Exhibit 4.1(a)
EXECUTION COPY
CAPITAL ONE MULTI-ASSET EXECUTION
TRUST
as Issuer
and
THE BANK OF NEW YORK
MELLON
as Indenture Trustee
CLASS A(2009-1) TERMS
DOCUMENT
dated as of June 16,
2009
to
CARD SERIES INDENTURE
SUPPLEMENT
dated as of October 9,
2002,
as amended by the First Amendment thereto dated
as of March 1, 2008
to
ASSET POOL 1
SUPPLEMENT
dated as of October 9,
2002,
as amended by the First Amendment thereto dated
as of March 1, 2008
to
INDENTURE
dated as of October 9, 2002, as
amended and restated as of January 13, 2006,
and as further amended by the First Amendment
thereto dated as of March 1, 2008
TABLE OF CONTENTS
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Page
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ARTICLE I
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Definitions and Other Provisions of
General Application
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Section 1.01.
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Definitions
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1
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Section
1.02.
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Governing
Law
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7
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Section
1.03.
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Counterparts
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7
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Section
1.04.
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Ratification of
Indenture, Asset Pool 1 Supplement and Indenture
Supplement
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7
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ARTICLE II
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The Class A(2009-1) Notes
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Section
2.01.
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Creation and
Designation
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8
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Section
2.02.
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Adjustments to
Required Subordinated Percentages
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8
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Section
2.03.
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Interest
Payment
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8
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Section
2.04.
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Calculation
Agent; Determination of LIBOR
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9
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Section
2.05.
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Payments of
Interest and Principal
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10
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Section
2.06.
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Form of
Delivery of Class A(2009-1) Notes; Depository;
Denominations
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10
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Section
2.07.
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Delivery and
Payment for the Class A(2009-1) Notes
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10
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Section
2.08.
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Targeted
Deposits to the Accumulation Reserve Account
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10
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Section
2.09.
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Modification of
Section 3.10(b) of the Indenture Supplement
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10
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-i-
THIS CLASS A(2009-1) TERMS DOCUMENT
(this “ Terms Document ”), by and between
CAPITAL ONE MULTI-ASSET EXECUTION TRUST, a statutory trust created
under the laws of the State of Delaware (the “ Issuer
”), 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 MELLON, a New York
banking corporation, as Indenture Trustee (the “ Indenture
Trustee ”), is made and entered into as of June 16,
2009.
Pursuant to this Terms Document, the
Issuer shall create a new tranche of Class A Notes and shall
specify the principal terms thereof.
ARTICLE I
Definitions and Other Provisions of
General Application
Section 1.01.
Definitions . For all purposes of this Terms Document,
except as otherwise expressly provided or unless the context
otherwise requires:
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(1)
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the terms
defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
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(2)
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all other terms
used herein which are defined in the Indenture Supplement, the
Asset Pool 1 Supplement or the Indenture, either directly or by
reference therein, have the meanings assigned to them
therein;
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(3)
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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)
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all references
in this Terms Document to designated “Articles,”
“Sections” and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Terms
Document;
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(5)
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the words
“herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Terms Document as a whole and not to any particular Article,
Section or other subdivision;
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(6)
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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 Supplement, the Asset Pool 1 Supplement, the Indenture or
the Transfer and Administration Agreement, the terms and provisions
of this Terms Document shall be controlling;
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(7)
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each
capitalized term defined herein shall relate only to the Class
A(2009-1) Notes and no other Tranche of Notes issued by the Issuer;
and
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1
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(8)
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“including” and words of similar
import will be deemed to be followed by “without
limitation.”
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“ Accumulation Commencement
Date ” shall have the meaning specified in the Indenture
Supplement; provided , however , that solely with
respect to the Class A(2009-1) Notes, wherever the word
“twelve (12)” appears in the definition of
“Accumulation Commencement Date” in the Indenture
Supplement, it shall be replaced with the word “eleven
(11)”.
“ Accumulation Period
Amount ” means $59,090,909.09; provided ,
however , if the Accumulation Period Length is determined to
be less than eleven (11) months pursuant to
Section 3.10(b)(ii) of the Indenture Supplement, as
modified by this Terms Document, the Accumulation Period Amount
shall be the amount specified in the definition of
“Accumulation Period Amount” in the Indenture
Supplement; provided further , however , that solely
with respect to the Class A(2009-1) Notes, wherever the word
“twelve (12)” appears in the definition of
“Accumulation Period Amount” in the Indenture
Supplement, it shall be replaced with the word “eleven
(11)”.
“ Accumulation Reserve
Funding Period ” shall mean, (a) if the Accumulation
Period Length is determined to be one (1) month, there shall
be no Accumulation Reserve Funding Period and (b) otherwise,
the period (x) commencing on the earlier to occur of
(i) the Monthly Period beginning three (3) calendar
months prior to the first Distribution Date for which a budgeted
deposit is targeted to be made into the Principal Funding
sub-Account of the Class A(2009-1) Notes pursuant to
Section 3.10(b) of the Indenture Supplement and
(ii) the Monthly Period following the first Distribution Date
following and including the July 2009 Distribution Date for which
the Quarterly Excess Spread Percentage is less than 4%, but in such
event the Accumulation Reserve Funding Period shall not be required
to commence earlier than 4 months prior to the first Distribution
Date for which a budgeted deposit is targeted to be made into the
Principal Funding sub-Account for the Class A(2009-1) Notes
pursuant to Section 3.10(b) of the Indenture Supplement
and (y) ending on the close of business on the last day of the
Monthly Period preceding the earlier to occur of (i) the
Expected Principal Payment Date for the Class A(2009-1) Notes and
(ii) the date on which the Class A(2009-1) Notes are paid in
full.
“ Asset Pool 1
Supplement ” means the Asset Pool 1 Supplement dated as
of October 9, 2002, as amended by the First Amendment thereto,
dated as of March 1, 2008, by and between the Issuer and the
Indenture Trustee, as amended and supplemented from time to
time.
“ Base Rate ”
means, with respect to any Monthly Period, the sum of (a) the
Card Series Servicing Fee Percentage and (b) the weighted
average (based on the Outstanding Dollar Principal Amount of the
related Card Series Notes) of the following:
(i) in the case of a Tranche of Card
Series Dollar Interest-bearing Notes with no Derivative Agreement
for interest, the rate of interest applicable to such Tranche for
the period from and including the Monthly Interest Accrual Date for
such Tranche of Card Series Dollar Interest-bearing Notes in such
Monthly Period to but excluding the Monthly Interest Accrual Date
for such Tranche of Card Series Dollar Interest-bearing Notes in
the following Monthly Period;
2
(ii) in the case of a Tranche of
Card Series Discount Notes, the rate of accretion (converted to an
accrual rate) of such Tranche for the period from and including the
Monthly Interest Accrual Date for such Tranche of Card Series
Discount Notes in such Monthly Period to but excluding the Monthly
Interest Accrual Date for such Tranche of Card Series Discount
Notes in the following Monthly Period;
(iii) in the case of a Tranche of
Card Series Notes with a Performing Derivative Agreement for
interest, the rate at which payments by the Issuer to the
applicable Derivative Counterparty accrue (prior to the netting of
such payments, if applicable) for the period from and including the
Monthly Interest Accrual Date for such Tranche of Card Series Notes
in such Monthly Period to but excluding the Monthly Interest
Accrual Date for such Tranche of Card Series Notes in the following
Monthly Period; provided , however , that in the case
of a Tranche of Card Series Notes with a Performing Derivative
Agreement for interest in which the rating on such Tranche of Card
Series Notes is not dependant upon the rating of the applicable
Derivative Counterparty, the amount determined pursuant to this
clause (iii) will be the higher of (1) the rate
determined pursuant to this clause (iii) above and
(2) the rate of interest applicable to such Tranche for the
period from and including the Monthly Interest Accrual Date for
such Tranche of Card Series Notes in such Monthly Period to but
excluding the Monthly Interest Accrual Date for such Tranche of
Card Series Notes in the following Monthly Period; and
(iv) in the case of a tranche of
Card Series Notes with a non-Performing Derivative Agreement for
interest, the rate specified for that date in the related Terms
Document.
“ Calculation Agent
” is defined in Section 2.04(a) .
“ Class A(2009-1) Adverse
Event ” means the occurrence of any of the following:
(a) an Early Redemption Event with respect to the Class
A(2009-1) Notes or (b) an Event of Default and acceleration of
the Class A(2009-1) Notes.
“ Class A(2009-1) Note
” means any Note, substantially in the form set forth in
Exhibit A-2 to the Indenture Supplement, designated therein
as a Class A(2009-1) Note and duly executed and authenticated in
accordance with the Indenture.
“ Class A(2009-1)
Noteholder ” means a Person in whose name a Class
A(2009-1) Note is registered in the Note Register.
“ Class A(2009-1)
Termination Date ” means the earliest to occur of
(a) the Principal Payment Date on which the Outstanding Dollar
Principal Amount of the Class A(2009-1) Notes is paid in full,
(b) the Legal Maturity Date and (c) the date on which the
Indenture is discharged and satisfied pursuant to Article VI
thereof.
3
“ Excess Spread
Percentage ” shall mean, with respect to any Distribution
Date, the amount, if any, by which the Portfolio Yield for the
preceding Monthly Period exceeds the Base Rate for such Monthly
Period.
“ Expected Principal
Payment Date ” means June 15, 2010.
“ Initial Dollar Principal
Amount ” means $650,000,000.
“ Indenture ”
means the Indenture dated as of October 9, 2002, as amended
and restated as of January 13, 2006, and as further amended by
the First Amendment thereto, dated as of March 1, 2008, by and
between the Issuer and the Indenture Trustee, as amended and
supplemented from time to time.
“ Indenture Supplement
” means the Card Series Indenture Supplement dated as of
October 9, 2002, as amended by the First Amendment thereto,
dated as of March 1, 2
