EXHIBIT 4.5
[FORM OF]
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CAPITAL ONE MULTI-ASSET EXECUTION TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
CARD SERIES INDENTURE SUPPLEMENT
dated as of September __, 2002
to
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 1.01. Definitions ............................................................................................... 1
Section 1.02. Governing Law ............................................................................................. 22
Section 1.03. Counterparts .............................................................................................. 22
Section 1.04. Ratification of Indenture and Asset Pool One Supplement ................................................... 22
ARTICLE II
The Notes
Section 2.01. Creation and Designation .................................................................................. 23
Section 2.02. New Issuances of Notes .................................................................................... 23
ARTICLE III
Allocations, Deposits and Payments
Section 3.01. Allocations of Card Series Finance Charge Amounts ......................................................... 25
Section 3.02. Targeted Deposits of Card Series Finance Charge Amounts to the Interest Funding Account ................... 26
Section 3.03. Allocations of Card Series Finance Charge Amounts to Interest Funding sub-Accounts ........................ 26
Section 3.04. Amounts to be Treated as Card Series Finance Charge Amounts; Payments Received from
Derivative Counterparties for Interest in Foreign Currencies; Other Deposits to the
Interest Funding sub-Accounts ............................................................................. 27
Section 3.05. Allocations of Reductions to the Nominal Liquidation Amount Due to Investor Charge-Offs ................... 28
Section 3.06. Allocations of Reimbursements of Nominal Liquidation Amount Deficits ...................................... 32
Section 3.07. Application of Card Series Principal Amounts .............................................................. 33
Section 3.08. Allocation of Reductions of Nominal Liquidation Amount of Subordinated Notes from
Reallocations of Card Series Principal Amounts to Cover Interest Funding Account
Shortfalls or Servicing Fee Shortfalls .................................................................... 35
Section 3.09. Allocation of Servicing Fee Shortfalls .................................................................... 39
Section 3.10. Targeted Deposits of Card Series Principal Amounts to the Principal Funding Account ....................... 39
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TABLE OF CONTENTS
(continued)
Page
Section 3.11. Allocations among Principal Funding sub-Accounts .......................................................... 41
Section 3.12. Amounts to be Treated as Card Series Principal Amounts; Payments Received from Derivative
Counterparties for Principal; Other Deposits to Principal Funding sub-Accounts ............................ 42
Section 3.13. Withdrawals from Interest Funding Account ................................................................. 43
Section 3.14. Withdrawals from Principal Funding Account ................................................................ 44
Section 3.15. Limit on Deposits to the Principal Funding sub-Account of Subordinated Note; Limit on
Repayments of all Tranches ................................................................................ 46
Section 3.16. Calculation of Nominal Liquidation Amount ................................................................. 47
Section 3.17. Reinvestment in the COMT Collateral Certificate ........................................................... 48
Section 3.18. Netting of Deposits and Payments .......................................................................... 48
Section 3.19. Pro rata Payments within a Tranche ........................................................................ 48
Section 3.20. Sale of Collateral for Accelerated Notes .................................................................. 48
Section 3.21. Calculation of Prefunding Target Amount ................................................................... 50
Section 3.22. Targeted Deposits to the Class C Reserve Account .......................................................... 53
Section 3.23. Withdrawals from the Class C Reserve Account .............................................................. 53
Section 3.24. Targeted Deposits to the Accumulation Reserve Account ..................................................... 54
Section 3.25. Withdrawals from the Accumulation Reserve Account ......................................................... 55
Section 3.26. Computation of Interest ................................................................................... 55
Section 3.27. Excess Finance Charge Amounts Sharing ..................................................................... 56
Section 3.28. Excess Available Principal Amount Sharing ................................................................. 56
Section 3.29 Targeted Deposits to the Class D Reserve Account .......................................................... 56
Section 3.30. Withdrawals from the Class D Reserve Account .............................................................. 57
ARTICLE IV
Early Redemption of Notes
Section 4.01. Early Redemption Events ................................................................................... 59
ARTICLE V
Issuer Accounts and Investments
Section 5.01. Issuer Accounts ........................................................................................... 60
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EXHIBITS
EXHIBIT A-1 [FORM OF] CLASS A NOTE
EXHIBIT A-2 [FORM OF] CLASS B NOTE
EXHIBIT A-3 [FORM OF] CLASS C NOTE
EXHIBIT A-4 [FORM OF] CLASS D NOTE
EXHIBIT B [FORM OF] CARD SERIES SCHEDULE TO
PAYMENT INSTRUCTIONS
EXHIBIT C [FORM OF] CARD SERIES SCHEDULE TO
MONTHLY NOTEHOLDERS' STATEMENT
EXHIBIT D-1 [FORM OF] CLASS A TERMS DOCUMENT
EXHIBIT D-2 [FORM OF] CLASS B TERMS DOCUMENT
EXHIBIT D-3 [FORM OF] CLASS C TERMS DOCUMENT
EXHIBIT D-4 [FORM OF] CLASS D TERMS DOCUMENT
EXHIBIT E THRESHOLD CONDITIONS
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This CARD SERIES INDENTURE SUPPLEMENT (this "Indenture Supplement"),
by and between CAPITAL ONE MULTI-ASSET EXECUTION TRUST, a statutory business
trust created under the laws of the State of Delaware (the "Issuer"), having its
principal office at E.A. Delle Donne Corporate Center, Xxxxxxxxxx Building, 0000
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and THE BANK OF NEW YORK, a New York
banking corporation, as Indenture Trustee (the "Indenture Trustee"), is made and
entered into as of September __, 2002.
Pursuant to this Indenture Supplement, the Issuer shall create a new
Series of 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 Indenture
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 include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Indenture or
the Asset Pool One 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 Indenture to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Indenture Supplement. The
words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture 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, the Asset Pool One Supplement or the
Transfer and Administration Agreement, the terms and provisions
of this Indenture Supplement shall be controlling;
(6) each capitalized term defined herein shall relate only to the
Card Series Notes and no other Series of Notes issued by the
Issuer; and
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(7) "including" and words of similar import will be deemed to be
followed by "without limitation."
"Accumulation Commencement Date" means, for each Tranche of Notes, the
first Business Day of the month that is twelve (12) whole calendar months prior
to the Expected Principal Payment Date for such Tranche of Notes; provided,
however, that, if the Accumulation Period Length for such Tranche of Notes is
less than twelve (12) months, the Accumulation Commencement Date will be the
first Business Day of the month that is the number of whole months prior to such
Expected Principal Payment Date at least equal to the Accumulation Period Length
such that the number of Monthly Periods during the period from the Accumulation
Commencement Date to such Expected Principal Payment Date will at least equal
the Accumulation Period Length.
"Accumulation Period" means, for any Tranche of Card Series Notes,
each Monthly Period with respect to which a deposit is required to be made into
the Principal Funding sub-Account for such Tranche of Notes pursuant to Section
3.07(g) and Section 3.10.
"Accumulation Period Amount" shall mean, for any Tranche of Notes for
each Monthly Period, an amount equal to the product of (i) Available Expected
Principal for such Monthly Period and (ii) a fraction, the numerator of which is
the highest Outstanding Dollar Principal Amount of such Tranche of Notes since
the issuance of such Tranche and the denominator of which is the sum of (a) the
aggregate highest Outstanding Dollar Principal Amount of all Outstanding
Tranches of Notes and (b) the invested amounts of all Variable Accumulation
Series of investor certificates issued by the Master Trust which are not
scheduled to be in their revolving periods as of such Monthly Period; provided
that, for purposes of this definition, the commencement date of the accumulation
period of each such Variable Accumulation Series shall be deemed to have been
postponed to the latest permissible date, determined as if the provisions of
Section 3.10(b)(ii) applied to each such Series of investor certificates with
such changes as may be specified with respect to such Series of investor
certificates (applying such provisions first to the Variable Accumulation Series
with the latest expected final payment date and next to each Series of investor
certificates with the next preceding expected final payment date).
"Accumulation Period Length" is defined in Section 3.10(b)(ii).
"Accumulation Reserve Account" means the trust account designated as
such and established pursuant to Section 5.01(a).
"Accumulation Reserve Sub-Account Earnings" means, for each
Distribution Date, the investment earnings on funds in the Accumulation Reserve
Account (net of investment expenses and losses) for the period from and
including the immediately preceding Distribution Date to but excluding such
Distribution Date.
"Aggregate Series Finance Charge Amounts Shortfall" means the sum of
the Series Finance Charge Amounts Shortfalls (as such term is defined in each of
the related Indenture Supplements) for each Excess Finance Charge Amounts
Sharing Series in Excess Finance Charge Amounts Sharing Group A.
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"Aggregate Series Principal Amounts Shortfall" means the sum of the
Series Principal Amounts Shortfalls (as such term is defined in each of the
related Indenture Supplements) for each Excess Principal Amounts Sharing Series
in Excess Principal Amounts Sharing Group A.
"Asset Pool One Supplement" means the Asset Pool One Supplement dated
as of September __, 2002, by and between the Issuer and the Indenture Trustee,
as the same may be amended, supplemented or otherwise modified from time to
time.
"Asset Sales Proceeds" means, for any Tranche of Notes, the proceeds
of the sale of Collateral with respect to such Tranche pursuant to Section 3.20.
Asset Sales Proceeds do not constitute Card Series Principal Amounts.
"Asset Sales Proceeds Deposit Amount" means, for any Tranche of Notes
in respect of which the Trust has received Asset Sales Proceeds, the amount of
Asset Sales Proceeds on deposit in the Principal Funding sub-Account for such
Tranche.
"Available Expected Principal" for any date of determination during
each Monthly Period shall be equal to the excess of (a) the Expected Monthly
Principal for such Monthly Period over (b) the sum, without duplication, of all
scheduled amortizations or accumulations of principal for such Monthly Period,
including past due shortfalls as of such date of determination, for all
Nonvariable Accumulation Series (as defined in the Pooling and Servicing
Agreement and the Series 2002-_ Supplement) of investor certificates issued by
the Master Trust which are not scheduled to be in their revolving periods as of
such Monthly Period.
"Card Series Defaulted Amount" means, with respect to any Monthly
Period, the portion of the Asset Pool One Defaulted Amount allocated to the Card
Series pursuant to Section 3.2(b) of the Asset Pool One Supplement.
"Card Series Finance Charge Amounts" means, for any Distribution Date,
the sum of (a) Asset Pool One Finance Charge Amounts allocated to the Card
Series pursuant to Section 3.2(a) of the Asset Pool One Supplement, (b) any
amounts to be treated as Card Series Finance Charge Amounts pursuant to Sections
3.04(a) and 3.20(d) and (c) any amounts to be treated as Card Series Finance
Charge Amounts pursuant to any terms document.
"Card Series Principal Amounts" means, for any Monthly Period, the sum
of (a) Asset Pool One Principal Amounts allocated to the Card Series pursuant to
Section 3.3 of the Asset Pool One Supplement and (b) any amounts to be treated
as Card Series Principal Amounts pursuant to Section 3.12(a).
"Card Series Servicing Fee" means, with respect to any Monthly Period,
the amount of the Asset Pool One Servicing Fee allocated to the Card Series
pursuant to Section 3.4(b) of the Asset Pool One Supplement.
"Class A Available Subordinated Amount of Class B Notes" means, for
any Tranche of Class A Notes, with respect to any Distribution Date, an amount
equal to the Required Subordinated Amount of Class B Notes minus the Class A
Usage Amount of Class B Notes, each for such Tranche of Class A Notes as of such
Distribution Date.
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"Class A Available Subordinated Amount of Class C Notes" means, for
any Tranche of Class A Notes, with respect to any Distribution Date, an amount
equal to the Required Subordinated Amount of Class C Notes minus the Class A
Usage Amount of Class C Notes, each for such Tranche of Class A Notes as of such
Distribution Date.
"Class A Available Subordinated Amount of Class D Notes" means, for
any Tranche of Class A Notes, with respect to any Distribution Date, an amount
equal to the Required Subordinated Amount of Class D Notes minus the Class A
Usage Amount of Class D Notes, each for such Tranche of Class A Notes as of such
Distribution Date.
"Class A Available Subordinated Amount of Subordinated Notes" means,
for any Tranche of Class A Notes, with respect to any Distribution Date, an
amount equal to the Required Subordinated Amount of Subordinated Notes minus the
Class A Usage Amount of Subordinated Notes, each for such Tranche of Class A
Notes as of such Distribution Date.
"Class A Notes" means a Note specified in the applicable Terms
Document as belonging to Class A.
"Class A Usage Amount of Class B Notes" means, with respect to any
Tranche of Class A Notes, on any Distribution Date, an amount, not to exceed the
Required Subordinated Amount of Class B Notes for such Tranche of Class A Notes,
equal to the excess, if any, of the Class A Usage Amount of Subordinated Notes
over the sum of the Required Subordinated Amount of Class C Notes and the
Required Subordinated Amount of Class D Notes, in each case for such
Distribution Date, in each case, for such Tranche of Class A Notes.
"Class A Usage Amount of Class C Notes" means, with respect to any
Tranche of Class A Notes for any Distribution Date, an amount, not to exceed the
Required Subordinated Amount of Class C Notes for such Tranche of Class A Notes,
equal to the excess, if any, of the Class A Usage Amount of Subordinated Notes
over the Required Subordinated Amount of Class D Notes, in each case, for such
Tranche of Class A Notes.
"Class A Usage Amount of Class D Notes" means, with respect to any
Tranche of Class A Notes for any Distribution Date, an amount, not to exceed the
Required Subordinated Amount of Class D Notes for such Tranche of Class A Notes,
equal to the Class A Usage Amount of Subordinated Notes.
"Class A Usage Amount of Subordinated Notes" means, with respect to
any Tranche of Class A Notes, zero on the date of issuance of such Tranche and
on any Distribution Date thereafter the Class A Usage Amount of Subordinated
Notes as of the preceding date of determination for such Tranche, plus the sum
of the following amounts (in each case, such amount shall not exceed the Class A
Available Subordinated Amount of Subordinated Notes for such Tranche after
giving effect to the previous clauses, if any):
(a) an amount equal to the product of (i) the aggregate amount
allocated to the Class B Notes pursuant to Section 3.05(a) on such date
and (ii) a fraction, the numerator of which is the Class A Available
Subordinated Amount of Class B Notes for such Tranche of Class A Notes
and the denominator of which is the aggregate Nominal
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Liquidation Amount of the Class B Notes as of the close of business on
the last day of the preceding Monthly Period; plus
(b) an amount equal to the product of (i) the aggregate amount
allocated to the Class C Notes pursuant to Section 3.05(a) on such date
and (ii) a fraction, the numerator of which is the Class A Available
Subordinated Amount of Class C Notes for such Tranche of Class A Notes
and the denominator of which is the aggregate Nominal Liquidation
Amount of the Class C Notes as of the close of business on the last day
of the preceding Monthly Period; plus
(c) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.05(a) on such date
and (ii) a fraction, the numerator of which is the Class A Available
Subordinated Amount of Class D Notes for such Tranche of Class A Notes
and the denominator of which is the aggregate Nominal Liquidation
Amount of the Class D Notes as of the close of business on the last day
of the preceding Monthly Period; plus
(d) the aggregate amount reallocated from such Tranche of
Class A Notes to the Class B Notes, Class C Notes or Class D Notes
pursuant to Section 3.05(b) on such date; plus
(e) the aggregate amount of Card Series Principal Amounts
allocated to the Interest Funding sub-Account of such Tranche of Class
A Notes pursuant to Section 3.07(a) on such date; plus
(f) an amount equal to the product of (i) an amount, not less
than zero, equal to the aggregate amount allocated to the Class C Notes
pursuant to Section 3.08(d)(i) on such date, minus the aggregate amount
reallocated to the Class D Notes pursuant to Section 3.08(e) on such
date and (ii) a fraction, the numerator of which is the Class A
Available Subordinated Amount of Class C Notes for such Tranche of
Class A Notes and the denominator of which is the aggregate Nominal
Liquidation Amount of the Class C Notes, in each case, after giving
effect to Section 3.05; plus
(g) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(d)(ii) or
reallocated to the Class D Notes pursuant to Section 3.08(e) on such
date and (ii) a fraction, the numerator of which is the Class A
Available Subordinated Amount of Class D Notes and the denominator of
which is the aggregate Nominal Liquidation Amount of the Class D Notes,
in each case, after giving effect to Section 3.05; plus
(h) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(f) on such date
and (ii) a fraction, the numerator of which is the Class A Available
Subordinated Amount of Class D Notes for such Tranche of Class A Notes
and the denominator of which is the aggregate Nominal Liquidation
Amount of the Class D Notes, in each case, after giving effect to
Section 3.05; plus
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(i) the aggregate amount of Card Series Principal Amounts paid
to the Servicer pursuant to Section 3.07(d) on such date; plus
(j) an amount equal to the product of (i) an amount, not less
than zero, equal to the aggregate amount allocated to the Class C Notes
pursuant to Sections 3.08(j)(i) on such date, minus the aggregate
amount reallocated to the Class D Notes pursuant to Section 3.08(k) on
such date and (ii) a fraction, the numerator of which is the Class A
Available Subordinated Amount of Class C Notes for such Tranche of
Class A Notes and the denominator of which is the aggregate Nominal
Liquidation Amount of the Class C Notes, in each case, after giving
effect to Section 3.05; plus
(k) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(j)(ii) or
reallocated to the Class D Notes pursuant to Section 3.08(k) on such
date and (ii) a fraction, the numerator of which is the Class A
Available Subordinated Amount of Class D Notes for such Tranche of
Class A Notes and the denominator of which is the aggregate Nominal
Liquidation Amount of the Class D Notes, in each case, after giving
effect to Section 3.05; plus
(l) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(f) on such date
and (ii) a fraction, the numerator of which is the Class A Available
Subordinated Amount of Class D Notes for such Tranche of Class A Notes
and the denominator of which is the aggregate Nominal Liquidation
Amount of the Class D Notes, in each case, after giving effect to
Section 3.05; minus
(m) an amount (not to exceed the Class A Usage Amount of Class
B Notes for such Tranche of Class A Notes after giving effect to the
amounts computed pursuant to clauses (a) through (l) above) equal to
the product of (i) the aggregate Nominal Liquidation Amount Deficits of
all Class B Notes which are reimbursed on such Distribution Date
pursuant to Section 3.06 and (ii) a fraction, the numerator of which is
the Class A Usage Amount of Class B Notes (prior to giving effect to
any reimbursement of Nominal Liquidation Amount Deficits on such
Distribution Date) for such Tranche of Class A Notes and the
denominator of which is the aggregate Nominal Liquidation Amount
Deficits (prior to giving effect to such reimbursement) of all Class B
Notes; minus
(n) an amount (not to exceed the Class A Usage Amount of Class
C Notes for such Tranche of Class A Notes after giving effect to the
amounts computed pursuant to clauses (a) through (l) above) equal to
the product of (i) the aggregate Nominal Liquidation Amount Deficits of
all Class C Notes which are reimbursed on such Distribution Date
pursuant to Section 3.06 and (ii) a fraction, the numerator of which is
the Class A Usage Amount of Class C Notes (prior to giving effect to
any reimbursement of Nominal Liquidation Amount Deficits on such
Distribution Date) for such Tranche of Class A Notes and the
denominator of which is the aggregate Nominal Liquidation Amount
Deficits (prior to giving effect to such reimbursement) of all Class C
Notes; minus
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(o) an amount (not to exceed the Class A Usage Amount of Class
D Notes for such Tranche of Class A Notes after giving effect to the
amounts computed pursuant to clauses (a) through (l) above) equal to
the product of (i) the aggregate Nominal Liquidation Amount Deficits of
all Class D Notes which are reimbursed on such Distribution Date
pursuant to Section 3.06 and (ii) a fraction, the numerator of which is
the Class A Usage Amount of Class D Notes (prior to giving effect to
any reimbursement of Nominal Liquidation Amount Deficits on such
Distribution Date) for such Tranche of Class A Notes and the
denominator of which is the aggregate Nominal Liquidation Amount
Deficits (prior to giving effect to such reimbursement) of all Class D
Notes.
"Class B Available Subordinated Amount of Class C Notes"
means, for any Tranche of Class B Notes, with respect to any Distribution Date,
an amount equal to the Required Subordinated Amount of Class C Notes minus the
Class B Usage Amount of Class C Notes, each for such Tranche of Class B Notes as
of such Distribution Date.
"Class B Available Subordinated Amount of Class D Notes"
means, for any Tranche of Class B Notes, with respect to any Distribution Date,
an amount equal to the Required Subordinated Amount of Class D Notes minus the
Class B Usage Amount of Class D Notes, each for such Tranche of Class B Notes as
of such Distribution Date.
"Class B Available Subordinated Amount of Subordinated Notes"
means, for any Tranche of Class B Notes, with respect to any Distribution Date,
an amount equal to the Required Subordinated Amount of Subordinated Notes minus
the Class B Usage Amount of Subordinated Notes, each for such Tranche of Class B
Notes as of such Distribution Date.
"Class B Notes" means a Note specified in the applicable Terms
Document as belonging to Class B.
"Class B Principal Allocation" means, for any Monthly Period,
an amount equal to the product of (a) the aggregate amount of Asset Pool One
Principal Amounts allocated to the Card Series pursuant to Section 3.3 of the
Asset Pool One Supplement for such Monthly Period and (b) the percentage
equivalent of a fraction, the numerator of which is the sum of the Principal
Allocation Amounts for such Monthly Period for all Class B Notes in the Card
Series and the denominator of which is sum of the Principal Allocation Amounts
for such Monthly Period for all Notes in the Card Series.
"Class B Usage Amount of Class C Notes" means, with respect to
any Tranche of Class B Notes for any Distribution Date, an amount, not to exceed
the Required Subordinated Amount of Class C Notes for such Tranche of Class B
Notes, equal to the excess, if any, of the Class B Usage Amount of Subordinated
Notes over the Required Subordinated Amount of Class D Notes, in each case, for
such Tranche of Class B Notes.
"Class B Usage Amount of Class D Notes" means, with respect to
any Tranche of Class B Notes for any Distribution Date, an amount, not to exceed
the Required Subordinated Amount of Class D Notes for such Tranche of Class B
Notes, equal to the Class B Usage Amount of Subordinated Notes for such Tranche
of Class B Notes.
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"Class B Usage Amount of Subordinated Notes" means, with
respect to any Tranche of Outstanding Class B Notes, zero on the date of
issuance of such Tranche and on any Distribution Date thereafter the Class B
Usage Amount of Subordinated Notes as of the preceding date of determination for
such Tranche, plus the sum of the following amounts (in each case, such amount
shall not exceed the Class B Available Subordinated Amount of Subordinated Notes
for such Tranche after giving effect to the previous clauses, if any):
(a) an amount equal to the product of (i) the aggregate amount
allocated to the Class C Notes pursuant to Section 3.05(a) on such date
and (ii) a fraction, the numerator of which is the Class B Available
Subordinated Amount of Class C Notes for such Tranche of Class B Notes
and the denominator of which is the aggregate Nominal Liquidation
Amount of the Class C Notes, in each case, after giving effect to
Sections 3.05(a) and (b); plus
(b) an amount equal to the product of (i) the aggregate amount
reallocated pursuant to Section 3.05(b)(ii) on such date from all Class
A Notes with a Required Subordinated Amount of Class B Notes greater
than zero to the Class C Notes and (ii) a fraction, the numerator of
which is the Class B Available Subordinated Amount of Class C Notes for
such Tranche of Class B Notes and the denominator of which is the
aggregate Class B Available Subordinated Amount of Class C Notes for
all Tranches of Class B Notes in the Card Series, in each case, after
giving effect to Sections 3.05(a) and (b); plus
(c) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.05(a) on such date
and (ii) a fraction, the numerator of which is the Class B Available
Subordinated Amount of Class D Notes for such Tranche of Class B Notes
and the denominator of which is the aggregate Nominal Liquidation
Amount of the Class D Notes, in each case, after giving effect to
Sections 3.05(a) and (b); plus
(d) an amount equal to the product of (i) the aggregate amount
reallocated pursuant to Section 3.05(b)(iii) on such date from the
Class A Notes with a Required Subordinated Amount of Class B Notes
greater than zero to the Class D Notes and (ii) a fraction, the
numerator of which is the Class B Available Subordinated Amount of
Class D Notes for such Tranche of Class B Notes and the denominator of
which is the aggregate Class B Available Subordinated Amount of Class D
Notes for all Tranches of Class B Notes in the Card Series, in each
case, after giving effect to Sections 3.05(a) and (b); plus
(e) the aggregate amount reallocated from such Tranche of
Class B Notes to the Class C Notes or Class D Notes pursuant to Section
3.05(c) on such date; plus
(f) an amount equal to the product of (i) an amount equal to
the aggregate amount allocated to the Class C Notes pursuant to Section
3.08(a)(ii) on such date with respect to Class A Notes with a Required
Subordinated Amount of Class B Notes greater than zero and (ii) a
fraction, the numerator of which is the Class B Available Subordinated
Amount of Class C Notes for such Tranche of Class B Notes and the
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denominator of which is the aggregate Class B Available Subordinated
Amount of Class C Notes for all Tranches of Class B Notes in the Card
Series, in each case, after giving effect to Section 3.05; plus
(g) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(a)(iii) on such
date with respect to Class A Notes with a Required Subordinated Amount
of Class B Notes greater than zero and (ii) a fraction, the numerator
of which is the Class B Available Subordinated Amount of Class D Notes
for such Tranche of Class B Notes and the denominator of which is the
aggregate Class B Available Subordinated Amount of Class D Notes for
all Tranches of Class B Notes in the Card Series, in each case, after
giving effect to Section 3.05; plus
(h) the aggregate amount reallocated from such Tranche of
Class B Notes to the Class C Notes and Class D Notes pursuant to
Section 3.08(b) on such date; plus
(i) the aggregate amount of Card Series Principal Amounts
allocated to the Interest Funding sub-Account of such Tranche of Class
B Notes pursuant to Section 3.07(b) on such date; plus
(j) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(f) on such date
and (ii) a fraction, the numerator of which is the Class B Available
Subordinated Amount of Class D Notes for such Tranche of Class B Notes
and the denominator of which is the aggregate Nominal Liquidation
Amount of the Class D Notes, in each case, after giving effect to
Section 3.05 and Sections 3.08(a) through (e); plus
(k) an amount equal to the product of (i) the aggregate amount
allocated to the Class C Notes pursuant to Section 3.08(g)(ii) on such
date with respect to Class A Notes with a Required Subordinated Amount
of Class B Notes greater than zero and (ii) a fraction, the numerator
of which is the Class B Available Subordinated Amount of Class C Notes
for such Tranche of Class B Notes and the denominator of which is the
aggregate Class B Available Subordinated Amount of Class C Notes for
all Tranches of Class B Notes in the Card Series, in each case, after
giving effect to Section 3.05 and Sections 3.08(a) through (f); plus
(l) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(g)(iii) on such
date with respect to Class A Notes with a Required Subordinated Amount
of Class B Notes greater than zero and (ii) a fraction, the numerator
of which is the Class B Available Subordinated Amount of Class D Notes
for such Tranche of Class B Notes and the denominator of which is the
aggregate Class B Available Subordinated Amount of Class D Notes for
all Tranches of Class B Notes in the Card Series, in each case, after
giving effect to Section 3.05 and Sections 3.08(a) through (f); plus
(m) the aggregate amount reallocated from such Tranche of
Class B Notes to the Class C Notes and Class D Notes pursuant to
Section 3.08(h) on such date; plus
9
(n) the aggregate amount of Card Series Principal Amounts paid to the
Servicer pursuant to Sections 3.07(e) on such date; plus
(o) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(l) on such date and
(ii) a fraction, the numerator of which is the Class B Available
Subordinated Amount of Class D Notes for such Tranche of Class B Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class D Notes, in each case, after giving effect to Section 3.05 and
Sections 3.08(a) and (k); minus
(p) an amount (not to exceed the Class B Usage Amount of Class C Notes
for such Tranche of Class B Notes after giving effect to the amounts
computed pursuant to clauses (a) through (o) above) equal to the product of
(i) the aggregate Nominal Liquidation Amount Deficits of all Class C Notes
which are reimbursed on such Distribution Date pursuant to Section 3.06 and
(ii) a fraction, the numerator of which is the Class B Usage Amount of Class
C Notes (prior to giving effect to any reimbursement of Nominal Liquidation
Amount Deficits on such Distribution Date) for such Tranche of Class B Notes
and the denominator of which is the aggregate Nominal Liquidation Amount
Deficits (prior to giving effect to such reimbursement) of all Class C
Notes, minus;
(q) an amount (not to exceed the Class B Usage Amount of Class D Notes
for such Tranche of Class B Notes after giving effect to the amounts
computed pursuant to clauses (a) through (o) above) equal to the product of
(i) the aggregate Nominal Liquidation Amount Deficits of all Class D Notes
which are reimbursed on such Distribution Date pursuant to Section 3.06 and
(ii) a fraction, the numerator of which is the Class B Usage Amount of Class
D Notes (prior to giving effect to any reimbursement of Nominal Liquidation
Amount Deficits on such Distribution Date) for such Tranche of Class B Notes
and the denominator of which is the aggregate Nominal Liquidation Amount
Deficits (prior to giving effect to such reimbursement) of all Class D
Notes;
provided, however, that if on an date of determination the Required Subordinated
Amount of Subordinated Notes for such Tranche of Class B Notes changes pursuant
to any Terms Document, after giving effect to such change, the Class B Usage
Amount of Subordinated Notes will be an amount equal to the product of (a) the
Required Subordinated Amount of Subordinated Notes for such Tranche of Class B
Notes after giving effect to such issuance and (b) a fraction, the numerator of
which is the Class B Usage Amount of Subordinated Notes prior to giving effect
to such issuance and the denominator of which is the Required Subordinated
Amount of Subordinated Notes for such Tranche of Class B Notes prior to giving
effect to such issuance, subject to further adjustment as described above.
"Class C Available Subordinated Amount of Class D Notes" means, for any
Tranche of Class C Notes, with respect to any Distribution Date, an amount equal
to the Required Subordinated Amount of Class D Notes minus the Class C Usage
Amount of Class D Notes, each for such Tranche of Class C Notes as of such
Distribution Date.
10
"Class C Notes" means a Note specified in the applicable Terms Document
as belonging to Class C.
"Class C Principal Allocation" means, for any Monthly Period, an amount
equal to the product of (a) the aggregate amount of Asset Pool One Principal
Amounts allocated to the Card Series pursuant to Section 3.3 of the Asset Pool
One Supplement for such Monthly Period and (b) the percentage equivalent of a
fraction, the numerator of which is the sum of the Principal Allocation Amounts
for such Monthly Period for all Class C Notes in the Card Series and the
denominator of which is sum of the Principal Allocation Amounts for such Monthly
Period for all Notes in the Card Series.
"Class C Reserve Account" means the trust account designated as such
and established pursuant to Section 5.01(a).
"Class C Usage Amount of Class D Notes" means, with respect to any
Tranche of Outstanding Class C Notes, zero on the date of issuance of such
Tranche and on any Distribution Date thereafter the Class C Usage Amount of
Class D Notes as of the preceding date of determination for such Tranche, plus
the sum of the following amounts (in each case, such amount shall not exceed the
Class C Available Subordinated Amount of Class D Notes for such Tranche after
giving effect to the previous clauses, if any):
(a) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.05(a) on such date and
(ii) a fraction, the numerator of which is the Class C Available
Subordinated Amount of Class D Notes for such Tranche of Class C Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class D Notes, in each case, after giving effect to Sections 3.05(a) and
(b); plus
(b) an amount equal to the product of (i) the aggregate amount
reallocated from the Class A Notes or the Class B Notes to the Class D Notes
pursuant to Sections 3.05(b)(iii) and 3.05(c)(ii) on such date and (ii) a
fraction, the numerator of which is the Class C Available Subordinated
Amount of Class D Notes for such Tranche of Class C Notes and the
denominator of which is the aggregate Class C Available Subordinated Amount
of Class D Notes for all Tranches of Class C Notes in the Card Series, in
each case, after giving effect to Sections 3.05(a) and (b); plus
(c) the aggregate amount reallocated from such Tranche of Class C Notes
to the Class D Notes pursuant to Section 3.05(d) on such date; plus
(d) an amount equal to the product of (i) the aggregate amount
allocated or reallocated to the Class D Notes pursuant to Sections
3.08(a)(iii) and 3.08(b)(ii) on such date and (ii) a fraction, the numerator
of which is the Class C Available Subordinated Amount of Class D Notes for
such Tranche of Class C Notes and the denominator of which is the aggregate
Class C Available Subordinated Amount of Class D Notes for all Tranches of
Class C Notes in the Card Series, in each case, after giving effect to
Section 3.05; plus
11
(e) an amount equal to the aggregate amount reallocated from such
Tranche of Class C Notes to the Class D Notes pursuant to Sections 3.08(c)
on such date; plus
(f) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Sections 3.08(d)(ii) on such date
and (ii) a fraction, the numerator of which is the Class C Available
Subordinated Amount of Class D Notes for such Tranche of Class C Notes and
the denominator of which is the aggregate Class C Available Subordinated
Amount of Class D Notes for all Tranches of Class C Notes in the Card
Series, in each case, after giving effect to Section 3.05 and Sections
3.08(a) through (c); plus
(g) an amount equal to the aggregate amount reallocated from such
Tranche of Class C Notes to the Class D Notes pursuant to Section 3.08(e) on
such date; plus
(h) the aggregate amount of Card Series Principal Amounts allocated to
the Interest Funding sub-Account of such Tranche of Class C Notes pursuant
to Section 3.07(c) on such date; plus
(i) an amount equal to the product of (i) the aggregate amount
allocated or reallocated to the Class D Notes pursuant to Sections
3.08(g)(iii) and 3.08(h)(ii) on such date and (ii) a fraction, the numerator
of which is the Class C Available Subordinated Amount of Class D Notes for
such Tranche of Class C Notes and the denominator of which is the aggregate
Class C Available Subordinated Amount of Class D Notes for all Tranches of
Class C Notes in the Card Series, in each case, after giving effect to
Section 3.05 and Sections 3.08(a) through (f); plus
(j) an amount equal to the aggregate amount reallocated from such
Tranche of Class C Notes to the Class D Notes pursuant to Section 3.08(i) on
such date; plus
(k) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(j)(ii) on such date
and (ii) a fraction, the numerator of which is the Class C Available
Subordinated Amount of Class D Notes for such Tranche of Class C Notes and
the denominator of which is the aggregate Class C Available Subordinated
Amount of Class D Notes for all Tranches of Class C Notes in the Card
Series, in each case, after giving effect to Section 3.05 and Sections
3.08(a) through (i); plus
(l) an amount equal to the aggregate amount reallocated from such
Tranche of Class C Notes to the Class D Notes pursuant to Section 3.08(k) on
such date; plus
(m) the aggregate amount of Card Series Principal Amounts paid to the
Servicer pursuant to Section 3.07(f) on such date; minus
(n) an amount (not to exceed the Class C Usage Amount of Class D Notes
for such Tranche of Class C Notes after giving effect to the amounts
computed pursuant to clauses (a) through (m) above) equal to the product of
(i) the aggregate Nominal Liquidation Amount Deficits of all Class D Notes
which are reimbursed on such Distribution Date pursuant to Section 3.06 and
(ii) a fraction, the numerator of which is
12
the Class C Usage Amount of Class D Notes (prior to giving effect to any
reimbursement of Nominal Liquidation Amount Deficits on such Distribution
Date) for such Tranche of Class C Notes and the denominator of which is the
aggregate Nominal Liquidation Amount Deficits (prior to giving effect to
such reimbursement) of all Class D Notes;
provided, however, that if on an date of determination the Required Subordinated
Amount of Class D Notes for such Tranche of Class C Notes changes pursuant to
any Terms Document, after giving effect to such change, the Class C Usage Amount
of Class D Notes will be an amount equal to the product of (a) the Required
Subordinated Amount of Class D Notes for such Tranche of Class C Notes after
giving effect to such issuance and (b) a fraction, the numerator of which is the
Class C Usage Amount of Class D Notes prior to giving effect to such issuance
and the denominator of which is the Required Subordinated Amount of Class D
Notes for such Tranche of Class C Notes prior to giving effect to such issuance,
subject to further adjustment as described above.
"Class D Notes" means a Note specified in the applicable Terms Document
as belonging to Class D.
"Class D Principal Allocation" means, for any Monthly Period, an amount
equal to the product of (a) the aggregate amount of Asset Pool One Principal
Amounts allocated to the Card Series pursuant to Section 3.3 of the Asset Pool
One Supplement for such Monthly Period and (b) the percentage equivalent of a
fraction, the numerator of which is the sum of the Principal Allocation Amounts
for such Monthly Period for all Class D Notes in the Card Series and the
denominator of which is sum of the Principal Allocation Amounts for such Monthly
Period for all Notes in the Card Series.
"Class D Reserve Account" means the trust account designated as such
and established pursuant to Section 5.01(a).
"Derivative Accrual Date" means, for any Monthly Period with respect to
any Tranche of Notes which has a Performing Derivative Agreement for interest,
the date in such Monthly Period corresponding numerically to the next payment
date under the related Derivative Agreement following the end of the related
Monthly Period.
"Excess Spread Amount" means, with respect to any Monthly Period, the
aggregate amount of Card Series Finance Charge Amounts (exclusive of any amounts
to be treated as Card Series Finance Charge Amounts pursuant to Section
3.04(a)(v)) minus the sum of the amounts, without duplication, determined
pursuant to Sections 3.01(a) through (g).
"Expected Monthly Principal" shall be equal to the product of (i) the
lowest of the monthly principal payment rates (determined by dividing
Collections of Principal Receivables during a calendar month by the amount of
Principal Receivables in the Master Trust as of the last day of the preceding
month, adjusted for additions to and removals from the Master Trust occurring
after such last day), expressed as a decimal for the 12 calendar months
preceding the date of such calculation (or such lower principal payment rate as
the Transferor may select) and (ii) the sum of (A) the sum of the initial
invested amounts (as defined in the related Supplement) of all outstanding
Series of investor certificates issued by the Master Trust, other than Variable
13
Funding Series and (B) the highest Outstanding Dollar Principal Amount of each
Tranche of Asset Pool One Notes (other than such Tranche of Notes). Capitalized
terms used in this definition and not otherwise defined herein have the meaning
given to such terms in the Pooling Agreement and the Series 2002-CC Supplement.
"Finance Charge Receivables" is defined in the Pooling and Servicing
Agreement.
"Floating Allocation Amount" means, for any Monthly Period, for any
Class or Tranche of Card Series Notes, the sum of:
(a) the Nominal Liquidation Amount of such Class or Tranche of Card
Series Notes as of the last day of the preceding Monthly Period, or with
respect to the first Monthly Period for any Class or Tranche of Card Series
Notes, the Initial Dollar Principal Amount of such Class or Tranche, plus
(b) the aggregate amount of any increase in the Nominal Liquidation
Amount of any Class or Tranche of Card Series Notes during the current
Monthly Period due to (x) the issuance of additional Notes of such Class or
Tranche of Card Series Notes during such Monthly Period or (y) the accretion
of principal on such Class or Tranche of Card Series Discount Notes during
such Monthly Period or (z) the release of Prefunding Excess Amounts (other
than amount that were deposited into the applicable Principal Funding
sub-Account for such Class or Tranche of Card Series Notes during such
Monthly Period) for such Class or Tranche of Card Series Notes from the
applicable Principal Funding sub-Account.
"Floating Allocation Percentage" means, for any Monthly Period, for the
Card Series Notes, the percentage equivalent (which percentage shall not exceed
100%) of a fraction, the numerator of which is the sum of the Floating
Allocation Amounts of all Classes and Tranches of Card Series Notes for such
Monthly Period (exclusive of (x) any Class or Tranche of Card Series Notes which
will be paid in full during such Monthly Period and (y) any Class or Tranche of
Card Series Notes which will have a Nominal Liquidation Amount of zero during
such Monthly Period) and the denominator of which is the sum of the numerators
used to calculate the Floating Allocation Percentages for all Series of Asset
Pool One Notes for such Monthly Period.
"IFA Reallocation Amount" means, with respect to any Tranche of Notes
for any Distribution Date, the aggregate amount of Card Series Principal Amounts
allocated to the Interest Funding sub-Account for such Tranche of Notes pursuant
to Section 3.07.
"Indenture" means the Asset Pool One Indenture dated as of September
__, 2002 by and between the Issuer and Indenture Trustee.
"Interest Funding Account" means the trust account designated as such
and established pursuant to Section 5.01(a).
"Interest Funding sub-Account Earnings" means, with respect to each
Distribution Date, the investment earnings on funds in the Interest Funding
Account (net of investment
14
expenses and losses) for the period from and including the immediately preceding
Distribution Date to but excluding such Distribution Date.
"Investor Charge-Offs" means, with respect to any Distribution
Date, the aggregate amount, if any, by which the Card Series Defaulted Amount,
if any, for the preceding Monthly Period exceeds the Card Series Finance Charge
Amounts for such Distribution Date available after giving effect to clauses (a)
through (e) of Section 3.01.
"Monthly Interest Accrual Date" means, with respect to any Outstanding
Class or Tranche of Asset Pool One Notes:
(a) each Interest Payment Date for such Class or Tranche, or as
otherwise specified in the applicable Terms Document for such Tranche of Notes,
and
(b) for any Monthly Period in which no Interest Payment Date for such
Class or Tranche occurs, the date in such Monthly Period corresponding
numerically to the next Interest Payment Date for such Class or Tranche of
Notes, or in the case of a Class or Tranche of Discount Notes, the Expected
Principal Payment Date for that Class or Tranche; provided, however, that
(i) for the Monthly Period in which a Class or Tranche of Notes
is issued, the date of issuance of such Class or Tranche will be the
first Monthly Interest Accrual Date for such Monthly Period for such
Class or Tranche of Notes,
(ii) any date on which proceeds from a sale of assets following
an Event of Default and acceleration of any Tranche of Notes are
deposited into the Interest Funding sub-Account for such Notes will be
a Monthly Interest Accrual Date for such Tranche of Notes,
(iii) if there is no such numerically corresponding date in such
Monthly Period, then the Monthly Interest Accrual Date will be the last
Business Day of such Monthly Period, and
(iv) if such numerically corresponding date in such Monthly
Period is not a Business Day, then the Monthly Interest Accrual Date
will be the next following Business Day (unless such Business Day would
fall in the following Monthly Period in which case the Monthly Interest
Accrual Date will be the last Business Day of such earlier month).
"Monthly Principal Accrual Date" means, with respect to any
Outstanding Class or Tranche of Asset Pool One Notes:
(a) for any Monthly Period in which an Expected Principal
Payment Date for such Class or Tranche occurs, such Expected Principal Payment
Date, or as otherwise specified in the applicable Terms Document for such
Tranche of Notes, and
(b) for any Monthly Period in which no Expected Principal
Payment Date for such Class or Tranche occurs, the date in such Monthly Period
corresponding numerically to the
15
next Expected Principal Payment Date for such Tranche of Notes (or for any month
following the last Expected Principal Payment Date, the date in such month
corresponding numerically to the preceding Expected Principal Payment Date for
such Tranche of Notes), or as otherwise specified in the applicable Terms
Document, for such Tranche of Notes; provided, however, that:
(i) following a Pay Out Event as described in subsection 9.01(a)
of the Pooling and Servicing Agreement, the second Business Day
following such Pay Out Event shall be a Monthly Principal Accrual Date,
(ii) any date on which Prefunded Excess Amounts are released from
any Principal Funding sub-Account and deposited into the Principal
Funding sub-Account of any Tranche of Notes on or after the Expected
Principal Payment Date for such Tranche of Notes will be a Monthly
Principal Accrual Date for such Tranche of Notes,
(iii) any date on which proceeds from a sale of assets following
an Event of Default and acceleration of any Tranche of Notes are
deposited into the Principal Funding sub-Account for such Tranche of
Notes will be a Monthly Principal Accrual Date for such Tranche of
Notes,
(iv) if there is no numerically corresponding date in such
Monthly Period, then the Monthly Principal Accrual Date will be the
last Business Day of such Monthly Period, and
(v) if such numerically corresponding date in such Monthly
Period is not a Business Day, the Monthly Principal Accrual Date will
be the next following Business Day (unless such Business Day would fall
in the following month in which case the Monthly Principal Accrual Date
will be the last Business Day of such earlier Monthly Period).
"Monthly Principal Payment" means, for any Monthly Period for the
Card Series Notes, an amount, not less than zero, equal to (a) the Targeted
Principal Deposit Amount, plus (b) the aggregate amount of Card Series Principal
Amounts applied pursuant to Section 3.07(a) through (f), minus (c) the aggregate
amount of Card Series Finance Charge Amounts treated as Card Series Principal
Amounts pursuant to Section 3.01(f) or (g), each with respect to such Monthly
Period.
"Nominal Liquidation Amount" means, with respect to any Tranche of
Notes, the amount calculated pursuant to Section 3.16 of this Indenture
Supplement. The Nominal Liquidation Amount for the Card Series will be the sum
of the Nominal Liquidation Amounts of all of the Tranches of Notes of the Card
Series.
"Nominal Liquidation Amount Deficit" means, with respect to any
Tranche of Notes, the excess of the Adjusted Outstanding Dollar Principal Amount
of that Tranche over the Nominal Liquidation Amount of that Tranche.
"Performing" means, with respect to any Derivative Agreement, no
payment default or repudiation of performance by a Derivative Counterparty has
occurred, and such Derivative Agreement has not been terminated.
16
"PFA Accumulation Earnings" means, with respect to each Distribution
Date, the investment earnings on funds in the Principal Funding Account (net of
investment expenses and losses), other than funds in the Principal Funding
Account in connection with any Prefunding Target Amounts, for the period from
and including the immediately preceding Distribution Date to but excluding such
Distribution Date.
"PFA Accumulation Earnings Shortfall" means, for any Distribution Date,
(a) the aggregate of the PFA Accumulation Earnings Target for each
Tranche of Card Series Notes for such Distribution Date, minus
(b) the PFA Accumulation Earnings for such period.
"PFA Accumulation Earnings Target" means, for any Distribution Date,
with respect to any amount on deposit in a Principal Funding sub-Account (prior
to giving effect to any deposits to be made on such date), other than any amount
in connection with a Prefunding Target Amount, for a Tranche of Notes, the
Dollar amount of interest that would have accrued on such deposit (or portion
thereof) for the period from and including the preceding Distribution Date to
but excluding such Distribution Date if it had borne interest at the following
rates:
(a) in the case of a Tranche of Dollar Interest-bearing Notes with no
Derivative Agreement for interest, at the rate of interest applicable to
that Tranche;
(b) in the case of a Tranche of Discount Notes, at the rate of
accretion (converted to an accrual rate) of that Tranche;
(c) in the case of a Tranche of Notes with a Performing Derivative
Agreement for interest, at the rate at which payments by the Issuer to the
applicable Derivative Counterparty accrue (prior to the netting of such
payments, if applicable); and
(d) in the case of a Tranche of Notes with a non-Performing Derivative
Agreement for interest, at the rate specified in the related terms document.
More than one of the aforementioned rates of interest may be applicable to
amounts on deposit in a Principal Funding sub-Account for a Tranche of Notes.
"PFA Prefunding Earnings" means, with respect to each Distribution
Date, the investment earnings on funds in the Principal Funding Account (net of
investment expenses and losses) in connection with any Prefunding Target Amounts
for the period from and including the immediately preceding Distribution Date to
but excluding such Distribution Date.
"PFA Prefunding Earnings Shortfall" means, for any Distribution Date,
(a) the aggregate PFA Prefunding Earnings Targets for each Tranche of
Card Series Notes for such Distribution Date, minus
(b) the PFA Prefunding Earnings for such period.
17
"PFA Prefunding Earnings Target" means, for any Distribution Date, with
respect to any amount on deposit in a Principal Funding sub-Account in
connection with a Prefunding Target Amount for a Tranche of Notes, the Dollar
amount of interest that would have accrued on such deposit (or portion thereof)
for the period from and including the preceding Distribution Date to but
excluding such Distribution Date if it had borne interest at the following
rates:
(a) in the case of a Tranche of Dollar Interest-bearing Notes with no
Derivative Agreement for interest, at the rate of interest applicable to
that Tranche;
(b) in the case of a Tranche of Discount Notes, at the rate of
accretion (converted to an accrual rate) of that Tranche;
(c) in the case of a Tranche of Notes with a Performing Derivative
Agreement for interest, at the rate at which payments by the Issuer to the
applicable Derivative Counterparty accrue (prior to the netting of such
payments, if applicable); and
(d) in the case of a Tranche of Notes with a non-Performing Derivative
Agreement for interest, at the rate specified in the related terms
document.
More than one of the aforementioned rates of interest may be applicable
to amounts on deposit in a Principal Funding sub-Account for a Tranche of Notes.
"Prefunding Excess Amount" means, with respect to any Senior Class of
Notes for any date, after giving effect to all issuances, allocations, deposits
and payments with respect to that date, the aggregate amounts on deposit in the
Principal Funding sub-Accounts of the Notes of that Class that are in excess of
the aggregate amount targeted to be on deposit in those Principal Funding
sub-Accounts pursuant to Section 3.10.
"Prefunding Target Amount" means the amount calculated pursuant to
Section 3.21.
"Principal Allocation Amount" means, for any Monthly Period, for the
Card Series Notes,
(a) for all Classes or Tranches of Card Series Notes in an Accumulation
Period, the Nominal Liquidation Amount of such Class or Tranche of Card
Series Notes as of the close of business on the day prior to the
commencement of the most recent Accumulation Period for such Class or
Tranche of the Card Series, and
(b) for all other Classes or Tranches of Outstanding Card Series Notes,
the sum of:
(i) the Nominal Liquidation Amount of such Classes or Tranches of
Card Series Notes, as of the close of business on the last day of the
immediately preceding Monthly Period, or with respect to the first
Monthly Period for any Class or Tranche of Card Series Notes, the
Initial Dollar Principal Amount of such Class or Tranche, and
18
(ii) the aggregate amount of any increase in the Nominal
Liquidation Amount of such Class or Tranche of Card Series Notes during
the current Monthly Period due to (x) the issuance of additional Notes
of such Class or Tranche of Card Series Notes during such Monthly
Period or (y) the accretion of principal on such Class or Tranche of
Card Series Discount Notes during such Monthly Period or (z) the
release of Prefunding Excess Amounts (other than amounts that were
deposited into the applicable Principal Funding sub-Account for such
Class or Tranche of Card Series Notes during such Monthly Period) for
such Class or Tranche of Card Series Notes from the Principal Funding
Account or applicable Principal Funding sub-Account; provided, however,
that if after the commencement of an Accumulation Period for a Tranche
of Notes, an Accumulation Period commences for another Tranche of Notes
that was designated in the Terms Document therefor as a Tranche that is
a "Paired Tranche" with respect to the first Tranche of Notes, the
Issuer may, by written notice delivered to the Indenture Trustee,
designate a amount for the foregoing definition for the first Tranche
of Notes, provided that (x) such amount is not less than the Nominal
Liquidation Amount immediately prior to the commencement of the
Accumulation Period for such Paired Tranche and (y) the Issuer shall
have received written notice from each Note Rating Agency that such
designation will not have a Ratings Effect and shall have delivered
copies of each such written notice to the Indenture Trustee and the
Issuer shall have delivered to the Indenture Trustee an Officer's
Certificate to the effect that, based on the facts known to such
officer at that time, in the reasonable belief of the Issuer, such
designation will not have an Adverse Effect with respect to any
Outstanding Notes.
"Principal Allocation Percentage" means, for any Monthly Period, for
the Card Series Notes, the percentage equivalent (which percentage shall not
exceed 100%) of a fraction, the numerator of which is equal to the sum of the
Principal Allocation Amounts for all Classes or Tranches of Card Series Notes
(exclusive of (x) any Class or Tranche of Card Series Notes which will be paid
in full during such Monthly Period and (y) any Class or Tranche of Card Series
Notes which will have a Nominal Liquidation Amount of zero during such Monthly
Period) and the denominator of which is the sum of the numerators used to
calculate the Principal Allocation Percentages for all Series of Asset Pool One
Notes for such Monthly Period.
"Principal Funding Account" means the trust account designated as such
and established pursuant to Section 5.01(a).
"Principal Funding sub-Account Amount" means, with respect to any
Tranche of Notes as of any date, the amount on deposit in the Principal Funding
sub-Account for such Tranche of Notes on such date.
"Reallocated Principal Amount" means, with respect to any Distribution
Date, the aggregate amount of Card Series Principal Amounts which are allocated
to the Interest Funding sub-Account of any Class A Notes, Class B Notes or Class
C Notes pursuant to Section 3.07(a), (b) or (c) or applied to make a payment to
the Servicer pursuant to Section 3.07(d), (e) or (f) on such Distribution Date.
19
"Required Excess Spread Amount" means, with respect to any Monthly
Period, an amount equal to zero; provided, however, that the Issuer may, from
time to time, change such amount (which will never be less than zero) upon (i)
written notice to the Indenture Trustee, (ii) prior written confirmation from
the Note Rating Agencies that a Ratings Effect will not occur with respect to
such change and (iii) the Issuer reasonably believes that such change will not
have an Adverse Effect.
"Required Subordinated Amount of Class B Notes" at any time, for any
Tranche of Class A Notes, is defined in the Terms Document for such Tranche of
Class A Notes.
"Required Subordinated Amount of Class C Notes" at any time, for any
Tranche of Class A Notes or Class B Notes, is defined in the related Terms
Document for such Tranche of Notes.
"Required Subordinated Amount of Class D Notes" at any time, for any
Tranche of Class A Notes, Class B Notes or Class C Notes, is defined in the
related Terms Document for such Tranche of Notes.
"Required Subordinated Amount of Subordinated Notes" at any time, for
any Tranche of Class A Notes, Class B Notes or Class C Notes, is equal to the
sum of the Required Subordinated Amount of Class B Notes, if any, the Required
Subordinated Amount of Class C Notes, if any, and the Required Subordinated
Amount of Class D Notes, if any, in each case, for such Tranche of Notes.
"Senior Class" means (a) with respect to the Class B Notes, the Class A
Notes, (b) with respect to the Class C Notes, the Class A Notes or Class B Notes
and (c) with respect to the Class D Notes, the Class A Notes, Class B Notes or
Class C Notes.
"Series Finance Charge Amounts Shortfall" means, with respect to any
Distribution Date with respect to the Card Series, the excess, if any, of (a)
the aggregate amount targeted to be paid or applied pursuant to Sections 3.01(a)
through (h) for any Distribution Date over (b) the Card Series Finance Charge
Amounts (excluding any amounts to be treated as Card Series Finance Charge
Amounts pursuant to Section 3.27(a)) for such Distribution Date; provided,
however, that the Issuer, when authorized by an Officer's Certificate, may amend
or otherwise modify this definition of Series Finance Charge Amounts Shortfall
provided the Note Rating Agencies confirm in writing that the amendment or
modification will not cause a Ratings Effect with respect to any Outstanding
Notes.
"Series Principal Amounts Shortfall" means, with respect to any
Distribution Date with respect to the Card Series, the excess, if any, of (a)
the aggregate amount targeted to be paid or applied pursuant to Sections 3.07(a)
through (g) for any Distribution Date over (b) the Card Series Principal Amounts
(excluding any amounts to be treated as Card Series Principal Amounts pursuant
to Section 3.28(a)) for such Distribution Date; provided, however, that the
Issuer, when authorized by an Officer's Certificate, may amend or otherwise
modify this definition of Series Principal Amounts Shortfall provided the Note
Rating Agencies confirm in writing that the amendment or modification will not
cause a Ratings Effect with respect to any Outstanding Notes.
20
"Servicing Shortfall" means for any Distribution Date, the excess, if
any, of (a) the aggregate amount payable to the Servicer pursuant to Section
3.01(e) with respect to such Distribution Date, and (b) the aggregate amount of
Card Series Finance Charge Amounts available after giving effect to Section
3.01(d) on such Distribution Date.
"Shared Excess Finance Charge Amounts" means, with respect to any
Distribution Date with respect to any Series of Notes, either (a) the amount of
Card Series Finance Charge Amounts for such Distribution Date available after
application in accordance with Sections 3.01(a) through (j) or (b) the amounts
allocated to other Series of Notes identified as an Excess Finance Charge
Amounts Sharing Series in Excess Finance Charge Amounts Sharing Group A which
the applicable Indenture Supplements for such Series specify are to be treated
as "Shared Excess Finance Charge Amounts."
"Shared Excess Principal Amounts" means, with respect to any
Distribution Date with respect to any Series of Notes, either (a) the amount of
Card Series Principal Amounts for such Distribution Date available after
application in accordance with Sections 3.07(a) through (e) or (b) the amounts
allocated to other Series of Notes identified as an Excess Principal Amounts
Sharing Series in Principal Sharing Group A which the applicable Indenture
Supplements for such Series specify are to be treated as "Shared Excess
Principal Amounts."
"Spot Exchange Rate," for any Tranche of Notes, has the meaning
specified in the related Terms Document.
"Subordinated Class" means (a) with respect to the Class A Notes, the
Class B Notes, Class C Notes or Class D Notes, (b) with respect to the Class B
Notes, the Class C Notes or Class D Notes, and (c) with respect to the Class C
Notes, the Class D Notes.
"Targeted Interest Deposit Amount" means, with respect to the Card
Series Notes for any Distribution Date, the aggregate amount targeted to be
deposited in the Interest Funding Account pursuant to Section 3.02 for such
Distribution Date.
"Targeted Principal Deposit Amount" means, with respect to the Card
Series Notes for any Distribution Date, the aggregate amount targeted to be
deposited in the Principal Funding Account pursuant to Section 3.10 for such
Distribution Date.
"Threshold Conditions" shall mean the conditions listed on Exhibit E,
which Exhibit E may be amended, modified or supplemented by the Issuer upon
receipt of the prior written consent of the Note Rating Agencies.
"Weighted Average Interest Rates" means, with respect to any
Outstanding Notes of a Class or Tranche of the Card Series, or of all of the
Outstanding Notes of the Card Series, on any date, the weighted average
(weighted based on the Outstanding Dollar Principal Amount of the related Notes
on such date) of the following rates of interest:
(a) in the case of a Tranche of Dollar Interest-bearing Notes with no
Derivative Agreement for interest, the annualized rate of interest
applicable to that Tranche on that date;
21
(b) in the case of a Tranche of Discount Notes, the rate of accretion
(converted to an annualized accrual rate) of that Tranche on that date;
(c) in the case of a Tranche of Notes with a payment due under a
Performing Derivative Agreement for interest, the annualized rate at which
payments by the Issuer to the applicable Derivative Counterparty accrue on
that date (prior to the netting of such payments, if applicable); and
(d) in the case of a Tranche of Notes with a non-Performing Derivative
Agreement for interest, the annualized rate specified for that date in the
related Terms Document.
Section 1.02. Governing Law. THIS INDENTURE 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 1.03. Counterparts. This Indenture 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 1.04. Ratification of Indenture and Asset Pool One Supplement.
As supplemented by this Indenture Supplement, the Indenture and the Asset Pool
One Supplement are in all respects ratified and confirmed and the Indenture and
the Asset Pool One Supplement as so supplemented by this Indenture Supplement
shall be read, taken and construed as one and the same instrument.
[END OF ARTICLE I]
22
ARTICLE II
The Notes
Section 2.01. Creation and Designation.
(a) There is hereby created a Series of Notes to be issued pursuant to the
Indenture, the Asset Pool One Supplement and this Indenture Supplement to be
known as "Capital One Multi-Asset Execution Trust, Card Series" or the "Card
Series Notes." The Card Series Notes will be issued in four Classes, the first
of which shall be known as the "Card Series Class A Notes," the second of which
shall be known as the "Card Series Class B Notes," the third of which shall be
known as the "Card Series Class C Notes" and the fourth of which shall be known
as the "Card Series Class D Notes."
(b) The Card Series shall be an Excess Finance Charge Amounts Sharing
Series in Excess Finance Charge Amounts Sharing Group A and shall not be in any
other Group. The Card Series shall not be subordinated to any other Series of
Notes.
Section 2.02. New Issuances of Notes. The Issuer may issue new Tranches of
Notes (including additional Notes of an Outstanding Tranche) to be included in
the Card Series, so long as the following conditions precedent are satisfied:
(i) on or before the date that the new issuance is to occur, the
Issuer will have delivered to the Indenture Trustee a Terms Document
relating to the applicable Tranche of Notes;
(ii) if the issuance of Notes results in an increase in the
targeted deposit amount of any Class C Reserve sub-Account of a Tranche of
Class C Notes or any Class D Reserve sub-Account of a Tranche of Class D
Notes, on such issuance date the Issuer will have funded such increase with
a cash deposit to such Class C Reserve sub-Account or Class D Reserve
sub-Account, as applicable;
(iii) unless the Threshold Conditions with respect to the related
Class of Notes have been satisfied, the conditions specified in Section 310
of the Indenture, as applicable, are satisfied;
(iv) immediately after giving effect to such issuance, the Nominal
Liquidation Amount of the Class B Notes in the Card Series must be at least
equal to the Class A Available Subordinated Amount of Class B Notes for all
Class A Notes in the Card Series;
(v) immediately after giving effect to such issuance, the Nominal
Liquidation Amount of the Class C Notes in the Card Series must be at least
equal to the sum of (x) the aggregate Class A Available Subordinated Amount
of Class C Notes for all Class A Notes in the Card Series with a Required
Subordinated Amount of Class B Notes equal to zero and (y) the aggregate
Class B Available Subordinated Amount of Class C Notes for all Class B
Notes in the Card Series;
23
(vi) immediately after giving effect to such issuance, the Nominal
Liquidation Amount of the Class D Notes in the Card Series must be at least
equal to the greater of (A) the sum of (x) the aggregate Class A Available
Subordinated Amount of Class D Notes for all Class A Notes in the Card
Series with a Required Subordinated Amount of Class B Notes of zero and (y)
the aggregate Class B Available Subordinated Amount of Class D Notes for
all Class B Notes in the Card Series and (B) the aggregate Class C
Available Subordinated Amount of Class D Notes for all Class C Notes in the
Card Series; and
(vii) any other conditions specified in the related Terms Document.
