EXHIBIT 4.4
[FORM OF]
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CAPITAL ONE MULTI-ASSET EXECUTION TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
--------------------
ASSET POOL ONE SUPPLEMENT
dated as of September __, 2002
to
INDENTURE
dated as of September __, 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 ............................... 6
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 ............................................................. 7
Section 2.2. Recording, Etc ......................................................... 7
Section 2.3. Trust Indenture Act Requirements ....................................... 9
Section 2.4. Suits To Protect the Collateral ........................................ 9
Section 2.5. Purchaser Protected .................................................... 9
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 .............................................. 10
Section 2.9. Certain Actions by Indenture Trustee ................................... 11
Section 2.10. Opinions as to Collateral .............................................. 11
Section 2.11. Certain Commercial Law Representations and Warranties .................. 11
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.1. Collections and Allocations ............................................ 12
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 One Servicing Fee ........................ 13
Section 3.5. Final Payment .......................................................... 14
Section 3.6. Payments within a Series, Class or Tranche ............................. 14
Section 3.7. Allocations of Collections of Finance Charge Receivables Allocable to
the Segregated Transferor Interest ..................................... 14
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TABLE OF CONTENTS
(continued)
Page
Section 3.8. Excess Principal Amounts Sharing Groups ................................ 14
Section 3.9. Excess Finance Charge Amounts Sharing Groups ........................... 14
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 .............................................. 17
Section 5.2. Monthly Noteholders' Statement ......................................... 17
Section 5.3. Payment Instruction to Master Trust .................................... 18
Section 5.4. Amendments to the Pooling and Servicing Agreement ...................... 18
Section 5.5. Limitations on Liability ............................................... 18
Section 5.6. Termination of Issuer .................................................. 19
Section 5.7. Termination Distributions .............................................. 19
Section 5.8. Derivative Counterparty, Supplemental Credit Enhancement Provider and
Supplemental Liquidity Provider as Third-Party Beneficiary ............. 19
Section 5.9. Acknowledgement and Acceptance of Indenture ............................ 19
Section 5.10. Amendments ............................................................. 19
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THIS ASSET POOL ONE SUPPLEMENT between CAPITAL ONE MULTI-ASSET
EXECUTION TRUST, a statutory business 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, Xxxxxxxxxx Building, 0000 Xxxxxx Xxxx,
Xxxxxxxxxx, XX 00000, 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 September __, 2002.
All things necessary to make this Asset Pool One Supplement a valid
agreement of the Issuer, in accordance with its terms, have been done.
GRANTING CLAUSE
The Issuer hereby grants to the Indenture Trustee for the benefit and
security of the following: (a) the Asset Pool One 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 One;
(iii) each Supplemental Issuer Account (including all Sub-Accounts
thereof) established from time to time for Asset Pool One;
(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 One Notes;
(vi) all rights, benefits and powers under any Supplemental Credit
Enhancement Agreement or Supplemental Liquidity Agreement
relating to any Tranche of Asset Pool One 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 One Notes (and the related obligations under
the Indenture and this Asset Pool One Supplement), equally and ratably without
prejudice, priority or distinction between any Asset Pool One 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 One 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 One Supplement relating to the Asset
Pool One Notes and (iii) compliance by the Issuer with the provisions of the
Indenture, any Indenture Supplement or this Asset Pool One Supplement relating
to the Asset Pool One Notes. This Asset Pool One 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 One Noteholders may be adequately and effectively
protected.
The Asset Pool One Notes, Derivative Agreements, Supplemental Credit
Enhancement Agreements, Supplemental Liquidity Agreements and other obligations
under the Indenture, this Asset Pool One Indenture Supplement and any Indenture
Supplement relating to the Asset Pool One 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 One 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 One
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 One 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
or the 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;
(4) all references in this Asset Pool One Supplement to designated
"Articles," "Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions
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of this Asset Pool One Supplement as originally executed. The words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this Asset
Pool One 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 One Supplement shall be controlling;
(6) each capitalized term defined herein shall relate only to the
Asset Pool One 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 One" means the Collateral granted to the Indenture Trustee
pursuant to this Asset Pool One Supplement.
"Asset Pool One Defaulted Amount" means, for any Monthly Period, the
product of the Defaulted Amount for the related Monthly Period and the Floating
Allocation Percentage for Asset Pool One for such Monthly Period.
"Asset Pool One 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 Supplement, plus any amounts
included as Asset Pool One Finance Charge Amounts pursuant to any Indenture
Supplement.
"Asset Pool One Notes" means the Notes designated in an Indenture
Supplement as being secured by the Collateral of Asset Pool One.
"Asset Pool One Noteholder" means any person in whose name an Asset
Pool One Note is registered.
"Asset Pool One 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 Supplement for such Monthly Period plus any amounts included
as Asset Pool One Principal Amounts pursuant to any Indenture Supplement.
"Asset Pool One Servicing Fee" has the meaning specified in Section
3.4.
"Asset Pool One Supplement" means this Asset Pool One 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.
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"Collateral" has the meaning specified in the Granting Clause of this
Asset Pool One 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 Pooling and Servicing Agreement and the Supplement, as
amended, supplemented, restated or otherwise modified from time to time.
