) execute and deliver such releases, termination
statements and other instruments (in recordable form, where appropriate) as the
Issuer or any other obligor, as applicable, may reasonably request evidencing
the termination of the Security Interest created by this Asset Pool 1 Supplement
and (ii) not be deemed to hold the Security Interest for the benefit of itself,
the Indenture Trustee, the Asset Pool 1 Noteholders, any applicable Derivative
Counterparty, any applicable Supplemental Credit Enhancement Provider or any
applicable Supplemental Liquidity Provider.
(c) The Transferor, the Issuer and the Asset Pool 1 Noteholders shall be
entitled to receive at least 10 days written notice when the Indenture Trustee
proposes to take any action pursuant to clause (a), accompanied by copies of any
instruments involved, and the Indenture Trustee shall also be entitled to
require, as a condition to such action, an Opinion of Counsel, stating the legal
effect of any such action, outlining the steps required to complete the same,
and concluding that all conditions precedent to the taking of such action have
been complied with. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection with any such
action.
Section 2.9. Certain Actions by Indenture Trustee. Any action taken by the
Indenture Trustee pursuant to this Article in respect of the release of any or
all of the Collateral will be taken by the Indenture Trustee as its interest in
such Collateral may appear, and no provision of this Article II is intended to,
or will, excuse compliance with any provision hereof.
11
Section 2.10. Opinions as to Collateral.
(a) On the date hereof, the Issuer shall furnish to the Indenture Trustee
an Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the filing of any financing statements and
amendments thereto as is necessary to perfect and maintain the perfection of the
Security Interest created by this Asset Pool 1 Supplement in favor of the
Indenture Trustee and reciting the details of such action, or stating that, in
the opinion of such counsel, no such action is necessary to make such lien and
security interest perfected.
(b) On or before April 30 in each calendar year, beginning in 2003, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel with respect
to each UCC financing statement which has been filed by the Issuer with respect
to the Collateral either stating that, (i) in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of such financing statements and amendments thereto as are necessary to
maintain the first priority Security Interest created by this Asset Pool 1
Supplement and reciting the details of such action or (ii) in the opinion of
such counsel, no such action is necessary to maintain such Security Interest.
Such Opinion of Counsel will also describe the recording, filing, re-recording
and refiling of such financing statements and amendments thereto that will, in
the opinion of such counsel, be required to maintain the Security Interest
created by this Asset Pool 1 Supplement until April 30 in the following calendar
year.
Section 2.11. Certain Commercial Law Representations and Warranties. The
Issuer hereby makes the following representations and warranties. Such
representations and warranties shall survive until the termination of the
Indenture and this Asset Pool 1 Supplement. Such representations and warranties
speak of the date that a security interest in the Collateral is granted to the
Indenture Trustee but shall not be waived by any of the parties to the Indenture
or this Asset Pool 1 Supplement unless each Note Rating Agency shall have
notified the Beneficiary, the Administrator, the Owner Trustee and the Indenture
Trustee in writing that such waiver will not result in a reduction or withdrawal
of its then current rating of the Notes.
(a) The Indenture and this Asset Pool 1 Supplement create a valid and
continuing security interest (as defined in the applicable UCC) in favor of the
Indenture Trustee in the related Collateral, which security interest is prior to
all other liens, and is enforceable as such against creditors of and purchasers
from the Issuer.
(b) The related Collateral constitutes an "account," a "general
intangible," an "instrument," or a "certificated security" within the meaning of
the applicable UCC.
(c) At the time of its grant of any security interest in the related
Collateral pursuant to the Indenture and this Asset Pool 1 Supplement, the
Issuer owned and had good and marketable title to such Collateral free and clear
of any lien, claim or encumbrance of any Person.
(d) The Issuer has caused or will have caused, within ten (10) days of the
initial execution of this Asset Pool 1 Supplement, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in
12
order to perfect the security interest in the related Collateral granted to the
Indenture Trustee pursuant to the Indenture and this Asset Pool 1 Supplement.
(e) The Issuer has registered the Indenture Trustee as the registered owner
of the related Collateral.
(f) Other than the security interest granted to the Indenture Trustee
pursuant to the Indenture and this Asset Pool 1 Supplement, the Issuer has not
pledged, assigned, sold, granted a security interest in, or otherwise conveyed,
the related Collateral. The Issuer has not authorized the filing of and is not
aware of any financing statements against the Issuer that include a description
of the related Collateral other than any financing statement relating to the
security interest granted to the Indenture Trustee pursuant to the Indenture and
this Asset Pool 1 Supplement or that has been terminated. The Issuer is not
aware of any judgment or tax lien filings against the Issuer.
[END OF ARTICLE II]
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.1. Collections and Allocations.
The Administrator pursuant to the terms of the Transfer and Administration
Agreement shall instruct the Indenture Trustee to apply all funds on deposit in
the Collection Account as described in this Article III and in any Indenture
Supplement for any Series of Asset Pool 1 Notes. The Administrator pursuant to
the terms of Transfer and Administration Agreement shall deposit Asset Pool 1
Finance Charge Amounts and Asset Pool 1 Principal Amounts with respect to any
Monthly Period into the Collection Account for Asset Pool 1 upon receipt.
Section 3.2. Allocations of Finance Charge Amounts and Defaulted Amounts.
(a) With respect to each Monthly Period, the Indenture Trustee, at the
direction of the Administrator, shall allocate to each Series of Asset Pool 1
Notes an amount equal to the product of (i) the Floating Allocation Percentage
for such Monthly Period for such Series and (ii) the Asset Pool 1 Finance Charge
Amounts for such Monthly Period.
(b) With respect to each Monthly Period, the Indenture Trustee, at the
direction of the Administrator, shall allocate to each Series of Asset Pool 1
Notes an amount equal to the product of (i) the Floating Allocation Percentage
for such Monthly Period for such Series and (ii) the Asset Pool 1 Defaulted
Amount for such Monthly Period.
Section 3.3. Allocations of Principal Amounts. With respect to each Monthly
Period, the Indenture Trustee, at the direction of the Administrator, shall
allocate Asset Pool 1 Principal Amounts to each Series of Asset Pool 1 Notes in
an amount equal to the Monthly Principal Payment for such Series of Asset Pool 1
Notes; provided, however, that in the event that Asset Pool 1 Principal Amounts
for any Monthly Period is less than the aggregate Monthly
13
Principal Payments for all Series of Asset Pool 1 Notes, Asset Pool 1 Principal
Amounts for such Monthly Period will be allocated pro rata to each Series of
Asset Pool 1 Notes with a Monthly Principal Payment for such Monthly Period in
an amount equal to the lesser of (a) the product of (i) the Principal Allocation
Percentage for such Monthly Period for such Series and (ii) the Asset Pool 1
Principal Amounts for such Monthly Period and (b) the Monthly Principal Payment
for such Series of Asset Pool 1 Notes, each for such Monthly Period; provided
further, however, that any excess Asset Pool 1 Principal Amounts identified in
the application of the preceding proviso, or in the application of this proviso,
will be allocated to each Series of Asset Pool 1 Notes which has not been
allocated sufficient Asset Pool 1 Principal Amounts to cover its full Monthly
Principal Payment up to the amount of such insufficiency pro rata (based on the
ratio of the numerator used to calculate the Principal Allocation Percentage for
such Monthly Period for such Series of Asset Pool 1 Notes to the sum of the
numerators used to calculate the Principal Allocation Percentage for such
Monthly Period for all Series of Asset Pool 1 Notes with an uncovered Monthly
Principal Payment for such Monthly Period).
Section 3.4. Allocations of the Asset Pool 1 Servicing Fee.
(a) As compensation for its servicing activities under the related Pooling
and Servicing Agreement for each Collateral Certificate in Asset Pool 1 and as
reimbursement for any expense incurred by it in connection therewith, the
Servicer shall be entitled to receive a servicing fee (the "Asset Pool 1
Servicing Fee"). For each Monthly Period, the Asset Pool 1 Servicing Fees shall
equal the sum of the Certificateholder Servicing Fees, as defined in the related
Series Supplements, for each Collateral Certificate in Asset Pool 1.
(b) With respect to each Monthly Period, the Indenture Trustee, at the
direction of the Administrator, shall allocate to each Series of Asset Pool 1
Notes an amount equal to the product of (i) the Asset Pool 1 Servicing Fee for
such Monthly Period and (ii) the Floating Allocation Percentage for such Monthly
Period for such Series of Asset Pool 1 Notes.
Section 3.5. Final Payment. Each Series, Class or Tranche of Asset Pool 1
Notes, as applicable, will be considered to be paid in full in the manner set
forth in the applicable Indenture Supplement. The Holders of such Series, Class
or Tranche of Asset Pool 1 Notes, as applicable, will have no further right or
claim, and the Issuer will have no further obligation or liability with respect
to such Series, Class or Tranche of Notes, as applicable, on the earliest to
occur of:
(a) the date of the payment in full of the Stated Principal Amount of and
all accrued interest on that Series, Class or Tranche of Asset Pool 1 Notes, as
applicable;
(b) for U.S. Dollar Notes, the date on which the Outstanding Dollar
Principal Amount of such Asset Pool 1 Notes, after giving effect to all
deposits, allocations, reallocations, sales of Collateral and payments to be
made on such date, is reduced to zero, and all accrued interest on such Asset
Pool 1 Notes is paid in full; or
(c) on the Legal Maturity Date of such Asset Pool 1 Notes, after giving
effect to all deposits, allocations, reallocations, sales of Collateral and
payments to be made on such date.
14
Section 3.6. Payments within a Series, Class or Tranche. All payments of
principal, interest or other amounts to Holders of the Asset Pool 1 Notes of a
Series, Class or Tranche will be made in accordance with the related Indenture
Supplement.
Section 3.7. Allocations of Collections of Finance Charge Receivables
Allocable to the Segregated Transferor Interest. With respect to each Monthly
Period, the Indenture Trustee will allocate to each Series of Asset Pool 1
Notes, for application in accordance with the related Indenture Supplement, the
aggregate amount paid to the Issuer with respect to each such Series of Asset
Pool 1 Notes pursuant to Section 4.05 of the Series 2002-CC Supplement.
Section 3.8. Excess Principal Amounts Sharing Groups.
Asset Pool 1 Principal Amounts and other specified amounts allocated to
each Series of Asset Pool 1 Notes in the same Excess Principal Amounts Sharing
Group shall be reallocated to cover principal and other expenses related to each
Series of Asset Pool 1 Notes in such Excess Principal Amounts Sharing Group as
specified in each related Indenture Supplement. The reallocation provisions of
the Indenture Supplement for each Series of Asset Pool 1 Notes in the same
Excess Principal Amounts Sharing Group are required to be identical in all
material respects.
Section 3.9. Excess Finance Charge Amounts Sharing Groups.
Asset Pool 1 Finance Charge Amounts and other specified amounts allocated
to each Series of Asset Pool 1 Notes in the same Excess Finance Charge Amounts
Sharing Group shall be reallocated to cover interest and other expenses related
to each Series of Asset Pool 1 Notes in such Excess Finance Charge Amounts
Sharing Group as specified in each related Indenture Supplement. The
reallocation provisions of the Indenture Supplement for each Series of Asset
Pool 1 Notes in the same Excess Finance Charge Amounts Sharing Group are
required to be identical in all material respects.
Section 3.10. Excess Finance Charges. With respect to each Monthly Period,
the Issuer will determine the aggregate amount of Excess Finance Charges for
Series 2002-CC and each other Collateral Certificate. The aggregate amount of
Excess Finance Charges for Series 2002-CC will be paid to the Master Trust
Trustee for application in accordance with Section 4.05 of the Series 2002-CC
Supplement.
[END OF ARTICLE III]
ARTICLE IV
ISSUER ACCOUNTS AND INVESTMENTS
Section 4.1. Issuer Accounts.
(a) On or before the date hereof, the Issuer shall cause to be established
and maintained for Asset Pool 1 one or more Eligible Deposit Accounts (each such
account, a "Collection Account" and collectively, the "Collection Accounts") in
the name of the Indenture
15
Trustee, bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Indenture Trustee and the applicable
Asset Pool 1 Noteholders. All collections and distributions received pursuant to
Section 3.1 shall be deposited into the Collection Account. From time to time in
connection with the issuance of a Series, Class or Tranche of Notes, the Issuer
may cause the Indenture Trustee to establish one or more Eligible Deposit
Accounts denominated as "Supplemental Issuer Accounts" in the name of the
Indenture Trustee, bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Indenture Trustee and the
Asset Pool 1 Noteholders. The Collection Account and any Supplemental Issuer
Account shall be under the control (within the meaning of Section 9-104 or
9-106, as applicable, of the UCC) of the Indenture Trustee for the benefit of
the Indenture Trustee and the applicable Asset Pool 1 Noteholders. If, at any
time, the institution holding the Collection Account or any Supplemental Issuer
Account ceases to be an Eligible Institution, the Issuer shall within 10
Business Days (or such longer period, not to exceed 30 calendar days, as to
which each Note Rating Agency may consent in writing) establish a new Collection
Account or Supplemental Issuer Account, as applicable, that is an Eligible
Deposit Account and shall transfer any cash and/or investments from such
Collection Account or Supplemental Issuer Account, as applicable, to such new
Collection Account or Supplemental Issuer Account, as applicable. From the date
each such new Collection Account is established, it shall be the "Collection
Account." From the date each such new Supplemental Issuer Account is
established, it shall be a "Supplemental Issuer Account." Any Supplemental
Issuer Account will receive deposits as set forth herein, in the Indenture and
in the applicable Indenture Supplement.
(b) All payments to be made from time to time by the Indenture Trustee to
Asset Pool 1 Noteholders out of funds in the Issuer Accounts pursuant to this
Asset Pool 1 Supplement, the Indenture and any Indenture Supplement will be made
by the Indenture Trustee directly to the Paying Agent not later than 12:00 noon
New York City time on the applicable Payment Date or earlier, if necessary, or
as otherwise provided in the applicable Indenture Supplement but only to the
extent of available funds in the applicable Issuer Account or Sub-Account.
Section 4.2. Investment of Funds in the Issuer Accounts.
(a) Funds on deposit in the Issuer Accounts will be invested and reinvested
by the Indenture Trustee at the written direction of the Issuer in one or more
Eligible Investments. The Issuer may authorize the Indenture Trustee to make
specific investments pursuant to written instructions, in such amounts as the
Issuer will specify. Notwithstanding the foregoing, funds held by the Indenture
Trustee in any of the Issuer Accounts will be invested in Eligible Investments
that will mature in each case no later than the date on which such funds in the
Issuer Accounts are scheduled to be transferred or distributed by the Indenture
Trustee pursuant to this Asset Pool 1 Supplement (or as necessary to provide for
timely payment of principal or interest on the applicable Payment Date).
(b) All funds deposited from time to time in the Issuer Accounts pursuant
to this Asset Pool 1 Supplement and all investments made with such funds will be
held by the Indenture Trustee in the Issuer Accounts as part of the Collateral
as herein provided, subject to withdrawal by the Indenture Trustee for the
purposes set forth herein.
16
(c) Funds and other property in any of the Issuer Accounts will not be
commingled with any other funds or property of the Issuer or the Indenture
Trustee. The Indenture Trustee shall:
(i) hold each Eligible Investment that constitutes investment property
through a securities intermediary, which securities intermediary shall
agree with the Indenture Trustee that (A) such investment property at all
times shall be credited to a securities account of the Indenture Trustee,
(B) all property credited to such securities account shall be treated as a
financial asset, (C) such securities intermediary shall treat the Indenture
Trustee as entitled to exercise the rights that comprise each financial
asset credited to such securities account, (D) such securities intermediary
shall comply with entitlement orders originated by the Indenture Trustee
without the further consent of any other person or entity, (E) such
securities intermediary shall not agree with any person or entity other
than the Indenture Trustee to comply with entitlement orders originated by
any person or entity other than the Indenture Trustee, (F) such securities
account and all property credited thereto shall not be subject to any lien,
security interest, right of set-off, or encumbrance in favor of such
securities intermediary or anyone claiming through such securities
intermediary (other than the Indenture Trustee), (G) such agreement between
such securities intermediary and the Indenture Trustee shall be governed by
the laws of the State of New York, and (H) the State of New York shall be
the securities intermediary's jurisdiction for purposes of the UCC; and
(ii) maintain possession of each other Eligible Investment not
described in clause (i) above in the State of New York separate and apart
from all other property held by the Indenture Trustee;
provided that, other than following an Event of Default and acceleration
pursuant to Section 602 of the Indenture, no Eligible Investment shall be
disposed of prior to its maturity.
Notwithstanding any other provision of the Indenture or this Asset Pool 1
Supplement, the Indenture Trustee shall not hold any Eligible Investment through
an agent except as expressly permitted by this Section 4.2(c). Each term used in
this Section 4.2(c) and defined in the New York UCC shall have the meaning set
forth in the New York UCC.
(d) n each Distribution Date, all interest and earnings (net of
losses and investment expenses) accrued since the preceding Distribution Date on
funds on deposit in the Collection Account will be treated as Asset Pool 1
Finance Charge Amounts and applied pursuant to Section 3.2(a) for such
Distribution Date. Unless otherwise stated in the related Indenture Supplement,
for purposes of determining the availability of funds or the balance in the
Issuer Accounts for any reason under this Asset Pool 1 Supplement or any
Indenture Supplement, investment earnings on such funds shall be deemed not to
be available or on deposit.
Subject to Section 701(d) of the Indenture, the Indenture Trustee will
not in any way be held liable by reason of any insufficiency in such Issuer
Accounts resulting from any loss on any Eligible Investment included therein
except for losses attributable to the Indenture
17
Trustee's failure to make payments on such Eligible Investments issued by the
Indenture Trustee, in its commercial capacity, in accordance with their terms.
(e) Funds on deposit in the Issuer Accounts will be invested and
reinvested by the Indenture Trustee to the fullest extent practicable, in such
manner as the Indenture Trustee will from time to time determine, but only in
one or more Eligible Investments, upon the occurrence of any of the following
events:
(i) the Issuer shall have failed to give investment directions to the
Indenture Trustee, in which case the Indenture Trustee shall invest and
reinvest funds on deposit in the Issuer Amounts in accordance with the
instruction letter provided to the Indenture Trustee by the Issuer on the
date hereof; or
(ii) an Event of Default shall have occurred and is continuing but no
Notes shall have been declared due and payable pursuant to Section 602 of
the Indenture.
[END OF ARTICLE IV]
ARTICLE V
MISCELLANEOUS
Section 5.1. Custody of the Collateral. The Collateral shall be held
by the Indenture Trustee separate and apart from all other property held by such
Indenture Trustee.
Section 5.2. Monthly Noteholders' Statement. On each Distribution Date
the Issuer will, in cooperation with the Servicer, complete and deliver to the
Indenture Trustee and the Master Trust Trustee (with a copy to each Note Rating
Agency) a Monthly Noteholders' Statement.
Section 5.3. Payment Instruction to Master Trust.
(a) Promptly after the receipt by the Issuer of each Monthly
Servicer's Certificate under the Series 2002-CC Supplement, the Issuer will, in
cooperation with the Servicer, complete the Payment Instruction and deliver a
copy thereof to the Indenture Trustee and the Master Trust Trustee.
(b) From time to time, the Issuer will notify the Servicer of the
information necessary to be provided by the Issuer under the applicable section
of the COMT Pooling and Servicing Agreement as supplemented by the Series
2002-CC Supplement to calculate the Invested Amount of the COMT Collateral
Certificate.
Section 5.4. Amendments to the COMT Pooling and Servicing Agreement.
By their acceptance of a Asset Pool 1 Note, the Asset Pool 1 Noteholders
acknowledge that the Transferor, the Servicer and the Master Trust Trustee may
amend the COMT Pooling and Servicing Agreement and any supplement thereto
without the consent of the Holders of any Investor Certificates (including the
Issuer) or any Asset Pool 1 Noteholder, so long as such
18
amendment or supplement would not materially adversely affect the interest of
the Holders of any Investor Certificates.
For purposes of any vote or consent under the COMT Pooling and Servicing
Agreement or any supplement thereto, with respect to certain actions requiring
the consent or direction of Investor Certificateholders holding a specified
percentage of the aggregate unpaid amount outstanding of Investor Certificates
(whether by number of series or percentage of all outstanding Investor
Certificates depending on the manner of voting or consenting on such matter),
the Issuer, as holder of the COMT Collateral Certificate, shall be deemed to be
an Investor Certificateholder under the COMT Pooling and Servicing Agreement,
and will be deemed to have voted in accordance with the Investor
Certificateholders holding a majority of the aggregate Invested Amount
outstanding of such Investor Certificates which are entitled to vote or consent
on such matter; provided, however, that in the event Investor Certificateholders
holding equal portions of the Invested Amount outstanding of such Investor
Certificates vote in the positive and in the negative, without taking into
consideration the vote of the Issuer, as holder of the COMT Collateral
Certificate, the Issuer shall be deemed to vote in the negative; provided
further, that if the COMT Collateral Certificate is the sole Investor
Certificate outstanding entitled to vote or consent on such matter, the Issuer,
as holder thereof, will be deemed to have voted in the negative.
Section 5.5. Limitations on Liability.
(a) It is expressly understood and agreed by the parties hereto that (i)
this Asset Pool 1 Supplement is executed and delivered by the Owner Trustee not
individually or personally but solely as Owner Trustee under the Trust
Agreement, in the exercise of the powers and authority conferred and vested in
it, (ii) each of the representations, undertakings and agreements herein made on
the part of the Issuer is made and intended not as a personal representation,
undertaking or agreement by the Owner Trustee but is made and intended for the
purpose of binding only the Issuer, (iii) nothing herein contained will be
construed as creating any liability on the Owner Trustee individually or
personally, to perform any covenant of the Issuer either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties to the Indenture and by any Person claiming by, through or under them
and (iv) under no circumstances will the Owner Trustee be personally liable for
the payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Asset Pool 1 Supplement or any related
documents.
(b) None of the Indenture Trustee, the Owner Trustee, the Administrator,
the Beneficiary or any other beneficiary of the Issuer or any of their
respective officers, directors, employees, incorporators or agents will have any
liability with respect to this Asset Pool 1 Supplement, and recourse may be had
solely to the Collateral pledged to secure the Asset Pool 1 Notes under this
Asset Pool 1 Supplement.
Section 5.6. Termination of Issuer. The Issuer and the respective
obligations and responsibilities of the Indenture Trustee created hereby shall
terminate as provided in the Trust Agreement.
19
Section 5.7. Termination Distributions. Upon the termination of the Issuer
pursuant to the terms of the Trust Agreement, the Indenture Trustee shall
release, assign and convey to the Beneficiary or any of its designees, without
recourse, representation or warranty, all of its right, title and interest in
the Collateral, whether then existing or thereafter created, all monies due or
to become due and all amounts received or receivable with respect thereto
(including all moneys then held in any Issuer Account) and all proceeds thereof.
The Indenture Trustee shall execute and deliver such instruments of transfer and
assignment as shall be provided to it, in each case without recourse, as shall
be reasonably requested by the Beneficiary, to vest in the Beneficiary or any of
its designees all right, title and interest which the Indenture Trustee had in
and to the Collateral and such other property.
Section 5.8. Derivative Counterparty, Supplemental Credit Enhancement
Provider and Supplemental Liquidity Provider as Third-Party Beneficiary. Each
Derivative Counterparty, Supplemental Credit Enhancement Provider and
Supplemental Liquidity Provider is a third-party beneficiary of this Asset Pool
1 Supplement to the extent specified in the applicable Derivative Agreement,
Supplemental Credit Enhancement Agreement, Supplemental Liquidity Agreement or
Indenture Supplement.
Section 5.9. Acknowledgement and Acceptance of Indenture. Capital One Bank,
as Administrator, and Capital One Funding, LLC, as Transferor, by their
signatures hereto, acknowledge and accept the Indenture.
Section 5.10. Amendments. Except as expressly set forth in Article IX of
the Indenture, this Asset Pool 1 Supplement may not be amended, supplemented or
modified.
[END OF ARTICLE V]
20
IN WITNESS WHEREOF, the parties hereto have caused this Asset Pool 1
Supplement to be duly executed as of the day and year first above written.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
by Deutsche Bank Trust Company Delaware, not in its
individual capacity but solely as Owner Trustee
on behalf of the Issuer
By: /s/ Michele Voon
--------------------------------------
Name: Michele Voon
Title: Attorney-in-Fact
THE BANK OF NEW YORK,
as Indenture Trustee
and not in its individual capacity
By: /s/ Scott J. Tepper
--------------------------------------
Name: Scott J. Tepper
Title: Assistant Vice President
Acknowledged and Accepted:
CAPITAL ONE BANK,
as Administrator
By: /s/ Bonnie A. Seideman
-------------------------- ----
Name: Bonnie A. Seideman
Title: Manager of Securitization
CAPITAL ONE FUNDING, LLC,
as Transferor
By: /s/ Bonnie A. Seideman
- -----------------------------------------
Name: Bonnie A. Seideman
Title: President and Chief Executive Officer
EXHIBIT A
[FORM OF] MONTHLY NOTEHOLDERS' STATEMENT
Date: ______ __, ____
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
MONTHLY PERIOD ENDING _______ __, ____
Reference is made to the Series 2002-CC Supplement (the "Series 2002-CC
Supplement"), dated as of October 9, 2002, between Capital One Funding, LLC, a
Virginia limited liability company ("Funding"), as Transferor, Capital One Bank,
a Virginia banking corporation (the "Bank"), as Servicer, and The Bank of New
York, as Trustee, and the Indenture (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. Terms used herein and not defined herein have
the meanings ascribed to them in the Series 2002-CC Supplement, the Indenture
and the related Indenture Supplements, as applicable.
The following computations are prepared with respect to the Transfer Date
of _______ __, ____ and with respect to the performance of the Trust during the
related Monthly Period.
A. Target deposits to Interest Funding sub-Accounts:
Targeted Deposit Interest Funding
to Interest Actual Deposit to Shortfall from sub-account Interest Funding
Funding Interest Funding earlier Monthly Balance prior to sub-Account
Series sub-account sub-Account Period Withdrawals Earnings
[Series [____]
[Series [____]
[Total:]
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Monthly Noteholders' Statement this __ day of __________, _____.
CAPITAL ONE FUNDING, LLC,
as Beneficiary of the Capital One Multi-asset
Execution Trust
By: ______________________________
Name:
Title:
CAPITAL ONE BANK,
as Servicer of the Capital One Master Trust
By: ______________________________
Name:
Title:
A-2
EXHIBIT B
[FORM OF] MONTHLY ADMINISTRATOR'S CERTIFICATE
CAPITAL ONE BANK
-------------------------------------------
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
-------------------------------------------
The undersigned, a duly authorized representative of Capital One Bank, as
Administrator, pursuant to the Transfer and Administration Agreement, dated as
of October 9, 2002 (as amended and supplemented, the "Agreement"), among Capital
One Multi-asset Execution Trust, as Issuer, Capital One Funding, LLC, as
Transferor, Capital One Bank, as Administrator, and The Bank of New York, as
Indenture Trustee, does hereby certify as follows:
1. Capitalized terms used in this Certificate have their respective
meanings as set forth in the Agreement.
2. Capital One Bank is, as of the date hereof, the Administrator 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 Administrator 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 Transferor or the Administrator, 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
Early Redemption 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_________].
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate this ______ day of __________, 20__.
CAPITAL ONE BANK,
as Administrator
By:_________________________
Name:
Title:
B-2
EXHIBIT C
[FORM OF] PAYMENT INSTRUCTIONS
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CAPITAL ONE MULTI-ASSET EXECUTION TRUST
CAPITAL ONE BANK
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Unless otherwise indicated, capitalized terms used in this Payment
Instruction have their respective meanings set forth in the Asset Pool
Supplement; provided, that the "preceding Monthly Period" shall mean
the Monthly Period immediately preceding the calendar month in which
this Payment Instruction is delivered. This Payment Instruction is
delivered pursuant to Section 5.3 of the Asset Pool Supplement.
The date of this Payment Instruction is a Distribution Date under the
COMT Pooling and Servicing Agreement.
I Allocations of Finance Charge Amounts:
A. Finance Charge Amounts paid to Series [______]............. $_______
[B. Finance Charge Amounts paid to Series [______]............. $_______
C. Finance Charge Amounts paid to Series [______]............. $_______
Total $_______]
II. Allocations of Principal Amounts:
A. Principal Amounts paid to Series [____].................... $_______
[B. Principal Amounts paid to Series [____].................... $_______
C. Principal Amounts paid to Series [____].................... $_______
Total $_______]
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Payment Instruction this ____ day of __________, ____.
CAPITAL ONE FUNDING, LLC,
as Beneficiary of the Capital One Multi-asset
Execution Trust
By: ________________________
Name:
Title:
CAPITAL ONE BANK,
as Servicer of the Capital One Master Trust
By: ________________________
Name:
Title:
C-2