[END OF ARTICLE II]
24
ARTICLE III
Allocations, Deposits and Payments
Section 3.01. Allocations of Card Series Finance Charge Amounts. On each
Distribution Date, the Indenture Trustee will apply Card Series Finance Charge
Amounts, as follows:
(a) first, to make the targeted deposits with respect to the Class A Notes
to the Interest Funding Account pursuant to Section 3.02;
(b) second, to make the targeted deposits with respect to the Class B Notes
to the Interest Funding Account pursuant to Section 3.02;
(c) third, to make the targeted deposits with respect to the Class C Notes
to the Interest Funding Account pursuant to Section 3.02;
(d) fourth, to pay the Card Series Servicing Fee plus any previously due
and unpaid Card Series Servicing Fee to the Servicer;
(e) fifth, to make the targeted deposits with respect to the Class D Notes
to the Interest Funding Account pursuant to Section 3.02;
(f) sixth, to be treated as Card Series Principal Amounts for application
in accordance with Section 3.07 in an amount equal to the Card Series Defaulted
Amount, if any, for the preceding Monthly Period;
(g) seventh, to be treated as Card Series Principal Amounts for application
in accordance with Section 3.07 in an amount equal to the aggregate Nominal
Liquidation Amount Deficits, if any, of all Card Series Notes;
(h) eighth, to make the targeted deposit to the Accumulation Reserve
Account, if any, pursuant to Section 3.24;
(i) ninth, to make the targeted deposit to the Class C Reserve Account, if
any, pursuant to Section 3.22;
(j) tenth, to make the targeted deposit to the Class D Reserve Account, if
any, pursuant to Section 3.29;
(k) eleventh, to make any other payment or deposit required by the terms
documents of any Class or Tranche of Card Series Notes;
(l) twelfth, to be treated as Shared Excess Finance Charge Amounts for
application in accordance with Section 3.27; and
(m) thirteenth, to the holder of Asset Pool One Transferor Interest.
25
Section 3.02. Targeted Deposits of Card Series Finance Charge Amounts to
the Interest Funding Account. The aggregate amount of Card Series Finance Charge
Amounts targeted to be deposited into the Interest Funding Account for each
Tranche within the related Class of Notes pursuant to Sections 3.01(a), (b), (c)
or (e) on each Distribution Date is equal to the sum of the following amounts.
The targeted deposit on any Distribution Date will also include any shortfall in
the targeted deposit with respect to any prior Distribution Date which has not
been previously deposited.
(a) Specified Deposits. If the Terms Document for a Tranche of Notes
specifies a deposit to be made to the Interest Funding sub-Account for that
Tranche, the deposits targeted for that Tranche of Notes with respect to that
Distribution Date is such specified amount.
(b) Interest Payments. The deposit targeted for any Tranche of Outstanding
Interest-bearing Notes on each Distribution Date will be equal to the amount of
interest accrued on the Outstanding Dollar Principal Amount of that Tranche
during the period from and including the first Monthly Interest Accrual Date in
the prior Monthly Period to but excluding the first Monthly Interest Accrual
Date for the current Monthly Period.
(c) Amounts Owed to Derivative Counterparties. If a Tranche of Outstanding
Dollar Notes or foreign currency Notes that has a Performing or non-Performing
Derivative Agreement for interest provides for a payment to the applicable
Derivative Counterparty, the deposit targeted for that Tranche of Notes on each
Distribution Date with respect to any payment to the Derivative Counterparty
will be specified in the related Terms Document.
(d) Discount Notes. The deposit targeted for a Tranche of Outstanding
Discount Notes on each Distribution Date is the amount of accretion of principal
of that Tranche of Notes from and including the prior Monthly Principal Accrual
Date in the related Monthly Period (or in the case of the first Monthly
Principal Accrual Date with respect to any Tranche of Discount Notes, from and
including the date of issuance of that Tranche of Notes) to but excluding the
first Monthly Principal Accrual Date for the next month.
(e) Additional Interest. Unless otherwise specified in the applicable Terms
Document, the deposit targeted for any Tranche of Outstanding Notes (other than
Discount Notes) for any month that has previously due and unpaid interest will
include the interest accrued on that overdue interest during the period from and
including the first Monthly Interest Accrual Date in the prior month to but
excluding the first Monthly Interest Accrual Date for the current month at the
rate of interest applicable to the principal of that Tranche during that period.
Section 3.03. Allocations of Card Series Finance Charge Amounts to Interest
Funding sub-Accounts. The aggregate amount to be deposited to the Interest
Funding Account for a Class of Notes pursuant to Sections 3.01(a), (b), (c) or
(e) for each Monthly Period will be allocated, and a portion deposited into the
Interest Funding sub-Account for each Tranche of Notes within such Class, as
follows:
(a) Card Series Finance Charge Amounts are at Least Equal to Targeted
Amounts. If the amount of funds available for a Monthly Period pursuant to
Section 3.01 (after giving effect to any previous deposits pursuant to Section
3.01 on such Distribution Date) is at least equal to
26
the aggregate amount of the deposits and payments targeted by Section 3.02 for
the related Class of Notes, then the targeted amount of each such deposit and
payment will be made to the applicable Interest Funding sub-Accounts.
(b) Card Series Finance Charge Amounts are Less than Targeted Amounts. If
the amount of funds available for a Monthly Period pursuant to Section 3.01
(after giving effect to any previous deposits pursuant to Section 3.01 on such
Distribution Date) is less than the aggregate amount of the deposits targeted by
Section 3.02 for the related Class of Notes, then the amount available will be
allocated to each Tranche within such Class of Notes pro rata based on the ratio
of (A) the aggregate amount of the deposits targeted by Section 3.02 with
respect to that Tranche of Notes, to (B) the aggregate amount of the deposits
targeted by Section 3.02 with respect to all Tranches within the related Class
of Notes.
Section 3.04. Amounts to be Treated as Card Series Finance Charge Amounts;
Payments Received from Derivative Counterparties for Interest in Foreign
Currencies; Other Deposits to the Interest Funding sub-Accounts. The following
deposits and payments will be made on the following dates:
(a) Amounts to be Treated as Card Series Finance Charge Amounts. In
addition to Asset Pool One Finance Charge Amounts allocated to the Card Series
pursuant to Section 3.2(a) of the Asset Pool One Supplement, the following
amounts shall be treated as Card Series Finance Charge Amounts for application
in accordance with this Article III for any Monthly Period:
(i) PFA Accumulation Earnings Shortfall. The aggregate amount
withdrawn from the Accumulation Reserve Account pursuant to Section 3.25(a)
will be treated as Card Series Finance Charge Amounts for such Monthly
Period.
(ii) PFA Prefunding Earnings Shortfall. On or prior to each
Distribution Date, the Issuer will calculate the PFA Prefunding Earnings
Shortfall (if any) for the Principal Funding sub-Account for each Tranche
of Notes. If there is any PFA Prefunding Earnings Shortfall for any
Principal Funding sub-Account for that Distribution Date, or any unpaid PFA
Prefunding Earnings Shortfall for any Principal Funding sub-Account from
any earlier Distribution Date, in each case for any Tranche of Notes, the
Issuer will notify the Transferor and the Master Trust pursuant to Section
4.05 of the Series 2002-_ Supplement of that amount. On each Distribution
Date, the Indenture Trustee will treat as Card Series Finance Charge
Amounts the amount received by the Issuer pursuant to Section 4.05 of the
Series 2002-_ Supplement with respect to each Principal Funding
sub-Account, if any; provided, however, that any amount paid to the
applicable Interest Funding sub-Accounts pro rata based on the Floating
Allocation Amount for such Monthly Period for each Tranche with prefunded
amounts in its Principal Funding sub-Account.
(iii) Dollar Payments from Derivative Counterparties for Interest.
Dollar payments received under Derivative Agreements for interest for any
Tranche of Notes will be treated as Card Series Finance Charge Amounts.
27
(iv) Sub-Account Earnings. Any PFA Accumulation Earnings, any PFA
Prefunding Earnings, any Accumulation Reserve Account Earnings and any
Interest Funding sub-Account Earnings for any Distribution Date will be
treated as Card Series Finance Charge Amounts for such Distribution Date.
(v) Shared Excess Finance Charge Amounts. Any Shared Excess
Finance Charge Amounts allocable to the Card Series will be treated as Card
Series Finance Charge Amounts pursuant to Section 3.27(a).
(vi) Other Amounts. This Indenture Supplement or the Terms
Document for any Tranche of Notes may include additional amounts which are
to be treated as Card Series Finance Charge Amounts for any Distribution
Date.
(b) Payments Received From Derivative Counterparties. Payments received
under Derivative Agreements for Notes with interest payable in foreign
currencies will be applied as specified in the applicable Terms Document.
(c) Other Deposits to the Interest Funding sub-Accounts.
(i) Class C Reserve Account. Withdrawals made from the Class C
Reserve Account pursuant to Section 3.23(a) will be deposited into the
applicable Interest Funding sub-Account on the Distribution Date.
(ii) Class D Reserve Account. Withdrawals made from the Class D
Reserve Account pursuant to Section 3.30(a) will be deposited into the
applicable Interest Funding sub-Account on the Distribution Date.
(iii) Asset Sales Proceeds. Asset Sales Proceeds received by the
Issuer pursuant to Section 3.20(c)(ii) for any Tranche of Notes will be
deposited into the applicable Interest Funding sub-Account on the date of
receipt by the Issuer.
(iv) Other Amounts. This Indenture Supplement or the Terms
Document for any Tranche may include additional amounts which are to be
deposited into the applicable Interest Funding sub-Account on the
Distribution Date.
Section 3.05. Allocations of Reductions to the Nominal Liquidation Amount
Due to Investor Charge-Offs. On each Distribution Date when there is an Investor
Charge-Off with respect to the related Monthly Period, the amount of such
Investor Charge-Off will be allocated (and reallocated) on that date to each
Tranche of Notes as set forth in this Section. In the case of each Tranche of
Notes, the Nominal Liquidation Amount of each such Tranche of Notes will be
reduced by an amount equal to the amounts that are allocated or reallocated to
that Tranche of Notes pursuant to this Section 3.05, less the amounts that are
reallocated from that Tranche of Notes to other Notes pursuant to this Section
3.05.
(a) Initially, the amount of each Investor Charge-Off will be allocated to
each Tranche of Outstanding Notes in the Card Series pro rata based on the ratio
of the Nominal Liquidation Amount of such Tranche of Notes to the Nominal
Liquidation Amount of the Card Series Notes, each as of the close of business on
the last day of the preceding Monthly Period.
28
Any such allocation (or portion thereof) that would otherwise have reduced the
Nominal Liquidation Amount of a Tranche of Notes below zero will be reallocated
to the remaining Tranches of Outstanding Notes in the Card Series as set forth
in this clause (a), but in no event will the Nominal Liquidation Amount (after
giving effect to this clause (a)) of any Tranche of Notes be reduced below zero.
(b) (i) Immediately after giving effect to clause (a) above, the amount
allocated to each Tranche of Class A Notes pursuant to clause (a) above,
subject to the limitation in clause (e) below, will be reallocated to the
Class B Notes, in an amount (not less than zero) not to exceed:
(x) the Class A Available Subordinated Amount of Class B Notes
for such Tranche of Class A Notes as of the close of business on the
last day of the preceding Monthly Period, minus
(y) the product of (A) the aggregate amount allocated to the
Class B Notes pursuant to clause (a) above and (B) a fraction, the
numerator of which is the amount determined pursuant to clause
(b)(i)(x) above and the denominator of which is the aggregate Nominal
Liquidation Amount of all the Class B Notes in the Card Series as of
the close of business of the last day of the preceding Monthly
Period.
(ii) The amount allocated to each Tranche of Class A Notes pursuant
to clause (a) above and not reallocated to the Class B Notes due to the
limitations set forth in clause (b)(i) above and clause (e) below, subject
to the limitation in clause (e) below, will be reallocated to the Class C
Notes, in an amount (not less than zero) not to exceed:
(x) the Class A Available Subordinated Amount of Class C Notes
for such Tranche of Class A Notes as of the close of business on the
last day of the preceding Monthly Period, minus
(y) the product of (A) the aggregate amount allocated to the
Class C Notes pursuant to clause (a) above and (B) a fraction, the
numerator of which is the amount determined pursuant to clause
(b)(ii)(x) above and the denominator of which is the aggregate
Nominal Liquidation Amount of all the Class C Notes in the Card
Series as of the close of business on the last day of the preceding
Monthly Period.
(iii) The amount allocated to each Tranche of Class A Notes pursuant
to clause (a) above and not reallocated to the Class B Notes or the Class C
Notes due to the limitations set forth in clauses (b)(i) and (b)(ii) above
and clause (e) below, subject to the limitation in clause (e) below, will
be reallocated to the Class D Notes, in an amount (not less then zero) not
to exceed:
(x) the Class A Available Subordinated Amount of Class D Notes
for such Tranche of Class A Notes as of the close of business on the
last day of the preceding Monthly Period, minus
29
(y) the product of (A) the aggregate amount allocated to the
Class D Notes pursuant to clause (a) above and (B) a fraction, the
numerator of which is the amount determined pursuant to clause
(b)(iii)(x) above and the denominator of which is the Nominal
Liquidation Amount of all the Class D Notes in the Card Series as of
the close of business on the last day of the preceding Monthly
Period.
(c) (i) Immediately after giving effect to clause (b) above, the amount
allocated to each tranche of Class B Notes pursuant to clause (a) above or
reallocated to such Tranche of Class B Notes pursuant to clause (b)(i)
above, subject to the limitation in clause (e) below, will be reallocated
to the Class C Notes, in an amount (not less than zero) not to exceed:
(x) the Class B Available Subordinated Amount of Class C Notes
for such Tranche of Class B Notes as of the close of business on the
last day of the preceding Monthly Period, minus
(y) the sum of:
(A) the product of (1) the aggregate amount allocated to
the Class C Notes pursuant to clause (a) above and (2) a
fraction, the numerator of which is the amount determined
pursuant to clause (c)(i)(x) above and the denominator of which
is the Nominal Liquidation Amount of all the Class C Notes in
the Card Series as of the close of business on the last day of
the preceding Monthly Period, plus
(B) the product of (1) the aggregate amount reallocated to
the Class C Notes pursuant to clause (b)(ii) above and (B) a
fraction, the numerator of which is the amount determined
pursuant to clause (c)(i)(x) above and the denominator of which
is the aggregate Class B Available Subordinated Amount of Class
C Notes for all Class B Notes in the Card Series as of the
close of business on the last day of the preceding Monthly
Period.
(ii) The amount allocated to each Tranche of Class B Notes pursuant
to clause (a) above or reallocated to such tranche Class B Notes pursuant
to clause (b)(i) above and not reallocated to the Class C Notes due to the
limitations set forth in clause (c)(i) above and clause (e) below, subject
to the limitation in clause (e) below, will be reallocated to the Class D
Notes, in an amount (not less than zero) not to exceed:
(x) the Class B Available Subordinated Amount of Class D Notes
for such Tranche of Class B Notes as of the close of business on the
last day of the preceding Monthly Period, minus
(y) the sum of:
(A) the product of (1) the aggregate amount allocated to
the Class D Notes pursuant to clause (a) above and (2) a
fraction, the numerator of which is the amount determined
pursuant to clause (c)(ii)(x)
30
above and the denominator of which is the Nominal Liquidation
Amount of all the Class D Notes in the Card Series as of the
close of business on the last day of the preceding Monthly
Period, plus
(B) the product of (1) the aggregate amount reallocated to
the Class D Notes pursuant to clause (b)(iii) above and (B) a
fraction, the numerator of which is the amount determined
pursuant to clause (c)(ii)(x) above and the denominator of
which is the aggregate Class B Available Subordinated Amount of
Class D Notes for all Class B Notes in the Card Series as of
the close of business on the last day of the preceding Monthly
Period.
(d) Immediately after giving effect to clause (c) above, the amount
allocated to each Tranche of Class C Notes pursuant to clause (a) above or
reallocated to such tranche of Class C Notes pursuant to clause (b)(ii) or
(c)(i) above, subject to the limitation in clause (e) below, will be reallocated
to the Class D Notes, in an amount (not less than zero) not to exceed:
(x) the Class C Available Subordinated Amount of Class D Notes
for such Tranche of Class C Notes as of the close of business on the
last day of the preceding Monthly Period, minus
(y) the sum of:
(A) the product of (1) the aggregate amount allocated to
the Class D Notes pursuant to clause (a) above and (2) a
fraction, the numerator of which is the amount determined
pursuant to clause (d)(x) above and the denominator of which is
the Nominal Liquidation Amount of all the Class D Notes in the
Card Series as of the close of business on the last day of the
preceding Monthly Period, plus
(B) the product of (1) the aggregate amount reallocated to
the Class D Notes pursuant to clauses (b)(iii) and (c)(ii)
above and (2) a fraction, the numerator of which is the amount
determined pursuant to clause (d)(x) above and the denominator
of which is the aggregate Class C Available Subordinated Amount
of Class D Notes for all Class C Notes in the Card Series as of
the close of business on the last day of the preceding Monthly
Period.
(e) (i) The amount reallocated to the Class B Notes pursuant to clause
(b)(i) above will be applied to each Tranche of Class B Notes outstanding
as of the last day of the preceding Monthly Period pro rata based on the
ratio of the Nominal Liquidation Amount of such Tranche of Class B Notes to
the Nominal Liquidation Amount of all the Class B Notes in the Card Series,
each as of the close of business on the last day of the preceding Monthly
Period. Any such reallocation (or portion thereof) that would otherwise
have reduced the Nominal Liquidation Amount of a Tranche of Class B Notes
below zero will be reallocated to the remaining Tranches of Class B Notes
as set forth in
31
this clause (e)(i), but in no event will the Nominal Liquidation Amount
(after giving effect to this clause (e)(i)) of any Tranche of Class B Notes
be reduced below zero.
(ii) The amount reallocated to the Class C Notes pursuant to clause
(b)(ii) or (c)(i) above, in each case, will be applied to each Tranche of
Class C Notes outstanding as of the last day of the preceding Monthly
Period pro rata based on the ratio of the Nominal Liquidation Amount of
such Tranche of Class C Notes to the Nominal Liquidation Amount of all the
Class C Notes in the Card Series, in each case, as of the close of business
on the last day of the preceding Monthly Period. Any such reallocation (or
portion thereof) that would otherwise have reduced the Nominal Liquidation
Amount of a Tranche of Class C Notes below zero will be reallocated to the
remaining Tranches of Class C Notes as set forth in this clause (e)(ii),
but in no event will the Nominal Liquidation Amount (after giving effect to
this clause (e)(ii)) of any Tranche of Class C Notes be reduced below zero.
(iii) The amount reallocated to the Class D Notes pursuant to clause
(b)(iii), (c)(ii) or (d) above, in each case, will be applied to each
Tranche of Class D Notes outstanding as of the last day of the preceding
Monthly Period pro rata based on the ratio of the Nominal Liquidation
Amount of such Tranche of Class D Notes to the Nominal Liquidation Amount
of all the Class D Notes in the Card Series, in each case, as of the close
of business on the last day of the preceding Monthly Period. Any such
reallocation (or portion thereof) that would otherwise have reduced the
Nominal Liquidation Amount of a Tranche of Class D Notes below zero will be
reallocated to the remaining Tranches of Class D Notes as set forth in this
clause (e)(iii), but in no event will the Nominal Liquidation Amount (after
giving effect to this clause (e)(iii)) of any Tranche of Class D Notes be
reduced below zero.
Section 3.06. Allocations of Reimbursements of Nominal Liquidation Amount
Deficits. If, as of any Distribution Date, there are Card Series Finance Charge
Amounts available pursuant to Section 3.01(g) to reimburse any Nominal
Liquidation Amount Deficits as of such Distribution Date, such funds will be
allocated to each Tranche of Notes as follows:
(a) first, to each Tranche of Class A Notes pro rata based on the ratio of
the Nominal Liquidation Amount Deficit thereof to the aggregate Nominal
Liquidation Amount Deficits of all Tranches of Class A Notes, but in no event
will the Nominal Liquidation Amount of such a Tranche of Notes be increased
above the Adjusted Outstanding Dollar Principal Amount of such Tranche;
(b) second, to each Tranche of Class B Notes pro rata based on the ratio of
the Nominal Liquidation Amount Deficit thereof to the aggregate Nominal
Liquidation Amount Deficit of all Tranches of Class B Notes, but in no event
will the Nominal Liquidation Amount of such a Tranche of Notes be increased
above the Adjusted Outstanding Dollar Principal Amount of such Tranche;
(c) third, to each Tranche of Class C Notes pro rata based on the ratio of
the Nominal Liquidation Amount Deficit thereof to the aggregate Nominal
Liquidation Amount Deficit of all Tranches of Class C Notes, but in no event
will the Nominal Liquidation Amount of such a
32
Tranche of Notes be increased above the Adjusted Outstanding Dollar Principal
Amount of such Tranche; and
(d) fourth, to each Tranche of Class D Notes pro rata based on the ratio of
the Nominal Liquidation Amount Deficit thereof to the aggregate Nominal
Liquidation Amount Deficit of all Tranches of Class D Notes, but in no event
will the Nominal Liquidation Amount of such a Tranche of Notes be increased
above the Adjusted Outstanding Dollar Principal Amount of such Tranche.
Section 3.07. Application of Card Series Principal Amounts. On each
Distribution Date, the Indenture Trustee will apply Card Series Principal
Amounts as follows:
(a) first, with respect to each Monthly Period, if after giving effect to
deposits to be made with respect to such Monthly Period pursuant to Section
3.01(a) any Tranche of Class A Notes has not received the full amount targeted
to be deposited pursuant to Section 3.02 with respect to that Monthly Period,
then Card Series Principal Amounts (in an amount not to exceed the sum of the
Class B Principal Allocation, the Class C Principal Allocation and the Class D
Principal Allocation, each for such Monthly Period) will be allocated to the
Interest Funding sub-Account of each such Tranche of Class A Notes pro rata
based on, in the case of each such Tranche of Class A Notes, the lesser of the
following amounts:
(i) the amount of the deficiency in the targeted amount to be
deposited into the Interest Funding sub-Account of such Tranche of Class A
Notes; and
(ii) an amount equal to the Class A Available Subordinated Amount of
Subordinated Notes for such Tranche of Class A Notes (determined after
giving effect to Section 3.05, but prior to giving effect to this Section
3.07);
(b) second, with respect to each Monthly Period, if after giving effect to
deposits to be made with respect to such Monthly Period pursuant to Section
3.01(b) any Tranche of Class B Notes has not received the full amount targeted
to be deposited pursuant to Section 3.02 with respect to that Monthly Period,
then Card Series Principal Amounts (in an amount, not less than zero, not to
exceed the sum of the Class B Principal Allocation, the Class C Principal
Allocation and the Class D Principal Allocation, each for such Monthly Period
minus the greater of (x) the Class B Principal Allocation for such Monthly
Period and (y) the aggregate amount of Card Series Principal Amounts applied
pursuant to clause (a) above) will be allocated to the Interest Funding
sub-Account of each such Tranche of Class B Notes pro rata based on, in the case
of each such Tranche of Class B Notes, the lesser of the following amounts:
(i) the amount of the deficiency in the targeted amount to be
deposited into the Interest Funding sub-Account of such Tranche of Class B
Notes; and
(ii) an amount equal to the Class B Available Subordinated Amount of
Subordinated Notes for such Tranche of Class B Notes (determined after
giving effect to Sections 3.05 and 3.08(a) through (c));
(c) third, with respect to each Monthly Period, if after giving effect to
deposits to be made with respect to such Monthly Period pursuant to Section
3.01(c) any Tranche of Class C
33
Notes has not received the full amount targeted to be deposited pursuant to
Section 3.02 with respect to that Monthly Period, then Card Series Principal
Amounts (in an amount, not less than zero, not to exceed the sum of the Class B
Principal Allocation, the Class C Principal Allocation and the Class D Principal
Allocation, each for such Monthly Period minus the greater of (x) the sum of the
Class B Principal Allocation and the Class C Principal Allocation, each for such
Monthly Period and (y) the aggregate amount of Card Series Principal Amounts
applied pursuant to clauses (a) and (b) above) will be allocated to the Interest
Funding sub-Account of each such Tranche of Class C Notes pro rata based on, in
the case of each such Tranche of Class C Notes, the lesser of the following
amounts:
(i) the amount of the deficiency in the targeted amount to be
deposited into the Interest Funding sub-Account of such Tranche of Class C
Notes; and
(ii) an amount equal to the Class C Available Subordinated Amount of
Class D Notes for such Tranche of Class C Notes (determined after giving
effect to Sections 3.05 and 3.08(a) through (e));
(d) fourth, with respect to each Monthly Period, if there is a Servicing
Shortfall allocated to any tranche of Class A Notes pursuant to Section 3.09,
then Card Series Principal Amounts (in an amount, not less than zero, not to
exceed the sum of the Class B Principal Allocation, the Class C Principal
Allocation and the Class D Principal Allocation, each for such Monthly Period
minus the aggregate amount of Card Series Principal Amounts reallocated pursuant
to clauses (a) through (c) above) will be paid to the Servicer in an amount
equal to, and allocated to each such Tranche of Class A Notes pro rata based on,
in the case of each such Tranche of Class A Notes, the lesser of the following
amounts:
(i) the amount of the Servicing Shortfall allocated to such Tranche
of Class A Notes; and
(ii) an amount equal to the Class A Available Subordinated Amount of
Subordinated Notes for such Tranche of Class A Notes (determined after
giving effect to Sections 3.05 and 3.08(a) through (f));
(e) fifth, with respect to each Monthly Period, if there is a Servicing
Shortfall allocated to any Tranche of Class B Notes pursuant to Section 3.09,
then Card Series Principal Amounts (in an amount, not less than zero, not to
exceed the sum of the Class B Principal Allocation, the Class C Principal
Allocation and the Class D Principal Allocation, each for such Monthly Period
minus the greater of (x) the Class B Principal Allocation for such Monthly
Period and (y) the aggregate amount of Card Series Principal Amounts reallocated
pursuant to clauses (a) through (d) above) will be paid to the Servicer in an
amount equal to, and allocated to each such Tranche of Class B Notes pro rata
based on, in the case of each such Tranche of Class B Notes, the lesser of the
following amounts:
(i) the amount of the remaining Servicing Shortfall allocated to
such Tranche of Class B Notes; and
34
(ii) an amount equal to the Class B Available Subordinated Amount of
Class C Notes for such Tranche of Class B Notes (determined after giving
effect to Sections 3.05 and 3.08(a) through (i));
(f) sixth, with respect to each Monthly Period, if there is a Servicing
Shortfall allocated to any Tranche of Class C Notes pursuant to Section 3.09,
then Card Series Principal Amounts (in an amount, not less than zero, not to
exceed the sum of the Class B Principal Allocation, the Class C Principal
Allocation and the Class D Principal Allocation, each for such Monthly Period
minus the greater of (x) the sum of the Class B Principal Allocation and the
Class C Principal Allocation, each for such Monthly Period and (y) the aggregate
amount of Card Series Principal Amounts reallocated pursuant to clauses (a)
through (e) above) will be paid to the Servicer in an amount equal to, and
allocated to each such Tranche of Class C Notes pro rata based on, in the case
of each such Tranche of Class C Notes, the lesser of the following amounts:
(i) the amount of the Servicing Shortfall allocated to such Tranche
of Class C Notes; and
(ii) an amount equal to the Class C Available Subordinated Amount of
Class D Notes for such Tranche of Class C Notes (determined after giving
effect to Sections 3.05 and 3.08(a) through (k));
(g) seventh, to make the targeted deposits to the Principal Funding Account
pursuant to Section 3.10;
(h) eighth, to be treated as Shared Excess Principal Amounts for
application in accordance with Section 3.28; and
(i) ninth, to the holder of the Asset Pool One Transferor Interest.
Section 3.08. Allocation of Reductions of Nominal Liquidation Amount of
Subordinated Notes from Reallocations of Card Series Principal Amounts to Cover
Interest Funding Account Shortfalls or Servicing Fee Shortfalls. On each
Distribution Date when Card Series Principal Amounts are deposited in the
Interest Funding sub-Account for any Tranche of Notes or paid to the Servicer
pursuant to Section 3.07, the Nominal Liquidation Amount of Subordinated Notes
will be reduced on that date as set forth in this Section. In the case of each
Tranche of Notes, the Nominal Liquidation Amount of each such Tranche of Notes
will be reduced by an amount equal to the amounts of such deposits or payments
which are allocated or reallocated to that Tranche of Notes, less the amount of
Principal Reallocations that are reallocated from that Tranche of Notes to other
Notes.
(a) (i) Immediately after giving effect to Section 3.07(a), the amount
of Card Series Principal Amount applied pursuant to Section 3.07(a),
subject to the limitation in clause (m) below, will be allocated to the
Class B Notes, in an amount not to exceed the Class A Available
Subordinated Amount of Class B Notes for such Tranche of Class A Notes as
of the close of business on the last day of the preceding Monthly Period.
35
(ii) The amount of Card Series Principal Amount applied pursuant to
Section 3.07(a), and not reallocated to the Class B Notes due to the
limitations set forth in clause (a)(i) above and clause (m) below, subject
to the limitation in clause (m) below, will be allocated to the Class C
Notes, in an amount not to exceed the Class A Available Subordinated Amount
of Class C Notes for such Tranche of Class A Notes as of the close of
business on the last day of the preceding Monthly Period.
(iii) The amount of Card Series Principal Amount applied pursuant to
Section 3.07(a), and not reallocated to the Class B Notes or Class C Notes
due to the limitations set forth in clauses(a)(i) and (a)(ii) above and
clause (m) below, subject to the limitation in clause (m) below, will be
allocated to the Class D Notes, in an amount not to exceed the Class A
Available Subordinated Amount of Class D Notes for such Tranche of Class A
Notes as of the close of business on the last day of the preceding Monthly
Period.
(b) (i) Immediately after giving effect to clause (a) above, the
amount allocated to the Class B Notes pursuant to clause (a)(i), subject to
the limitation in clause (m) below, will be reallocated to the Class C
Notes, in an amount not to exceed the Class B Available Subordinated Amount
of Class C Notes for such Tranche of Class B Notes after giving effect to
clause (a) above.
(ii) The amount allocated to the Class B Notes pursuant to clause
(a)(i) and not reallocated to the Class C Notes due to the limitations set
forth in clause (b)(i) above and clause (m) below, subject to the
limitation in clause (m) below, will be reallocated to the Class D Notes,
in an amount not to exceed the Class B Available Subordinated Amount of
Class D Notes for such Tranche of Class B Notes after giving effect to
clause (a) above.
(c) Immediately after giving effect to clause (b) above, the amount
allocated to the Class C Notes pursuant to clause (a)(iii) plus the amount
reallocated to the Class C Notes pursuant to clause (b)(i) above, subject to the
limitation in clause (m) below, will be reallocated to the Class D Notes, in an
amount not to exceed the Class C Available Subordinated Amount of Class D Notes
for such Tranche of Class C Notes after giving effect to clauses (a) and (b)
above.
(d) (i) Immediately after giving effect to Section 3.07(b), the amount
of Card Series Principal Amount applied pursuant to Section 3.07(b),
subject to the limitation in clause (m) below, will be allocated to the
Class C Notes, in an amount not to exceed the Class B Available
Subordinated Amount of Class C Notes for such Tranche of Class B Notes
after giving effect to clauses (a) through (c) above.
(ii) The amount of Card Series Principal Amount applied pursuant to
Section 3.07(b), and not reallocated to the Class C Notes due to the
limitations set forth in clause (d)(i) above and clause (m) below, subject
to the limitation in clause (m) below, will be reallocated to the Class D
Notes, in an amount not to exceed the Class B Available Subordinated Amount
of Class D Notes for such Tranche of Class B Notes after giving effect to
clauses (a) through (c) above.
36
(e) Immediately after giving effect to clause (d) above, the amount
allocated to the Class C Notes pursuant to clause (d)(i), subject to the
limitation in clause (m) below, will be reallocated to the Class D Notes, in an
amount not to exceed the Class C Available Subordinated Amount of Class D Notes
for such Tranche of Class C Notes after giving effect to clauses (a) through (d)
above.
(f) Immediately after giving effect to Section 3.07(c), the amount of Card
Series Principal Amount applied pursuant to Section 3.07(c), subject to the
limitation in clause (m) below, will be allocated to the Class D Notes, in an
amount not to exceed the Class C Available Subordinated Amount of Class D Notes
for such Tranche of Class C Notes after giving effect to clauses (a) through (e)
above.
(g) (i) Immediately after giving effect to Section 3.07(d), the amount
of Card Series Principal Amount applied pursuant to Section 3.07(d),
subject to the limitation in clause (m) below, will be allocated to the
Class B Notes, in an amount not to exceed the Class A Available
Subordinated Amount of Class B Notes for such Tranche of Class A Notes
after giving effect to clauses (a) through (f) above.
(ii) The amount of Card Series Principal Amount applied pursuant to
Section 3.07(d), and not reallocated to the Class B Notes due to the
limitations set forth in clause (g)(i) above and clause (m) below, subject
to the limitation in clause (m) below, will be allocated to the Class C
Notes, in an amount not to exceed the Class A Available Subordinated Amount
of Class C Notes for such Tranche of Class A Notes after giving effect to
clauses (a) through (f) above.
(iii) The amount of Card Series Principal Amount applied pursuant to
Section 3.07(d), and not reallocated to the Class B Notes or Class C Notes
due to the limitations set forth in clauses(g)(i) and (g)(ii) above and
clause (m) below, subject to the limitation in clause (m) below, will be
allocated to the Class D Notes, in an amount not to exceed the Class A
Available Subordinated Amount of Class D Notes for such Tranche of Class A
Notes after giving effect to clauses (a) through (f) above.
(h) (i) Immediately after giving effect to clause (g) above, the amount
reallocated to the Class B Notes pursuant to clause (g)(i), subject to the
limitation in clause (m) below, will be reallocated to the Class C Notes,
in an amount not to exceed the Class B Available Subordinated Amount of
Class C Notes for such Tranche of Class B Notes after giving effect to
clauses (a) through (g) above.
(ii) The amount allocated to the Class B Notes pursuant to clause
(g)(i) and not reallocated to the Class C Notes due to the limitations set
forth in clause (h)(i) above and clause (m) below, subject to the
limitation in clause (m) below, will be reallocated to the Class D Notes,
in an amount not to exceed the Class B Available Subordinated Amount of
Class D Notes for such Tranche of Class B Notes after giving effect to
clauses (a) through (g) above.
(i) Immediately after giving effect to clause (h) above, the amount
allocated to the Class C Notes pursuant to clause (g)(iii) plus the amount
reallocated to the Class C Notes
37
pursuant to clause (h)(i) above, subject to the limitation in clause (m) below,
will be reallocated to the Class D Notes, in an amount not to exceed the Class C
Available Subordinated Amount of Class D Notes for such Tranche of Class C Notes
after giving effect to clauses (a) through (h) above.
(j) (i) Immediately after giving effect to Section 3.07(e), the amount
of Card Series Principal Amount applied pursuant to Section 3.07(e),
subject to the limitation in clause (m) below, will be allocated to the
Class C Notes, in an amount not to exceed the Class B Available
Subordinated Amount of Class C Notes for such Tranche of Class B Notes
after giving effect to clauses (a) through (i) above.
(ii) The amount of Card Series Principal Amount applied pursuant to
Section 3.07(e), and not reallocated to the Class C Notes due to the
limitations set forth in clause (j)(i) above and clause (m) below, subject
to the limitation in clause (m) below, will be reallocated to the Class D
Notes, in an amount not to exceed the Class B Available Subordinated Amount
of Class D Notes for such Tranche of Class B Notes after giving effect to
clauses (a) through (i) above.
(k) Immediately after giving effect to clause (j) above, the amount
reallocated to the Class C Notes pursuant to clause (j)(i), subject to the
limitation in clause (m) below, will be reallocated to the Class D Notes, in an
amount not to exceed the Class C Available Subordinated Amount of Class D Notes
for such Tranche of Class C Notes after giving effect to clauses (a) through (j)
above.
(l) Immediately after giving effect to Section 3.07(f), the amount of Card
Series Principal Amount applied pursuant to Section 3.07(f), subject to the
limitation in clause (m) below, will be allocated to the Class D Notes, in an
amount not to exceed the Class C Available Subordinated Amount of Class D Notes
for such Tranche of Class C Notes after giving effect to clauses (a) through (k)
above.
(m) (i) The amount allocated to the Class B Notes pursuant to clause
(a)(i) or (g)(i) above will be applied to each Tranche of Class B Notes pro
rata based on the ratio of the Nominal Liquidation Amount of such Tranche
of Class B Notes to the Nominal Liquidation Amount of all the Class B Notes
in the Card Series, with respect to clause (a)(i), after giving effect to
Section 3.05, and with respect to clause (g)(i), after giving effect to
Section 3.05 and clauses (a) through (f) above. Any such allocation that
would otherwise have reduced the Nominal Liquidation Amount of a Tranche of
Class B Notes below zero will be reallocated to the remaining Tranches of
Class B Notes as set forth in this clause (m)(i), but in no event will the
Nominal Liquidation Amount (after giving effect to this clause (m)(i)) of
any Tranche of Class B Notes be reduced below zero.
(ii) The amount allocated or reallocated to the Class C Notes pursuant
to clause (a)(ii), (b)(i), (d)(i), (g)(ii), (h)(i) or (j)(i) above will be
applied to each Tranche of Class C Notes pro rata based on the ratio of the
Nominal Liquidation Amount of such Tranche of Class C Notes to the Nominal
Liquidation Amount of all the Class C Notes in the Card Series, with
respect to clauses (a)(ii) and (b)(i), after giving effect to Section 3.05,
with respect to clause (d)(i), after giving effect to Section 3.05 and
clauses (a)
38
through (c) above, with respect to clauses (g)(ii) and (h)(i), after giving
effect to Section 3.05 and clauses (a) through (f) above, and with respect
to clause (j)(i), after giving effect to Section 3.05 and clauses (a)
through (i) above. Any such allocation that would otherwise have reduced
the Nominal Liquidation Amount of a Tranche of Class C Notes below zero
will be reallocated to the remaining Tranches of Class C Notes as set forth
in this clause (m)(ii), but in no event will the Nominal Liquidation Amount
(after giving effect to this clause (m)(ii)) of any Tranche of Class C
Notes be reduced below zero.
(iii) The amount allocated or reallocated to the Class D Notes
pursuant to clause (a)(iii), (b)(ii), (c), (d)(ii), (e), (f), (g)(iii),
(h)(ii), (i), (j)(ii), (k) or (l) above will be applied to each Tranche of
Class D Notes pro rata based on the ratio of the Nominal Liquidation Amount
of such Tranche of Class D Notes to the Nominal Liquidation Amount of all
the Class D Notes in the Card Series, with respect to clauses (a)(iii),
(b)(ii) and (c), after giving effect to Section 3.05, with respect to
clauses (d)(ii) and (e), after giving effect to Section 3.05 and clauses
(a) through (c) above, with respect to clause (f), after giving effect to
Section 3.05 and clauses (a) through (e) above, with respect to clauses
(g)(iii), (h)(ii) and (i), after giving effect to Section 3.05 and clauses
(a) through (f) above, with respect to clauses (j)(ii) and (k), after
giving effect to Section 3.05 and clauses (a) through (i) above, and with
respect to clause (l), after giving effect to clauses (a) through (k)
above. Any such allocation that would otherwise have reduced the Nominal
Liquidation Amount of a Tranche of Class D Notes below zero will be
reallocated to the remaining Tranches of Class D Notes as set forth in this
clause (m)(iii), but in no event will the Nominal Liquidation Amount (after
giving effect to this clause (m)(iii)) of any Tranche of Class D Notes be
reduced below zero.
Section 3.09. Allocation of Servicing Fee Shortfalls. On each Distribution
Date, if after giving effect to payments to be made with respect to the related
Monthly Period pursuant to Section 3.01(d), the Servicer has not received the
full amount to be paid pursuant to Section 3.01(d), the aggregate amount of such
shortfall will be allocated to each Tranche of Outstanding Notes in the Card
Series pro rata based on the ratio of the Nominal Liquidation Amount of such
Tranche of Notes to the Nominal Liquidation Amount of the Card Series Notes,
each as of the close of business on the last day of the preceding Monthly
Period.
Section 3.10. Targeted Deposits of Card Series Principal Amounts to the
Principal Funding Account. With respect to any Monthly Period, the amount
targeted to be deposited into the Principal Funding sub-Account for any Tranche
of Notes will be the sum of (i) the amount determined pursuant to clause (a),
(b), (c), (d) or (e) below with respect to such Tranche for such Monthly Period,
as applicable, or if more than one such clause is applicable, the highest amount
determined pursuant to any one of such clauses, and (ii) any deposit targeted
pursuant to clause (i) with respect to such Tranche for any prior Monthly Period
but for which the full targeted deposit was not made, but in no case more than
the Nominal Liquidation Amount of such Tranche (computed immediately before
giving effect to such deposit but after giving effect to any Investor
Charge-Offs and any reallocations of Card Series Principal Amounts on such
date).
(a) Principal Payment Date. With respect to the Monthly Period immediately
preceding each Principal Payment Date for a Tranche of Notes, the deposit
targeted for that Tranche of Notes, unless otherwise specified in the related
terms agreement, is equal to the
39
Nominal Liquidation Amount of that Tranche of Notes as of the close of business
on the last day of the Monthly Period preceding such Monthly Period (determined
after giving effect to any Investor Charge-Offs and any reallocations, payments
or deposits of Card Series Principal Amounts occurring on the following
Distribution Date).
(b) Budgeted Deposits.
(i) Subject to Section 3.10(d), with respect to each Monthly Period,
beginning with the Accumulation Commencement Date, the deposit targeted to
be made into the Principal Funding sub-Account for that Tranche will be the
Accumulation Period Amount for that Tranche specified in the applicable
terms document, or if no such amount is specified, beginning with the
twelfth Monthly Period before the Monthly Period in which the Expected
Principal Payment Date of that Tranche of Notes occurs, an amount equal to
one-twelfth of the expected Outstanding Dollar Principal Amount of such
Tranche of Notes as of such Expected Principal Payment Date.
(ii) Notwithstanding anything to the contrary in clause (i), on or
before the Distribution Date immediately preceding the first Business Day
of the month that is twelve (12) months prior to the Expected Principal
Payment Date of any Tranche of Notes, and each determination date
thereafter until the Accumulation Commencement Date, the Issuer will
determine the "Accumulation Period Length" which will equal the number of
whole months such that the Accumulation Period Amount for such Tranche for
the Monthly Period immediately preceding the Expected Principal Payment
Date, when aggregated with the Accumulation Period Amounts for such Tranche
for each preceding Monthly Period, will equal or exceed the Initial Dollar
Principal Amount of such Tranche; provided, however, that the Accumulation
Period Length will not be determined to be less than one month; provided
further, however, that the determination of the Accumulation Period Length
may be changed at any time if the Note Rating Agencies provide prior
written confirmation that a Ratings Effect will not occur with respect to
such change.
(c) Prefunding of the Principal Funding Account of Senior Classes. If the
Issuer determines as of the end of the preceding Monthly Period with respect to
any Class A Notes, Class B Notes or Class C Notes that, after giving effect to
all allocations and payments with respect to that Monthly Period, the Prefunding
Target Amount of that Tranche will be greater than zero, the targeted deposit to
the Principal Funding sub-Account for the affected Tranches will be the
Prefunding Target Amounts for such Tranche.
(d) Event of Default, Early Redemption Event, Other Optional or Mandatory
Redemption. If any Tranche of Notes has been accelerated during a Monthly Period
after the occurrence of an Event of Default, or if an Early Redemption Event
with respect to any Tranche of Notes occurs during such Monthly Period, or with
respect to the Monthly Period immediately preceding any other date fixed for any
other optional or mandatory redemption of any Tranche of Notes, the deposit
targeted for that Tranche of Notes with respect to that Monthly Period and each
following Monthly Period is equal to Nominal Liquidation Amount of that Tranche
of Notes as of the close of business on the last day of the preceding Monthly
Period (after taking
40
into account any reallocations, payments or deposits occurring on the following
Distribution Date).
(e) Amounts Owed to Derivative Counterparties. If a Tranche of Outstanding
Dollar Notes or foreign currency Notes that has a Performing or non-Performing
Derivative Agreement for principal provides for a payment to the applicable
Derivative Counterparty, the deposit targeted for that Tranche of Notes on each
Distribution Date with respect to any payment to the Derivative Counterparty
will be specified in the related terms document.
Section 3.11. Allocations among Principal Funding sub-Accounts. Subject to
the restrictions of Section 3.15, the aggregate amount of the deposits to be
made to the Principal Funding Account for each Tranche of Notes pursuant to
Section 3.10 for each Monthly Period will be allocated, and a portion deposited
in the Principal Funding sub-Account for each Tranche of Notes, as follows:
(a) Card Series Principal Amounts Equal to Targeted Amount. Subject to
clause (c) below, if Card Series Principal Amounts remaining after giving effect
to Sections 3.07(a) through (f) are equal to the aggregate amount of Card Series
Principal Amounts targeted to be deposited into the Principal Funding Account
for all Tranches of Notes pursuant to Section 3.10, then that targeted amount is
deposited in the Principal Funding sub-Account established for each Tranche.
(b) Card Series Principal Amounts Are Less Than Targeted Amounts. Subject
to clause (c) below, if Card Series Principal Amounts remaining after giving
effect to Sections 3.07(a) through (f) are less than the aggregate amount
targeted to be deposited into the Principal Funding Account for all Tranches of
Notes pursuant to Section 3.10, then the amount available will be deposited in
the Principal Funding sub-Account established for each Tranche in the following
priority:
(i) first, the amount available will be allocated to the Class A
notes pro rata based on the ratio of (A) the amount targeted to be
deposited into the Principal Funding sub-Account for such Tranche of Class
A Notes pursuant to Section 3.10, to (B) the aggregate amount targeted to
be deposited into the Principal Funding sub-Account for all Tranches of
Class A Notes pursuant to Section 3.10;
(ii) second, the amount available after the application in clause (i)
above will be allocated to the Class B notes, pro rata based on the ratio
of (A) the amount targeted to be deposited into the Principal Funding
sub-Account for such Tranche of Class B Notes pursuant to Section 3.10, to
(B) the aggregate amount targeted to be deposited into the Principal
Funding sub-Account for all Tranches of Class B Notes pursuant to Section
3.10; and
(iii) third, the amount available after the applications in clauses
(i) and (ii) above will be allocated to the Class C notes, pro rata based
on the ratio of (A) the amount targeted to be deposited into the Principal
Funding sub-Account for such Tranche of Class C Notes pursuant to Section
3.10, to (B) the aggregate amount targeted to be
41
deposited into the Principal Funding sub-Account for all Tranches of Class
C Notes pursuant to Section 3.10; and
(iv) fourth, the amount available after the applications in clauses
(i) through (iii) above will be allocated to the Class D notes, pro rata
based on the ratio of (A) the amount targeted to be deposited into the
Principal Funding sub-Account for such Tranche of Class D Notes pursuant to
Section 3.10, to (B) the aggregate amount targeted to be deposited into the
Principal Funding sub-Account for all Tranches of Class D Notes pursuant to
Section 3.10.
(c) Reallocation of Deposits to the Principal Funding sub-Account of
Subordinated Notes. If the restrictions of Section 3.15(a) prevent the deposit
of Card Series Principal Amounts into the Principal Funding sub-Account of any
subordinated note, the aggregate amount of Card Series Principal Amounts
available to make the targeted deposit for such subordinated Tranche will be
allocated first, to each Tranche of Class A Notes pro rata based on the ratio of
(A) the Required Subordinated Amount of Subordinated Notes for such Tranche of
Class A Notes to (B) the Required Subordinated Amount of Subordinated Notes for
all Class A Notes in the Card Series, second, if applicable, to each Tranche of
Class B Notes pro rata based on the ratio of (A) the Required Subordinated
Amount of Subordinated Notes for such Tranche of Class B Notes to (B) the
Required Subordinated Amount of Subordinated Notes for all Class B Notes in the
Card Series and, third, if applicable, to each Tranche of Class C Notes pro rata
based on the ratio of (A) the Required Subordinated Amount of Class D Notes for
such Tranche of Class C Notes to (B) the Required Subordinated Amount of Class D
Notes for all Class C Notes in the Card Series.
Section 3.12. Amounts to be Treated as Card Series Principal Amounts;
Payments Received from Derivative Counterparties for Principal; Other Deposits
to Principal Funding sub-Accounts. The following deposits and payments will be
made on the following dates:
(a) Amounts to be Treated as Card Series Principal Amounts. In addition to
Asset Pool One Principal Amounts allocated to the Card Series pursuant to
Section 3.3 of the Asset Pool One Supplement, the following amounts shall be
treated as Card Series Principal Amounts for application in accordance with this
Article III for any Monthly Period:
(i) Reallocated Card Series Finance Charge Amounts. Card Series
Principal Amounts will include Card Series Finance Charge Amounts
reallocated to be treated as Card Series Principal Amounts pursuant to
Section 3.01(f) or 3.01(g).
(ii) Dollar Payments from Derivative Counterparties for Principal.
Dollar payments received under Derivative Agreements for principal for any
Tranche of Notes will be treated as Card Series Principal Amounts.
(iii) Shared Excess Principal Amounts. Any Shared Excess Principal
Amounts allocable to the Card Series will be treated as Card Series
Principal Amounts pursuant to Section 3.28(a).
42
(iv) Other Amounts. The terms document for any Tranche of Notes may
include additional amounts which are to be treated as Card Series Principal
Amounts for any Distribution Date.
(b) Payments Received from Derivative Counterparties. Payments received
under Derivative Agreements for Notes with principal payable in foreign
currencies will be applied as specified in the applicable Terms Document.
(c) Class C Reserve sub-Account. Withdrawals made from the Class C Reserve
sub-Account for any Tranche of Class C Notes pursuant to Section 3.23(b) will be
deposited into the applicable Principal Funding sub-Account on the Distribution
Date.
(d) Class D Reserve sub-Account. Withdrawals made from the Class D Reserve
sub-Account for any Tranche of Class D Notes pursuant to Section 3.30(b) will be
deposited into the applicable Principal Funding sub-Account on the Distribution
Date.
(e) Asset Sales Proceeds. Asset Sales Proceeds received pursuant to
Section 3.20(c)(i) for any Tranche of Notes will be deposited into the
applicable Principal Funding sub-Account on the date of receipt by the Issuer.
Section 3.13. Withdrawals from Interest Funding Account. Withdrawals made
pursuant to this Section 3.13 with respect to any Tranche of Notes will be made
from the Interest Funding sub-Account established for that Tranche only after
all allocations and reallocations have been made pursuant to Sections 3.02,
3.03, 3.04 and 3.07. In no event will the aggregate amount of the withdrawals
from an Interest Funding sub-Account for any month be more than the amount on
deposit in the applicable Interest Funding sub-Account. A single Tranche of
Notes may be entitled to more than one of the following withdrawals in any
month.
(a) Withdrawals for Dollar Notes. On each Interest Payment Date (or as
specified in the applicable terms document) with respect to each Tranche of
Dollar Notes, an amount equal to the interest due on the applicable Tranche of
Notes on such Interest Payment Date (including any overdue and additional
interest with respect to prior Interest Payment Dates) will be withdrawn from
that Interest Funding sub-Account and remitted to the applicable Paying Agent(s)
or as otherwise provided in the applicable terms document.
(b) Withdrawals for Foreign Currency Notes with a non-Performing
Derivative Agreement for Interest. On each Interest Payment Date (or as
specified in the applicable terms document) with respect to a Tranche of foreign
currency Notes that has a non-Performing Derivative Agreement for interest, the
amount specified in the applicable terms document will be withdrawn from that
Interest Funding sub-Account and, if so specified in the applicable terms
document, converted to the applicable foreign currency at the Spot Exchange Rate
and remitted to the applicable Paying Agent(s) or as otherwise provided in the
applicable terms document.
(c) Withdrawals for Discount Notes. On each applicable Principal Payment
Date, with respect to each Tranche of Discount Notes, an amount equal to the
amount of the accretion of principal of that Tranche of Notes from the prior
Principal Payment Date (or, in the case of the first Principal Payment Date, the
date of issuance of that Tranche) to but excluding the applicable
43
Principal Payment Date will be withdrawn from that Interest Funding sub-Account
and invested in the Invested Amount of the Asset Pool One pursuant to Section
3.17.
(d) Withdrawals for Payments to Derivative Counterparties. On each date on
which a payment is required to be made to the Derivative Counterparty under the
applicable Derivative Agreement (or as specified in the applicable terms
document) with respect to any Tranche of Notes which has a Performing or
non-Performing Derivative Agreement for interest, an amount equal to the amount
of the payment to be made to the Derivative Counterparty under the applicable
Derivative Agreement (including any overdue payment and any additional interest
on overdue payments) will be withdrawn from that Interest Funding sub-Account
and paid to the applicable Derivative Counterparty or as otherwise provided in
the applicable Terms Document.
(e) Excess Amounts. After payment in full of any Tranche of Notes, any
amount remaining on deposit in the applicable Interest Funding sub-Account will
be first, allocated among and deposited to the Interest Funding sub-Account of
the Tranches of Notes in the manner, order and priority set forth in Section
3.03(b), second, allocated among and deposited to the Principal Funding
sub-Account of the Tranches of Notes in the manner, order and priority set forth
in Section 3.11(b), and third, paid to the Issuer.
If the aggregate amount available for withdrawal from an Interest Funding
sub-Account for any Tranche of Notes is less than all withdrawals required to be
made from that Interest Funding sub-Account for that Tranche in a month after
giving effect to all deposits, then the amounts on deposit in the Interest
Funding sub-Account will be withdrawn and, if payable to more than one Person,
applied pro rata based on the amounts of the withdrawals required to be made.
Section 3.14. Withdrawals from Principal Funding Account. Withdrawals made
pursuant to this Section 3.14 with respect to any Tranche of Notes will be made
from the Principal Funding sub-Accounts established for that Tranche only after
all allocations have been made pursuant to Sections 3.10, 3.11 and 3.12. In no
event will the amount of the withdrawal be more than the amount on deposit in
the applicable Principal Funding sub-Account. A single Tranche may be entitled
to more than one of the following withdrawals with respect to any Monthly
Period.
(a) Withdrawals for Dollar Notes with no Derivative Agreement for
Principal. On each applicable Principal Payment Date (or as specified in the
applicable terms document) with respect to each Tranche of Dollar Notes that has
no Derivative Agreement for principal, an amount equal to the principal due on
the applicable Tranche of Notes on the applicable Principal Payment Date will be
withdrawn from such Principal Funding sub-Account and remitted to the applicable
Paying Agent(s) or as otherwise provided by the applicable Terms Document.
(b) Withdrawals for Dollar or Foreign Currency Notes with Performing
Derivative Agreements for Principal. On each date on which a payment is required
under the applicable Derivative Agreement (or as specified in the applicable
terms document) with respect to any Tranche of Notes that has a Performing
Derivative Agreement for principal, an amount equal to the amount of the payment
to be made under the applicable Derivative Agreement will be withdrawn from such
Principal Funding sub-Account and paid to the applicable Derivative
44
Counterparty or as otherwise provided by the applicable terms document. The
Issuer will direct the applicable Derivative Counterparty to remit its payments
under the applicable Derivative Agreement to the applicable Paying Agent(s) or
as otherwise provided by the applicable Terms Document.
(c) Withdrawals for Dollar Notes with a non-Performing Derivative Agreement
for Principal. On each applicable Principal Payment Date (or as specified in the
applicable terms document) with respect to each Tranche of Dollar Notes with a
non-Performing Derivative Agreement for principal, the amount specified in the
applicable terms agreement will be withdrawn from such Principal Funding
sub-Account and remitted to the applicable Paying Agent(s) or as otherwise
provided by the applicable Terms Document.
(d) Withdrawals for Foreign Currency Notes with non-Performing Derivative
Agreements for Principal. On each Principal Payment Date (or as specified in the
applicable terms document) with respect to a Tranche of foreign currency Notes
that has a non-Performing Derivative Agreement for principal, the amount
specified in the applicable terms document will be withdrawn from such Principal
Funding sub-Account and, if so specified in the applicable terms document,
converted to the applicable foreign currency at the Spot Exchange Rate and
remitted to the applicable Paying Agent(s) or as otherwise provided by the
applicable Terms Document.
(e) Withdrawal of Prefunding Excess Amount. If the Issuer on any date
determines with respect to any Class of Class A Note, Class B Notes or Class C
Notes that, after giving effect to all issuances, deposits, allocations,
reallocations and payments on such date, the Prefunding Excess Amount of that
Class is greater than zero, that amount will be withdrawn from the Principal
Funding sub-Account of that Class of Notes and first, allocated among and
deposited to the Principal Funding sub-Account of the Tranches of Notes in the
manner, order and priority set forth in Section 3.11(b), and then, paid to the
Issuer.
(f) Legal Maturity Date. On the Legal Maturity Date of any Tranche, after
giving effect to any deposits, allocations, reallocations, sales of Collateral
or other payments to be made on that date, amounts on deposit in the Principal
Funding sub-Account of any Tranche of a Subordinated Class of Notes will be
applied to pay principal of that Tranche, to make a payment under a Derivative
Agreement with respect to principal of that Tranche or to make other payments as
specified in the related Terms Document.
(g) Excess Amounts. Upon payment in full of any Tranche of Notes, any
remaining amount on deposit in the applicable Principal Funding sub-Account will
be first, allocated among and deposited to the Interest Funding sub-Account of
the Tranches of Notes in the manner, order and priority set forth in Section
3.03(b), second, allocated among and deposited to the Principal Funding
sub-Account of the Tranches of Notes in the manner, order and priority set forth
in Section 3.11(b), and third, paid to the Issuer.
If the aggregate amount available for withdrawal from a Principal
Funding sub-Account for any Tranche of Notes is less than all withdrawals
required to be made from that Principal Funding sub-Account for that Tranche in
a month, then the amounts on deposit will be
45
withdrawn and, if payable to more than one Person, applied pro rata based on the
amounts of the withdrawals required to be made.
Section 3.15. Limit on Deposits to the Principal Funding sub-Account of
Subordinated Note; Limit on Repayments of all Tranches.
(a) Limit on Deposits to the Principal Funding sub-Account of Subordinated
Notes.
(i) No Card Series Principal Amounts will be deposited in the
Principal Funding sub-Account of any Tranche of Class B Notes, Class C
Notes or Class D Notes unless, following such deposit, the available
subordinated amount of Class B Notes, Class C Notes and Class D Notes is at
least equal to the aggregate Class A Available Subordinated Amount of
Subordinated Notes for all Outstanding Class A Notes. For this purpose, the
available subordinated amount of Class B Notes, Class C Notes and Class D
Notes is equal to the aggregate Nominal Liquidation Amount of all other
Class B Notes, Class C Notes and Class D Notes of the Card Series which are
Outstanding after giving effect to the deposit into the Principal Funding
sub-Account of such Tranche of Class B Notes, Class C Notes or Class D
Notes and all other Class B, Class C Notes and Class D Notes which have a
targeted deposit into the Principal Funding Account for such Monthly Period
after giving effect to reductions or reallocations on such Distribution
Date.
(ii) No Card Series Principal Amounts will be deposited in the
Principal Funding sub-Account of any Tranche of Class C Notes or Class D
Notes unless, following such deposit, the available subordinated amount of
Class C Notes and Class D Notes is at least equal to the Class B Available
Subordinated Amount of Subordinated Notes for all Outstanding Class B
Notes. For this purpose, the available subordinated amount of Class C Notes
and Class D Notes is equal to the aggregate Nominal Liquidation Amount of
all other Class C Notes and Class D Notes of the Card Series which are
Outstanding after giving effect to the deposit into the Principal Funding
sub-Account of such Tranche of Class C Notes or Class D Notes and all other
Class C Notes and Class D Notes which have a targeted deposit into the
Principal Funding Account for such Monthly Period after giving effect to
reductions or reallocations on such Distribution Date.
(iii) No Card Series Principal Amounts will be deposited in the
Principal Funding sub-Account of any Tranche of Class D Notes unless,
following such deposit, the available subordinated amount of Class D Notes
is at least equal to the Class C Available Subordinated Amount of Class D
Notes for all Outstanding Class C Notes. For this purpose, the available
subordinated amount of Class D Notes is equal to the aggregate Nominal
Liquidation Amount of all other Class D Notes of the Card Series which are
Outstanding after giving effect to the deposit into the Principal Funding
sub-Account of such Tranche of Class D Notes and all other Class D Notes
which have a targeted deposit into the Principal Funding Account for such
Monthly Period after giving effect to reductions or reallocations on such
Distribution Date.
46
(iv) Notwithstanding anything in the Indenture, the Asset Pool One
Supplement or this Indenture Supplement to the contrary, Card Series
Principal Amounts will be deposited in the Principal Funding sub-Account of
a Subordinated Note, if and only to the extent that (i) such deposit is not
contrary to clause (a)(i), (a)(ii) or (a)(iii) above and (ii) the
Prefunding Target Amount for each Senior Class of Notes is zero.
(b) Limit on Repayments of all Tranches. No amounts on deposit in a
Principal Funding sub-Account for any Tranche of Class A Notes or Class B Notes
will be applied to pay principal of that Tranche or to make a payment under a
Derivative Agreement with respect to principal of that Tranche in excess of the
highest Outstanding Dollar Principal Amount of that Tranche (or, in the case of
foreign currency notes, such other amount that may be specified in the related
terms document). In the case of any Tranche of Class C Notes, no amounts on
deposit in a Principal Funding sub-Account or, if applicable, a Class C Reserve
sub-Account for any such Tranche will be applied to pay principal of that
Tranche or to make a payment under a Derivative Agreement with respect to
principal of that Tranche in excess of the highest Outstanding Dollar Principal
Amount of that Tranche (or, in the case of foreign currency notes, such other
amount that may be specified in the related Terms Document). In the case of any
Tranche of Class D Notes, no amounts on deposit in a Principal Funding
sub-Account or, if applicable, a Class D Reserve sub-Account for any such
Tranche will be applied to pay principal of that Tranche or to make a payment
under a Derivative Agreement with respect to principal of that Tranche in excess
of the highest Outstanding Dollar Principal Amount of that Tranche (or, in the
case of foreign currency notes, such other amount that may be specified in the
related Terms Document).
Section 3.16. Calculation of Nominal Liquidation Amount. On or prior to
each Distribution Date, the Issuer shall calculate the Nominal Liquidation
Amount of each Tranche of Outstanding Notes in the Card Series which shall be
the following amount:
(a) as of the date of issuance of such Tranche of Notes, the Initial
Dollar Principal Amount of such Tranche of Notes; and
(b) thereafter, the sum of, without duplication:
(i) the Nominal Liquidation Amount of such Tranche of Notes
immediately after the prior date of determination; plus
(ii) the aggregate amount of any increases in the Outstanding Dollar
Principal Amount of such Class or Tranche of Card Series Notes during the
current Monthly Period due to the issuance of additional Notes of such
Class or Tranche of Card Series Notes since the prior date of determination
for the Nominal Liquidation Amount; plus
(iii) with respect to any Tranche of Discount Notes, the aggregate
amount of any accretions of principal on that Tranche paid to the Master
Trust for investment in the Invested Amount pursuant to Section 3.17(a)
since the prior date of determination; plus
(iv) the aggregate amount withdrawn from the Principal Funding
sub-Account pursuant to Section 3.14(e) for such Tranche since the prior
date of determination; plus
47
(v) such Tranche's allocable share of all reimbursements of its
Nominal Liquidation Amount Deficit pursuant to Section 3.01(f) since the
prior date of determination determined as set forth in Section 3.06; minus
(vi) such Tranche's allocable share of all reallocations of Card
Series Principal Amounts pursuant to Section 3.07 since the prior date of
determination, determined as set forth in Section 3.09; minus
(vii) the amount of the reduction of the Nominal Liquidation Amount
of such Tranche resulting from an allocation of Investor Charge-Offs since
the prior date of determination, determined as set forth in Section 3.05;
minus
(viii) the amount deposited in the applicable Principal Funding
sub-Account for such Tranche (after giving effect to any deposits,
allocations, reallocations or withdrawals to be made on that day) since the
prior date of determination;
provided, however, that (1) the Nominal Liquidation Amount of a Tranche of Notes
may never be less than zero, (2) the Nominal Liquidation Amount of any Tranche
of Notes may never be greater than the Outstanding principal amount of such
Tranche and (3) the Nominal Liquidation Amount of any Tranche of Notes that has
caused a sale of Collateral pursuant to Section 3.20 will be zero.
The Nominal Liquidation Amount for the Card Series will be the sum of the
Nominal Liquidation Amounts of all of the Tranches of Notes of the Card Series.
Section 3.17. Reinvestment in the COMT Collateral Certificate. The amount
of principal accreted on any Tranche of Discount Notes available pursuant to
Section 3.13(c) will be paid to the Master Trust to increase the Invested Amount
of the COMT Collateral Certificate.
Section 3.18. Netting of Deposits and Payments. The Issuer, in its sole
discretion, may make all deposits to Interest Funding sub-Accounts and Principal
Funding sub-Accounts pursuant to Sections 3.02 and 3.10 with respect to any
Monthly Period net of, and after giving effect to, (a) all reallocations to be
made pursuant to Section 3.07, (b) all payments to be made to Derivative
Counterparties pursuant to Sections 3.13 and 3.14, (c) all reinvestments in the
Invested Amount of the COMT Collateral Certificate to be made pursuant to
Section 3.17 and (d) all payments to the holder of the Asset Pool One Transferor
Interest pursuant to Section 3.07(i).
Section 3.19. Pro rata Payments within a Tranche. All payments of
principal, interest or other amounts to Holders of the Notes of a single Tranche
will be made pro rata based on the Stated Principal Amount of their Notes.
Section 3.20. Sale of Collateral for Accelerated Notes.
(a) (i) If a Tranche of Notes has been accelerated pursuant to Section
602 of the Indenture following an Event of Default, the Indenture Trustee may,
and at the direction of the Majority Holders of that Tranche of Notes will, sell
Collateral (or interests therein) pledged for the benefit of Holders the Asset
Pool One Notes in an amount up to the Nominal Liquidation
48
Amount of the affected Tranche plus any accrued, past due or additional interest
on the affected Tranche.
(ii) Such a sale will be permitted only if at least one of the
following conditions is met:
(A) the Holders of 90% of the aggregate Outstanding Dollar
Principal Amount of the accelerated Tranche of Notes consent;
(B) the net proceeds of such sale (plus amounts on deposit in
the applicable sub-Accounts and payments to be received from any
applicable Derivative Agreement, any Supplemental Credit Enhancement
Provider or any Supplemental Liquidity Provider) would be sufficient
to pay all amounts due on the accelerated Tranche of Notes; or
(C) the Indenture Trustee determines that the funds to be
allocated to the accelerated Tranche of Notes, including (1) Card
Series Finance Charge Amounts and Card Series Principal Amounts
allocable to the accelerated Tranche of Notes, (2) payments to be
received under any applicable Derivative Agreement, Supplemental
Credit Enhancement Agreement or Supplemental Liquidity Agreement and
(3) amounts on deposit in the applicable sub-Accounts, may not be
sufficient on any ongoing basis to make payments on the accelerated
Tranche of Notes as such payments would have become due if such
obligations had not been declared due and payable, and 66 2/3% of the
Holders of the accelerated Tranche of Notes consent to the sale.
(iii) In the case of an acceleration of a Tranche of Notes of a
Subordinated Class, if the provisions of Section 3.15 would prevent the
payment of the accelerated Tranche of subordinated Notes, such sale will be
delayed until a level of prefunding of the Principal Funding sub-Accounts
for the Senior Classes of Notes of that Series has been reached such that
the amount of such accelerated Tranche is no longer required to provide
subordination for the Senior Classes of Notes.
(b) If the Nominal Liquidation Amount with respect to any Tranche of Notes
is greater than zero on its Legal Maturity Date (after giving effect to any
adjustments, deposits and distributions otherwise to be made on that Legal
Maturity Date), the Indenture Trustee shall sell Collateral (or interests
therein) pledged for the benefit of the Holders of the Asset Pool One Notes on
that Legal Maturity Date in an amount up to the Nominal Liquidation Amount of
the affected Tranche plus any accrued, past due and additional interest on the
affected Tranche.
(c) Sales proceeds received with respect to a Tranche of Notes pursuant to
clause (a) or (b) will be allocated in the following priority:
(i) first, to be deposited in the Principal Funding sub-Account for
that Tranche of Notes, an amount up to the amount that would be necessary
to increase the aggregate amount on deposit in such sub-Account to the
principal amount for such Tranche of Notes (notwithstanding any limitation
in Section 3.10 to the contrary); and
49
(ii) second, to be deposited in the Interest Funding sub-Account
of that Tranche of Notes, the balance of such sales proceeds.
(d) Any amount remaining on deposit in the Interest Funding sub-Account
for a Tranche of Notes that has caused a sale of Collateral pursuant to this
Section 3.20 after final payment thereof pursuant to Section 3.5 of the Asset
Pool One Supplement will be treated as Card Series Finance Charge Amounts.
Section 3.21. Calculation of Prefunding Target Amount.
(a) The Prefunding Target Amount for any Tranche of Class A Notes for
any day during any Monthly Period means an amount, not less than zero, equal to
the sum of the following amounts:
(i) for each Tranche of Class A Notes with a Required
Subordinated Amount of Class B Notes greater than zero, the product of
(x) the aggregate Adjusted Outstanding Dollar Principal Amount of such
Tranche of Class A Notes as of the end of the preceding Monthly Period
(taking into consideration any deposits or withdrawals to be made on
the related Distribution Date) times (y) one minus a fraction (which
shall not exceed one) the numerator of which is the aggregate Adjusted
Outstanding Dollar Principal Amount of all Tranches of Outstanding
Class B Notes (other than Tranches of Class B Notes which have (A) had
Early Redemption Events or other mandatory or optional redemption
events in which such Tranches are to be redeemed in full in or with
respect to any preceding Monthly Period, (B) had Events of Default in
or with respect to any preceding Monthly Period, or (C) reached or are
expected to reach their final or only Expected Principal Payment Date
in or with respect to that Monthly Period or earlier Monthly Periods)
and the denominator of which is the aggregate Required Subordinated
Amount of Class B Notes for all Tranches of Class A Notes of which are
Outstanding as of the end of the preceding Monthly Period (taking into
consideration any deposits or withdrawals to be made on the related
Distribution Date);
(ii) for each Tranche of Class A Notes with a Required
Subordinated Amount of Class C Notes greater than zero, the product of
(x) the aggregate Adjusted Outstanding Dollar Principal Amount of such
Tranche of Class A Notes as of the end of the preceding Monthly Period
(taking into consideration any deposits or withdrawals to be made on
the related Distribution Date) times (y) one minus a fraction (which
shall not exceed one) the numerator of which is the aggregate Adjusted
Outstanding Dollar Principal Amount of all Tranches of Outstanding
Class C Notes (other than Tranches of Class C Notes which have (A) had
Early Redemption Events or other mandatory or optional redemption
events in which such Tranches are to be redeemed in full in or with
respect to any preceding Monthly Period, (B) had Events of Default in
or with respect to any preceding Monthly Period, or (C) reached or are
expected to reach their final or only Expected Principal Payment Date
in or with respect to that Monthly Period or earlier Monthly Periods)
and the denominator of which is the sum of (1) the aggregate Required
Subordinated Amount of Class C Notes for all Tranches of Class A Notes
which are Outstanding as of the end of the preceding Monthly Period
which have a Class A Required Subordinated Amount of Class B Notes
equal to zero and (2) the aggregate Required Subordinated Amount of
50
Class C Notes for all Tranches of Class B Notes which are Outstanding
as of the end of the preceding Monthly Period (in each case, taking
into consideration any deposits or withdrawals to be made on the
related Distribution Date); and
(iii) for each Tranche of Class A Notes with a Required
Subordinated Amount of Class D Notes greater than zero, the product of
(x) the aggregate Adjusted Outstanding Dollar Principal Amount of such
Tranche of Class A Notes as of the end of the preceding Monthly Period
(taking into consideration any deposits or withdrawals to be made on
the related Distribution Date) times (y) one minus a fraction (which
shall not exceed one) the numerator of which is the aggregate Adjusted
Outstanding Dollar Principal Amount of all Tranches of Outstanding
Class D Notes (other than Tranches of Class D Notes which have (A) had
Early Redemption Events or other mandatory or optional redemption
events in which such Tranches are to be redeemed in full in or with
respect to any preceding Monthly Period, (B) had Events of Default in
or with respect to any preceding Monthly Period, or (C) reached or are
expected to reach their final or only Expected Principal Payment Date
in or with respect to that Monthly Period or earlier Monthly Periods)
and the denominator of which is the greater of (1) the sum of (X) the
aggregate Required Subordinated Amount of Class D Notes for all
Tranches of Class A Notes which are Outstanding as of the end of the
preceding Monthly Period which have a Required Subordinated Amount of
Class B Notes equal to zero and (Y) the aggregate Required Subordinated
Amount of Class D Notes for all Tranches of Class B Notes which are
Outstanding as of the end of the preceding Monthly Period (in each
case, taking into consideration any deposits or withdrawals to be made
on the related Distribution Date) and (2) the aggregate Required
Subordinated Amount of Class D Notes for all Tranches of Class C Notes
which are Outstanding as of the end of the preceding Monthly Period
(taking into consideration any deposits or withdrawals to be made on
the related Distribution Date).
(b) The Prefunding Target Amount for any Tranche of Class B Notes for
any day during any Monthly Period means an amount, not less than zero, equal to
the sum of the following amounts:
(i) for each Tranche of Class B Notes with a Required
Subordinated Amount of Class C Notes greater than zero, the product of
(x) the aggregate Adjusted Outstanding Dollar Principal Amount of such
Tranche of Class B Notes as of the end of the preceding Monthly Period
(taking into consideration any deposits or withdrawals to be made on
the related Distribution Date) times (y) one minus a fraction (which
shall not exceed one) the numerator of which is the aggregate Adjusted
Outstanding Dollar Principal Amount of all Tranches of Outstanding
Class C Notes (other than Tranches of Class C Notes which have (A) had
Early Redemption Events or other mandatory or optional redemption
events in which such Tranches are to be redeemed in full in or with
respect to any preceding Monthly Period, (B) had Events of Default in
or with respect to any preceding Monthly Period, or (C) reached or are
expected to reach their final or only Expected Principal Payment Date
in or with respect to that Monthly Period or earlier Monthly Periods)
and the denominator of which is the sum of (1) the aggregate Required
Subordinated Amount of Class C Notes for all Tranches of Class A Notes
which are Outstanding as of the end of the preceding Monthly Period
which have a Class A Required Subordinated Amount
51
of Class B Notes equal to zero and (2) the aggregate Required
Subordinated Amount of Class C Notes for all Tranches of Class B Notes
which are Outstanding as of the end of the preceding Monthly Period (in
each case, taking into consideration any deposits or withdrawals to be
made on the related Distribution Date); and
(ii) for each Tranche of Class B Notes with a Required
Subordinated Amount of Class D Notes greater than zero, the product of
(x) the aggregate Adjusted Outstanding Dollar Principal Amount of such
Tranche of Class B Notes as of the end of the preceding Monthly Period
(taking into consideration any deposits or withdrawals to be made on
the related Distribution Date) times (y) one minus a fraction (which
shall not exceed one) the numerator of which is the aggregate Adjusted
Outstanding Dollar Principal Amount of all Tranches of Outstanding
Class D Notes (other than Tranches of Class D Notes which have (A) had
Early Redemption Events or other mandatory or optional redemption
events in which such Tranches are to be redeemed in full in or with
respect to any preceding Monthly Period, (B) had Events of Default in
or with respect to any preceding Monthly Period, or (C) reached or are
expected to reach their final or only Expected Principal Payment Date
in or with respect to that Monthly Period or earlier Monthly Periods)
and the denominator of which is the greater of (1) the sum of (X) the
aggregate Required Subordinated Amount of Class D Notes for all
Tranches of Class A Notes which are Outstanding as of the end of the
preceding Monthly Period which have a Required Subordinated Amount of
Class B Notes equal to zero and (Y) the aggregate Required Subordinated
Amount of Class D Notes for all Tranches of Class B Notes which are
Outstanding as of the end of the preceding Monthly Period (in each
case, taking into consideration any deposits or withdrawals to be made
on the related Distribution Date) and (2) the aggregate Required
Subordinated Amount of Class D Notes for all Tranches of Class C Notes
which are Outstanding as of the end of the preceding Monthly Period
(taking into consideration any deposits or withdrawals to be made on
the related Distribution Date).
(c) The Prefunding Target Amount for any Tranche of Class C Notes with
a Required Subordinated Amount of Class D Notes greater than zero for any day
during any Monthly Period means an amount, not less than zero, equal to the
product of (x) the aggregate Adjusted Outstanding Dollar Principal Amount of
such Tranche of Class C Notes as of the end of the preceding Monthly Period
(taking into consideration any deposits or withdrawals to be made on the related
Distribution Date) times (y) one minus a fraction (which shall not exceed one)
the numerator of which is the aggregate Adjusted Outstanding Dollar Principal
Amount of all Tranches of Outstanding Class D Notes (other than Tranches of
Class D Notes which have (A) had Early Redemption Events or other mandatory or
optional redemption events in which such Tranches are to be redeemed in full in
or with respect to any preceding Monthly Period, (B) had Events of Default in or
with respect to any preceding Monthly Period, or (C) reached or are expected to
reach their final or only Expected Principal Payment Date in or with respect to
that Monthly Period or earlier Monthly Periods) and the denominator of which is
the greater of (1) the sum of (X) the aggregate Required Subordinated Amount of
Class D Notes for all Tranches of Class A Notes which are Outstanding as of the
end of the preceding Monthly Period which have a Required Subordinated Amount of
Class B Notes equal to zero and (Y) the aggregate Required Subordinated Amount
of Class D Notes for all Tranches of Class B Notes which are Outstanding as of
the end of the preceding Monthly Period (in each case, taking into
52
consideration any deposits or withdrawals to be made on the related Distribution
Date) and (2) the aggregate Required Subordinated Amount of Class D Notes for
all Tranches of Class C Notes which are Outstanding as of the end of the
preceding Monthly Period (taking into consideration any deposits or withdrawals
to be made on the related Distribution Date).
(d) On any day during any Monthly Period on which the Prefunding Target
Amount for any Tranche of senior notes first exceeds zero, the Issuer will
notify the Master Trust pursuant to Section 4.05 of the Series 2002-CC
Supplement and the Note Rating Agencies of such event.
Section 3.22. Targeted Deposits to the Class C Reserve Account.
(a) The aggregate deposit targeted to be made to the Class C Reserve
Account with respect to each Distribution Date is an amount equal to the sum of
Class C Reserve sub-Account deposits, if any, targeted to be made for each
specified Tranche of Class C Notes. The amount of any such deposit, the
aggregate amount targeted to be on deposit after giving effect to any such
deposit and the circumstances that require that a deposit be made will be set
forth in the terms document for such Tranche of Class C Notes. Unless another
time is specified for making such deposits in the terms document for each such
Tranche of Class C Notes, these deposits will be made on each Distribution Date.
(b) If the amount of funds available for a Distribution Date pursuant
to Section 3.01(i) is at least equal to the aggregate amount of the deposits
targeted by clause (a) above, then the full amount of each such deposit will be
made.
(c) If the amount of funds available for a Distribution Date pursuant
to Section 3.01(i) is less than the aggregate amount of deposits targeted by
clause (a) above, then the amount available will be allocated to each Tranche of
Class C Notes to the extent of its targeted deposit to the applicable Class C
Reserve sub-Account pro rata based on the ratio of the Floating Allocation
Amount for such Monthly Period for such Tranche of Class C Notes to the Floating
Allocation Amount for such Monthly Period for all the Class C Notes in the Card
Series that have a targeted deposit to its Class C Reserve sub-Account for such
Monthly Period; provided, however, that any excess identified in this clause
(c), including in the application of this proviso, will be allocated to each
Tranche of Class C Notes which has a remaining targeted deposit to its Class C
Reserve sub-Account up to the amount of such remaining targeted deposit pro rata
(based on the ratio of Floating Allocation Amount for such Monthly Period for
such Tranche of Class C Notes to the Floating Allocation Amount for such Monthly
Period for all the Class C Notes in the Card Series that have a remaining
targeted deposit to its Class C Reserve sub-Account for such Monthly Period).
Section 3.23. Withdrawals from the Class C Reserve Account. Withdrawals
for any Tranche of Class C Notes will be made from the applicable Class C
Reserve sub-Account as specified below.
(a) Payments of Interest; Payments with Respect to Derivative
Agreements for Interest, Accretion on Discount Notes. If the amount on deposit
in the Interest Funding sub-Account for any Tranche of Class C Notes is
insufficient to pay in full the amounts for which
53
withdrawals are required under Section 3.13, on such payment date an amount
equal to that deficiency will be withdrawn from the Class C Reserve sub-Account
for such Tranche of Class C Notes and deposited into that Interest Funding
sub-Account for such Tranche of Class C Notes.
(b) Payments of Principal; Payments with Respect to Derivative
Agreements for Principal. If, on and after the earliest to occur of (i) the date
on which any Tranche of Class C Notes are accelerated pursuant to Section 602 of
the Indenture following an Event of Default with respect to such Tranche of
Class C Notes, (ii) any date on or after the Expected Principal Payment Date on
which the amount on deposit in the Principal Funding sub-Account for any Tranche
of Class C Notes plus the aggregate amount on deposit in the Class C Reserve
sub-Account for such Tranche of the Class C Notes equals or exceeds the
Outstanding Dollar Principal Amount of such Tranche of Class C Notes, provided
deposits to the Principal Funding sub-Account of such Tranche of Class C Notes
are permitted pursuant to Section 3.15, and (iii) the Legal Maturity Date for
any Tranche of Class C Notes, the amount on deposit in the Principal Funding
sub-Account for any Tranche of Class C Notes is insufficient to pay in full the
amounts for which withdrawals are required under Section 3.14, an amount equal
to that deficiency will be withdrawn from that Class C Reserve sub-Account for
such Tranche of Class C Notes and deposited into that Principal Funding
sub-Account for such Tranche of Class C Notes on the Distribution Date before
the date of the applicable withdrawal required pursuant to Section 3.14.
(c) Withdrawal of Excess Amounts. If on any Distribution Date with
respect to which no Class C Notes have been accelerated, the aggregate amount on
deposit in the Class C Reserve Account exceeds the amount required to be on
deposit in such Class C Reserve Account, the amount of such excess will be
withdrawn from the Class C Reserve Account and first, allocated among and
deposited to the Class C Reserve sub-Account of the Tranches of Class C Notes in
the manner, order and priority set forth in Section 3.22(c), and then, applied
in accordance with the provisions of, and the priority set forth in, Sections
3.01(j) through (m). Upon payment in full of any Tranche of Class C Notes, any
amount remaining on deposit in the applicable Class C Reserve sub-Account will
be applied in accordance with the preceding sentence.
Section 3.24. Targeted Deposits to the Accumulation Reserve Account.
(a) The aggregate deposit targeted to be made to the Accumulation
Reserve Account with respect to each Monthly Period is an amount equal to the
sum of Accumulation Reserve sub-Account deposits, if any, targeted to be made
for each specified Tranche of Notes. The amount of any such deposit, the
aggregate amount targeted to be on deposit after giving effect to any such
deposit and the circumstances that require that a deposit be made will be set
forth in the terms document for such Tranche of Notes. Unless another time is
specified for making such deposits in the terms document for each such Tranche
of Notes, these deposits will be made on each Distribution Date.
(b) If the amount of funds available for a Monthly Period pursuant to
Section 3.01(h) is at least equal to the aggregate amount of the deposits
targeted by clause (a) above, then the full amount of each such deposit will be
made.
54
(c) If the amount of funds available for a Monthly Period pursuant to
Section 3.01(h) is less than the aggregate amount of deposits targeted by clause
(a) above, then the amount available will be allocated to each Tranche of Notes
to the extent of its targeted deposit to the applicable Accumulation Reserve
sub-Account pro rata based on the ratio of the Floating Allocation Amount for
such Monthly Period for such Tranche of Notes to the Floating Allocation Amount
for such Monthly Period for all Tranches of Notes in the Card Series that have a
targeted deposit to its Accumulation Reserve sub-Account for such Monthly
Period; provided, however, that any excess identified in this clause (c),
including in the application of this proviso, will be allocated to each Tranche
of Notes which has a remaining targeted deposit to its Accumulation Reserve
sub-Account up to the amount of such remaining targeted deposit pro rata based
on the ratio of Floating Allocation Amount for such Monthly Period for such
Tranche of Notes to the Floating Allocation Amount for such Monthly Period for
all the Tranches of Notes in the Card Series that have a remaining targeted
deposit to its Accumulation Reserve sub-Account for such Monthly Period.
Section 3.25. Withdrawals from the Accumulation Reserve Account.
Withdrawals for any Tranche of Notes will be made from the applicable
Accumulation Reserve sub-Account as specified below.
(a) Interest. On or prior to each Distribution Date, the Issuer will
calculate the PFA Accumulation Earnings Shortfall (if any) for the Principal
Funding sub-Account for each Tranche of Notes. If there is any PFA Accumulation
Earnings Shortfall for any Principal Funding sub-Account for that Distribution
Date or any prior Distribution Date for any Tranche of Notes, the Issuer will
withdraw such amount from the applicable Accumulation Reserve sub-Account, to
the extent available, for treatment as Card Series Finance Charge Amounts for
such Monthly Period.
(b) Payment to Issuer. If on any Distribution Date the aggregate amount
on deposit in the Accumulation Reserve Account exceeds the amount required to be
on deposit in the Accumulation Reserve Account, the amount of such excess will
be withdrawn from the Accumulation Reserve Account and applied in accordance
with Section 3.01(i) through (m).
Section 3.26. Computation of Interest.
(a) Unless otherwise provided as contemplated in Section 301 of the
Indenture, (i) interest on the Notes computed at a fixed rate will be calculated
on the basis of a 360-day year of twelve 30-day months and (ii) interest on
Notes computed on the basis of a floating or periodic rate will be calculated on
the basis of a 360-day year for the actual number of days elapsed.
(b) Unless otherwise specified in this Indenture Supplement or the
applicable terms document, interest for any period will be calculated from and
including the first day of such period, to but excluding the last day of such
period.
55
Section 3.27. Excess Finance Charge Amounts Sharing.
(a) Shared Excess Finance Charge Amounts allocable to the Card Series
on any Distribution Date shall be treated as Card Series Finance Charge Amounts
for such Distribution Date.
(b) Shared Excess Finance Charge Amounts allocable to the Card Series
with respect to any Distribution Date shall mean an amount equal to the Series
Finance Charge Amounts Shortfall, if any, with respect to the Card Series for
such Distribution Date; provided, however, that if the aggregate amount of
Shared Excess Finance Charge Amounts for all Excess Finance Charge Amounts
Sharing Series in Excess Finance Charge Amounts Sharing Group A for such
Distribution Date is less than the Aggregate Series Finance Charge Amounts
Shortfall for such Distribution Date, then Shared Excess Finance Charge Amounts
allocable to the Card Series on such Distribution Date shall equal the product
of (i) Shared Excess Finance Charge Amounts for all Excess Finance Charge
Amounts Sharing Series in Excess Finance Charge Amounts Sharing Group A for such
Distribution Date and (ii) a fraction, the numerator of which is the Series
Finance Charge Amounts Shortfall with respect to the Card Series for such
Distribution Date and the denominator of which is the Aggregate Series Finance
Charge Amounts Shortfall for all Excess Finance Charge Amounts Sharing Series in
Excess Finance Charge Amounts Sharing Group A for such Distribution Date.
(c) [Master Trust Excess Sharing Amounts].
Section 3.28. Excess Available Principal Amount Sharing.
(a) Shared Excess Principal Amounts allocable to the Card Series on
any Distribution Date shall be treated as Card Series Principal Amounts for such
Distribution Date.
(b) Shared Excess Principal Amounts allocable to the Card Series with
respect to any Distribution Date shall mean an amount equal to the Series
Principal Amounts Shortfall, if any, with respect to the Card Series for such
Distribution Date; provided, however, that if the aggregate amount of Shared
Excess Principal Amounts for all Excess Principal Amounts Sharing Series in
Principal Sharing Group A for such Distribution Date is less than the Aggregate
Series Principal Amounts Shortfall for such Distribution Date, then Shared
Excess Principal Amounts allocable to the Card Series on such Distribution Date
shall equal the product of (i) Shared Excess Principal Amounts for all Excess
Principal Amounts Sharing Series in Principal Sharing Group A for such
Distribution Date and (ii) a fraction, the numerator of which is the Series
Principal Amounts Shortfall with respect to the Card Series for such
Distribution Date and the denominator of which is the Aggregate Series Principal
Amounts Shortfall for all Excess Principal Amounts Sharing Series in Principal
Sharing Group A for such Distribution Date.
Section 3.29. Targeted Deposits to the Class D Reserve Account.
(a) The aggregate deposit targeted to be made to the Class D Reserve
Account with respect to each Distribution Date is an amount equal to the sum of
Class D Reserve sub-Account deposits, if any, targeted to be made for each
specified Tranche of Class D Notes. The amount of any such deposit, the
aggregate amount targeted to be on deposit after giving effect to any such
deposit and the circumstances that require that a deposit be made will be set
forth in the
56
terms document for such Tranche of Class D Notes. Unless another time is
specified for making such deposits in the terms document for each such Tranche
of Class D Notes, these deposits will be made on each Distribution Date.
(b) If the amount of funds available for a Distribution Date pursuant
to Section 3.01(j) is at least equal to the aggregate amount of the deposits
targeted by clause (a) above, then the full amount of each such deposit will be
made.
(c) If the amount of funds available for a Distribution Date pursuant
to Section 3.01(j) is less than the aggregate amount of deposits targeted by
clause (a) above, then the amount available will be allocated to each Tranche of
Class D Notes to the extent of its targeted deposit to the applicable Class D
Reserve sub-Account pro rata based on the ratio of the Floating Allocation
Amount for such Monthly Period for such Tranche of Class D Notes to the Floating
Allocation Amount for such Monthly Period for all the Class D Notes in the Card
Series that have a targeted deposit to its Class D Reserve sub-Account for such
Monthly Period; provided, however, that any excess identified in this clause
(c), including in the application of this proviso, will be allocated to each
Tranche of Class D Notes which has a remaining targeted deposit to its Class D
Reserve sub-Account up to the amount of such remaining targeted deposit pro rata
(based on the ratio of Floating Allocation Amount for such Monthly Period for
such Tranche of Class D Notes to the Floating Allocation Amount for such Monthly
Period for all the Class D Notes in the Card Series that have a remaining
targeted deposit to its Class D Reserve sub-Account for such Monthly Period).
Section 3.30. Withdrawals from the Class D Reserve Account. Withdrawals
for any Tranche of Class D Notes will be made from the applicable Class D
Reserve sub-Account as specified below.
(a) Payments of Interest; Payments with Respect to Derivative
Agreements for Interest, Accretion on Discount Notes. If the amount on deposit
in the Interest Funding sub-Account for any Tranche of Class D Notes is
insufficient to pay in full the amounts for which withdrawals are required under
Section 3.13, on such payment date an amount equal to that deficiency will be
withdrawn from the Class D Reserve sub-Account for such Tranche of Class D Notes
and deposited into that Interest Funding sub-Account for such Tranche of Class D
Notes.
(b) Payments of Principal; Payments with Respect to Derivative
Agreements for Principal. If, on and after the earliest to occur of (i) the date
on which any Tranche of Class D Notes are accelerated pursuant to Section 602 of
the Indenture following an Event of Default with respect to such Tranche of
Class D Notes, (ii) any date on or after the Distribution Date immediately
preceding the Expected Principal Payment Date on which the amount on deposit in
the Principal Funding sub-Account for any Tranche of Class D Notes plus the
aggregate amount on deposit in the Class D Reserve sub-Account for such Tranche
of the Class D Notes equals or exceeds the Outstanding Dollar Principal Amount
of such Tranche of Class D Notes, provided deposits to the Principal Funding
sub-Account of such Tranche of Class D Notes are permitted pursuant to Section
3.15, and (iii) the Legal Maturity Date for any Tranche of Class D Notes, the
amount on deposit in the Principal Funding sub-Account for any Tranche of Class
D Notes is insufficient to pay in full the amounts for which withdrawals are
required under Section 3.14, an
57
amount equal to that deficiency will be withdrawn from that Class D Reserve
sub-Account for such Tranche of Class D Notes and deposited into that Principal
Funding sub-Account for such Tranche of Class D Notes on the Distribution Date
before the date of the applicable withdrawal required pursuant to Section 3.14.
(c) Withdrawal of Excess Amounts. If on any Distribution Date with
respect to which no Class D Notes have been accelerated, the aggregate amount on
deposit in the Class D Reserve Account exceeds the amount required to be on
deposit in such Class D Reserve Account, the amount of such excess will be
withdrawn from the Class D Reserve Account and first, allocated among and
deposited to the Class D Reserve sub-Account of the Tranches of Class D Notes in
the manner, order and priority set forth in Section 3.29(c), and then, applied
in accordance with the provisions of, and the priority set forth in, Sections
3.01(k) through (m). Upon payment in full of any Tranche of Class D Notes, any
amount remaining on deposit in the applicable Class D Reserve sub-Account will
be applied in accordance with the preceding sentence.
[END OF ARTICLE III]
58
ARTICLE IV
Early Redemption of Notes
Section 4.01. Early Redemption Events.
(a) In addition to the events identified as Early Redemption Events in
Section 1101 of the Indenture, each of the following events will be an "Early
Redemption Event" with respect to the Card Series Notes:
(i) if for any month, the average of the Excess Spread Amounts
for the three preceding Monthly Periods is less than the Required Excess
Spread Amount for such month; or
(ii) the occurrence of any Pay Out Event as defined in the
Pooling and Servicing Agreement or any Series 2002-CC Pay Out Event as
defined in the Series 2002-CC Supplement.
(b) In addition, the Terms Document for any Tranche of Notes may list
additional events which are "Early Redemption Events" with respect to such
Tranche of Notes.
[END OF ARTICLE IV]
59
ARTICLE V
Issuer Accounts and Investments
Section 5.01. Issuer Accounts.
(a) On or before the Closing Date, the Indenture Trustee will cause to
be established and maintained five Eligible Deposit Accounts denominated as
follows: the "Interest Funding Account," "Principal Funding Account," the
"Accumulation Reserve Account," the "Class C Reserve Account" and the "Class D
Reserve Account" in the name of the Indenture Trustee, bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Card Series Noteholders (or, in the case of the Class C Reserve Account, for
the benefit of the Class C Noteholders or, in the case of the Class D Reserve
Account, for the benefit of the Class D Noteholders). The Interest Funding
Account, the Principal Funding Account, the Accumulation Reserve Account, the
Class C Reserve Account and the Class D Reserve Account constitute Supplemental
Issuer Accounts, shall be maintained in accordance with Article IV of the
Indenture and the Asset Pool One Supplement, and shall be under the sole
dominion and control of the Indenture Trustee for the benefit of the Card Series
Noteholders (or, in the case of the Class C Reserve Account, for the benefit of
the Class C Noteholders or, in the case of the Class D Reserve Account, for the
benefit of the Class D Noteholders). If, at any time, the institution holding
either the Interest Funding Account, the Principal Funding Account, the
Accumulation Reserve Account, the Class C Reserve Account or the Class D Reserve
Account ceases to be an Eligible Institution, the Issuer will within ten (10)
Business Days (or such longer period, not to exceed thirty (30) calendar days,
as to which each Note Rating Agency may consent) establish a new Interest
Funding Account, Principal Funding Account, Accumulation Reserve Account, Class
C Reserve Account or the Class D Reserve Account, as the case may be, that is an
Eligible Deposit Account and shall transfer any cash and other property to such
new Interest Funding Account, Principal Funding Account, Accumulation Reserve
Account, Class C Reserve Account or Class D Reserve Account, as the case may be.
From the date such new Interest Funding Account, Principal Funding Account,
Accumulation Reserve Account, Class C Reserve Account or Class D Reserve Account
is established, it will be the "Interest Funding Account," "Principal Funding
Account," "Accumulation Reserve Account," "Class C Reserve Account" or a "Class
D Reserve Account," as the case may be. Each Tranche of Notes will have its own
sub-Account within the Interest Funding Account, the Principal Funding Account,
the Accumulation Reserve Account, the Class C Reserve Account and the Class D
Reserve Account. The Interest Funding Account, the Principal Funding Account,
the Accumulation Reserve Account, the Class C Reserve Account and the Class D
Reserve Account will receive deposits pursuant to Article III.
(b) Notwithstanding any provision of Section 403(a) of the Indenture
to the contrary, any prefunded amounts on deposit in the Principal Funding
Account will be invested in Eligible Investments that will mature no later than
the following Business Day.
(c) All payments to be made from time to time by the Indenture Trustee
to Noteholders out of funds in the Interest Funding Account, the Principal
Funding Account, the Accumulation Reserve Account, the Class C Reserve Account
or Class D Reserve Account pursuant to this Indenture Supplement will be made by
the Indenture Trustee to the Paying Agent
60
not later than 12:00 noon (New York City time) on the applicable Interest
Payment Date or Principal Payment Date but only to the extent of Card Series
Finance Charge Amounts in the applicable sub-Account or as otherwise provided in
Article III.
(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 Class C Reserve Account will be retained in the Class C
Reserve Account (to the extent that the sum of the amount on deposit in the
Class C Reserve Account with respect to the related Monthly Period is less than
the required balance for the Class C Reserve Account for that Monthly Period)
and the excess, if any, will be paid to the Issuer.
(e) 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 Class D Reserve Account will be retained in the Class D
Reserve Account (to the extent that the sum of the amount on deposit in the
Class D Reserve Account with respect to the related Monthly Period is less than
the required balance for the Class D Reserve Account for that Monthly Period)
and the excess, if any, will be paid to the Issuer.
[END OF ARTICLE V]
61
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
Supplement to be duly executed all as of the day and year first above written.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
By: CAPITAL ONE FUNDING, LLC, as Beneficiary
and not in its individual capacity
By: _____________________________________
Name:
Title:
THE BANK OF NEW YORK, as Indenture Trustee
and not in its individual capacity
By: ______________________________________
Name:
Title:
62
STATE OF DELAWARE )
) ss:
COUNTY OF CASTLE )
On this __ day of ______, 2002, before me personally came
______________, a _________ of ____________, to me known to be the person
described in and who executed the foregoing instrument, and duly acknowledged
that [he][she] executed the same for the purposes therein contained, and
acknowledged the same to be [his][her] free act and deed.
_____________________________
Name
_____________________________
[Notarial Seal]
00
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On the ___ day of ________________, 2002, before me personally
came ______________________ to me known, who, being by me duly sworn, did depose
and say that s/he is the __________________ of The Bank of New York, one of the
entities described in and which executed the foregoing instrument; that s/he
signed his/her name to the said instrument and that s/he has been authorized by
The Bank of New York to execute the foregoing instrument.
________________________________
Notary Public
My Commission Expires___________
_______________________
Notarial Seal
64
INDENTURE SUPPLEMENT
EXHIBIT A-1
[FORM OF] CLASS A NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES
THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER, THE TRANSFEROR OR THE
MASTER TRUST, OR JOIN IN ANY INSTITUTION AGAINST THE ISSUER, THE TRANSFEROR OR
THE MASTER TRUST, OF, ANY BANKRUPTCY PROCEEDINGS UNDER ANY UNITED STATES FEDERAL
OR STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY OBLIGATIONS RELATING
TO THE NOTES OR THE INDENTURE.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF
A BENEFICIAL INTEREST IN THIS NOTE, BY THE ACQUISITION OF A BENEFICIAL INTEREST
THEREIN, AGREE TO TREAT THE NOTES AS INDEBTEDNESS OF THE TRANSFEROR FOR
APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW AND FOR
PURPOSES OF ANY OTHER TAX IMPOSED ON OR MEASURED BY INCOME.
A-1-1
REGISTERED up to $_________ *
No. __ CUSIP NO. __________
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
[Floating Rate]
CARD SERIES CLASS A NOTE
Capital One Multi-asset Execution Trust, a statutory business trust
created under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, subject to the following provisions, a principal sum of
_______________________ payable on the __________ ____ Payment Date (the
"Expected Principal Payment Date"), except as otherwise provided below or in the
Indenture; provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the _________ ____ Payment Date (the "Legal
Maturity Date"). Interest will accrue on this Note at the rate of _____ and
shall be due and payable on each Interest Payment Date from the Monthly Interest
Accrual Date in the related Monthly Period (or, in the case of the first
Transfer Date, from the date of issuance of this Note) to but excluding the
first Monthly Interest Accrual Date after the end of that Monthly Period.
Interest will be computed on the basis of a 360-day year [of twelve 30-day
months] [and the actual number of days elapsed]. Such principal of and interest
on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
________________________________
.. Denominations of $100,000 and in integral multiples of $1,000 in excess
thereof
A-1-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
as Issuer
By: CAPITAL ONE FUNDING, LLC, as Beneficiary
and not in its individual capacity
By: _________________________________________
Name:
Title:
Date: _________, 2002
A-1-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, not in its individual
capacity but solely as Indenture Trustee
By: _______________________________________
Name:
Title:
Date: ____________, 2002
A-1-4
[REVERSE OF NOTE]
This Note is one of the Notes of a duly authorized issue of Notes of
the Issuer, designated as its [Floating Rate] Asset Backed Notes (herein called
the "Notes"), all issued under an Indenture dated as of [_________, 2002] (such
indenture, as supplemented or amended, is herein called the "Indenture"), as
supplemented by an Asset Pool One Supplement dated as of [_________, 2002] (the
"Asset Pool One Supplement"), as further supplemented by an Indenture Supplement
dated as of [_________, 2002] (the "Indenture Supplement"), between the Issuer
and The Bank of New York, as indenture trustee (the "Indenture Trustee", which
term includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Class B Notes, the Class C Notes and the Class D Notes will also be
issued under the Indenture.
The Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal of the Notes will be payable on the Expected Principal
Payment Date in an amount described on the face hereof.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the Legal Maturity Date. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default relating solely to the
non-payment of interest on the Notes shall have occurred and be continuing and
the Indenture Trustee or the Holders of the Notes representing not less than a
majority of the Outstanding Amount of the Notes have declared the Notes to be
immediately due and payable in the manner provided in Section 602 of the
Indenture; provided, however, that such acceleration of the entire unpaid
principal amount of the Notes may be rescinded by the holders of not less than a
majority of the Outstanding Amount of the Notes. All principal payments on the
Notes shall be made pro rata to the Noteholders entitled thereto.
On any day occurring on or after the date on which the aggregate
Nominal Liquidation Amount of any tranche of Notes is reduced to less than 5% of
its Initial Dollar Principal Amount, the Issuer has the right, but not the
obligation, to redeem such tranche of Notes in whole but not in part, pursuant
to Section 1102 of the Indenture. The redemption price will be an amount equal
to the Outstanding principal amount of such tranche, plus interest accrued and
unpaid or principal accreted and unpaid on such tranche to but excluding the
date of redemption.
A-1-5
Subject to the terms and conditions of the Indenture, the Beneficiary,
on behalf of the Trust, may from time to time issue, or direct the Owner
Trustee, on behalf of the Trust, to issue, one or more series, classes or
tranches of Notes.
On each Payment Date, the Paying Agent shall distribute to each Class A
Noteholder of record on the related Record Date (except for the final
distribution with respect to this Note) such Class A Noteholder's pro rata share
of the amounts held by the Paying Agent that are allocated and available on such
Payment Date to pay interest and principal on the Class A Notes. Final payments
of this Note will be made only upon presentation and surrender of this Note at
the office or offices therein specified.
[Payments of interest on this Note due and payable on each Payment
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Registered Holder of this Note (or one or more Predecessor
Notes) on the Note Register as of the close of business on each Record Date,
except that with respect to Notes registered on the Record Date in the name of
the nominee of the clearing agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five days of such Payment Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in the City of New
York. On any payment of interest or principal being made, details of such
payment shall be entered by the Indenture Trustee on behalf of the Issuer in
Schedule A hereto.]
[As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by a commercial bank or
trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office is located, or a member
firm of a national securities exchange, and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax
A-1-6
or other governmental charge that may be imposed in connection with any such
registration of transfer or exchange.]
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder that it will not at
any time institute against Funding, the Master Trust or the Issuer, or join in
any institution against Funding, the Master Trust or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or any Derivative Agreement.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Outstanding Amount of all Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Outstanding Amount of the Notes,
on behalf of the Holders of all the Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
A-1-7
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE 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.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer on the Notes or under the Indenture or any certificate
or other writing delivered in connection herewith or therewith, against (i) the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer or the Owner Trustee or of any
successor or assign of the Owner Trustee in its individual capacity, except as
any such Person may have expressly agreed (it being understood that the Owner
Trustee has no such obligations in its individual capacity). The Holder of this
Note by the acceptance hereof agrees that, except as expressly provided in the
Indenture, the Asset Pool One Supplement and the Indenture Supplement in the
case of an Event of Default under the Indenture, the Holder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
A-1-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: *
----------------------------- ---------------------------------
Signature Guaranteed:
________________________________
* NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-1-9
SCHEDULE A
PART I
INTEREST PAYMENTS
Total Amount Confirmation of
Interest Date of of Interest Amount of payment by or on
Payment Date Payment Payable Interest Paid behalf of the Trust
--------------------------------------------------------------------------------
First __________ ______________ ____________ ________________
Second __________ ______________ ____________ ________________
[continue numbering until the appropriate number of interest payment dates
for the Notes is reached]
A-1-10
PART II
PRINCIPAL PAYMENTS
Confirmation of payment by
Date of Payment Total Amount Payable Total Amount Paid or on behalf of the Trust
_________________________________________________________________________________________
_______________ ____________________ _________________ __________________________
_______________ ____________________ _________________ __________________________
Confirmation of payment by
Date of Payment Total Amount Payable Total Amount Paid or on behalf of the Trust
_________________________________________________________________________________________
_______________ ____________________ _________________ __________________________
_______________ ____________________ _________________ __________________________
[continue numbering until the appropriate number of installment dates for the
Notes is reached]
X-0-00
XXXXXXX X-0
[FORM OF] CLASS B NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND
AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER, THE
TRANSFEROR OR THE MASTER TRUST, OR JOIN IN ANY INSTITUTION AGAINST THE
ISSUER, THE TRANSFEROR OR THE MASTER TRUST, OF, ANY BANKRUPTCY
PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR
SIMILAR LAW IN CONNECTION WITH ANY OBLIGATIONS RELATING TO THE NOTES OR
THE INDENTURE.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST IN THIS NOTE, BY THE ACQUISITION OF A
BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE NOTES AS INDEBTEDNESS
OF THE TRANSFEROR FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND
FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON OR
MEASURED BY INCOME.
A-2-1
REGISTERED up to $_________ *
No. __ CUSIP NO. __________
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
[Floating Rate]
CARD SERIES CLASS B NOTE
Capital One Multi-asset Execution Trust, a statutory business trust
created under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, subject to the following provisions, a principal sum of
_______________________ payable on the __________ ____ Payment Date (the
"Expected Principal Payment Date"), except as otherwise provided below or in the
Indenture; provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the _________ ____ Payment Date (the "Legal
Maturity Date"). Interest will accrue on this Note at the rate of _______ and
shall be due and payable on each Interest Payment Date from the Monthly Interest
Accrual Date in the related Monthly Period (or, in the case of the first
Transfer Date, from the date of issuance of this Note) to but excluding the
first Monthly Interest Accrual Date after the end of that Monthly Period.
Interest will be computed on the basis of a 360-day year [of twelve 30-day
months] [and the actual number of days elapsed]. Such principal of and interest
on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
_____________________
* Denominations of $100,000 and integral multiples of $1,000 in excess
thereof
A-2-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
as Issuer
By: CAPITAL ONE FUNDING, LLC, as Beneficiary and
not in its individual capacity
By: ___________________________________
Name:
Title:
Date: _________, 2002
A-2-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, not in its individual
capacity but solely as Indenture Trustee
By: ________________________
Name:
Title:
Date: ____________, 2002
A-2-4
[REVERSE OF NOTE]
This Note is one of the Notes of a duly authorized issue of Notes of
the Issuer, designated as its [Floating Rate] Asset Backed Notes (herein called
the "Notes"), all issued under an Indenture dated as of [_______ __, 2002] (such
indenture, as supplemented or amended, is herein called the "Indenture"), as
supplemented by an Asset Pool One Supplement dated as of [_______ __, 2002] (the
"Asset Pool One Supplement"), as further supplemented by an Indenture Supplement
dated as of [_______ __, 2002] (the "Indenture Supplement"), between the Issuer
and The Bank of New York, as indenture trustee (the "Indenture Trustee", which
term includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Class A Notes, the Class C Notes and the Class D Notes will also be
issued under the Indenture.
The Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal of the Notes will be payable on the Expected Principal
Payment Date in an amount described on the face hereof.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the Legal Maturity Date. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default relating solely to the
non-payment of interest on the Notes shall have occurred and be continuing and
the Indenture Trustee or the Holders of the Notes representing not less than a
majority of the Outstanding Amount of the Notes have declared the Notes to be
immediately due and payable in the manner provided in Section 602 of the
Indenture; provided, however, that such acceleration of the entire unpaid
principal amount of the Notes may be rescinded by the holders of not less than a
majority of the Outstanding Amount of the Notes. All principal payments on the
Notes shall be made pro rata to the Noteholders entitled thereto.
On any day occurring on or after the date on which the aggregate
Nominal Liquidation Amount of any tranche of Notes is reduced to less than 5% of
its Initial Dollar Principal Amount, the Issuer has the right, but not the
obligation, to redeem such tranche of Notes in whole but not in part, pursuant
to Section 1102 of the Indenture. The redemption price will be an amount equal
to the Outstanding principal amount of such tranche, plus interest accrued and
unpaid or principal accreted and unpaid on such tranche to but excluding the
date of redemption.
Subject to the terms and conditions of the Indenture, the Beneficiary,
on behalf of the Trust, may from time to time issue, or direct the Owner
Trustee, on behalf of the Trust, to issue, one or more series, classes or
tranches of Notes.
A-2-5
On each Payment Date, the Paying Agent shall distribute to each Class B
Noteholder of record on the related Record Date (except for the final
distribution with respect to this Note) such Class B Noteholder's pro rata share
of the amounts held by the Paying Agent that are allocated and available on such
Payment Date to pay interest and principal on the Class B Notes. Final payments
of this Note will be made only upon presentation and surrender of this Note at
the office or offices therein specified.
[Payments of interest on this Note due and payable on each Payment
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Registered Holder of this Note (or one or more Predecessor
Notes) on the Note Register as of the close of business on each Record Date,
except that with respect to Notes registered on the Record Date in the name of
the nominee of the clearing agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five days of such Payment Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in the City of New
York. On any payment of interest or principal being made, details of such
payment shall be entered by the Indenture Trustee on behalf of the Issuer in
Schedule A hereto.]
[As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by a commercial bank or
trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office is located, or a member
firm of a national securities exchange, and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.]
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note covenants and agrees that no
recourse may be taken,
A-2-6
directly or indirectly, with respect to the obligations of the Issuer, the Owner
Trustee or the Indenture Trustee on the Notes or under the Indenture or any
certificate or other writing delivered in connection therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Indenture Trustee or
the Owner Trustee in its individual capacity, any holder of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder that it will not at
any time institute against Funding, the Master Trust or the Issuer, or join in
any institution against Funding, the Master Trust or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or any Derivative Agreement.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Outstanding Amount of all Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Outstanding Amount of the Notes,
on behalf of the Holders of all the Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
A-2-7
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE 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.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer on the Notes or under the Indenture or any certificate
or other writing delivered in connection herewith or therewith, against (i) the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer or the Owner Trustee or of any
successor or assign of the Owner Trustee in its individual capacity, except as
any such Person may have expressly agreed (it being understood that the Owner
Trustee has no such obligations in its individual capacity). The Holder of this
Note by the acceptance hereof agrees that, except as expressly provided in the
Indenture, the Asset Pool One Supplement and the Indenture Supplement in the
case of an Event of Default under the Indenture, the Holder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
A-2-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
______________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: *
------------------------- -----------------------------------
Signature Guaranteed:
______________________
* NOTE: The signaturre to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-2-9
SCHEDULE A
PART I
INTEREST PAYMENTS
Total Amount Confirmation of
Interest Date of of Interest Amount of payment by or on
Payment Date Payment Payable Interest Paid behalf of the Trust
______________________________________________________________________________________
First __________ ______________ ____________ ________________
Second __________ ______________ ____________ ________________
[continue numbering until the appropriate number of interest payment dates for
the Notes is reached]
A-2-10
PART II
PRINCIPAL PAYMENTS
Date of Payment Total Amount Payable Total Amount Paid Confirmation of payment by
or on behalf of the Trust
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
Date of Payment Total Amount Payable Total Amount Paid Confirmation of payment by
or on behalf of the Trust
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
[continue numbering until the appropriate number of installment dates for the
Notes is reached]
X-0-00
XXXXXXX X-0
[FORM OF] CLASS C NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND
AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER, THE
TRANSFEROR OR THE MASTER TRUST, OR JOIN IN ANY INSTITUTION AGAINST THE
ISSUER, THE TRANSFEROR OR THE MASTER TRUST, OF, ANY BANKRUPTCY
PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR
SIMILAR LAW IN CONNECTION WITH ANY OBLIGATIONS RELATING TO THE NOTES OR
THE INDENTURE.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST IN THIS NOTE, BY THE ACQUISITION OF A
BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE NOTES AS INDEBTEDNESS
OF THE TRANSFEROR FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND
FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON OR
MEASURED BY INCOME.
A-3-1
REGISTERED up to $_________ *
No. __ CUSIP NO. __________
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
[Floating Rate]
CARD SERIES CLASS C NOTE
Capital One Multi-asset Execution Trust, a statutory business trust
created under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, subject to the following provisions, a principal sum of
_______________________ payable on the __________ ____ Payment Date (the
"Expected Principal Payment Date"), except as otherwise provided below or in the
Indenture; provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the _________ ____ Payment Date (the "Legal
Maturity Date"). Interest will accrue on this Note at the rate of ____ and shall
be due and payable on each Interest Payment Date from the Monthly Interest
Accrual Date in the related Monthly Period (or, in the case of the first
Transfer Date, from the date of issuance of this Note) to but excluding the
first Monthly Interest Accrual Date after the end of that Monthly Period.
Interest will be computed on the basis of a 360-day year [of twelve 30-day
months] [and the actual number of days elapsed]. Such principal of and interest
on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
_______________________
* Denominations of $100,000 and in integral multiples of $1,000 in excess
thereof
A-3-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
as Issuer
By: CAPITAL ONE FUNDING, LLC, as Beneficiary
and not in its individual capacity
By:____________________________________
Name:
Title:
Date: _______ __, 2002
A-3-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, not in its individual
capacity but solely as Indenture Trustee
By:___________________________________
Name:
Title:
Date: __________ __, 2002
A-3-4
[REVERSE OF NOTE]
This Note is one of the Notes of a duly authorized issue of Notes of
the Issuer, designated as its [Floating Rate] Asset Backed Notes (herein called
the "Notes"), all issued under an Indenture dated as of [_______ __, 2002] (such
indenture, as supplemented or amended, is herein called the "Indenture"), as
supplemented by an Asset Pool One Supplement dated as of [_______ __, 2002] (the
"Asset Pool One Supplement"), as further supplemented by an Indenture Supplement
dated as of [_______ __, 2002] (the "Indenture Supplement"), between the Issuer
and The Bank of New York, as indenture trustee (the "Indenture Trustee", which
term includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Class A Notes, the Class B Notes and the Class D Notes will also be
issued under the Indenture.
The Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal of the Notes will be payable on the Expected Principal
Payment Date in an amount described on the face hereof.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the Legal Maturity Date. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default relating solely to the
non-payment of interest on the Notes shall have occurred and be continuing and
the Indenture Trustee or the Holders of the Notes representing not less than a
majority of the Outstanding Amount of the Notes have declared the Notes to be
immediately due and payable in the manner provided in Section 602 of the
Indenture; provided, however, that such acceleration of the entire unpaid
principal amount of the Notes may be rescinded by the holders of not less than a
majority of the Outstanding Amount of the Notes. All principal payments on the
Notes shall be made pro rata to the Noteholders entitled thereto.
On any day occurring on or after the date on which the aggregate
Nominal Liquidation Amount of any tranche of Notes is reduced to less than 5% of
its Initial Dollar Principal Amount, the Issuer has the right, but not the
obligation, to redeem such tranche of Notes in whole but not in part, pursuant
to Section 1102 of the Indenture. The redemption price will be an amount equal
to the Outstanding principal amount of such tranche, plus interest accrued and
unpaid or principal accreted and unpaid on such tranche to but excluding the
date of redemption.
A-3-5
Subject to the terms and conditions of the Indenture, the Beneficiary,
on behalf of the Trust, may from time to time issue, or direct the Owner
Trustee, on behalf of the Trust, to issue, one or more series, classes or
tranches of Notes.
On each Payment Date, the Paying Agent shall distribute to each Class C
Noteholder of record on the related Record Date (except for the final
distribution with respect to this Note) such Class C Noteholder's pro rata share
of the amounts held by the Paying Agent that are allocated and available on such
Payment Date to pay interest and principal on the Class C Notes. Final payments
of this Note will be made only upon presentation and surrender of this Note at
the office or offices therein specified.
[Payments of interest on this Note due and payable on each Payment
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Registered Holder of this Note (or one or more Predecessor
Notes) on the Note Register as of the close of business on each Record Date,
except that with respect to Notes registered on the Record Date in the name of
the nominee of the clearing agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five days of such Payment Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in the City of New
York. On any payment of interest or principal being made, details of such
payment shall be entered by the Indenture Trustee on behalf of the Issuer in
Schedule A hereto.]
[As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by a commercial bank or
trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office is located, or a member
firm of a national securities exchange, and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax
A-3-6
or other governmental charge that may be imposed in connection with any such
registration of transfer or exchange.]
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder that it will not at
any time institute against Funding, the Master Trust or the Issuer, or join in
any institution against Funding, the Master Trust or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or any Derivative Agreement.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Outstanding Amount of all Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Outstanding Amount of the Notes,
on behalf of the Holders of all the Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
A-3-7
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE 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.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer on the Notes or under the Indenture or any certificate
or other writing delivered in connection herewith or therewith, against (i) the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer or the Owner Trustee or of any
successor or assign of the Owner Trustee in its individual capacity, except as
any such Person may have expressly agreed (it being understood that the Owner
Trustee has no such obligations in its individual capacity). The Holder of this
Note by the acceptance hereof agrees that, except as expressly provided in the
Indenture, the Asset Pool One Supplement and the Indenture Supplement in the
case of an Event of Default under the Indenture, the Holder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
A-3-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:___________________________ *
-----------------------------
Signature Guaranteed:
________________________
* NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-3-9
SCHEDULE A
PART I
INTEREST PAYMENTS
Total Amount Confirmation of
Interest Date of of Interest Amount of payment by or on
Payment Date Payment Payable Interest Paid behalf of the Trust
----------------------- ----------------- ----------------------- --------------------- ------------------------------
First ______________ __________________ _________________ ______________________
Second ______________ __________________ _________________ ______________________
[continue numbering until the appropriate number of interest payment dates for
the Notes is reached]
A-3-10
PART II
PRINCIPAL PAYMENTS
Confirmation of payment by
Date of Payment Total Amount Payable Total Amount Paid or on behalf of the Trust
---------------------------------------------------------------------------------------------------------------
------------------ ---------------------------- ------------------------ ------------------------------
------------------ ---------------------------- ------------------------ ------------------------------
Confirmation of payment by
Date of Payment Total Amount Payable Total Amount Paid or on behalf of the Trust
---------------------------------------------------------------------------------------------------------------
------------------ ---------------------------- ------------------------ ------------------------------
------------------ ---------------------------- ------------------------ ------------------------------
[continue numbering until the appropriate number of installment dates for the
Notes is reached]
X-0-00
XXXXXXX X-0
[FORM OF] CLASS D NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR TO SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS
AND AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER,
THE TRANSFEROR OR THE MASTER TRUST, OR JOIN IN ANY INSTITUTION AGAINST
THE ISSUER, THE TRANSFEROR OR THE MASTER TRUST, OF, ANY BANKRUPTCY
PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR
SIMILAR LAW IN CONNECTION WITH ANY OBLIGATIONS RELATING TO THE NOTES
OR THE INDENTURE.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND
EACH HOLDER OF A BENEFICIAL INTEREST IN THIS NOTE, BY THE ACQUISITION
OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE NOTES AS
INDEBTEDNESS OF THE TRANSFEROR FOR APPLICABLE FEDERAL, STATE, AND
LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX
IMPOSED ON OR MEASURED BY INCOME.
A-4-1
REGISTERED up to $_________ *
No. __ CUSIP NO. __________
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
[Floating Rate]
CARD SERIES CLASS D NOTE
Capital One Multi-asset Execution Trust, a statutory business trust
created under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, subject to the following provisions, a principal sum of
_______________________ payable on the __________ ____ Payment Date (the
"Expected Principal Payment Date"), except as otherwise provided below or in the
Indenture; provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the _________ ____ Payment Date (the "Legal
Maturity Date"). Interest will accrue on this Note at the rate of ____ and shall
be due and payable on each Interest Payment Date from the Monthly Interest
Accrual Date in the related Monthly Period (or, in the case of the first
Transfer Date, from the date of issuance of this Note) to but excluding the
first Monthly Interest Accrual Date after the end of that Monthly Period.
Interest will be computed on the basis of a 360-day year [of twelve 30-day
months] [and the actual number of days elapsed]. Such principal of and interest
on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
----------
* Denominations of $100,000 and in integral multiples of $1,000 in excess
thereto
A-4-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
as Issuer
By: CAPITAL ONE FUNDING, LLC, as Beneficiary and
not in its individual capacity
By:
--------------------------------------------
Name:
Title:
Date: _______ __, 2002
A-4-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, not in its individual
capacity but solely as Indenture Trustee
By:
--------------------------------------------
Name:
Title:
Date: __________ __, 2002
A-4-4
[REVERSE OF NOTE]
This Note is one of the Notes of a duly authorized issue of Notes of
the Issuer, designated as its [Floating Rate] Asset Backed Notes (herein called
the "Notes"), all issued under an Indenture dated as of [_______ __, 2002] (such
indenture, as supplemented or amended, is herein called the "Indenture"), as
supplemented by an Asset Pool One Supplement dated as of [_______ __, 2002] (the
"Asset Pool One Supplement"), as further supplemented by an Indenture Supplement
dated as of [_______ __, 2002] (the "Indenture Supplement"), between the Issuer
and The Bank of New York, as indenture trustee (the "Indenture Trustee", which
term includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Class A Notes, the Class B Notes and the Class C Notes will also
be issued under the Indenture.
The Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture.
Principal of the Notes will be payable on the Expected Principal
Payment Date in an amount described on the face hereof.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the Legal Maturity Date. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default relating solely to the
non-payment of interest on the Notes shall have occurred and be continuing and
the Indenture Trustee or the Holders of the Notes representing not less than a
majority of the Outstanding Amount of the Notes have declared the Notes to be
immediately due and payable in the manner provided in Section 602 of the
Indenture; provided, however, that such acceleration of the entire unpaid
principal amount of the Notes may be rescinded by the holders of not less than a
majority of the Outstanding Amount of the Notes. All principal payments on the
Notes shall be made pro rata to the Noteholders entitled thereto.
On any day occurring on or after the date on which the aggregate
Nominal Liquidation Amount of any tranche of Notes is reduced to less than 5% of
its Initial Dollar Principal Amount, the Issuer has the right, but not the
obligation, to redeem such tranche of Notes in whole but not in part, pursuant
to Section 1102 of the Indenture. The redemption price will be an amount equal
to the Outstanding principal amount of such tranche, plus interest accrued and
unpaid or principal accreted and unpaid on such tranche to but excluding the
date of redemption.
A-4-5
Subject to the terms and conditions of the Indenture, the Beneficiary,
on behalf of the Trust, may from time to time issue, or direct the Owner
Trustee, on behalf of the Trust, to issue, one or more series, classes or
tranches of Notes.
On each Payment Date, the Paying Agent shall distribute to each Class D
Noteholder of record on the related Record Date (except for the final
distribution with respect to this Note) such Class D Noteholder's pro rata share
of the amounts held by the Paying Agent that are allocated and available on such
Payment Date to pay interest and principal on the Class D Notes. Final payments
of this Note will be made only upon presentation and surrender of this Note at
the office or offices therein specified.
[Payments of interest on this Note due and payable on each Payment
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Registered Holder of this Note (or one or more Predecessor
Notes) on the Note Register as of the close of business on each Record Date,
except that with respect to Notes registered on the Record Date in the name of
the nominee of the clearing agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five days of such Payment Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in the City of New
York. On any payment of interest or principal being made, details of such
payment shall be entered by the Indenture Trustee on behalf of the Issuer in
Schedule A hereto.]
[As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by a commercial bank or
trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office is located, or a member
firm of a national securities exchange, and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax
A-4-6
or other governmental charge that may be imposed in connection with any such
registration of transfer or exchange.]
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder that it will not at
any time institute against Funding, the Master Trust or the Issuer, or join in
any institution against Funding, the Master Trust or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or any Derivative Agreement.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Outstanding Amount of all Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Outstanding Amount of the Notes,
on behalf of the Holders of all the Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
A-4-7
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE 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.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer on the Notes or under the Indenture or any certificate
or other writing delivered in connection herewith or therewith, against (i) the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer or the Owner Trustee or of any
successor or assign of the Owner Trustee in its individual capacity, except as
any such Person may have expressly agreed (it being understood that the Owner
Trustee has no such obligations in its individual capacity). The Holder of this
Note by the acceptance hereof agrees that, except as expressly provided in the
Indenture, the Asset Pool One Supplement and the Indenture Supplement in the
case of an Event of Default under the Indenture, the Holder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
A-4-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constutes and appoints attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: *
--------------------------- -------------------------------
Signature Guaranteed:
___________________
*NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in
every particular, enlargement or any change whatsoever.
A-4-9
SCHEDULE A
PART I
INTEREST PAYMENTS
Total Amount Confirmation of
Interest Date of of Interest Amount of payment by or on
Payment Date Payment Payable Interest Paid behalf of the Trust
____________________________________________________________________________________________
First __________ ______________ ____________ ________________
Second __________ ______________ ____________ ________________
[continue numbering until the appropriate number of interest payment dates for
the Notes is reached]
A-4-10
PART II
PRINCIPAL PAYMENTS
Confirmation of payment by
Date of Payment Total Amount Payable Total Amount Paid or on behalf of the Trust
________________________________________________________________________________________________
_______________ ____________________ _________________ __________________________
_______________ ____________________ _________________ __________________________
Confirmation of payment by
Date of Payment Total Amount Payable Total Amount Paid or on behalf of the Trust
________________________________________________________________________________________________
_______________ ____________________ _________________ __________________________
_______________ ____________________ _________________ __________________________
[continue numbering until the appropriate number of installment dates for the
Notes is reached]
A-4-11
EXHIBIT B
[FORM OF] CARD SERIES SCHEDULE TO PAYMENT INSTRUCTIONS
CAPITAL ONE BANK
B-1
EXHIBIT C
[FORM OF] CARD SERIES SCHEDULE TO
MONTHLY NOTEHOLDERS' STATEMENT
C-1
EXHIBIT D-1
[FORM OF]
================================================================================
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
CLASS A(2002-_) TERMS DOCUMENT
dated as of ____ __, 2002
to
CARD SERIES INDENTURE SUPPLEMENT
dated as of September __, 2002
to
ASSET POOL ONE SUPPLEMENT
dated as of September __, 2002
to
INDENTURE
dated as of September __, 2002
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions of General Application
Section 1.01. Definitions .......................................................................... 1
Section 1.02. Governing Law ........................................................................ 7
Section 1.03. Counterparts ......................................................................... 7
Section 1.04. Ratification of Indenture, the Asset Pool One Supplement and
Indenture Supplement ................................................................. 7
ARTICLE II
The Class A(2002-_) Notes
Section 2.01. Creation and Designation ............................................................. 8
Section 2.02. Adjustments to Required Subordinated Percentages ..................................... 8
Section 2.03. Interest Payment ..................................................................... 8
Section 2.04. Calculation Agent; Determination of LIBOR ............................................ 9
Section 2.05. Payments of Interest and Principal ................................................... 9
Section 2.06. Form of Delivery of Class A(2002-_) Notes; Depository;
Denominations ........................................................................ 10
Section 2.07. Delivery and Payment for the Class A(2002-_) Notes ................................... 10
Section 2.08. Targeted Deposits to the Accumulation Reserve Account ................................ 10
-i-
THIS CLASS A(2002-_) TERMS DOCUMENT (this "Terms Document"), by and
between CAPITAL ONE MULTI-ASSET EXECUTION TRUST, a statutory business trust
organized under the laws of the State of Delaware (the "Issuer"), 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, as Indenture Trustee (the "Indenture Trustee"), is made and
entered into as of ____ __, 2002.
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:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Indenture
Supplement, the Asset Pool One Supplement or the Indenture,
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 Terms Document to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Terms Document;
(5) 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;
(6) 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 One
Supplement, the Indenture or the Transfer and Administration
Agreement, the terms and provisions of this Terms Document shall
be controlling;
(7) each capitalized term defined herein shall relate only to the
Class A(2002-_) Notes and no other Tranche of Notes issued by the
Issuer; and
1
(8) "including" and words of similar import will be deemed to be
followed by "without limitation."
"Accumulation Period Amount" means $_________; provided, however,
if the Accumulation Period Length is determined to be less than twelve (12)
months pursuant to Section 3.10(b)(ii) of the Indenture Supplement, the
Accumulation Period Amount shall be the amount specified in the definition of
"Accumulation Period Amount" in the Indenture Supplement.
"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 earliest 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(2002-_) Notes pursuant to Section 3.10(b) of the Indenture Supplement, (ii)
the Monthly Period following the first Distribution Date following and including
the _____ ___ Distribution Date for which the Quarterly Excess Spread Percentage
is less than __%, but in such event the Accumulation Reserve Funding Period
shall not be required to commence earlier than 24 months prior to the Expected
Principal Payment Date, (iii) the Monthly Period following the first
Distribution Date following and including the _____ ___ Distribution Date for
which the Quarterly Excess Spread Percentage is less than __%, but in such event
the Accumulation Reserve Funding Period shall not be required to commence
earlier than 18 months prior to the Expected Principal Payment Date, and (iv)
the Monthly Period following the first Distribution Date following and including
the _____ ___ Distribution Date for which the Quarterly Excess Spread Percentage
is less than __%, but in such event the Accumulation Reserve Funding Period
shall not be required to commence earlier than 16 months prior to the Expected
Principal Payment Date 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(2002-_) Notes and (ii) the date on which
the Class A(2002-_) Notes are paid in full.
"Asset Pool One Supplement" means the Asset Pool One Supplement
dated as of September __, 2002, 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;
(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
2
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(2002-_) Adverse Event" means the occurrence of any of
the following: (a) an Early Redemption Event with respect to the Class A(2002-_)
Notes or (b) an Event of Default and acceleration of the Class A(2002-_) Notes.
"Class A(2002-_) Note" means any Note, substantially in the form
set forth in Exhibit A-1 to the Indenture Supplement, designated therein as a
Class A(2002-_) Note and duly executed and authenticated in accordance with the
Indenture.
"Class A(2002-_) Noteholder" means a Person in whose name a Class
A(2002-_) Note is registered in the Note Register.
"Class A(2002-_) Termination Date" means the earliest to occur of
(a) the Principal Payment Date on which the Outstanding Dollar Principal Amount
of the Class A(2002-_) 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.
"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 _____ __, ___.
"Initial Dollar Principal Amount" means $_________.
3
"Indenture" means the Indenture dated as of September __, 2002,
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 September __, 2002, by and between the Issuer and the Indenture
Trustee, as amended and supplemented from time to time.
"Interest Payment Date" means the fifteenth day of each month
commencing in ______ 2002, or if such fifteenth day is not a Business Day, the
next succeeding Business Day.
"Interest Period" means, with respect to any Interest Payment
Date, the period from and including the previous Interest Payment Date (or in
the case of the initial Interest Payment Date, from and including the Issuance
Date) through the day preceding such Interest Payment Date.
"Issuance Date" means ____ __, 2002.
"Legal Maturity Date" means ______ __, ____.
"LIBOR" means, for any Interest Period, the London interbank
offered rate for one-month United States dollar deposits determined by the
Indenture Trustee on the LIBOR Determination Date for each Interest Period in
accordance with the provisions of Section 2.04.
"LIBOR Determination Date" means _____ __, ___ for the period
from and including the Issuance Date to but excluding _____ __, ___ and the
second London Business Day prior to the commencement of the second and each
subsequent Interest Period.
"London Business Day" means any Business Day on which dealings in
deposits in United States Dollars are transacted in the London interbank market.
"Maximum Subordination Amount of Class B Notes" means, for the
Class A(2002-_) Notes for any date of determination, an amount equal to the
product of (a) Adjusted Outstanding Dollar Principal Amount of the Class
A(2002-_) Notes on such date of determination and (b) the percentage equivalent
of a fraction, the numerator of which is 10 and the denominator of which is
[___].
"Note Interest Rate" means a rate per annum equal to __% in
excess of LIBOR as determined by the Calculation Agent on the related LIBOR
Determination Date with respect to each Interest Period.
"Paying Agent" means The Bank of New York.
"Portfolio Yield" means, with respect to any Monthly Period, the
annualized percentage equivalent of a fraction:
(a) the numerator of which is equal to the sum of:
4
(i) the aggregate amount of Card Series Available Finance
Charge Amounts and Dollar payments received under Derivative Agreement
in respect of Card Series Notes for interest with respect to such
Monthly Period; plus
(ii) the aggregate amount of Interest Funding sub-Account
Earnings on all Tranches of Card Series Notes for such Monthly Period;
plus
(iii) any amounts to be treated as Card Series Finance Charge
Amounts pursuant to Sections 3.20(d) and 3.27(a) of the Indenture
Supplement, minus
(iv) the aggregate of (1) the excess, if any, of the sum of
the PFA Prefunding Earnings Shortfall plus the PFA Accumulation
Earnings Shortfall over the sum of the aggregate amount to be treated
as Card Series Finance Charge Amounts for such Monthly Period pursuant
to Sections 3.04(a)(ii) and 3.25(a) of the Indenture Supplement plus
any other amounts applied to cover earnings shortfalls on amounts in
the Principal Funding sub-Account for any tranche of Card Series Notes
for such Monthly Period, minus
(v) the Card Series Default Amount for such Monthly Period,
and
(b) the denominator of which is the numerator used in the calculation
of the Card Series Floating Allocation Percentage for such Monthly Period.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 306 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Quarterly Excess Spread Percentage" means, with respect to the ______
____ Distribution Date and each Distribution Date thereafter, the percentage
equivalent of a fraction the numerator of which is the sum of the Excess Spread
Percentages with respect to the immediately preceding three Monthly Periods and
the denominator of which is three.
"Record Date" means, for any Distribution Date, the last Business Day
of the preceding Monthly Period.
"Reference Banks" means four major banks in the London interbank market
selected by the Beneficiary.
"Required Accumulation Reserve sub-Account Amount" means, with respect
to any Monthly Period during the Accumulation Reserve Funding Period, an amount
equal to (i) __% of the Outstanding Dollar Principal Amount of the Class
A(2002-_) Notes as of the close of business on the last day of the preceding
Monthly Period or (ii) any other amount designated by the Issuer; provided,
however, that if such designation is of a lesser amount, the Note Rating
Agencies shall have provided prior written confirmation that a Ratings Effect
will not occur with respect to such change.
5
"Required Subordinated Amount of Class B Notes" means, for the Class
A(2002-_) Notes for any date of determination, an amount equal to the product of
(a) the Required Subordinated Percentage of Class B Notes for such Class
A(2002-_) Notes on such date of determination and (b) the Adjusted Outstanding
Dollar Principal Amount of such Class A(2002-_) Notes on such date of
determination; provided, however, that such an amount shall not exceed the
Maximum Subordination Amount of Class B Notes for the Class A(2002-_) Notes;
provided further, however, that for any date of determination on or after the
occurrence and during the continuation of a Class A(2002-_) Adverse Event, the
Required Subordinated Amount of Class B Notes for the Class A(2002-_) Notes will
be the greater of (x) the amount determined above for such date of determination
and (y) the amount determined above for the date immediately prior to the date
on which such Class A(2002-_) Adverse Event shall have occurred.
"Required Subordinated Amount of Class C Notes" means, for the Class
A(2002-_) Notes for any date of determination, an amount equal to the product of
(a) the Required Subordinated Percentage of Class C Notes for such Class
A(2002-_) Notes on such date of determination and (b) the Adjusted Outstanding
Dollar Principal Amount of such Class A(2002-_) Notes on such date of
determination; provided, however, that for any date of determination on which
the Class A Usage Amount of Subordinated Notes for the Class A(2002-_) Notes is
greater than zero, the Required Subordinated Amount of Class C Notes for the
Class A(2002-_) Notes will be an amount equal to (i) 3.0% of the greater of (A)
the Adjusted Outstanding Dollar Principal Amount of the Class A(2002-_) Notes
for such date of determination and (B) the Adjusted Outstanding Dollar Principal
Amount of the Class A(2002-_) Notes for the date immediately prior to the most
recent date on which the Class A Usage Amount of Subordinated Notes for the
Class A(2002-_) Notes first exceeded zero, minus (ii) the Required Subordinated
Amount of Class D Notes for the Class A(2002-_) Notes; provided further,
however, that for any date of determination on or after the occurrence and
during the continuation of a Class A(2002-_) Adverse Event, the Required
Subordinated Amount of Class C Notes for the Class A(2002-_) Notes will be the
greater of (x) the amount determined above for such date of determination, (y)
the amount determined above for the date immediately prior to the date on which
such Class A(2002-_) Adverse Event shall have occurred and (z) for any date of
determination on which the Class A Usage Amount of Subordinated Notes for the
Class A(2002-_) Notes is greater than zero, the amount determined pursuant to
the preceding proviso.
"Required Subordinated Amount of Class D Notes" means, for the Class
A(2002-_) Notes for any date of determination, an amount equal to the product of
(a) the Required Subordinated Percentage of Class D Notes for such Class
A(2002-_) Notes on such date of determination and (b) the Adjusted Outstanding
Dollar Principal Amount of such Class A(2002-_) Notes on such date of
determination; provided, however, that for any date of determination on or after
the occurrence and during the continuation of a Class A(2002-_) Adverse Event or
any date of determination on which the Class A Usage Amount of Subordinated
Notes for the Class A(2002-_) Notes is greater than zero, the Required
Subordinated Amount of Class D Notes for the Class A(2002-_) Notes will be the
greater of (x) the amount determined above for such date of determination and
(y) the amount determined above for the date immediately prior to the date on
which such Class A(2002-_) Adverse Event shall have occurred or the most recent
date on which the Class A Usage Amount of Subordinated Notes for the Class
A(2002-_) Notes first exceeded zero.
6
"Required Subordinated Percentage of Class B Notes" means, for the
Class A(2002-_) Notes, ___%, subject to adjustment in accordance with Section
2.02.
"Required Subordinated Percentage of Class C Notes" means, for the
Class A(2002-_) Notes, ___%, subject to adjustment in accordance with Section
2.02.
"Required Subordinated Percentage of Class D Notes" means, for the
Class A(2002-_) Notes, ___%, subject to adjustment in accordance with Section
2.02.
"Stated Principal Amount" means $_________.
"Telerate Page 3750" means the display page currently so designated on
the Bridge Telerate Market Report (or such other page as may replace that page
on that service for the purpose of displaying comparable rates or prices).
Section 1.02. Governing Law. THIS TERMS DOCUMENT 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 1.03. Counterparts. This Terms Document 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 1.04. Ratification of Indenture, the Asset Pool One Supplement
and Indenture Supplement. As supplemented by this Terms Document, each of the
Indenture, the Asset Pool One Supplement and the Indenture Supplement is in all
respects ratified and confirmed and the Indenture as so supplemented by the
Asset Pool One Supplement as so supplemented by the Indenture Supplement as so
supplemented and this Terms Document shall be read, taken and construed as one
and the same instrument.
[END OF ARTICLE I]
7
ARTICLE II
The Class A(2002-_) Notes
Section 2.01. Creation and Designation. There is hereby created a
tranche of Card Series Class A Notes to be issued pursuant to the Indenture, the
Asset Pool One Supplement and the Indenture Supplement to be known as the "Card
Series Class A(2002-_) Notes."
Section 2.02. Adjustments to Required Subordinated Percentages.
(a) On any date, the Issuer may change the Required Subordinated
Percentage of Class B Notes or the Required Subordinated Percentage of Class C
Notes, in each case for the Class A(2002-_) Notes, without the consent of any
Noteholders or any Note Rating Agencies, provided that, after giving effect to
such change, the sum of the Required Subordination Percentage of Class B Notes
and the Required Subordinated Percentage of Class C Notes, in each case, for the
Class A(2002-_) Notes after giving effect to such change is equal to or greater
than the sum of the Required Subordination Percentage of Class B Notes and the
Required Subordinated Percentage of Class C Notes, in each case, for the Class
A(2002-_) Notes immediately prior to giving effect to such change.
(b) On any date, the Issuer may change the Required Subordinated
Percentage of Class B Notes, the Required Subordinated Percentage of Class C
Notes or the Required Subordinated Percentage of Class D Notes, in each case for
the Class A(2002-_) Notes, such that after giving effect to all changes to such
percentages on such date the sum of the Required Subordination Percentage of
Class B Notes, the Required Subordinated Percentage of Class C Notes and the
Required Subordinated Amount of Class D Notes, in each case, for the Class
A(2002-_) Notes after giving effect to such change is less than the sum of the
Required Subordination Percentage of Class B Notes, the Required Subordinated
Percentage of Class C Notes and the Required Subordinated Amount of Class D
Notes, in each case, for the Class A(2002-_) Notes immediately prior to giving
effect to such change, without the consent of any Noteholders, provided that the
Issuer has (i) received written confirmation from each Note Rating Agency that
has rated any Outstanding Notes of the Card Series that the change in such
percentage will not result in a Ratings Effect with respect to any Outstanding
Class A(2002-_) Notes and (ii) delivered to the Indenture Trustee and the Note
Rating Agencies a Master Trust Tax Opinion for the Master Trust and an Issuer
Tax Opinion.
Section 2.03. Interest Payment.
(a) For each Interest Payment Date, the amount of interest due with
respect to the Class A(2002-_) Notes shall be an amount equal to the product of
(i)(A) a fraction, the numerator of which is the actual number of days in the
related Interest Period and the denominator of which is 360, times (B) the Note
Interest Rate in effect with respect to the related Interest Period, times (ii)
the Outstanding Dollar Principal Amount of the Class A(2002-_) Notes determined
as of the Record Date preceding the related Distribution Date. Interest on the
Class A(2002-_) Notes will be calculated on the basis of the actual number of
days in the related Interest Period and a 360-day year.
8
(b) Pursuant to Section 3.03 of the Indenture Supplement, on each
Distribution Date, the Indenture Trustee shall deposit into the Class A(2002-_)
Interest Funding sub-Account the portion of Card Series Available Finance Charge
Amounts allocable to the Class A(2002-_) Notes.
Section 2.04. Calculation Agent; Determination of LIBOR.
(a) The Issuer hereby agrees that for so long as any Class A(2002-_)
Notes are Outstanding, there shall at all times be an agent appointed to
calculate LIBOR for each Interest Period (the "Calculation Agent"). The Issuer
hereby initially appoints the Indenture Trustee as the Calculation Agent for
purposes of determining LIBOR for each Interest Period. The Calculation Agent
may be removed by the Issuer at any time. If the Calculation Agent is unable or
unwilling to act as such or is removed by the Issuer, or if the Calculation
Agent fails to determine LIBOR for an Interest Period, the Issuer shall promptly
appoint a replacement Calculation Agent that does not control or is not
controlled by or under common control with the Issuer or its Affiliates. The
Calculation Agent may not resign its duties, and the Issuer may not remove the
Calculation Agent, without a successor having been duly appointed.
(b) On each LIBOR Determination Date, the Calculation Agent shall
determine LIBOR on the basis of the rate for deposits in United States dollars
for a one-month period which appears on Telerate Page 3750 as of 11:00 a.m.,
London time, on such date. If such rate does not appear on Telerate Page 3750,
the rate for that LIBOR Determination Date shall be determined on the basis of
the rates at which deposits in United States dollars are offered by the
Reference Banks at approximately 11:00 a.m., London time, on that day to prime
banks in the London interbank market for a one-month period. The Calculation
Agent shall request the principal London office of each of the Reference Banks
to provide a quotation of its rate. If at least two such quotations are
provided, the rate for that LIBOR Determination Date shall be the arithmetic
mean of the quotations. If fewer than two quotations are provided as requested,
the rate for that LIBOR Determination Date will be the arithmetic mean of the
rates quoted by major banks in New York City, selected by the Beneficiary, at
approximately 11:00 a.m., New York City time, on that day for loans in United
States dollars to leading European banks for a one-month period.
(c) The Note Interest Rate applicable to the then current and the
immediately preceding Interest Periods may be obtained by telephoning the
Indenture Trustee at its corporate trust office at (000) 000-0000 or such other
telephone number as shall be designated by the Indenture Trustee for such
purpose by prior written notice by the Indenture Trustee to each Noteholder from
time to time.
(d) On each LIBOR Determination Date, the Calculation Agent shall send
to the Indenture Trustee, the Issuer and the Beneficiary, by facsimile
transmission, notification of LIBOR for the following Interest Period.
Section 2.05. Payments of Interest and Principal.
(a) Any installment of interest or principal, if any, payable on any
Class A(2002-_) Note which is punctually paid or duly provided for by the Issuer
and the Indenture Trustee on the applicable Interest Payment Date or Principal
Payment Date shall be paid by the Paying Agent to the Person in whose name such
Class A(2002-_) Note (or one or more Predecessor Notes) is
9
registered on the Record Date, by wire transfer of immediately available funds
to such Person's account as has been designated by written instructions received
by the Paying Agent from such Person not later than the close of business on the
third Business Day preceding the date of payment or, if no such account has been
so designated, by check mailed first-class, postage prepaid to such Person's
address as it appears on the Note Register on such Record Date, except that with
respect to Notes registered on the Record Date in the name of the nominee of
Cede & Co., payment shall be made by wire transfer in immediately available
funds to the account designated by such nominee.
(b) The right of the Class A(2002-_) Noteholders to receive payments
from the Issuer will terminate on the first Business Day following the Class
A(2002-_) Termination Date.
Section 2.06. Form of Delivery of Class A(2002-_) Notes; Depository;
Denominations.
(a) The Class A(2002-_) Notes shall be delivered in the form of a
global Registered Note as provided in Sections 202 and 301(i) of the Indenture,
respectively.
(b) The Depository for the Class A(2002-_) Notes shall be The
Depository Trust Company, and the Class A(2002-_) Notes shall initially be
registered in the name of Cede & Co., its nominee.
(c) The Class A(2002-_) Notes will be issued in minimum denominations
of $1,000 and integral multiples of that amount.
Section 2.07. Delivery and Payment for the Class A(2002-_) Notes. The
Issuer shall execute and deliver the Class A(2002-_) Notes to the Indenture
Trustee for authentication, and the Indenture Trustee shall deliver the Class
A(2002-_) Notes when authenticated, each in accordance with Section 303 of the
Indenture.
Section 2.08. Targeted Deposits to the Accumulation Reserve Account.
The deposit targeted to be made to the Accumulation Reserve Account for
any Monthly Period during the Accumulation Reserve Funding Period will be an
amount equal to the Required Accumulation Reserve sub-Account Amount.
[END OF ARTICLE II]
10
IN WITNESS WHEREOF, the parties hereto have caused this Terms Document
to be duly executed, all as of the day and year first above written.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
by CAPITAL ONE FUNDING, LLC, as Beneficiary
and not in its individual capacity
By: _______________________________________
Name:
Title:
THE BANK OF NEW YORK, as Indenture Trustee
and not in its individual capacity
By: _______________________________________
Name:
Title:
[Signature Page to the Class A(2002-_) Terms Document]
EXHIBIT D-2
[FORM OF]
================================================================================
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
CLASS B(2002-_) TERMS DOCUMENT
dated as of ____ __, 2002
to
CARD SERIES INDENTURE SUPPLEMENT
dated as of August __, 2002
to
ASSET POOL ONE SUPPLEMENT
dated as of September __, 2002
to
INDENTURE
dated as of September __, 2002
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions of General Application
Section 1.01. Definitions .................................................... 1
Section 1.02. Governing Law .................................................. 7
Section 1.03. Counterparts ................................................... 7
Section 1.04. Ratification of Indenture, the Asset Pool One Supplement and
Indenture Supplement ........................................... 7
ARTICLE II
The Class B(2002-_) Notes
Section 2.01. Creation and Designation ....................................... 8
Section 2.02. Adjustments to Required Subordinated Percentages ............... 8
Section 2.03. Interest Payment ............................................... 8
Section 2.04. Calculation Agent; Determination of LIBOR ...................... 8
Section 2.05. Payments of Interest and Principal ............................. 9
Section 2.06. Form of Delivery of Class B(2002-_) Notes; Depository;
Denominations .................................................. 9
Section 2.07. Delivery and Payment for the Class B(2002-_) Notes ............. 10
Section 2.08. Targeted Deposits to the Accumulation Reserve Account .......... 10
-i-
THIS CLASS B(2002-_) TERMS DOCUMENT (this "Terms Document"), by and
between CAPITAL ONE MULTI-ASSET EXECUTION TRUST, a statutory business trust
organized under the laws of the State of Delaware (the "Issuer"), 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, as Indenture Trustee (the "Indenture Trustee"), is made and
entered into as of ____ __, 2002.
Pursuant to this Terms Document, the Issuer shall create a new tranche
of Class B 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:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Indenture
Supplement, the Asset Pool One Supplement or the Indenture,
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 Terms Document to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Terms Document;
(5) 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;
(6) 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 One
Supplement, the Indenture or the Transfer and Administration
Agreement, the terms and provisions of this Terms Document shall
be controlling;
(7) each capitalized term defined herein shall relate only to the
Class B(2002-_) Notes and no other Tranche of Notes issued by the
Issuer; and
1
(8) "including" and words of similar import will be deemed to be
followed by "without limitation."
"Accumulation Period Amount" means $_________; provided, however, if
the Accumulation Period Length is determined to be less than twelve (12) months
pursuant to Section 3.10(b)(ii) of the Indenture Supplement, the Accumulation
Period Amount shall be the amount specified in the definition of "Accumulation
Period Amount" in the Indenture Supplement.
"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 earliest 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
B(2002-_) Notes pursuant to Section 3.10(b) of the Indenture Supplement, (ii)
the Monthly Period following the first Distribution Date following and including
the _____ ___ Distribution Date for which the Quarterly Excess Spread Percentage
is less than __%, but in such event the Accumulation Reserve Funding Period
shall not be required to commence earlier than 24 months prior to the Expected
Principal Payment Date, (iii) the Monthly Period following the first
Distribution Date following and including the _____ ___ Distribution Date for
which the Quarterly Excess Spread Percentage is less than __%, but in such event
the Accumulation Reserve Funding Period shall not be required to commence
earlier than 18 months prior to the Expected Principal Payment Date, and (iv)
the Monthly Period following the first Distribution Date following and including
the _____ ___ Distribution Date for which the Quarterly Excess Spread Percentage
is less than __%, but in such event the Accumulation Reserve Funding Period
shall not be required to commence earlier than 16 months prior to the Expected
Principal Payment Date 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 B(2002-_) Notes and (ii) the date on which
the Class B(2002-_) Notes are paid in full.
"Aggregate Class B Unencumbered Amount" means an amount equal to the
Adjusted Outstanding Dollar Principal Amount of all Class B Notes in the Card
Series minus the sum of the Required Subordinated Amount of Class B Notes for
all Class A Notes in the Card Series.
"Asset Pool One Supplement" means the COMT Asset Pool Supplement dated
as of September __, 2002, 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 B(2002-_) Adverse Event" means the occurrence of any of the
following: (a) an Early Redemption Event with respect to the Class B(2002-_)
Notes or (b) an Event of Default and acceleration of the Class B(2002-_) Notes.
"Class B(2002-_) Note" means any Note, substantially in the form set
forth in Exhibit A-1 to the Indenture Supplement, designated therein as a Class
B(2002-_) Note and duly executed and authenticated in accordance with the
Indenture.
"Class B(2002-_) Noteholder" means a Person in whose name a Class
B(2002-_) Note is registered in the Note Register.
"Class B(2002-_) Termination Date" means the earliest to occur of (a)
the Principal Payment Date on which the Outstanding Dollar Principal Amount of
the Class B(2002-_) 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.
"Encumbered Required Subordinated Amount of Class C Notes" means, for
the Class B(2002-_) Notes, an amount equal to the product of (a) the aggregate
Required Subordinated Amount of Class C Notes for all Class A Notes in the Card
Series with a Required Subordinated Amount of Class B Notes greater than zero
and (b) the percentage equivalent of a fraction, the
3
numerator of which is the Adjusted Outstanding Dollar Principal Amount of the
Class B(2002-) Notes and the denominator of which is the Adjusted Outstanding
Dollar Principal Amount of all Class B Notes in the Card Series.
"Encumbered Required Subordinated Amount of Class D Notes" means, for
the Class B(2002-_) Notes, an amount equal to the product of (a) the aggregate
Required Subordinated Amount of Class D Notes for all Class A Notes in the Card
Series with a Required Subordinated Amount of Class B Notes greater than zero
and (b) the percentage equivalent of a fraction, the numerator of which is the
Adjusted Outstanding Dollar Principal Amount of the Class B(2002-) Notes and the
denominator of which is the Adjusted Outstanding Dollar Principal Amount of all
Class B Notes in the Card Series.
"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 _____ __, ___.
"Initial Dollar Principal Amount" means $_________.
"Indenture" means the Indenture dated as of September __, 2002, 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 September __, 2002, by and between the Issuer and the Indenture Trustee,
as amended and supplemented from time to time.
"Interest Payment Date" means the fifteenth day of each month
commencing in ______ 2002, or if such fifteenth day is not a Business Day, the
next succeeding Business Day.
"Interest Period" means, with respect to any Interest Payment Date, the
period from and including the previous Interest Payment Date (or in the case of
the initial Interest Payment Date, from and including the Issuance Date) through
the day preceding such Interest Payment Date.
"Issuance Date" means ____ __, 2002.
"Legal Maturity Date" means ______ __, ____.
"LIBOR" means, for any Interest Period, the London interbank offered
rate for one-month United States dollar deposits determined by the Indenture
Trustee on the LIBOR Determination Date for each Interest Period in accordance
with the provisions of Section 2.04.
"LIBOR Determination Date" means _____ __, ___ for the period from and
including the Issuance Date to but excluding _____ __, ___ and the second London
Business Day prior to the commencement of the second and each subsequent
Interest Period.
"London Business Day" means any Business Day on which dealings in
deposits in United States Dollars are transacted in the London interbank market.
4
"Note Interest Rate" means a rate per annum equal to __% in
excess of LIBOR as determined by the Calculation Agent on the related LIBOR
Determination Date with respect to each Interest Period.
"Paying Agent" means The Bank of New York.
"Portfolio Yield" means, with respect to any Monthly Period,
the annualized percentage equivalent of a fraction:
(a) the numerator of which is equal to the sum of:
(i) the aggregate amount of Card Series Available
Finance Charge Amounts and Dollar payments received under
Derivative Agreement in respect of Card Series Notes for
interest with respect to such Monthly Period; plus
(ii) the aggregate amount of Interest Funding
sub-Account Earnings on all Tranches of Card Series Notes for
such Monthly Period; plus
(iii) any amounts to be treated as Card Series
Finance Charge Amounts pursuant to Sections 3.20(d) and
3.27(a) of the Indenture Supplement, minus
(iv) the aggregate of (1) the excess, if any, of the
sum of the PFA Prefunding Earnings Shortfall plus the PFA
Accumulation Earnings Shortfall over the sum of the aggregate
amount to be treated as Card Series Finance Charge Amounts for
such Monthly Period pursuant to Sections 3.04(a)(ii) and
3.25(a) of the Indenture Supplement plus any other amounts
applied to cover earnings shortfalls on amounts in the
Principal Funding sub-Account for any tranche of Card Series
Notes for such Monthly Period, minus
(v) the Card Series Default Amount for such Monthly
Period, and
(b) the denominator of which is the numerator used in the
calculation of the Card Series Floating Allocation Percentage for such Monthly
Period.
"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this definition, any
Note authenticated and delivered under Section 306 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Quarterly Excess Spread Percentage" means, with respect to
the ______ ____ Distribution Date and each Distribution Date thereafter, the
percentage equivalent of a fraction the numerator of which is the sum of the
Excess Spread Percentages with respect to the immediately preceding three
Monthly Periods and the denominator of which is three.
"Record Date" means, for any Distribution Date, the last
Business Day of the preceding Monthly Period.
5
"Reference Banks" means four major banks in the London
interbank market selected by the Beneficiary.
"Required Accumulation Reserve sub-Account Amount" means, with
respect to any Monthly Period during the Accumulation Reserve Funding Period, an
amount equal to (i) __% of the Outstanding Dollar Principal Amount of the Class
B(2002-_) Notes as of the close of business on the last day of the preceding
Monthly Period or (ii) any other amount designated by the Issuer; provided,
however, that if such designation is of a lesser amount, the Note Rating
Agencies shall have provided prior written confirmation that a Ratings Effect
will not occur with respect to such change.
"Required Subordinated Amount of Class C Notes" means, for the
Class B(2002-_) Notes, an amount equal to the sum of (a) the Unencumbered
Required Subordinated Amount of Class C Notes for such Class B(2002-_) Notes and
(b) the Encumbered Required Subordinated Amount of Class C Notes for such Class
B(2002-_) Notes; provided, however, that for any date of determination on which
the Class B Usage Amount of Subordinated Notes for the Class B(2002-_) Notes is
greater than zero, the Required Subordinated Amount of Class C Notes for the
Class B(2002-_) Notes will be an amount equal to (i) 3.0% of the greater of (A)
the Adjusted Outstanding Dollar Principal Amount of the Class B(2002-_) Notes
for such date of determination and (B) the Adjusted Outstanding Dollar Principal
Amount of the Class B(2002-_) Notes for the date immediately prior to the most
recent date on which the Class B Usage Amount of Subordinated Notes for the
Class B(2002-_) Notes first exceeded zero, minus (ii) the Required Subordinated
Amount of Class D Notes for the Class B(2002-_) Notes; provided further,
however, that for any date of determination on or after the occurrence and
during the continuation of a Class B(2002-_) Adverse Event, the Required
Subordinated Amount of Class C Notes for the Class B(2002-_) Notes will be the
greater of (x) the amount determined above for such date of determination, (y)
the amount determined above for the date immediately prior to the date on which
such Class B(2002-_) Adverse Event shall have occurred and (z) for any date of
determination on which the Class B Usage Amount of Subordinated Notes for the
Class B(2002-_) Notes is greater than zero, the amount determined pursuant to
the preceding proviso.
"Required Subordinated Amount of Class D Notes" means, for the
Class B(2002-_) Notes, an amount equal to the sum of (a) the Unencumbered
Required Subordinated Amount of Class D Notes for such Class B(2002-_) Notes and
(b) the Encumbered Required Subordinated Amount of Class D Notes for such Class
B(2002-_) Notes; provided, however, that for any date of determination on or
after the occurrence and during the continuation of a Class B(2002-_) Adverse
Event or any date of determination on which the Class B Usage Amount of
Subordinated Notes for the Class B(2002-_) Notes is greater than zero, the
Required Subordinated Amount of Class B Notes for the Class B(2002-_) Notes will
be the greater of (x) the amount determined above for such date of determination
and (y) the amount determined above for the date immediately prior to the date
on which such Class B(2002-_) Adverse Event shall have occurred or the most
recent date on which the Class B Usage Amount of Subordinated Notes for the
Class B(2002-_) Notes first exceeded zero.
"Required Subordinated Percentage of Class C Notes" means, for
the Class B(2002-_) Notes, ___%, subject to adjustment in accordance with
Section 2.02.
6
"Required Subordinated Percentage of Class D Notes" means, for the
Class B(2002-_) Notes, ___%, subject to adjustment in accordance with Section
2.02.
"Stated Principal Amount" means $_________.
"Telerate Page 3750" means the display page currently so designated on
the Bridge Telerate Market Report (or such other page as may replace that page
on that service for the purpose of displaying comparable rates or prices).
"Unencumbered Amount" means, for the Class B(2002-_) Notes, an amount
equal to the product of (a) the percentage equivalent of a fraction, the
numerator of which is the Aggregate Class B Unencumbered Amount and the
denominator of which is the Adjusted Outstanding Dollar Principal Amount of all
Class B Notes in the Card Series and (b) the Adjusted Outstanding Dollar
Principal Amount of the Class B(2002-_) Notes.
"Unencumbered Required Subordinated Amount of Class C Notes" means,
for the Class B(2002-_) Notes, an amount equal to the product of (a) the
Unencumbered Amount for the Class B(2002-_) Notes and (b) the Required
Subordinated Percentage of Class C Notes for the Class B(2002-_) Notes.
"Unencumbered Required Subordinated Amount of Class D Notes" means,
for the Class B(2002-_) Notes, an amount equal to the product of (a) the
Unencumbered Amount for the Class B(2002-_) Notes and (b) the Required
Subordinated Percentage of Class D Notes for the Class B(2002-_) Notes.
Section 1.02. Governing Law. THIS TERMS DOCUMENT 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 1.03. Counterparts. This Terms Document 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 1.04. Ratification of Indenture, the Asset Pool One Supplement
and Indenture Supplement. As supplemented by this Terms Document, each of the
Indenture, the Asset Pool One Supplement and the Indenture Supplement is in all
respects ratified and confirmed and the Indenture as so supplemented by the
Asset Pool One Supplement as so supplemented by the Indenture Supplement as so
supplemented and this Terms Document shall be read, taken and construed as one
and the same instrument.
[END OF ARTICLE I]
7
ARTICLE II
The Class B(2002-_) Notes
Section 2.01. Creation and Designation. There is hereby created a
tranche of Card Series Class B Notes to be issued pursuant to the Indenture, the
Asset Pool One Supplement and the Indenture Supplement to be known as the "Card
Series Class B(2002-_) Notes."
Section 2.02. Adjustments to Required Subordinated Percentages.
(a) On any date, the Issuer may increase the Required Subordinated
Percentage of Class C Notes or the Required Subordinated Percentage of Class D
Notes, in each case, for the Class B(2002-_) Notes without the consent of any
Noteholders or the Rating Agencies.
(b) On any date, the Issuer may reduce the Required Subordinated
Percentage of Class C Notes or the Required Subordinated Percentage of Class D
Notes, in each case for the Class B(2002-_) Notes, provided that the Issuer has
(i) received written confirmation from each Note Rating Agency that has rated
any Outstanding Notes of the Card Series that the change in such percentage will
not result in a Ratings Effect with respect to any Outstanding Class B(2002-_)
Notes and (ii) delivered to the Indenture Trustee and the Note Rating Agencies a
Master Trust Tax Opinion for the Master Trust and an Issuer Tax Opinion.
Section 2.03. Interest Payment.
(a) For each Interest Payment Date, the amount of interest due with
respect to the Class B(2002-_) Notes shall be an amount equal to the product of
(i)(A) a fraction, the numerator of which is the actual number of days in the
related Interest Period and the denominator of which is 360, times (B) the Note
Interest Rate in effect with respect to the related Interest Period, times (ii)
the Outstanding Dollar Principal Amount of the Class B(2002-_) Notes determined
as of the Record Date preceding the related Distribution Date. Interest on the
Class B(2002-_) Notes will be calculated on the basis of the actual number of
days in the related Interest Period and a 360-day year.
(b) Pursuant to Section 3.03 of the Indenture Supplement, on each
Distribution Date, the Indenture Trustee shall deposit into the Class B(2002-_)
Interest Funding sub-Account the portion of Card Series Finance Charge Amounts
allocable to the Class B(2002-_) Notes.
Section 2.04. Calculation Agent; Determination of LIBOR.
(a) The Issuer hereby agrees that for so long as any Class B(2002-_)
Notes are Outstanding, there shall at all times be an agent appointed to
calculate LIBOR for each Interest Period (the "Calculation Agent"). The Issuer
hereby initially appoints the Indenture Trustee as the Calculation Agent for
purposes of determining LIBOR for each Interest Period. The Calculation Agent
may be removed by the Issuer at any time. If the Calculation Agent is unable or
unwilling to act as such or is removed by the Issuer, or if the Calculation
Agent fails to determine LIBOR for an Interest Period, the Issuer shall promptly
appoint a replacement Calculation Agent that does not control or is not
controlled by or under common control with the Issuer or its Affiliates. The
Calculation Agent may not resign its duties, and the Issuer may not remove the
Calculation Agent, without a successor having been duly appointed.
8
(b) On each LIBOR Determination Date, the Calculation Agent shall
determine LIBOR on the basis of the rate for deposits in United States dollars
for a one-month period which appears on Telerate Page 3750 as of 11:00 a.m.,
London time, on such date. If such rate does not appear on Telerate Page 3750,
the rate for that LIBOR Determination Date shall be determined on the basis of
the rates at which deposits in United States dollars are offered by the
Reference Banks at approximately 11:00 a.m., London time, on that day to prime
banks in the London interbank market for a one-month period. The Calculation
Agent shall request the principal London office of each of the Reference Banks
to provide a quotation of its rate. If at least two such quotations are
provided, the rate for that LIBOR Determination Date shall be the arithmetic
mean of the quotations. If fewer than two quotations are provided as requested,
the rate for that LIBOR Determination Date will be the arithmetic mean of the
rates quoted by major banks in New York City, selected by the Beneficiary, at
approximately 11:00 a.m., New York City time, on that day for loans in United
States dollars to leading European banks for a one-month period.
(c) The Note Interest Rate applicable to the then current and the
immediately preceding Interest Periods may be obtained by telephoning the
Indenture Trustee at its corporate trust office at (000) 000-0000 or such other
telephone number as shall be designated by the Indenture Trustee for such
purpose by prior written notice by the Indenture Trustee to each Noteholder from
time to time.
(d) On each LIBOR Determination Date, the Calculation Agent shall send
to the Indenture Trustee, the Issuer and the Beneficiary, by facsimile
transmission, notification of LIBOR for the following Interest Period.
Section 2.05. Payments of Interest and Principal.
(a) Any installment of interest or principal, if any, payable on any
Class B(2002-_) Note which is punctually paid or duly provided for by the Issuer
and the Indenture Trustee on the applicable Interest Payment Date or Principal
Payment Date shall be paid by the Paying Agent to the Person in whose name such
Class B(2002-_) Note (or one or more Predecessor Notes) is registered on the
Record Date, by wire transfer of immediately available funds to such Person's
account as has been designated by written instructions received by the Paying
Agent from such Person not later than the close of business on the third
Business Day preceding the date of payment or, if no such account has been so
designated, by check mailed first-class, postage prepaid to such Person's
address as it appears on the Note Register on such Record Date, except that with
respect to Notes registered on the Record Date in the name of the nominee of
Cede & Co., payment shall be made by wire transfer in immediately available
funds to the account designated by such nominee.
(b) The right of the Class B(2002-_) Noteholders to receive payments
from the Issuer will terminate on the first Business Day following the Class
B(2002-_) Termination Date.
Section 2.06. Form of Delivery of Class B(2002-_) Notes; Depository;
Denominations.
(a) The Class B(2002-_) Notes shall be delivered in the form of a
global Registered Note as provided in Sections 202 and 301(i) of the Indenture,
respectively.
9
(b) The Depository for the Class B(2002-_) Notes shall be The
Depository Trust Company, and the Class B(2002-_) Notes shall initially be
registered in the name of Cede & Co., its nominee.
(c) The Class B(2002-_) Notes will be issued in minimum denominations
of $1,000 and integral multiples of that amount.
Section 2.07. Delivery and Payment for the Class B(2002-_) Notes. The
Issuer shall execute and deliver the Class B(2002-_) Notes to the Indenture
Trustee for authentication, and the Indenture Trustee shall deliver the Class
B(2002-_) Notes when authenticated, each in accordance with Section 303 of the
Indenture.
Section 2.08. Targeted Deposits to the Accumulation Reserve Account.
The deposit targeted to be made to the Accumulation Reserve Account for
any Monthly Period during the Accumulation Reserve Funding Period will be an
amount equal to the Required Accumulation Reserve sub-Account Amount.
[END OF ARTICLE II]
10
IN WITNESS WHEREOF, the parties hereto have caused this Terms Document
to be duly executed, all as of the day and year first above written.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
by CAPITAL ONE FUNDING, LLC, as Beneficiary
and not in its individual capacity
By: _______________________________________
Name:
Title:
THE BANK OF NEW YORK, as Indenture Trustee
and not in its individual capacity
By: _______________________________________
Name:
Title:
[Signature Page to the Class B(2002-_) Terms Document]
EXHIBIT D-3
[FORM OF]
================================================================================
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
CLASS C(2002-_) TERMS DOCUMENT
dated as of ____ __, 2002
to
CARD SERIES INDENTURE SUPPLEMENT
dated as of September __, 2002
to
ASSET POOL ONE SUPPLEMENT
dated as of September __, 2002
to
INDENTURE
dated as of September __, 2002
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions of General Application
Section 1.01. Definitions ............................................................................ 1
Section 1.02. Governing Law .......................................................................... 7
Section 1.03. Counterparts ........................................................................... 7
Section 1.04. Ratification of Indenture, the Asset Pool One Supplement and
Indenture Supplement ................................................................... 7
ARTICLE II
The Class C(2002-_) Notes
Section 2.01. Creation and Designation ............................................................... 8
Section 2.02. Adjustments to Required Subordinated Percentages ....................................... 8
Section 2.03. Interest Payment ....................................................................... 8
Section 2.04. Calculation Agent; Determination of LIBOR .............................................. 8
Section 2.05. Payments of Interest and Principal ..................................................... 9
Section 2.06. Targeted Deposit to the Class C Reserve Account ........................................ 9
Section 2.07. Form of Delivery of Class C(2002-_) Notes; Depository;
Denominations .......................................................................... 10
Section 2.08. Delivery and Payment for the Class C(2002-_) Notes ..................................... 10
Section 2.09. Targeted Deposits to the Accumulation Reserve Account .................................. 10
-i-
THIS CLASS C(2002-_) TERMS DOCUMENT (this "Terms Document"), by and
between CAPITAL ONE MULTI-ASSET EXECUTION TRUST, a statutory business trust
organized under the laws of the State of Delaware (the "Issuer"), 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, as Indenture Trustee (the "Indenture Trustee"), is made and entered
into as of ____ __, 2002.
Pursuant to this Terms Document, the Issuer shall create a new tranche
of Class C 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:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural
as well as the singular;
(2) all other terms used herein which are defined in the
Indenture Supplement, the Asset Pool One Supplement or
the Indenture, 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 Terms Document to designated
"Articles," "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of
this Terms Document;
(5) 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;
(6) 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 One Supplement, the Indenture or the Transfer
and Administration Agreement, the terms and provisions of
this Terms Document shall be controlling;
1
(7) each capitalized term defined herein shall relate only to
the Class C(2002-_) Notes and no other Tranche of Notes
issued by the Issuer; and
(8) "including" and words of similar import will be deemed to
be followed by "without limitation."
"Accumulation Period Amount" means $_________; provided, however, if
the Accumulation Period Length is determined to be less than twelve (12) months
pursuant to Section 3.10(b)(ii) of the Indenture Supplement, the Accumulation
Period Amount shall be the amount specified in the definition of "Accumulation
Period Amount" in the Indenture Supplement.
"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 earliest 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
C(2002-_) Notes pursuant to Section 3.10(b) of the Indenture Supplement, (ii)
the Monthly Period following the first Distribution Date following and including
the _____ ___ Distribution Date for which the Quarterly Excess Spread Percentage
is less than __%, but in such event the Accumulation Reserve Funding Period
shall not be required to commence earlier than 24 months prior to the Expected
Principal Payment Date, (iii) the Monthly Period following the first
Distribution Date following and including the _____ ___ Distribution Date for
which the Quarterly Excess Spread Percentage is less than __%, but in such event
the Accumulation Reserve Funding Period shall not be required to commence
earlier than 18 months prior to the Expected Principal Payment Date, and (iv)
the Monthly Period following the first Distribution Date following and including
the _____ ___ Distribution Date for which the Quarterly Excess Spread Percentage
is less than __%, but in such event the Accumulation Reserve Funding Period
shall not be required to commence earlier than 16 months prior to the Expected
Principal Payment Date 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 C(2002-_) Notes and (ii) the date on which
the Class C(2002-_) Notes are paid in full.
"Aggregate Class C Unencumbered Amount" means an amount equal to (a)
the Adjusted Outstanding Dollar Principal Amount of all Class C Notes in the
Card Series minus (b) the sum of the Required Subordinated Amount of Class C
Notes for all Class A Notes in the Card Series plus the Unencumbered Required
Subordinated Amount of Class C Notes for all Class B Notes in the Card Series.
"Asset Pool One Supplement" means the Asset Pool One Supplement dated
as of September __, 2002, 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:
2
(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;
(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 C(2002-_) Adverse Event" means the occurrence of any of the
following: (a) an Early Redemption Event with respect to the Class C(2002-_)
Notes or (b) an Event of Default and acceleration of the Class C(2002-_) Notes.
"Class C(2002-_) Note" means any Note, substantially in the form set
forth in Exhibit A-3 to the Indenture Supplement, designated therein as a Class
C(2002-_) Note and duly executed and authenticated in accordance with the
Indenture.
"Class C(2002-_) Noteholder" means a Person in whose name a Class
C(2002-_) Note is registered in the Note Register.
3
"Class C Reserve Account Percentage" means, (i) zero, if the Quarterly
Excess Spread Percentage on such Distribution Date is greater than or equal to
__%, (ii) __%, if the Quarterly Excess Spread Percentage on such Distribution
Date is less than __% and greater than or equal to __%, (iii) __%, if the
Quarterly Excess Spread Percentage on such Transfer Date is less than __% and
greater than or equal to __%, (iv) __%, if the Quarterly Excess Spread
Percentage is less than __% and greater than or equal to __%; (v) __%, if the
Quarterly Excess Spread Percentage on such Distribution Date is less than __%
and greater than or equal to __%, (vi) __%, if the Quarterly Excess Spread
Percentage is less than __% and greater than or equal to __%, and (vii) __%, if
the Quarterly Excess Spread Percentage on such Distribution Date is less than
__%.
"Class C(2002-_) Termination Date" means the earliest to occur of (a)
the Principal Payment Date on which the Outstanding Dollar Principal Amount of
the Class C(2002-_) 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.
"Encumbered Required Subordinated Amount of Class D Notes" means, for
the Class C(2002-_) Notes, an amount equal to the product of (a) the aggregate
Required Subordinated Amount of Class D Notes for all Class A Notes in the Card
Series plus the sum of the Unencumbered Required Subordinated Amount of Class D
Notes for all Class B Notes in the Card Series and (b) the percentage equivalent
of a fraction, the numerator of which is the Adjusted Outstanding Dollar
Principal Amount of the Class C(2002-) Notes and the denominator of which is the
Adjusted Outstanding Dollar Principal Amount of all Class C Notes in the Card
Series.
"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 _____ __, ___.
"Initial Dollar Principal Amount" means $_________.
"Indenture" means the Indenture dated as of September __, 2002, 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 September __, 2002, by and between the Issuer and the Indenture Trustee,
as amended and supplemented from time to time.
"Interest Payment Date" means the fifteenth day of each month
commencing in ______ 2002, or if such fifteenth day is not a Business Day, the
next succeeding Business Day.
"Interest Period" means, with respect to any Interest Payment Date, the
period from and including the previous Interest Payment Date (or in the case of
the initial Interest Payment Date, from and including the Issuance Date) through
the day preceding such Interest Payment Date.
"Issuance Date" means ____ __, 2002.
"Legal Maturity Date" means ______ __, ____.
4
"LIBOR" means, for any Interest Period, the London interbank offered
rate for one-month United States dollar deposits determined by the Indenture
Trustee on the LIBOR Determination Date for each Interest Period in accordance
with the provisions of Section 2.04.
"LIBOR Determination Date" means _____ __, ___ for the period from and
including the Issuance Date to but excluding _____ __, ___ and the second London
Business Day prior to the commencement of the second and each subsequent
Interest Period.
"London Business Day" means any Business Day on which dealings in
deposits in United States Dollars are transacted in the London interbank market.
"Note Interest Rate" means a rate per annum equal to __% in excess of
LIBOR as determined by the Calculation Agent on the related LIBOR Determination
Date with respect to each Interest Period.
"Paying Agent" means The Bank of New York.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 306 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Portfolio Yield" means, with respect to any Monthly Period, the
annualized percentage equivalent of a fraction:
(a) the numerator of which is equal to the sum of:
(i) the aggregate amount of Card Series Available Finance Charge
Amounts and Dollar payments received under Derivative Agreement in
respect of Card Series Notes for interest with respect to such Monthly
Period; plus
(ii) the aggregate amount of Interest Funding sub-Account Earnings
on all Tranches of Card Series Notes for such Monthly Period; plus
(iii) any amounts to be treated as Card Series Finance Charge
Amounts pursuant to Sections 3.20(d) and 3.27(a) of the Indenture
Supplement, minus
(iv) the aggregate of (1) the excess, if any, of the sum of the
PFA Prefunding Earnings Shortfall plus the PFA Accumulation Earnings
Shortfall over the sum of the aggregate amount to be treated as Card
Series Finance Charge Amounts for such Monthly Period pursuant to
Sections 3.04(a)(ii) and 3.25(a) of the Indenture Supplement plus any
other amounts applied to cover earnings shortfalls on amounts in the
Principal Funding sub-Account for any tranche of Card Series Notes for
such Monthly Period, minus
(v) the Card Series Default Amount for such Monthly Period, and
5
(b) the denominator of which is the numerator used in the calculation
of the Card Series Floating Allocation Percentage for such Monthly Period.
"Quarterly Excess Spread Percentage" means, with respect to the ______
____ Distribution Date and each Distribution Date thereafter, the percentage
equivalent of a fraction the numerator of which is the sum of the Excess Spread
Percentages with respect to the immediately preceding three Monthly Periods and
the denominator of which is three.
"Record Date" means, for any Distribution Date, the last Business Day
of the preceding Monthly Period.
"Reference Banks" means four major banks in the London interbank market
selected by the Beneficiary.
"Required Accumulation Reserve sub-Account Amount" means, with respect
to any Monthly Period during the Accumulation Reserve Funding Period, an amount
equal to (i) __% of the Outstanding Dollar Principal Amount of the Class
C(2002-_) Notes as of the close of business on the last day of the preceding
Monthly Period or (ii) any other amount designated by the Issuer; provided,
however, that if such designation is of a lesser amount, the Note Rating
Agencies shall have provided prior written confirmation that a Ratings Effect
will not occur with respect to such change.
"Required Subordinated Amount of Class D Notes" means, for the Class
C(2002-_) Notes, an amount equal to the sum of (a) the Unencumbered Required
Subordinated Amount of Class D Notes for such Class C(2002--) Notes and (b) the
Encumbered Required Subordinated Amount of Class D Notes for such Class
C(2002-_) Notes; provided, however, that for any date of determination on or
after the occurrence and during the continuation of a Class C(2002-_) Adverse
Event, the Required Subordinated Amount of Class B Notes for the Class C(2002-_)
Notes will be the greater of (x) the amount determined above for such date of
determination and (y) the amount determined above for the date immediately prior
to the date on which such Class C(2002-_) Adverse Event shall have occurred.
"Required Subordinated Percentage of Class D Notes" means, for the
Class C(2002-_) Notes, ___%, subject to adjustment in accordance with Section
2.02.
"Stated Principal Amount" means $_________.
"Telerate Page 3750" means the display page currently so designated on
the Bridge Telerate Market Report (or such other page as may replace that page
on that service for the purpose of displaying comparable rates or prices).
"Unencumbered Amount" means, for the Class C(2002-_) Notes, an amount
equal to the product of (a) the percentage equivalent of a fraction, the
numerator of which is the Aggregate Class C Unencumbered Amount and the
denominator of which is the Adjusted Outstanding Dollar Principal Amount of all
Class C Notes in the Card Series and (b) the Adjusted Outstanding Dollar
Principal Amount of the Class C(2002-_) Notes.
"Unencumbered Required Subordinated Amount of Class D Notes" means, for
the Class C(2002-_) Notes, an amount equal to the product of (a) the
Unencumbered Amount for the
6
Class C(2002-_) Notes and (b) the Required Subordinated Percentage of Class D
Notes for the Class C(2002-_) Notes.
Section 1.02. Governing Law. THIS TERMS DOCUMENT 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 1.03. Counterparts. This Terms Document 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 1.04. Ratification of Indenture, the Asset Pool One Supplement
and Indenture Supplement. As supplemented by this Terms Document, each of the
Indenture, the Asset Pool One Supplement and the Indenture Supplement is in all
respects ratified and confirmed and the Indenture as so supplemented by the
Asset Pool One Supplement as so supplemented by the Indenture Supplement as so
supplemented and this Terms Document shall be read, taken and construed as one
and the same instrument.
[END OF ARTICLE I]
7
ARTICLE II
The Class C(2002-_) Notes
Section 2.01. Creation and Designation. There is hereby created a
tranche of Card Series Class C Notes to be issued pursuant to the Indenture, the
Asset Pool One Supplement and the Indenture Supplement to be known as the "Card
Series Class C(2002-_) Notes."
Section 2.02. Adjustments to Required Subordinated Percentages. On any
date, the Issuer may reduce the Required Subordinated Percentage of Class D
Notes for the Class C(2002-_) Notes, provided that the Issuer has (i) received
written confirmation from each Note Rating Agency that has rated any Outstanding
Notes of the Card Series that the change in such percentage will not result in a
Ratings Effect with respect to any Outstanding Class C(2002-_) Notes and (ii)
delivered to the Indenture Trustee and the Note Rating Agencies a Master Trust
Tax Opinion for the Master Trust and an Issuer Tax Opinion.
Section 2.03. Interest Payment.
(a) For each Interest Payment Date, the amount of interest due with
respect to the Class C(2002-_) Notes shall be an amount equal to the product of
(i)(A) a fraction, the numerator of which is the actual number of days in the
related Interest Period and the denominator of which is 360, times (B) the Note
Interest Rate in effect with respect to the related Interest Period, times (ii)
the Outstanding Dollar Principal Amount of the Class C(2002-_) Notes determined
as of the Record Date preceding the related Distribution Date. Interest on the
Class C(2002-_) Notes will be calculated on the basis of the actual number of
days in the related Interest Period and a 360-day year.
(b) Pursuant to Section 3.03 of the Indenture Supplement, on each
Distribution Date, the Indenture Trustee shall deposit into the Class C(2002-_)
Interest Funding sub-Account the portion of Card Series Available Finance Charge
Amounts allocable to the Class C(2002-_) Notes.
Section 2.04. Calculation Agent; Determination of LIBOR.
(a) The Issuer hereby agrees that for so long as any Class C(2002-_)
Notes are Outstanding, there shall at all times be an agent appointed to
calculate LIBOR for each Interest Period (the "Calculation Agent"). The Issuer
hereby initially appoints the Indenture Trustee as the Calculation Agent for
purposes of determining LIBOR for each Interest Period. The Calculation Agent
may be removed by the Issuer at any time. If the Calculation Agent is unable or
unwilling to act as such or is removed by the Issuer, or if the Calculation
Agent fails to determine LIBOR for an Interest Period, the Issuer shall promptly
appoint a replacement Calculation Agent that does not control or is not
controlled by or under common control with the Issuer or its Affiliates. The
Calculation Agent may not resign its duties, and the Issuer may not remove the
Calculation Agent, without a successor having been duly appointed.
(b) On each LIBOR Determination Date, the Calculation Agent shall
determine LIBOR on the basis of the rate for deposits in United States dollars
for a one-month period which appears on Telerate Page 3750 as of 11:00 a.m.,
London time, on such date. If such rate does not appear on Telerate Page 3750,
the rate for that LIBOR Determination Date shall be determined on
8
the basis of the rates at which deposits in United States dollars are offered by
the Reference Banks at approximately 11:00 a.m., London time, on that day to
prime banks in the London interbank market for a one-month period. The
Calculation Agent shall request the principal London office of each of the
Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that LIBOR Determination Date shall be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that LIBOR Determination Date will be the arithmetic
mean of the rates quoted by major banks in New York City, selected by the
Beneficiary, at approximately 11:00 a.m., New York City time, on that day for
loans in United States dollars to leading European banks for a one-month period.
(c) The Note Interest Rate applicable to the then current and the
immediately preceding Interest Periods may be obtained by telephoning the
Indenture Trustee at its corporate trust office at (__) __-___ or such other
telephone number as shall be designated by the Indenture Trustee for such
purpose by prior written notice by the Indenture Trustee to each Noteholder from
time to time.
(d) On each LIBOR Determination Date, the Calculation Agent shall send
to the Indenture Trustee, the Issuer and the Beneficiary, by facsimile
transmission, notification of LIBOR for the following Interest Period.
Section 2.05. Payments of Interest and Principal.
(a) Any installment of interest or principal, if any, payable on any
Class C(2002-_) Note which is punctually paid or duly provided for by the Issuer
and the Indenture Trustee on the applicable Interest Payment Date or Principal
Payment Date shall be paid by the Paying Agent to the Person in whose name such
Class C(2002-_) Note (or one or more Predecessor Notes) is registered on the
Record Date, by wire transfer of immediately available funds to such Person's
account as has been designated by written instructions received by the Paying
Agent from such Person not later than the close of business on the third
Business Day preceding the date of payment or, if no such account has been so
designated, by check mailed first-class, postage prepaid to such Person's
address as it appears on the Note Register on such Record Date, except that with
respect to Notes registered on the Record Date in the name of the nominee of
Cede & Co., payment shall be made by wire transfer in immediately available
funds to the account designated by such nominee.
(b) The right of the Class C(2002-_) Noteholders to receive payments
from the Issuer will terminate on the first Business Day following the Class
C(2002-_) Termination Date.
Section 2.06. Targeted Deposit to the Class C Reserve Account. The
deposit targeted to be made to the Class C Reserve sub-Account for the Class
C(2002-_) Notes for any Distribution Date will be an amount equal to (i) to the
product of (A) Class C Reserve Account Percentage for the related Monthly Period
times (B) the sum of the Initial Outstanding Dollar Principal Amounts of each
tranche of Outstanding CapitalOneseries Notes as of the last day of the
preceding Monthly Period times (C) a fraction, the numerator of which is the
Nominal Liquidation Amount of the Class C(2002-_) Notes as of the close of
business on the last day of the preceding Monthly Period and the denominator of
which is the Nominal Liquidation Amount of all Class C Notes in the
CapitalOneseries as of the close of business on the last day of the preceding
Monthly Period, minus (ii) any amount previously on deposit in the Class
C(2002-_) Reserve sub-Account prior to such targeted deposit; provided however,
that if an Early Redemption Event or Event of
9
Default occurs with respect to the Class C(2002-_) Notes, the deposit targeted
will be the Adjusted Outstanding Dollar Principal Amount of the Class C(2002-_)
notes minus the amount then on deposit in such sub-Account.
Section 2.07. Form of Delivery of Class C(2002-_) Notes; Depository;
Denominations.
(a) The Class C(2002-_) Notes shall be delivered in the form of a
global Registered Note as provided in Sections 202 and 301(i) of the Indenture,
respectively.
(b) The Depository for the Class C(2002-_) Notes shall be The
Depository Trust Company, and the Class C(2002-_) Notes shall initially be
registered in the name of Cede & Co., its nominee.
(c) The Class C(2002-_) Notes will be issued in minimum denominations
of $1,000 and integral multiples of that amount.
Section 2.08. Delivery and Payment for the Class C(2002-_) Notes. The
Issuer shall execute and deliver the Class C(2002-_) Notes to the Indenture
Trustee for authentication, and the Indenture Trustee shall deliver the Class
C(2002-_) Notes when authenticated, each in accordance with Section 303 of the
Indenture.
Section 2.09. Targeted Deposits to the Accumulation Reserve Account.
The deposit targeted to be made to the Accumulation Reserve Account for
any Monthly Period during the Accumulation Reserve Funding Period will be an
amount equal to the Required Accumulation Reserve sub-Account Amount.
[END OF ARTICLE II]
10
IN WITNESS WHEREOF, the parties hereto have caused this Terms Document
to be duly executed, all as of the day and year first above written.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
by CAPITAL ONE FUNDING, LLC, as Beneficiary
and not in its individual capacity
By: _________________________________________
Name:
Title:
THE BANK OF NEW YORK, as Indenture Trustee
and not in its individual capacity
By: _________________________________________
Name:
Title:
[Signature Page to the Class C(2002-_) Terms Document]