"Defaulted Amount" has the meaning specified in the Pooling and
Servicing 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 One
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.
"Excess Principal Amounts Sharing Series" means a Series that,
pursuant to the Indenture Supplement therefor, will share certain Asset Pool One
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 Percentage" (a) for Asset Pool One, means the
"Floating Allocation Percentage" as defined in the Supplement and (b) for any
Series of Asset Pool One Notes, has the meaning specified in the related
Indenture Supplement.
"Indenture" means the Indenture, dated as of September __, 2002,
between the Issuer and the Indenture Trustee, as the same may be amended,
supplemented or otherwise modified from time to time.
"Indenture Supplement" has the meaning specified in the first
paragraph of this Asset Pool One Supplement.
"Invested Amount" has the meaning specified in the Supplement.
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"Investor Certificate" has the meaning specified in the Pooling and
Servicing Agreement.
"Investor Certificateholder" has the meaning specified in the Pooling
and Servicing Agreement.
"Issuer" has the meaning specified in the first paragraph of this
Asset Pool One 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 Notes,
the meaning specified in the applicable Indenture Supplement for such Series of
Asset Pool One Notes.
"Master Trust Trustee" has the meaning specified in the Transfer and
Administration Agreement.
"Monthly Noteholders' Statement" means a report substantially in the
form of Exhibit __, as the same may be supplemented as set forth in the related
Indenture Supplement.
"Monthly Principal Payment" has, with respect to any Series of Asset
Pool One Notes, the meaning specified in the applicable Indenture Supplement for
such Series, Class or Tranche of Asset Pool One Notes.
"Monthly Servicer's Certificate" means the certificate substantially
in the form of Exhibit [B] to the Supplement.
"Nominal Liquidation Amount Deficit" has, with respect to any Series,
Class or Tranche of Asset Pool One Notes, the meaning specified in the
applicable Indenture Supplement for such Series, Class or Tranche of Asset Pool
One Notes.
"Note Rating Agency" means, with respect to any Outstanding Asset Pool
One 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.
"Pooling and Servicing Agreement" has the meaning specified in the
Transfer and Administration Agreement.
"Principal Allocation Percentage" (a) for Asset Pool One, means the
"Principal Allocation Percentage" as defined in the Supplement and (b) for any
Series of Asset Pool One Notes, has the meaning specified in the related
Indenture Supplement.
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"Reallocated Principal Amount" (a) for Asset Pool One, means the sum
of the Reallocated Principal Amounts for all Series of Asset Pool One Notes and
(b) for any Series of Asset Pool One 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
Supplement.
"Series Supplement" has the meaning specified in the Transfer and
Administration Agreement.
"Servicer" has the meaning specified in the Transfer and
Administration Agreement.
"Standard & Poor's" has the meaning specified in the Pooling and
Administration Agreement.
"Supplemental Issuer Account" means the trust account or accounts
designated as such and established pursuant to subsection 4.1(a).
"Target Interest Deposit Amount," for each Series, Class or Tranche of
Asset Pool One Notes, has the meaning specified in the related Indenture
Supplement.
"Transfer and Administration Agreement" means the Transfer and
Administration Agreement dated as of September __, 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 One Supplement.
"Trust Agreement" means the Capital One Multi-asset Execution Trust
Amended and Restated Trust Agreement, dated as of September __, 2002, between
Capital One Funding, LLC, as Beneficiary and as transferor, 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.
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Section 1.3. 0Successors and Assigns. All covenants and agreements in
this Asset Pool One 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 One Supplement shall bind the successors
and agents of the Indenture Trustee.
Section 1.4. Separability. In case any provision in this Asset Pool
One 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 ONE SUPPLEMENT WILL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
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 One 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 One Supplement, the Indenture is in all respects ratified and confirmed and
the Indenture as so supplemented by this Asset Pool One 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 One 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;
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(ii) maintain or preserve the Security Interest (and the
priority thereof) created by this Asset Pool One 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 One 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 this Indenture, any
amendments thereto and any other instruments of further assurance.
(c) Without limiting the generality of clause (a)(ii) or (a)(iii):
(i) The Issuer will cause this Asset Pool One 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
8
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 One 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 One 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 One 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 officer of the Issuer, 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 One 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 One Supplement, and such suits and
proceedings as the Indenture Trustee may deem expedient to preserve or protect
the interests of the Asset Pool One 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 One 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
One Finance Charge Amounts or Asset Pool One 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
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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 One
Supplement, then, in each such event, the Indenture Trustee shall be entitled to
hire experts, consultants, agents and attorneys to advise the 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 One 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 One
Supplement, execute instruments to release property from the lien of this Asset
Pool One 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 One 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 One 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 One Supplement and (ii) not be deemed to hold the Security Interest
for the benefit of itself, the
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Indenture Trustee, the Asset Pool One 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 One 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.
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 are necessary to perfect and maintain the
perfection of the Security Interest created by this Asset Pool One 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 [_______] 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 One 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 One Supplement until [___________] 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 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
11
this Asset Pool 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 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," or an "uncertificated 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 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 Supplement, the filing of all
appropriate financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest in
the related Collateral granted to the Indenture Trustee pursuant to the
Indenture and this Asset Pool 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 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 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 One Notes. The Administrator
pursuant to the terms of Transfer and Administration Agreement shall deposit
Asset Pool One Finance Charge Amounts and Asset Pool One Principal
12
Amounts with respect to any Monthly Period into the Collection Account for Asset
Pool One 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 One
Notes an amount equal to the product of (i) the Floating Allocation Percentage
for such Monthly Period for such Series and (ii) the sum of the Asset Pool One
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 One
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 One 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 to each Series of Asset Pool One Notes an amount equal to Monthly
Principal Payment for such Series of Asset Pool One Notes; provided, however,
that in the event that such amount for any Monthly Period is less than the
aggregate Monthly Principal Payments for all Series of Asset Pool One Notes,
such amount will be allocated pro rata to each Series of Asset Pool One 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 One Principal
Amounts for such Monthly Period and (b) the Monthly Principal Payment for such
Series of Asset Pool One Notes, each for such Monthly Period; provided further,
however, that any excess Asset Pool One Principal Amounts identified in the
application of clause (a) of the preceding proviso, or in the application of
this proviso, will be allocated to each Series of Asset Pool One Notes which has
not been allocated sufficient Asset Pool One 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 One Notes to
the sum of the numerators used to calculate the Principal Allocation Percentage
for such Monthly Period for all Series of Asset Pool One Notes with an uncovered
Monthly Principal Payment for such Monthly Period).
Section 3.4. Allocations of the Asset Pool One Servicing Fee.
(a) As compensation for its servicing activities under the Pooling and
Servicing Agreement 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 One Servicing Fee"). For each Monthly Period, the Asset Pool
One Servicing Fee shall equal the Certificateholder Servicing Fee, as defined in
the Supplement.
(b) With respect to each Monthly Period, the Indenture Trustee, at the
direction of the Administrator, shall allocate to each Series of Asset Pool One
Notes an amount equal to the product of (i) the Asset Pool One Servicing Fee for
such Monthly Period and (ii) the Floating Allocation Percentage for such Monthly
Period for such Series of Asset Pool One Notes.
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Section 3.5. Final Payment. Each Series, Class or Tranche of Asset
Pool One 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 One 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 One
Notes, as applicable;
(b) the date on which the Outstanding Dollar Principal Amount of such
Asset Pool One 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 One Notes is paid
in full; or
(c) on the Legal Maturity Date of such Asset Pool One Notes, after
giving effect to all deposits, allocations, reallocations, sales of Collateral
and payments to be made on such date.
Section 3.6. Payments within a Series, Class or Tranche. All payments
of principal, interest or other amounts to Holders of the Asset Pool One 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 One
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 One Notes pursuant to Section 4.05 of the Supplement.
Section 3.8. Excess Principal Amounts Sharing Groups.
Asset Pool One Principal Amounts and other specified amounts allocated
to each Series of Asset Pool One 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 One 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 One 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 One Finance Charge Amounts and other specified amounts
allocated to each Series of Asset Pool One 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 One 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 One Notes in the same Excess Finance Charge Amounts Sharing Group are
required to be identical in all material respects.
14
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 which will be an amount equal to the sum of the Master Trust
Excess Sharing Amounts for each Series of Notes. 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 Pooling and Servicing
Agreement.
[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 One, one or more Eligible Deposit
Accounts (each such account, a "Collection Account" and collectively, the
"Collection 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 applicable Asset Pool One 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 One 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 One 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 One Noteholders out of funds in the Issuer Accounts pursuant to
this Asset Pool One 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.
15
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 One 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 One 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.
(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.
16
Notwithstanding any other provision of the Indenture or this Asset Pool One
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) On 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 One
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 One 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 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 will 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 will have occurred and is continuing but no
Notes 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.
17
Section 5.3. Payment Instruction to Master Trust.
(a) Promptly after the receipt by the Issuer of each Monthly
Servicer's Certificate under the 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 Pooling and Servicing Agreement as supplemented by the Supplement to
calculate the Invested Amount of the COMT Collateral Certificate.
Section 5.4. Amendments to the Pooling and Servicing Agreement. By
their acceptance of a Asset Pool One Note, the Asset Pool One Noteholders
acknowledge that the Transferor, the Servicer and the Master Trust Trustee may
amend the 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 One Noteholder, so long as such 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 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 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 One 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
18
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 One 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 One Supplement, and recourse
may be had solely to the Collateral pledged to secure the Asset Pool One Notes
under this Asset Pool One 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.
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
One 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 One Supplement may not be amended,
supplemented or modified.
[END OF ARTICLE V]
19
IN WITNESS WHEREOF, the parties hereto have caused this Asset Pool One
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:________________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Indenture Trustee
and not in its individual capacity
By:________________________________________
Name:
Title:
Acknowledged and Accepted:
CAPITAL ONE BANK,
as Administrator
By:______________________________
Name:
Title:
CAPITAL ONE FUNDING, LLC,
as Transferor
By:______________________________
Name:
Title:
