Exhibit 4.1
EXECUTION COPY
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SERIES 2002-3 SUPPLEMENT
Dated as of May 9, 2002
to
POOLING AND SERVICING AGREEMENT
Dated as of September 30, 1993,
As amended and restated on April 9, 2001
$1,350,000,000
CAPITAL ONE MASTER TRUST
SERIES 2002-3
among
CAPITAL ONE BANK
Seller and Servicer
CAPITAL ONE, F.S.B.
Seller
and
THE BANK OF NEW YORK
Trustee
on behalf of the Series 2002-3 Certificateholders
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TABLE OF CONTENTS
Page
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ARTICLE I
Creation of the Series 2002-3 Certificates
Section 1.01. Designation......................................................1
ARTICLE II
Definitions
Section 2.01. Definitions......................................................2
Section 2.02. Amendment to Section 2.08 of the Agreement......................17
ARTICLE III
Servicer and Trustee
Section 3.01. Servicing Compensation..........................................18
ARTICLE IV
Rights of Series 2002-3 Certificateholders and Collateral Interest Holder
and Allocation and Application of Collections
Section 4.01. Collections and Allocations.....................................19
Section 4.02. Determination of Monthly Interest...............................19
Section 4.03. Determination of Monthly Principal; Series 2002-3 Accounts......21
Section 4.04. Required Amount.................................................24
Section 4.05. Application of Class A Available Funds, Class B Available Funds,
Collateral Available Funds and Available Investor Principal
Collections.....................................................24
Section 4.06. Defaulted Amounts; Investor Charge-Offs.........................26
Section 4.07. Excess Spread; Excess Finance Charges...........................28
Section 4.08. Reallocated Principal Collections...............................29
Section 4.09. Excess Finance Charges..........................................30
Section 4.10. Shared Principal Collections....................................31
Section 4.11. Reserve Account.................................................31
ARTICLE V
Distributions and Reports to Series 2002-3 Certificateholders
Section 5.01. Distributions...................................................34
Section 5.02. Reports and Statements to Series 2002-3 Certificateholders......35
TABLE OF CONTENTS
(continued)
Page
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ARTICLE VI
Additional Pay Out Events
Section 6.01. Additional Pay Out Events.......................................36
ARTICLE VII
Optional Repurchase; Series Termination
Section 7.01. Optional Repurchase.............................................37
Section 7.02. Series Termination..............................................38
ARTICLE VIII
Final Distributions
Section 8.01. Sale of Receivables or Certificateholders' Interest
pursuant to Section 2.06 or 10.01 of the Agreement..............38
Section 8.02. Distribution of Proceeds of Sale, Disposition or
Liquidation of the Receivables pursuant to
Section 9.02 of the Agreement...................................40
ARTICLE IX
New Issuances
Section 9.01. New Issuances...................................................41
ARTICLE X
Miscellaneous Provisions
Section 10.01. Ratification of Agreement......................................41
Section 10.02. Counterparts...................................................41
Section 10.03. GOVERNING LAW..................................................42
Section 10.04. Determination of Material Adverse Effect.......................42
Section 10.05. Book-Entry Certificates........................................42
Section 10.06. Uncertificated Securities......................................42
Section 10.07. Transfers of the Collateral Interest...........................42
Section 10.08. Certain Accounting Related Amendments..........................43
Section 10.09. Additional Representations and Warranties of the
Sellers........................................................43
ii
EXHIBITS
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EXHIBIT A-1 Form of Class A Certificate
EXHIBIT A-2 Form of Class B Certificate
EXHIBIT B Form of Monthly Certificateholders' Statement
EXHIBIT C Form of Monthly Servicing Officer's Certificate
EXHIBIT D Form of Investment Letter
iii
SERIES 2002-3 SUPPLEMENT, dated as of May 9, 2002 (the "Supplement"),
among CAPITAL ONE BANK, a Virginia banking corporation, as a Seller and the
Servicer, CAPITAL ONE, F.S.B., a federal savings bank, as a Seller, and THE BANK
OF NEW YORK, a New York banking corporation, as the Trustee.
Pursuant to the Pooling and Servicing Agreement, dated as of September
30, 1993, as amended and restated as of April 9, 2001 (as amended and restated
and as amended and supplemented, the "Agreement"), among the Sellers, the
Servicer and the Trustee, the Sellers have created Capital One Master Trust (the
"Trust"). Section 6.03 of the Agreement provides that the Sellers may from time
to time direct the Trustee to authenticate one or more new Series of Investor
Certificates representing fractional undivided interests in the Trust. The
Principal Terms of any new Series are to be set forth in a Supplement to the
Agreement.
Pursuant to this Supplement, the Sellers and the Trustee shall create
a new Series of Investor Certificates and specify the Principal Terms thereof.
ARTICLE I
Creation of the Series 2002-3 Certificates
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Section 1.01. Designation.
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(a) There is hereby created a Series of Investor Certificates to be
issued pursuant to the Agreement and this Supplement to be known as "Capital One
Master Trust, Series 2002-3." The Series 2002-3 Certificates shall be issued in
two Classes, the first of which shall be known as the "Class A Floating Rate
Asset Backed Certificates, Series 2002-3" and the second of which shall be known
as the "Class B 4.55% Asset Backed Certificates, Series 2002-3." In addition,
there is hereby created a third Class of uncertificated interests in the Trust
which, except as expressly provided herein, shall be deemed to be "Investor
Certificates" (and the Collateral Interest Holder shall be deemed to be an
"Investor Certificateholder") for all purposes under the Agreement and this
Supplement and which shall be known as the "Collateral Interest, Series 2002-3."
(b) Series 2002-3 shall be included in Group One and shall be a
Principal Sharing Series. Series 2002-3 shall not be subordinated to any other
Series. Notwithstanding any provision in the Agreement or in this Supplement to
the contrary, the first Distribution Date with respect to Series 2002-3 shall be
the June 2002 Distribution Date.
(c) In the event that any term or provision contained herein shall
conflict with or be inconsistent with any term or provision contained in the
Agreement, the terms and provisions of this Supplement shall govern.
(d) The Collateral Interest Holder, as holder of an "Investor
Certificate" shall be entitled to the benefits of the Agreement and this
Supplement. Notwithstanding the foregoing, except as expressly provided herein,
(i) the provisions of Article VI and Article XII of the Agreement relating to
the registration, authentication, delivery, presentation, cancellation and
surrender of Registered Certificates and clauses (a) and (c) of the definition
of "Tax Opinion" in Section 1.01 of the Agreement shall not be applicable to the
Collateral Interest, and (ii) the provisions of Section 3.07 of the Agreement
shall not apply to cause the Collateral Interest to be treated as debt for
federal, state and local income and franchise tax purposes, but rather the
Sellers intend and, together with the Collateral Interest Holder, agree to treat
the Collateral Interest for federal, state and local income and franchise tax
purposes as representing an equity interest in the assets of the Trust.
ARTICLE II
Definitions
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Section 2.01. Definitions.
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(a) Whenever used in this Supplement, the following words and phrases
shall have the following meanings, and the definitions of such terms are
applicable to the singular as well as the plural forms of such terms and the
masculine as well as the feminine and neuter genders of such terms.
"Accumulation Period" shall mean, unless a Pay Out Event shall have
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occurred prior thereto, the period commencing at the close of business on the
last day of the March 2004 Monthly Period or such later date as is determined in
accordance with Section 4.03(f) and ending on the first to occur of (a) the
commencement of the Early Amortization Period, (b) the payment in full to Series
2002-3 Holders of the Invested Amount or (c) the Termination Date.
"Accumulation Period Amount" shall mean for each Monthly Period, an
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amount equal to the product of (i) Available Expected Principal for such Monthly
Period and (ii) a fraction, the numerator of which is the Initial Invested
Amount and the denominator of which is the sum of (a) the Initial Invested
Amount and (b) the invested amounts of all other Variable Accumulation Series
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
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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 4.03(f) applied to each such Series with such changes
as may be specified with respect to such Series (applying such provisions first
to the Variable Accumulation Series with the latest expected final payment date
and next to each Series with the next preceding expected final payment date).
"Accumulation Period Length" shall have the meaning specified in
--------------------------
Section 4.03(f).
"Additional Interest" shall mean, at any time of determination, the
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Class A Additional Interest, the Class B Additional Interest and the Collateral
Additional Interest.
"Adjusted Invested Amount" shall mean, with respect to any date of
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determination, an amount equal to the Invested Amount less the Principal Funding
Account Balance on such date of determination.
2
"Assignee" shall have the meaning specified in subsection 10.07(a).
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"Available Expected Principal" for any date of determination with
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respect to each Monthly Period shall be equal to the excess of (a) the Expected
Monthly Principal for such Monthly Period over (b) the sum of, without
duplication, all scheduled amortizations or accumulations of principal,
including past due shortfalls as of such date of determination, for all
Nonvariable Accumulation Series which are not scheduled to be in their revolving
periods as of such Monthly Period.
"Available Investor Principal Collections" shall mean, with respect to
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any Monthly Period, an amount equal to the sum of (a) (i) an amount equal to the
Principal Allocation Percentage of all Collections of Principal Receivables
received during such Monthly Period, minus (ii) the amount of Reallocated
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Principal Collections with respect to such Monthly Period which pursuant to
Section 4.08(a) or 4.08 (b) are required to fund any deficiency in the amount to
be distributed pursuant to Sections 4.05(a)(i), (ii) and (iii), 4.05(b)(i) and
(ii) and 4.07(c)(II) for the related Distribution Date, plus (b) the amount of
----
Miscellaneous Payments, if any, for such Monthly Period that are allocated to
Series 2002-3 pursuant to Section 4.03 of the Agreement, plus (c) any Shared
----
Principal Collections with respect to other Series that are allocated to Series
2002-3 in accordance with Section 4.04 of the Agreement and Section 4.10 hereof,
plus (d) the amount of funds to be distributed pursuant to Section 4.05(a)(iii)
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with respect to the related Distribution Date, plus (e) any other amounts which
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pursuant to Section 4.07 hereof are to be treated as Available Investor
Principal Collections with respect to the related Distribution Date.
"Available Reserve Account Amount" shall mean, with respect to any
--------------------------------
Distribution Date, the lesser of (a) the amount on deposit in the Reserve
Account on such date (before giving effect to any deposit to be made to the
Reserve Account on such Distribution Date) and (b) the Required Reserve Account
Amount for such Distribution Date.
"Base Rate" shall mean, with respect to any Monthly Period, the
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annualized percentage equivalent of a fraction, the numerator of which is equal
to the sum of the Class A Monthly Interest, the Class B Monthly Interest, the
Collateral Minimum Monthly Interest and the Monthly Servicing Fee, each with
respect to the related Distribution Date, and the denominator of which is the
Invested Amount as of the last day of the preceding Monthly Period; provided,
--------
however, that for the first Monthly Period, the denominator is the Initial
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Invested Amount.
"Class A Account Percentage" shall mean, with respect to any date of
--------------------------
determination, the percentage equivalent of a fraction, the numerator of which
is the aggregate amount with respect to Class A Monthly Principal on deposit in
the Principal Funding Account on such date (before giving effect to any deposit
to be made to the Principal Funding Account on such date) and the denominator of
which is the Principal Funding Account Balance on such date (before giving
effect to any deposit to be made to the Principal Funding Account on such date).
"Class A Additional Interest" shall have the meaning specified in
---------------------------
Section 4.02(a).
3
"Class A Adjusted Invested Amount" shall mean, with respect to any
--------------------------------
date of determination, an amount not less than zero equal to the Class A
Invested Amount less the Principal Funding Account Balance on such date.
"Class A Available Funds" shall mean, with respect to any Monthly
-----------------------
Period, an amount equal to the sum of (a) an amount equal to the product of (i)
the Class A Account Percentage and (ii) the amount of Principal Funding
Investment Proceeds, if any, with respect to the related Distribution Date, (b)
the Class A Floating Percentage of the Collections of Finance Charge Receivables
(other than Finance Charge Receivables allocated to Servicer Interchange with
respect to such Monthly Period) allocated to the Series 2002-3 Certificates
(including any investment earnings that are to be treated as Collections of
Finance Charge Receivables in accordance with the Agreement and this Supplement)
and (c) the amount of funds, if any, to be withdrawn from the Reserve Account
which, pursuant to Section 4.11(d), are required to be included in Class A
Available Funds with respect to the related Distribution Date.
"Class A Certificate Rate" shall mean, for any Interest Period, a per
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annum rate equal to LIBOR for such Interest Period plus 0.08%.
"Class A Certificateholder" shall mean the Person in whose name a
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Class A Certificate is registered in the Certificate Register.
"Class A Certificates" shall mean any of Certificates executed by the
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Banks and authenticated by or on behalf of the Trustee, substantially in the
form of Exhibit A-1.
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"Class A Floating Percentage" shall mean, with respect to any Monthly
---------------------------
Period, the percentage equivalent (which percentage shall never exceed 100%) of
a fraction, the numerator of which is equal to the Class A Adjusted Invested
Amount as of the close of business on the last day of the preceding Monthly
Period and the denominator of which is equal to the Adjusted Invested Amount as
of such day; provided, however, that, with respect to the first Monthly Period,
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the Class A Floating Percentage shall mean the Class A Initial Percentage.
"Class A Initial Invested Amount" shall mean the aggregate initial
-------------------------------
principal amount of the Class A Certificates, which is $1,096,875,000.
"Class A Initial Percentage" shall mean the percentage equivalent of a
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fraction, the numerator of which is the Class A Initial Invested Amount and the
denominator of which is the Initial Invested Amount.
"Class A Interest Shortfall" shall have the meaning specified in
--------------------------
Section 4.02(a).
"Class A Invested Amount" shall mean, on any date of determination, an
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amount equal to (a) the Class A Initial Invested Amount, minus (b) the aggregate
-----
amount of principal payments made to the Class A Certificateholders on or prior
to such date, minus (c) the excess, if any, of the aggregate amount of Class A
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Investor Charge-Offs for all prior Distribution Dates over the aggregate amount
----
of Class A Investor Charge-Offs reimbursed pursuant to Section
4
4.06(a) prior to such date; provided, however, that the Class A Invested Amount
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may not be reduced below zero.
"Class A Investor Charge-Offs" shall have the meaning specified in
----------------------------
Section 4.06(a).
"Class A Investor Default Amount" shall mean, with respect to each
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Distribution Date, an amount equal to the product of (i) the Investor Default
Amount for the related Monthly Period and (ii) the Class A Floating Percentage
for such Monthly Period.
"Class A Monthly Interest" shall have the meaning specified in Section
------------------------
4.02(a).
"Class A Monthly Principal" shall have the meaning specified in
-------------------------
Section 4.03(a).
"Class A Outstanding Additional Interest" shall mean, with respect to
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any Distribution Date, the amount of Class A Additional Interest previously due
but not paid to the Class A Certificateholders.
"Class A Outstanding Monthly Interest" shall mean, with respect to any
------------------------------------
Distribution Date, the amount of Class A Monthly Interest previously due but not
paid to the Class A Certificateholders.
"Class A Penalty Rate" shall mean, for any Interest Period, the sum of
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the Class A Certificate Rate for such Interest Period and 2.00% per annum.
"Class A Principal Percentage" shall mean, with respect to any Monthly
----------------------------
Period (i) during the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is the
Class A Invested Amount as of the last day of the immediately preceding Monthly
Period (or, in the case of the first Monthly Period, the Closing Date) and the
denominator of which is the Invested Amount as of such day and (ii) during the
Accumulation Period or the Early Amortization Period, the percentage equivalent
(which percentage shall never exceed 100%) of a fraction, the numerator of which
is the Class A Invested Amount as of the last day of the Revolving Period, and
the denominator of which is the Invested Amount as of such last day; provided,
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however, that, with respect to the first Monthly Period, the Class A Principal
- -------
Percentage shall mean the Class A Initial Percentage.
"Class A Required Amount" shall have the meaning specified in Section
-----------------------
4.04(a).
"Class A Servicing Fee" shall have the meaning specified in Section
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3.01.
"Class B Account Percentage" shall mean, with respect to any date of
--------------------------
determination, the percentage equivalent of a fraction, the numerator of which
is the aggregate amount with respect to Class B Monthly Principal on deposit in
the Principal Funding Account on such date (before giving effect to any deposit
to be made to the Principal Funding Account on such date) and the denominator of
which is the Principal Funding Account Balance on such date (before giving
effect to any deposit to be made to the Principal Funding Account on such date).
5
"Class B Additional Interest" shall have the meaning specified in
---------------------------
Section 4.02(b).
"Class B Adjusted Invested Amount" shall mean, with respect to any
--------------------------------
date of determination, an amount not less than zero equal to the Class B
Invested Amount less the excess, if any, of the Principal Funding Account
Balance over the Class A Invested Amount on such date.
"Class B Available Funds" shall mean, with respect to any Monthly
-----------------------
Period, an amount equal to the sum of (a) an amount equal to the product of (i)
the Class B Account Percentage and (ii) the amount of Principal Funding
Investment Proceeds, if any, with respect to the related Distribution Date, (b)
the Class B Floating Percentage of the Collections of Finance Charge Receivables
(other than Finance Charge Receivables allocated to Servicer Interchange with
respect to such Monthly Period) allocated to the Series 2002-3 Certificates
(including any investment earnings that are to be treated as Collections of
Finance Receivables in accordance with the Agreement) and (c) the amount of
funds, if any, to be withdrawn from the Reserve Account which, pursuant to
Section 4.11(d), are required to be included in Class B Available Funds with
respect to the related Distribution Date.
"Class B Certificate Rate" shall mean 4.55% per annum.
------------------------
"Class B Certificateholder" shall mean the Person in whose name a
-------------------------
Class B Certificate is registered in the Certificate Register.
"Class B Certificates" shall mean any one of the Certificates executed
--------------------
by the Banks and authenticated by or on behalf of the Trustee, substantially in
the form of Exhibit A-2.
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"Class B Floating Percentage" shall mean, with respect to any Monthly
---------------------------
Period, the percentage equivalent (which percentage shall never exceed 100%) of
a fraction, the numerator of which is equal to the Class B Adjusted Invested
Amount as of the close of business on the last day of the preceding Monthly
Period and the denominator of which is equal to the Adjusted Invested Amount as
of the close of business on such day; provided, however, that, with respect to
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the first Monthly Period, the Class B Floating Percentage shall mean the Class B
Initial Percentage.
"Class B Initial Invested Amount" shall mean the aggregate initial
-------------------------------
principal amount of the Class B Certificates, which is $135,000,000.
"Class B Initial Percentage" shall mean the percentage equivalent of a
--------------------------
fraction, the numerator of which is the Class B Initial Invested Amount and the
denominator of which is the Initial Invested Amount.
"Class B Interest Shortfall" shall have the meaning specified in
--------------------------
Section 4.02(b).
"Class B Invested Amount" shall mean, on any date of determination, an
-----------------------
amount equal to (a) the Class B Initial Invested Amount, minus (b) the aggregate
-----
amount of principal
6
payments made to the Class B Certificateholders prior to such date, minus (c)
-----
the aggregate amount of Class B Investor Charge-Offs for all prior Distribution
Dates, minus (d) the aggregate amount of Reallocated Principal Collections
-----
allocated on all prior Distribution Dates pursuant to Section 4.08(a) (excluding
any Reallocated Principal Collections that have resulted in a reduction in the
Collateral Invested Amount pursuant to Section 4.06(c)), minus (e) an amount
-----
equal to the amount by which the Class B Invested Amount has been reduced on all
prior Distribution Dates pursuant to Section 4.06(a), plus (f) the amount of
----
Excess Spread and Excess Finance Charges allocated and available on all prior
Distribution Dates pursuant to Section 4.07(d) for the purpose of reimbursing
amounts deducted pursuant to the foregoing clauses (c), (d) and (e); provided,
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however, that the Class B Invested Amount may not reduced below zero.
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"Class B Investor Charge-Offs" shall have the meaning specified in
----------------------------
Section 4.06(b).
"Class B Investor Default Amount" shall mean, with respect to each
-------------------------------
Distribution Date, an amount equal to the product of (i) the Investor Default
Amount for the related Monthly Period and (ii) the Class B Floating Percentage
for such Monthly Period.
"Class B Monthly Interest" shall have the meaning specified in Section
------------------------
4.02(b).
"Class B Monthly Principal" shall have the meaning specified in
-------------------------
Section 4.03(b).
"Class B Outstanding Additional Interest" shall mean, with respect to
---------------------------------------
any Distribution Date, the amount of Class B Additional Interest previously due
but not paid to the Class B Certificateholders.
"Class B Outstanding Monthly Interest" shall mean, with respect to any
------------------------------------
Distribution Date, the amount of Class B Monthly Interest previously due but not
paid to the Class B Certificateholders.
"Class B Penalty Rate" shall mean the sum of the Class B Certificate
--------------------
Rate and 2.00% per annum.
"Class B Principal Percentage" shall mean, with respect to any Monthly
----------------------------
Period (i) during the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is the
Class B Invested Amount as of the last day of the immediately preceding Monthly
Period (or, in the case of the first Monthly Period, the Closing Date) and the
denominator of which is the Invested Amount as of such day and (ii) during the
Accumulation Period or the Early Amortization Period, the percentage equivalent
(which percentage shall never exceed 100%) of a fraction, the numerator of which
is the Class B Invested Amount as of the last day of the Revolving Period, and
the denominator of which is the Invested Amount as of such last day; provided,
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however, that, with respect to the first Monthly Period, the Class B Principal
- -------
Percentage shall mean the Class B Initial Percentage.
"Class B Required Amount" shall have the meaning specified in Section
-----------------------
4.04(b).
7
"Class B Servicing Fee" shall have the meaning specified in Section
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3.01.
"Closing Date" shall mean May 9, 2002.
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"Collateral Account Percentage" shall mean, with respect to any date
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of determination, the percentage equivalent of a fraction, the numerator of
which is the aggregate amount with respect to Collateral Monthly Principal on
deposit in the Principal Funding Account on such date (before giving effect to
any deposit to be made to the Principal Funding Account on such date) and the
denominator of which is the Principal Funding Account Balance on such date
(before giving effect to any deposit to be made to the Principal Funding Account
on such date).
"Collateral Additional Interest" shall have the meaning specified in
------------------------------
Section 4.02(c).
"Collateral Adjusted Invested Amount" shall mean, with respect to any
-----------------------------------
date of determination, an amount not less than zero equal to the Collateral
Invested Amount less the excess, if any, of the Principal Funding Account
Balance over the sum of the Class A Invested Amount and the Class B Invested
Amount on such date.
"Collateral Available Funds" shall mean, with respect to any Monthly
--------------------------
Period, an amount equal to the sum of (a) an amount equal to the product of (i)
the Collateral Account Percentage and (ii) the amount of Principal Funding
Investment Proceeds, if any, with respect to the related Distribution Date and
(b) the Collateral Floating Percentage of the Collections of Finance Charge
Receivables (other than Finance Charge Receivables allocated to Servicer
Interchange with respect to such Monthly Period) allocated to the Series 2002-3
Certificates (including any investment earnings that are to be treated as
Collections of Finance Charge Receivables in accordance with the Agreement).
"Collateral Floating Percentage" shall mean, with respect to any
------------------------------
Monthly Period, the percentage equivalent (which percentage shall never exceed
100%) of a fraction, the numerator of which is the Collateral Adjusted Invested
Amount as of the close of business on the last day of the preceding Monthly
Period and the denominator of which is equal to the Adjusted Invested Amount as
of such day; provided, however, that with respect to the first Monthly Period,
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the Collateral Floating Percentage shall mean the percentage equivalent of a
fraction, the numerator of which is the Collateral Initial Invested Amount and
the denominator of which is the Initial Invested Amount.
"Collateral Initial Invested Amount" shall mean $118,125,000.
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"Collateral Interest" shall mean a fractional undivided interest in
-------------------
the Trust which shall consist of the right to receive (i) to the extent
necessary to make the required payments to a Collateral Interest Holder under
this Supplement, the portion of Collections allocable thereto under the
Agreement and this Supplement and funds on deposit in the Collection Account
allocable thereto pursuant to the Agreement and this Supplement and (ii) amounts
available for payment to the Collateral Interest Holder pursuant to, without
duplication, Section 4.05 and subsections 4.07(j), 4.11(d)(iii), 4.11(e),
4.11(f), 8.01(b), 8.02(a) and 8.02(b).
8
"Collateral Interest Holder" shall mean the entity so designated in
--------------------------
the Transfer Agreement.
"Collateral Interest Minimum Rate" shall mean a rate per annum
--------------------------------
specified in the Transfer Agreement not to exceed LIBOR for one-month United
States dollar deposits, determined as of the related LIBOR Determination Date,
plus 1.45%.
"Collateral Interest Shortfall" shall have the meaning specified in
-----------------------------
subsection 4.02(c).
"Collateral Invested Amount" shall mean, when used with respect to any
--------------------------
date, an amount equal to (a) the Collateral Initial Invested Amount, minus (b)
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the aggregate amount of principal payments made to the Collateral Interest
Holder prior to such date, minus (c) an amount equal to the aggregate amount by
-----
which the Collateral Invested Amount has been reduced on all prior Distribution
Dates pursuant to Section 4.06, plus (d) the aggregate amount of Excess Spread
----
and Excess Finance Charges allocated and available on all prior Distribution
Dates pursuant to Section 4.07(h) for the purpose of reimbursing amounts
deducted pursuant to the foregoing clause (c); provided, however, that the
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Collateral Invested Amount may not be reduced below zero.
"Collateral Investor Default Amount" shall mean, with respect to each
----------------------------------
Distribution Date, an amount equal to the product of (i) the Investor Default
Amount for the related Monthly Period and (ii) the Collateral Floating
Percentage for such Monthly Period.
"Collateral Minimum Monthly Interest" shall have the meaning specified
-----------------------------------
in Section 4.02(c).
"Collateral Monthly Principal" shall have the meaning specified in
----------------------------
Section 4.03(c).
"Collateral Outstanding Additional Interest" shall mean, with respect
------------------------------------------
to any Distribution Date, the amount of Collateral Additional Interest
previously due but not paid to the Collateral Interest Holder.
"Collateral Outstanding Monthly Interest" shall mean, with respect to
---------------------------------------
any Distribution Date, the amount of Collateral Minimum Monthly Interest
previously due but not paid to the Collateral Interest Holder.
"Collateral Servicing Fee" shall have the meaning specified in Section
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3.01.
"Controlled Accumulation Amount" shall mean for any Distribution Date
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with respect to the Accumulation Period, $112,500,000; provided, however, that,
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if the Accumulation Period is modified pursuant to Section 4.03(f), (i) the
Controlled Accumulation Amount for each Distribution Date with respect to the
Accumulation Period shall mean the amount specified in accordance with such
Section on the date on which the Accumulation Period has most recently
9
been modified, (ii) the Controlled Accumulation Amount for each related Monthly
Period shall be no greater than the Accumulation Period Amount for such Monthly
Period and (iii) the sum of the Controlled Accumulation Amounts for all
Distribution Dates with respect to the modified Accumulation Period shall not be
less than the Initial Invested Amount.
"Controlled Deposit Amount" shall mean, for any Distribution Date with
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respect to the Accumulation Period, an amount equal to the sum of the Controlled
Accumulation Amount for such Distribution Date and any Deficit Controlled
Accumulation Amount for the immediately preceding Distribution Date.
"Covered Amount" shall mean for any Distribution Date with respect to
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the Accumulation Period or the first Special Payment Date, an amount equal to
the sum of (a) the product of (i) the Class A Certificate Rate in effect for the
related Interest Period, (ii) a fraction, the numerator of which is the actual
number of days from and including the preceding Distribution Date to but
excluding such Distribution Date and the denominator of which is 360 and (iii)
the aggregate amount on deposit in the Principal Funding Account with respect to
Class A Monthly Principal, if any, as of the preceding Distribution Date, plus
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(b) one-twelfth of the product of (i) the Class B Certificate Rate and (ii) the
aggregate amount on deposit in the Principal Funding Account with respect to
Class B Monthly Principal, if any, as of the preceding Distribution Date, plus
----
(c) the product of (i) the Collateral Interest Minimum Rate in effect for the
related Interest Period, (ii) a fraction, the numerator of which is the actual
number of days from and including the preceding Distribution Date to but
excluding such Distribution Date and the denominator of which is 360 and (iii)
the aggregate amount on deposit in the Principal Funding Account with respect to
Collateral Monthly Principal, if any, as of the preceding Distribution Date.
"Cut-Off Date" shall mean May 1, 2002.
------------
"Deficit Controlled Accumulation Amount" shall mean (a) on the first
--------------------------------------
Distribution Date with respect to the Accumulation Period, the excess, if any,
of the Controlled Accumulation Amount for such Distribution Date over the amount
distributed from the Collection Account as Class A Monthly Principal, Class B
Monthly Principal and Collateral Monthly Principal for such Distribution Date
and (b) on each subsequent Distribution Date with respect to the Accumulation
Period, the excess, if any, of the Controlled Deposit Amount for such subsequent
Distribution Date plus any Deficit Controlled Accumulation Amount for the prior
Distribution Date over the amount distributed from the Collection Account as
Class A Monthly Principal, Class B Monthly Principal and Collateral Monthly
Principal for such subsequent Distribution Date.
"Early Amortization Period" shall mean the period commencing at the
-------------------------
close of business on the Business Day immediately preceding the day on which a
Pay Out Event with respect to Series 2002-3 is deemed to have occurred and
ending on the first to occur of (i) the payment in full to the Class A
Certificateholders and the Class B Certificateholders of the Class A Invested
Amount and the Class B Invested Amount, respectively, and the payment in full to
the Collateral Interest Holder of the Collateral Invested Amount, if any, or
(ii) the Termination Date.
10
"Excess Shared Principal Collections" shall mean the excess of the
-----------------------------------
Shared Principal Collections over the aggregate amount of Principal Shortfalls
for all Series, as defined in each related Supplement, which are Principal
Sharing Series for such Distribution Date.
"Excess Spread" shall mean, with respect to any Distribution Date, the
-------------
sum of the amounts, if any, specified pursuant to Sections 4.05(a)(iv),
4.05(b)(iii) and 4.05(c)(ii) with respect to such Distribution Date.
"Expected Final Payment Date" shall mean the April 2005 Distribution
---------------------------
Date.
"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 Trust as of the last day of the preceding month,
adjusted for additions and removals 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 Servicer may select) and (ii) the sum
of the Initial Invested Amounts (as defined in the related Supplement) of all
outstanding Series, other than Variable Funding Series.
"Finance Charge Shortfall" shall have the meaning specified in Section
------------------------
4.09.
"Floating Allocation Percentage" shall mean, with respect to any
------------------------------
Monthly Period, the percentage equivalent (which percentage shall never exceed
100%) of a fraction, the numerator of which is the Adjusted Invested Amount as
of the last day of the preceding Monthly Period (or, with respect to the first
Monthly Period, the Initial Invested Amount) and the denominator of which is the
sum of (i) the total amount of Principal Receivables in the Trust as of such day
(or, with respect to the first Monthly Period, the Cut-Off Date) and (ii) the
principal amount on deposit in the Excess Funding Account as of such last day;
provided, however, that the amount calculated above pursuant to clause (i) of
- -------- -------
the denominator shall be increased by the aggregate amount of Principal
Receivables in Additional Accounts added to the Trust during such Monthly Period
as though such Receivables had been added to the Trust as of the first day of
such Monthly Period and decreased by the aggregate amount of Principal
Receivables removed from the Trust during such Monthly Period as though such
Receivables had been removed from the Trust as of the first day of such Monthly
Period.
"Group One" shall mean Series 2002-3 and each other series specified
---------
in the related Supplement to be included in Group One.
"Initial Invested Amount" shall mean the sum of the Class A Initial
-----------------------
Invested Amount, the Class B Initial Invested Amount and the Collateral Initial
Invested Amount.
"Initial Servicing Fee" shall have the meaning specified in Section
---------------------
3.01.
"Interest Payment Date" shall mean, with respect to the Class A
---------------------
Certificates, the Class B Certificates and the Collateral Interest, the 15th day
of each month (or, if such day is not
11
a Business Day, the next succeeding Business Day), commencing on the June 2002
Distribution Date.
"Interest Period" shall mean with respect to any Payment Date, the
---------------
period from and including the Payment Date immediately preceding such Payment
Date (or, in the case of the first Payment Date, from and including the Closing
Date) to but excluding such Payment Date.
"Invested Amount" shall mean, as of any date of determination, an
---------------
amount equal to the sum of (a) the Class A Invested Amount as of such date, (b)
the Class B Invested Amount as of such date and (c) the Collateral Invested
Amount as of such date.
"Investment Letter" shall have the meaning specified in subsection
-----------------
10.07(a).
"Investor Charge-Offs" shall mean Class A Investor Charge-Offs and
--------------------
Class B Investor Charge-Offs.
"Investor Default Amount" shall mean, with respect to any Distribution
-----------------------
Date, an amount equal to the product of (a) the Defaulted Amount for the related
Monthly Period and (b) the Floating Allocation Percentage for such Monthly
Period.
"LIBOR" shall mean, as of any LIBOR Determination Date, 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 Servicer 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 shall be the arithmetic
mean of the rates quoted by major banks in New York City, selected by the
Servicer, 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;
provided, however, that if the banks selected as aforesaid by the Servicer are
- -------- -------
not quoting as mentioned, the rate for that day shall be the rate then in effect
on such LIBOR Determination Date.
"LIBOR Determination Date" shall mean, for any Interest Period, the
------------------------
second London Business Day prior to the commencement of such Interest Period
(or, in the case of the initial Interest Period, the second London Business Day
prior to the Closing Date).
"London Business Day" shall mean a day on which dealings in deposits
-------------------
in United States dollars are transacted in the London interbank market.
"Monthly Interest" means, with respect to any Distribution Date, the
----------------
Class A Monthly Interest, the Class B Monthly Interest and Collateral Minimum
Monthly Interest, each for such Distribution Date.
12
"Monthly Servicing Fee" shall have the meaning specified in Section
---------------------
3.01.
"Net Servicing Fee Rate" shall mean (i) so long as a Seller or The
----------------------
Bank of New York is the Servicer, 1.25% per annum and (ii) if a Seller or The
Bank of New York is no longer the Servicer, 2.00% per annum.
"Nonvariable Accumulation Series" shall mean each outstanding Series
-------------------------------
that is not a Variable Funding Series or a Variable Accumulation Series.
"Payment Date" shall mean any Interest Payment Date and any Special
------------
Payment Date.
"Permitted Assignee" shall mean any Person who, if it were the
------------------
Collateral Interest Holder or holder of an interest in the Trust, as applicable,
would not cause the Trust to be taxable as a publicly traded partnership for
federal income tax purposes.
"Portfolio Adjusted Yield" shall mean, with respect to any
------------------------
Distribution Date, the average of the percentages obtained for each of the three
preceding Monthly Periods by subtracting the Base Rate for each such Monthly
Period from the Portfolio Yield for each such Monthly Period, and deducting
0.50% from the result for each such Monthly Period.
"Portfolio Yield" shall mean, with respect to any Monthly Period, the
---------------
annualized percentage equivalent of a fraction, the numerator of which is equal
to (a) an amount equal to the product obtained by multiplying the Floating
Allocation Percentage with respect to such Monthly Period and the amount of
Collections of Finance Charge Receivables with respect to such Monthly Period
(including any investment earnings and certain other amounts that are to be
treated as Collections of Finance Charge Receivables in accordance with the
Agreement) calculated on a billed basis, or, in the case of any such Collections
consisting of annual membership fees, on an amortized (rather than billed)
basis, plus (b) the amount of any Principal Funding Investment Proceeds for the
----
related Distribution Date, plus (c) any Excess Finance Charges that are
----
allocated to Series 2002-3 with respect to such Monthly Period, plus (d) the
----
amount of funds, if any, withdrawn from the Reserve Account which, pursuant to
Section 4.11(d), are required to be included as Class A Available Funds or Class
B Available Funds or paid to the Collateral Interest Holder for the Distribution
Date with respect to such Monthly Period, minus (e) the Investor Default Amount
-----
for the Distribution Date with respect to such Monthly Period, and the
denominator of which is the Invested Amount as of the last day of the preceding
Monthly Period; provided, however, that for the first Monthly Period, the
-------- -------
denominator is the Initial Invested Amount.
"Principal Allocation Percentage" shall mean, with respect to any day
-------------------------------
during a Monthly Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is (a) during the Revolving
Period, the Invested Amount as of the last day of the immediately preceding
Monthly Period (or, in the case of the first Monthly Period, the Cut-Off Date)
and (b) after the end of the Revolving Period, the Invested Amount as of the
last day of the Revolving Period and the denominator of which is the greater of
(i) the sum of the total amount of Principal Receivables in the Trust as of the
last day of the immediately
13
preceding Monthly Period and the principal amount on deposit in the Excess
Funding Account as of such last day (or, in the case of the first Monthly
Period, the Cut-Off Date) and (ii) the sum of the numerators used to calculate
the principal allocation percentages for all Series outstanding as of the date
as to which such determination is being made; provided, however, that the amount
-------- -------
calculated above pursuant to clause (i) of the denominator shall be increased by
the aggregate amount of Principal Receivables in Additional Accounts added to
the Trust during such Monthly Period as though such Receivables had been added
to the Trust as of the first day of such Monthly Period; provided further,
----------------
however, that if after the commencement of the Accumulation Period or the Early
- -------
Amortization Period a Pay Out Event occurs with respect to another Series that
was designated in the Supplement therefor as a Series that is a "Paired Series"
with respect to Series 2002-3, the Sellers may, by written notice delivered to
the Trustee and the Servicer, designate a different numerator for the foregoing
fraction, provided that (x) such numerator is not less than the Adjusted
Invested Amount as of the last day of the revolving period for such Paired
Series and (y) the Sellers shall have received written notice from each Rating
Agency that such designation will not have a Ratings Effect and shall have
delivered copies of each such written notice to the Servicer and the Trustee and
the Sellers shall have delivered to the 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 Sellers, such designation will not cause a Pay Out
Event or an event that, after the giving of notice or the lapse of time, would
constitute a Pay Out Event, to occur with respect to Series 2002-3.
"Principal Funding Account" shall have the meaning set forth in
-------------------------
Section 4.03(d)(i).
"Principal Funding Account Balance" shall mean, with respect to any
---------------------------------
date of determination during the Accumulation Period, the principal amount, if
any, on deposit in the Principal Funding Account on such date of determination.
"Principal Funding Investment Proceeds" shall have the meaning
-------------------------------------
specified in Section 4.03(d)(ii).
"Principal Shortfall" shall have the meaning specified in Section
-------------------
4.10.
"Prospectus" shall mean the prospectus and the prospectus supplement
----------
as filed with the Securities and Exchange Commission under Rule 424(b) of the
Securities Act relating to the Series 2002-3 Certificates.
"Reallocated Principal Collections" shall mean, with respect to any
---------------------------------
Monthly Period, the product of (a) the Principal Allocation Percentage with
respect to such Monthly Period, (b) the aggregate amount of Collections in
respect of Principal Receivables deposited in the Collection Account for such
Monthly Period and (c) the sum of the Class B Floating Percentage and the
Collateral Floating Percentage with respect to such Monthly Period.
"Reassignment Amount" shall mean, with respect to any Distribution
-------------------
Date, after giving effect to any deposits and distributions otherwise to be made
on such Distribution Date, the sum of (i) the Adjusted Invested Amount on such
Distribution Date, plus (ii) Monthly
----
14
Interest for such Distribution Date and any Monthly Interest previously due but
not distributed to the Series 2002-3 Certificateholders and the Collateral
Interest Holder on a prior Distribution Date, plus (iii) the amount of
----
Additional Interest, if any, for such Distribution Date and any Additional
Interest previously due but not distributed to the Series 2002-3
Certificateholders and the Collateral Interest Holder on a prior Distribution
Date.
"Reference Banks" shall mean four major banks in the London interbank
---------------
market selected by the Servicer.
"Required Reserve Account Amount" shall mean, with respect to any
-------------------------------
Distribution Date prior to the Reserve Account Funding Date, $0, and on or after
the Reserve Account Funding Date, an amount equal to (a) 0.50% of the Invested
Amount as of the preceding Distribution Date (after giving effect to all changes
therein on such date), or (b) any other amount designated by the Sellers,
provided that, if such designation is of a lesser amount, the Sellers (i) shall
have received written notice from each Rating Agency that such designation will
not have a Ratings Effect and shall have delivered copies of each such written
notice to the Servicer and the Trustee, and (ii) shall have delivered to the
Trustee a certificate of an authorized officer to the effect that, based on the
facts known to such officer at such time, in the reasonable belief of the
Sellers, such designation will not cause a Pay Out Event or an event that, after
the giving of notice or the lapse of time, would cause a Pay Out Event, to occur
with respect to Series 2002-3.
"Reserve Account" shall have the meaning specified in Section 4.11(a).
---------------
"Reserve Account Funding Date" shall mean the Distribution Date with
----------------------------
respect to the Monthly Period which commences 12 months prior to the Monthly
Period which as of the related Determination Date is scheduled to commence the
Accumulation Period in accordance with Section 4.03(f) provided that the Sellers
may delay the Reserve Account Funding Date to the Distribution Date with respect
to the Monthly Period which occurs not later than the number of months prior to
the scheduled commencement date of the Accumulation Period determined in
accordance with the following schedule:
- -------------------------------------------------------------------
Number of Months
Portfolio Adjusted Yield (rounded up to nearest whole number)
- -------------------------------------------------------------------
Less than 2% 12
- -------------------------------------------------------------------
2% or more, but less than 3% 6
- -------------------------------------------------------------------
3% or more, but less than 4% 4
- -------------------------------------------------------------------
4% or more 3
- -------------------------------------------------------------------
"Reserve Account Surplus" shall mean, as of any date of determination,
-----------------------
the amount, if any, by which the amount on deposit in the Reserve Account
exceeds the Required Reserve Account Amount.
"Reserve Draw Amount" shall have the meaning specified in Section
-------------------
4.11(c).
15
"Revolving Period" shall mean the period beginning at the close of
----------------
business on the Cut-Off Date and ending on the earlier of (a) the close of
business on the day the Accumulation Period commences and (b) the close of
business on the day the Early Amortization Period commences.
"Series 2002-3" shall mean the Series of Investor Certificates, the
-------------
terms of which are specified in this Supplement, and shall include the Class A
Certificates, the Class B Certificates and the Collateral Interest.
"Series 2002-3 Certificateholder" shall mean a Class A
-------------------------------
Certificateholder or a Class B Certificateholder.
"Series 2002-3 Certificate" shall mean a Class A Certificate or a
-------------------------
Class B Certificate.
"Series 2002-3 Holder" shall mean a Class A Certificateholder, a Class
--------------------
B Certificateholder or a Collateral Interest Holder.
"Series 2002-3 Interests" shall mean the Class A Certificates, the
-----------------------
Class B Certificates and the Collateral Interest.
"Servicer Interchange" shall mean, for any Monthly Period, the product
--------------------
of (a) the Floating Allocation Percentage for such Monthly Period and (b) the
portion of Collections of Finance Charge Receivables allocated to the Series
2002-3 Certificates and the Collateral Interest with respect to such Monthly
Period that is attributable to Interchange; provided, however, that Servicer
-------- -------
Interchange for a Monthly Period shall not exceed one-twelfth of the product of
(i) the Servicing Base Amount as of the last day of such Monthly Period and (ii)
0.75%.
"Servicing Base Amount" shall have the meaning specified in Section
---------------------
3.01.
"Servicing Fee Rate" shall mean 2.00%.
------------------
"Special Payment Date" shall mean each Distribution Date with respect
--------------------
to the Early Amortization Period.
"Telerate Page 3750" shall mean the display page currently so
------------------
designated on the Moneyline Telerate Service (or such other page as may replace
that page on that service for the purpose of displaying comparable rates or
prices).
"Termination Date" shall mean the February 2008 Distribution Date.
----------------
"Transfer" shall have the meaning specified in subsection 10.07(a).
--------
"Transfer Agreement" shall mean the Transfer and Administration
------------------
Agreement, dated as of May 9, 2002, among Capital One Bank, as transferor and
administrator, Capital One, F.S.B., as transferor, and Capital One Secured Note
Trust 2002-3, as amended or modified from time to time, relating to the transfer
of the Collateral Interest.
16
"Variable Accumulation Series" shall mean each outstanding Series,
----------------------------
other than any Variable Funding Series, for which, pursuant to the terms of the
related Supplement, at the time a determination is made pursuant to Section
4.03(f), the commencement date of the Accumulation Period may be changed.
"Variable Funding Series" shall mean any Series designated in the
-----------------------
related Supplement as a Variable Funding Series.
(b) Notwithstanding anything to the contrary in this Supplement or the
Agreement, the term "Rating Agency" shall mean, whenever used in this Supplement
or the Agreement with respect to Series 2002-3, Moody's and Standard & Poor's
and Fitch. As used in this Supplement and in the Agreement with respect to
Series 2002-3, "highest investment ratings category" shall mean (i) in the case
of Standard & Poor's, A-1+, AAA, AAAm or AAAm-G, as applicable, (ii) in the case
of Moody's, P-1 or Aaa, as applicable and (iii) in the case of Fitch, if rated
by Fitch, F1+ or AAA, as applicable.
(c) Notwithstanding any provision of the Agreement or this Supplement,
the term "Paying Agent" when used in the Agreement or this Supplement with
respect to Series 2002-3, shall mean, the Paying Agent specified pursuant to the
Agreement, and any successor paying agents with respect to the Class A
Certificates, the Class B Certificates and the Collateral Interest as the
Sellers may appoint from time to time in accordance with the provisions of the
Pooling and Servicing Agreement.
(d) All capitalized terms used herein and not otherwise defined herein
have the meanings ascribed to them in the Agreement.
(e) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Supplement shall refer to this Supplement as a whole
and not to any particular provision of this Supplement; references to any
Article, Section or Exhibit are references to Articles, Sections and Exhibits in
or to this Supplement unless otherwise specified; and the term "including" means
"including without limitation."
Section 2.02. Amendment to Section 2.08 of the Agreement. Section
------------------------------------------
2.08(c)(i) of the Agreement is hereby amended and restated in its entirety to
read as follows:
(c) Automatic Additional Accounts. (i) Each Seller may from time to
-----------------------------
time, at its sole discretion, subject to and in compliance with the
limitations specified in clause (ii) below and the applicable conditions
specified in paragraph (d) below, designate Eligible Accounts to be
included as Accounts as of the applicable Additional Cut-Off Date. For
purposes of this paragraph, Eligible Accounts shall be deemed to include
only consumer revolving credit card accounts or other consumer revolving
credit accounts which (x) are originated by such Seller or any Affiliate of
such Seller, (y) are of a type included as Initial Accounts or which have
previously been included in any Addition which has been effected in
accordance with all of the conditions specified in paragraph (d) below and
(z) have a designation other than "Associate 20," "Associate 21,"
"Associate 42," "Associate 45," "Associate 46," "Associate 54," "Associate
55,"
17
"Associate 77," "Associate 79," "Associate 87," "Associate 91," "Associate
100," "Associate 101," "Associate 102," "Associate 103," "Associate 104,"
"Associate 105," "Associate 106," "Associate 107," "Associate 108,"
"Associate 109," "Associate 120" "Associate 121," "Associate 122,"
"Associate 123," "Associate 195," "Associate 196," "Associate 197,"
"Associate 198," "Associate 199," "Associate 289," "Associate 290,"
"Associate 291," "Associate 292," "Associate 293," "Associate 294,"
"Associate 295," "Associate 296," "Associate 297," "Associate 298,"
"Associate 299," "Associate 302," "Associate 303," "Associate 308,"
"Associate 309," "Associate 310," "Associate 311" "Associate 312,"
"Associate 313," "Associate 314," "Associate 332," "Associate 333,"
"Associate 336," "Associate 337," "Associate 407," "Associate 408,"
"Associate 409," "Associate 410," "Associate 411," "Associate 412,"
"Associate 413," "Associate 414," "Associate 415," "Associate 416,"
"Associate 417," "Associate 432,""Associate 433," "Associate 439,"
"Associate 440," "Associate 570," "Associate 571," "Associate 572,"
"Associate 573," "Associate 574," "Associate 575," "Associate 576,"
"Associate 577," "Associate 578," "Associate 579," "Associate 770,"
"Associate 771," "Associate 772," "Associate 773," "Associate 774,"
"Associate 775," "Associate 776," "Associate 777," "Associate 778" or
"Associate 779" marketing programs in such Seller's credit card master
file.
ARTICLE III
Servicer and Trustee
--------------------
Section 3.01. Servicing Compensation. The share of the Servicing Fee
----------------------
allocable to the Series 2002-3 Certificateholders and the Collateral Interest
Holder with respect to any Distribution Date (the "Monthly Servicing Fee") shall
be equal to one-twelfth of the product of (a) the Servicing Fee Rate and (b) the
Adjusted Invested Amount, if any, as of the last day of the Monthly Period
preceding such Distribution Date (the amount calculated pursuant to this clause
(b) is referred to as the "Servicing Base Amount"); provided, however, with
-------- -------
respect to the first Distribution Date, the Monthly Servicing Fee (the "Initial
Servicing Fee") shall be equal to $1,650,000.00. On each Distribution Date, but
only if a Seller or The Bank of New York is the Servicer, Servicer Interchange
with respect to the related Monthly Period that is on deposit in the Collection
Account shall be withdrawn from the Collection Account and paid to the Servicer
in payment of a portion of the Monthly Servicing Fee with respect to such
Monthly Period. In the case of any insufficiency of Servicer Interchange on
deposit in the Collection Account, a portion of the Monthly Servicing Fee with
respect to such Monthly Period will not be paid to the extent of such
insufficiency of Servicer Interchange. The share of the Monthly Servicing Fee
allocable to the Class A Certificateholders (after giving effect to the
distribution of Servicer Interchange, if any, to the Servicer) with respect to
any Distribution Date (the "Class A Servicing Fee") shall be equal to
one-twelfth of the product of (a) the Class A Floating Percentage, (b) the Net
Servicing Fee Rate and (c) the Servicing Base Amount; provided, however, that
-------- -------
with respect to the first Distribution Date, the Class A Servicing Fee shall be
equal to $837,890.63. The share of the Monthly Servicing Fee allocable to the
Class B Certificateholders (after giving effect to the distribution of Servicer
Interchange, if any, to the Servicer) with respect to any Distribution Date (the
"Class B Servicing Fee") shall be equal to one-twelfth of the product of (a) the
Class B Floating Percentage, (b) the Net Servicing Fee Rate and (c) the
Servicing Base Amount; provided, however, that with respect to the first
-------- -------
Distribution Date, the Class B Servicing Fee
18
shall be equal to $103,125.00. The share of the Monthly Servicing Fee allocable
to the Collateral Interest Holder (after giving effect to the distribution of
Servicer Interchange, if any, to the Servicer) with respect to such Distribution
Date (the "Collateral Servicing Fee") shall be equal to one-twelfth of the
product of (c) the Collateral Floating Percentage, (b) the Net Servicing Fee
Rate and (c) the Servicing Base Amount; provided, however, that with respect to
-------- -------
the first Distribution Date, the Collateral Servicing Fee shall be equal to
$90,234.38. The remainder of the Servicing Fee shall be paid by the Sellers or
the Certificateholders of other Series (as provided in the related Supplements)
and in no event shall the Trust, the Trustee, the Series 2002-3
Certificateholders or the Collateral Interest Holder be liable for the share of
the Servicing Fee to be paid by the Sellers or the Certificateholders of any
other Series. The (i) Class A Servicing Fee shall be payable to the Servicer
solely to the extent amounts are available for distribution in respect thereof
pursuant to Section 4.05(a)(ii), 4.07(a) or 4.08(a); (ii) Class B Servicing Fee
shall be payable solely to the extent amounts are available for distribution in
respect thereof pursuant to Section 4.05(b)(iii), 4.07(c) or 4.08(b); and (iii)
Collateral Servicing Fee shall be payable solely to the extent amounts are
available for distribution in respect thereof pursuant to Section 4.05(c)(i) or
4.07(f).
ARTICLE IV
Rights of Series 2002-3 Certificateholders and
Collateral Interest Holder and
Allocation and Application of Collections
-----------------------------------------
Section 4.01. Collections and Allocations. The Servicer will apply, or
---------------------------
will instruct the Trustee to apply, all Collections and other funds on deposit
in the Collection Account that are allocated to the Series 2002-3 Certificates
and the Collateral Interest as described in this Article IV.
Section 4.02. Determination of Monthly Interest.
---------------------------------
(a) The amount of monthly interest ("Class A Monthly Interest")
distributable from the Collection Account with respect to the Class A
Certificates on any Distribution Date shall be an amount equal to the product of
(i) the Class A Certificate Rate in effect for the related Interest Period, (ii)
a fraction, the numerator of which is the actual number of days from and
including the preceding Distribution Date to but excluding such Distribution
Date and the denominator of which is 360, and (iii) the outstanding principal
balance of the Class A Certificates as of the preceding Record Date; provided,
--------
however, that, with respect to the first Distribution Date, Class A Monthly
- -------
Interest shall be $2,281,500.00.
On the Determination Date preceding each Payment Date, the Servicer
shall determine the excess, if any (the "Class A Interest Shortfall"), of (x)
the Class A Monthly Interest for the Interest Period applicable to such Payment
Date over (y) the aggregate amount of funds allocated and available to pay such
----
Class A Monthly Interest on such Payment Date. If the Class A Interest Shortfall
with respect to any Payment Date is greater than zero, an additional amount
("Class A Additional Interest") equal to the product of (i) a fraction, the
numerator of which is the actual number of days in the period from and including
the preceding Distribution Date to but excluding such Distribution Date and the
denominator of which is 360, (ii) the Class
19
A Penalty Rate and (iii) such Class A Interest Shortfall (or the portion thereof
which has not been paid to Class A Certificateholders) shall be payable as
provided herein with respect to the Class A Certificates on each Distribution
Date following such Payment Date to and including the Payment Date on which such
Class A Interest Shortfall is paid to Class A Certificateholders.
Notwithstanding anything to the contrary herein, Class A Additional Interest
shall be payable or distributed to Class A Certificateholders only to the extent
permitted by applicable law.
(b) The amount of monthly interest ("Class B Monthly Interest")
distributable from the Collection Account with respect to the Class B
Certificates on any Distribution Date shall be an amount equal to one-twelfth of
the product of (i) the Class B Certificate Rate and (ii) the outstanding
principal balance of the Class B Certificates as of the preceding Record Date;
provided, however, that, with respect to the first Distribution Date, Class B
- -------- -------
Monthly Interest shall be $614,250.00.
On the Determination Date preceding each Payment Date, the Servicer
shall determine the excess, if any (the "Class B Interest Shortfall"), of (x)
the Class B Monthly Interest for the Interest Period applicable to such Payment
Date over (y) the aggregate amount of funds allocated and available to pay such
----
Class B Monthly Interest on such Payment Date. If the Class B Interest Shortfall
with respect to any Payment Date is greater than zero, an additional amount
("Class B Additional Interest") equal to one-twelfth of the product of (i) the
Class B Penalty Rate and (ii) such Class B Interest Shortfall (or the portion
thereof which has not been paid to Class B Certificateholders) shall be payable
as provided herein with respect to the Class B Certificates on each Distribution
Date following such Payment Date to and including the Payment Date on which such
Class B Interest Shortfall is paid to Class B Certificateholders.
Notwithstanding anything to the contrary herein, Class B Additional Interest
shall be payable or distributed to Class B Certificateholders only to the extent
permitted by applicable law.
(c) The amount of monthly interest ("Collateral Minimum Monthly
Interest") distributable from the Collection Account with respect to the
Collateral Interest on any Distribution Date shall be an amount equal to the
product of (i) the Collateral Interest Minimum Rate in effect for the related
Interest Period, (ii) a fraction, the numerator of which is the actual number of
days in the period from and including the preceding Distribution Date to but
excluding such Distribution Date and the denominator of which is 360 and (iii)
the outstanding principal balance of the Collateral Interest as of the preceding
Record Date; provided, however, that, with respect to the first Distribution
-------- -------
Date, Collateral Minimum Monthly Interest shall be equal to the interest accrued
on the Collateral Initial Invested Amount at the Collateral Interest Minimum
Rate for the period from the Closing Date to but excluding the initial
Distribution Date.
On the Determination Date preceding each Distribution Date, the
Servicer shall determine the excess, if any (the "Collateral Interest
Shortfall"), of (x) the Collateral Minimum Monthly Interest for such
Distribution Date over (y) the aggregate amount of funds allocated and available
----
to pay such Collateral Minimum Monthly Interest on such Distribution Date. If
the Collateral Interest Shortfall for any Distribution Date is greater than
zero, an additional amount ("Collateral Additional Interest") equal to the
product of (i) a fraction, the numerator of which is the actual number of days
in the period from and including the preceding Distribution Date to but
excluding such Distribution Date and the denominator of which is 360, (ii) the
Collateral Interest
20
Minimum Rate in effect for the related Interest Period and (iii) such Collateral
Interest Shortfall (or the portion thereof which has not been paid to the
Collateral Interest Holder) shall be payable as provided herein with respect to
the Collateral Interest on each Distribution Date following such Distribution
Date to and including the Distribution Date on which such Collateral Interest
Shortfall is paid to the Collateral Interest Holder. Notwithstanding anything to
the contrary herein, Collateral Additional Interest shall be payable or
distributed to the Collateral Interest Holder only to the extent permitted by
applicable law.
Section 4.03. Determination of Monthly Principal; Series 2002-3
-------------------------------------------------
Accounts
- --------
(a) The amount of monthly principal ("Class A Monthly Principal")
distributable from the Collection Account with respect to the Class A
Certificates on each Distribution Date, beginning with the first to occur of (i)
the first Special Payment Date, if any, and (ii) the first Distribution Date
with respect to the Accumulation Period, shall be equal to the least of (x) the
Available Investor Principal Collections on deposit in the Collection Account
with respect to such Distribution Date, (y) for each Distribution Date with
respect to the Accumulation Period (and on or prior to the Expected Final
Payment Date), the Controlled Deposit Amount for such Distribution Date and (z)
the Class A Adjusted Invested Amount on such Distribution Date.
(b) The amount of monthly principal ("Class B Monthly Principal")
distributable from the Collection Account with respect to the Class B
Certificates on each Distribution Date, beginning with the first to occur of (i)
the first Special Payment Date, if any, on which the Class A Invested Amount is
paid in full, and (ii) the first Distribution Date with respect to the
Accumulation Period on which the Principal Funding Account Balance is at least
equal to the Class A Invested Amount, shall be equal to the least of (x) the
Available Investor Principal Collections on deposit in the Collection Account
with respect to such Distribution Date (minus the portion of such Available
Investor Principal Collections applied to Class A Monthly Principal with respect
to such Distribution Date), (y) for each Distribution Date with respect to the
Accumulation Period, the Controlled Deposit Amount for such Distribution Date
(minus the Class A Monthly Principal with respect to such Distribution Date) and
(z) the Class B Adjusted Invested Amount on such Distribution Date.
(c) The amount of monthly principal ("Collateral Monthly Principal")
distributable from the Collection Account with respect to the Collateral
Interest on each Distribution Date, beginning with the first to occur of (i) the
first Special Payment Date, if any, on which the Class B Invested Amount is paid
in full, and (ii) the first Distribution Date with respect to the Accumulation
Period on which the Principal Funding Account Balance is at least equal to the
sum of the Class A Invested Amount and the Class B Invested Amount, shall be
equal to the least of (x) the Available Investor Principal Collections on
deposit in the Collection Account with respect to such Distribution Date (minus
the portion of such Available Investor Principal Collections applied to Class A
Monthly Principal and Class B Monthly Principal with respect to such
Distribution Date), (y) for each Distribution Date with respect to the
Accumulation Period, the Controlled Deposit Amount for such Distribution Date
(minus the Class A Monthly Principal and Class B Monthly Principal with respect
to such Distribution Date) and (z) the Collateral Adjusted Invested Amount on
such Distribution Date.
21
(d) (i) The Servicer, for the benefit of the Series 2002-3 Holders,
shall establish and maintain in the name of the Trustee, on behalf of the Trust,
an Eligible Deposit Account (the "Principal Funding Account"), bearing a
designation clearly indicating that the funds deposited therein are held for the
benefit of Series 2002-3 Holders. The Principal Funding Account shall initially
be established with The Bank of New York.
(ii) At the direction of the Servicer, funds on deposit in the
Principal Funding Account shall be invested by the Trustee in Eligible
Investments selected by the Servicer. All such Eligible Investments shall
be held by the Trustee for the benefit of the Series 2002-3 Holders;
provided that on each Distribution Date all interest and other investment
--------
income (net of losses and investment expenses) ("Principal Funding
Investment Proceeds") on funds on deposit therein shall be applied as set
forth in paragraph (iii) below. Funds on deposit in the Principal Funding
Account shall be invested in Eligible Investments that will mature so that
such funds will be available at the close of business on the Transfer Date
preceding the following Distribution Date. The Trustee shall (i) hold each
Eligible Investment that constitutes investment property through a
securities intermediary, which securities intermediary shall agree with the
Trustee that (A) such investment property shall at all times be credited to
a securities account of the Trustee, (B) such securities intermediary shall
treat the Trustee as entitled to exercise the rights that comprise each
financial asset credited to such securities account, (C) all property
credited to such securities account shall be treated as a financial asset,
(D) such securities intermediary shall comply with entitlement orders
originated by the Trustee without the further consent of any other person
or entity, (E) such securities intermediary shall not agree with any person
or entity other than the Trustee to comply with entitlement orders
originated by such other person or entity, (F) such securities intermediary
waives any lien on, security interest in, or right of set-off with respect
to any property credited to such securities account, and (G) such agreement
shall be governed by the laws of the State of New York; and (ii) maintain
possession of each other Eligible Investment not described in clause (i)
above in the State of New York. Terms used in clause (i) above that are
defined in the New York UCC and not otherwise defined herein shall have the
meaning set forth in the New York UCC. No Eligible Investment shall be
disposed of prior to its maturity. Unless the Servicer directs otherwise,
funds deposited in the Principal Funding Account on a Transfer Date (which
immediately precedes a Payment Date) upon the maturity of any Eligible
Investments are not required to be invested overnight.
(iii) On each Distribution Date with respect to the Accumulation
Period, the Servicer shall direct the Trustee to withdraw from the
Principal Funding Account and deposit into the Collection Account all
Principal Funding Investment Proceeds then on deposit in the Principal
Funding Account and such Principal Funding Investment Proceeds shall be
treated as a portion of Class A Available Funds, Class B Available Funds
and Collateral Available Funds.
22
(iv) Reinvested interest and other investment income on funds
deposited in the Principal Funding Account shall not be considered to be
principal amounts on deposit therein for purposes of this Supplement.
(e) (i) The Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Principal Funding Account and in all
proceeds thereof. The Principal Funding Account shall be under the sole dominion
and control of the Trustee for the benefit of the Series 2002-3 Holders. If, at
any time, the Principal Funding Account ceases to be an Eligible Deposit
Account, the Trustee (or the Servicer on its behalf) shall within 10 Business
Days (or such longer period, not to exceed 30 calendar days, as to which each
Rating Agency may consent) establish a new Principal Funding Account meeting the
conditions specified in paragraph (d)(i) above as an Eligible Deposit Account
and shall transfer any cash and/or any investments to such new Principal Funding
Account.
(ii) Pursuant to the authority granted to the Servicer in Section
3.01(b) of the Agreement, the Servicer shall have the power, revocable by
the Trustee, to make withdrawals and payments or to instruct the Trustee to
make withdrawals and payments from the Principal Funding Account for the
purposes of carrying out the Servicer's or Trustee's duties hereunder.
Pursuant to the authority granted to the Paying Agent in Section 5.01 of
this Supplement and Section 6.07 of the Agreement, the Paying Agent shall
have the power, revocable by the Trustee, to withdraw funds from the
Principal Funding Account for the purpose of making distributions to the
Series 2002-3 Holders.
(f) The Accumulation Period is scheduled to commence at the close of
business on the last day of the March 2004 Monthly Period; provided, however,
-------- -------
that if the Accumulation Period Length on any Determination Date (determined as
described below) is less than twelve (12) months, upon notice to the Trustee,
the Sellers and each Rating Agency, the Servicer, at its option, may elect to
modify the date on which the Accumulation Period actually commences to the last
Business Day of any month that precedes the month that is the number of months
prior to the Expected Final Payment Date equal to the Accumulation Period
Length; provided, however, that (i) the length of the Accumulation Period will
-------- -------
not be less than one month; and (ii) notwithstanding any other provision of this
Supplement to the contrary, no election to postpone the commencement of the
Accumulation Period shall be made after a Pay Out Event (as defined in the
related Supplement) shall have occurred and is continuing with respect to any
other Series. On each Determination Date, the Servicer will determine the
"Accumulation Period Length" which will equal the number of months such that the
Accumulation Period Amount for the Monthly Period immediately preceding the
Expected Final Payment Date, when aggregated with the Accumulation Period
Amounts for each preceding Monthly Period, will equal or exceed the Initial
Invested Amount. Any notice by the Servicer electing to modify the commencement
of the Accumulation Period pursuant to this subsection (f) shall specify (i) the
Accumulation Period Length, (ii) the commencement date of the Accumulation
Period and (iii) the Controlled Accumulation Amount with respect to each Monthly
Period during the Accumulation Period.
Section 4.04. Required Amount.
---------------
23
(a) With respect to each Distribution Date, on the related
Determination Date, the Servicer shall determine the amount (the "Class A
Required Amount"), if any, by which (x) the sum of (i) Class A Monthly Interest
for such Distribution Date, (ii) any Class A Outstanding Monthly Interest, (iii)
any Class A Additional Interest for such Distribution Date and any Class A
Outstanding Additional Interest, (iv) the Class A Servicing Fee for such
Distribution Date, (v) any Class A Servicing Fee previously due but not paid to
the Servicer and (vi) the Class A Investor Default Amount, if any, for such
Distribution Date exceeds (y) the Class A Available Funds. In the event that the
Class A Required Amount for such Distribution Date is greater than zero, the
Servicer shall give written notice to the Trustee of such positive Class A
Required Amount on the date of computation and all or a portion of the Excess
Spread and the Excess Finance Charges allocable to Series 2002-3 with respect to
the related Monthly Period in an amount equal to the Class A Required Amount for
such Distribution Date shall be distributed from the Collection Account on such
Distribution Date pursuant to Section 4.07(a). In the event that the Class A
Required Amount for such Distribution Date exceeds the amount of Excess Spread
and the amount of Excess Finance Charges allocable to Series 2002-3 with respect
to the related Monthly Period, all or a portion of the Reallocated Principal
Collections with respect to such Monthly Period in an amount equal to such
excess shall be distributed from the Collection Account on such Distribution
Date pursuant to Section 4.08(a).
(b) With respect to each Distribution Date, on the related
Determination Date, the Servicer shall determine the amount (the "Class B
Required Amount") equal to the sum of (x) the amount, if any, by which (A) the
sum of (i) Class B Monthly Interest for such Distribution Date, (ii) any Class B
Outstanding Monthly Interest, (iii) any Class B Additional Interest for such
Distribution Date and any Class B Outstanding Additional Interest, (iv) the
Class B Servicing Fee for such Distribution Date and (v) any Class B Servicing
Fee previously due but not paid to the Servicer exceeds (B) the Class B
Available Funds and (y) the Class B Investor Default Amount for such
Distribution Date. In the event that the Class B Required Amount for such
Distribution Date exceeds the portion of Excess Spread and Excess Finance
Charges allocated to Series 2002-3 with respect to such Monthly Period and not
used to fund the Class A Required Amount, then a portion of the Reallocated
Principal Collections with respect to such Monthly Period shall be distributed
from the Collection Account on such Distribution Date pursuant to Section
4.08(b).
Section 4.05. Application of Class A Available Funds, Class B
-----------------------------------------------
Available Funds, Collateral Available Funds and Available Investor Principal
- ----------------------------------------------------------------------------
Collections. The Servicer shall apply (if a Seller is the Servicer and the
- -----------
Collection Account is maintained with such Seller) or shall cause the Trustee to
apply, on each Distribution Date, Class A Available Funds, Class B Available
Funds, Collateral Available Funds, and Available Investor Principal Collections
on deposit in the Collection Account with respect to such Distribution Date to
make the following distributions:
(a) On each Distribution Date, an amount equal to the Class A
Available Funds with respect to such Distribution Date will be distributed
in the following priority:
(i) an amount equal to Class A Monthly Interest for such
Distribution Date, plus the amount of any Class A Outstanding Monthly
----
Interest, plus the amount of any Class A Additional Interest for such
----
Distribution Date and any Class A Outstanding
24
Additional Interest, shall be distributed to the Paying Agent with
respect to the Class A Certificates for payment to the Class A
Certificateholders;
(ii) an amount equal to the Class A Servicing Fee for such
Distribution Date, plus the amount of any Class A Servicing Fee
----
previously due but not distributed to the Servicer on a prior
Distribution Date, shall be distributed to the Servicer (unless such
amount has been netted against deposits to the Collection Account in
accordance with Section 4.03 of the Agreement);
(iii) an amount equal to the Class A Investor Default Amount for
such Distribution Date shall be treated as a portion of Available
Investor Principal Collections for such Distribution Date; and
(iv) the balance, if any, shall constitute Excess Spread and
shall be allocated and distributed as set forth in Section 4.07.
(b) On each Distribution Date, an amount equal to the Class B
Available Funds with respect to such Distribution Date will be distributed
in the following priority:
(i) an amount equal to Class B Monthly Interest for such
Distribution Date, plus the amount of any Class B Outstanding Monthly
----
Interest, plus the amount of any Class B Additional Interest for such
----
Distribution Date and any Class B Outstanding Additional Interest,
shall be distributed to the Paying Agent with respect to the Class B
Certificates for payment to the Class B Certificateholders;
(ii) an amount equal to the Class B Servicing Fee for such
Distribution Date, plus the amount of any Class B Servicing Fee
----
previously due but not distributed to the Servicer on a prior
Distribution Date, shall be distributed to the Servicer (unless such
amount has been netted against deposits to the Collection Account in
accordance with Section 4.03 of the Agreement); and
(iii) the balance, if any, shall constitute Excess Spread and
shall be allocated and distributed as set forth in Section 4.07.
(c) On each Distribution Date, an amount equal to the Collateral
Available Funds with respect to such Distribution Date will be distributed
in the following priority:
(i) an amount equal to the Collateral Servicing Fee for such
Distribution Date, plus the amount of any Collateral Servicing Fee
----
previously due but not distributed to the Servicer on a prior
Distribution Date, shall be distributed to the Servicer (unless such
amount has been netted against deposits to the Collection Account in
accordance with Section 4.03 of the Agreement); and
(ii) the balance, if any, shall constitute Excess Spread and
shall be allocated and distributed as set forth in Section 4.07.
25
(d) On each Distribution Date with respect to the Revolving Period, an
amount equal to the Available Investor Principal Collections deposited in
the Collection Account for the related Monthly Period shall be treated as
Shared Principal Collections and applied in accordance with Section 4.04 of
the Agreement.
(e) On each Distribution Date with respect to the Accumulation Period
or the Early Amortization Period, an amount equal to the Available Investor
Principal Collections deposited in the Collection Account for the related
Monthly Period will be distributed in the following priority:
(i) an amount equal to Class A Monthly Principal for such
Distribution Date, up to the Class A Adjusted Invested Amount on such
Distribution Date, shall be deposited in the Principal Funding Account
or, if such Distribution Date is a Special Payment Date on which the
Principal Funding Account Balance is zero, shall be distributed to the
Paying Agent for payment to the Class A Certificateholders;
(ii) after giving effect to paragraph (i) above, an amount equal
to Class B Monthly Principal for such Distribution Date, up to the
Class B Adjusted Invested Amount on such Distribution Date, shall be
deposited in the Principal Funding Account or, if such Distribution
Date is a Special Payment Date on which the Principal Funding Account
Balance is zero, shall be distributed to the Paying Agent for payment
to the Class B Certificateholders;
(iii) after giving effect to paragraphs (i) and (ii) above, an
amount equal to Collateral Monthly Principal for such Distribution
Date, up to the Collateral Adjusted Invested Amount on such
Distribution Date, shall be deposited in the Principal Funding Account
or, if such Distribution Date is a Special Payment Date on which the
Principal Funding Account Balance is zero, shall be distributed to the
Paying Agent for payment to the Collateral Interest Holder; and
(iv) for each Distribution Date, after giving effect to
paragraphs (i), (ii) and (iii) above, an amount equal to the balance,
if any, of such Available Investor Principal Collections then on
deposit in the Collection Account shall be treated as Shared Principal
Collections and applied in accordance with Section 4.04 of the
Agreement.
Section 4.06. Defaulted Amounts; Investor Charge-Offs.
---------------------------------------
(a) On each Determination Date, the Servicer shall calculate the Class
A Investor Default Amount, if any, for the related Distribution Date. If, on any
Distribution Date, the Class A Required Amount for such Distribution Date
exceeds the sum of (x) the amount of Reallocated Principal Collections with
respect to the related Monthly Period and (y) the amount of Excess Spread and
Excess Finance Charges allocable to Series 2002-3 with respect to such Monthly
Period, the Collateral Invested Amount will be reduced by the amount of such
excess, but not by more than the excess of the Class A Investor Default Amount
for the related Distribution Date over the amount of Reallocated Principal
----
Collections and the amount of Excess Spread and Excess Finance Charges used to
fund the Class A Investor Default Amount for such
26
Distribution Date. In the event that such reduction would cause the Collateral
Invested Amount to be a negative number, the Collateral Invested Amount will be
reduced to zero and the Class B Invested Amount shall be reduced by the amount
by which the Collateral Invested Amount would have been reduced below zero, but
not by more than the excess, if any, of the Class A Investor Default Amount for
such Distribution Date over the amount of such reduction, if any, of the
----
Collateral Invested Amount with respect to such Distribution Date and the amount
of Reallocated Principal Collections and the amount of Excess Spread and Excess
Finance Charges used to fund the Class A Investor Default Amount for such
Distribution Date. In the event that such reduction would cause the Class B
Invested Amount to be a negative number, the Class B Invested Amount shall be
reduced to zero, and the Class A Invested Amount shall be reduced by the amount
by which the Class B Invested Amount would have been reduced below zero, but not
by more than the excess, if any, of the Class A Investor Default Amount for such
Distribution Date over the aggregate amount of the reductions, if any, of the
----
Collateral Invested Amount and the Class B Invested Amount for such Distribution
Date and the amount of Reallocated Principal Collections and the amount of
Excess Spread and Excess Finance Charges used to fund the Class A Investor
Default Amount for such Distribution Date (a "Class A Investor Charge-Off").
Class A Investor Charge-Offs shall thereafter be reimbursed and the Class A
Invested Amount increased (but not by an amount in excess of the aggregate
unreimbursed Class A Investor Charge-Offs) on any Distribution Date by the
amount of Excess Spread and Excess Finance Charges allocated and available for
that purpose pursuant to Section 4.07(b).
(b) On each Determination Date, the Servicer shall calculate the Class
B Required Amount, if any, for the related Distribution Date. If, on any
Distribution Date, the Class B Required Amount for such Distribution Date
exceeds the sum of (x) the amount of Excess Spread and Excess Finance Charges
allocated to Series 2002-3 with respect to the related Monthly Period which are
not used to fund the Class A Required Amount and Class A Investor Charge-Offs on
the related Distribution Date and (y) the amount of Reallocated Principal
Collections which are available to fund the Class B Required Amount on such
Distribution Date pursuant to Section 4.08(b), then the Collateral Invested
Amount shall be reduced by the amount of such excess, but not by more than the
excess of the Class B Investor Default Amount for such Distribution Date over
----
the amount of Reallocated Principal Collections and the amount of Excess Spread
and Excess Finance Charges used to fund the Class B Investor Default Amount for
such Distribution Date. In the event that such reduction would cause the
Collateral Invested Amount to be a negative number, the Collateral Invested
Amount shall be reduced to zero, and the Class B Invested Amount shall be
reduced by the amount by which the Collateral Invested Amount would have been
reduced below zero, but not by more than the excess, if any, of the Class B
Investor Default Amount for such Distribution Date over the amount of such
----
reduction, if any, of the Collateral Invested Amount with respect to such
Distribution Date and the amount of Reallocated Principal Collections and the
amount of Excess Spread and Excess Finance Charges used to fund the Class B
Investor Default Amount for such Distribution Date (a "Class B Investor
Charge-Off"). Class B Investor Charge-Offs shall thereafter be reimbursed and
the Class B Invested Amount increased (but not by an amount in excess of the
aggregate unreimbursed Class B Investor Charge-Offs) on any Distribution Date by
the amount of Excess Spread and Excess Finance Charges allocated and available
for that purpose pursuant to Section 4.07(d).
27
(c) If, on any Distribution Date, Reallocated Principal Collections
for the related Monthly Period are applied pursuant to Section 4.08(a) or (b),
the Collateral Invested Amount shall be reduced by the amount of such
Reallocated Principal Collections. In the event that such reduction would cause
the Collateral Invested Amount to be a negative number, the Collateral Invested
Amount shall be reduced to zero, and the Class B Invested Amount shall be
reduced by the amount by which the Collateral Invested Amount would have been
reduced below zero.
(d) If, on any Distribution Date, the Collateral Investor Default
Amount exceeds the amount of Excess Spread and Excess Finance Charges available
to fund the Collateral Investor Default Amount pursuant to Section 4.07(g) on
such Distribution Date, then the Collateral Invested Amount shall be reduced by
the amount of such excess; provided, however, that the Collateral Invested
-------- -------
Amount shall not be reduced below zero.
Section 4.07. Excess Spread; Excess Finance Charges. The Servicer
-------------------------------------
shall apply (if the Seller is the Servicer and the Collection Account is
maintained with the Seller) or shall cause the Trustee to apply, on each
Distribution Date, Excess Spread and Excess Finance Charges allocated to Series
2002-3 with respect to the related Monthly Period, to make the following
distributions in the following priority:
(a) an amount equal to the Class A Required Amount, if any, with
respect to such Distribution Date shall be distributed by the Trustee to
fund any deficiency pursuant to Sections 4.05(a)(i), (ii) and (iii);
provided that in the event the Class A Required Amount for such
--------
Distribution Date exceeds the amount of Excess Spread and Excess Finance
Charges allocated to Series 2002-3, such Excess Spread and Excess Finance
Charges shall be applied first to pay amounts due with respect to such
Distribution Date pursuant to Section 4.05(a)(i), second to pay the Class A
Servicing Fee pursuant to Section 4.05(a)(ii) and third to pay the Class A
Investor Default Amount for such Distribution Date pursuant to Section
4.05(a)(iii);
(b) an amount equal to the aggregate amount of Class A Investor
Charge-Offs which have not been previously reimbursed as provided in
Section 4.06(a) (after giving effect to the allocation on such Distribution
Date of any amount for that purpose pursuant to Section 4.06(a)) shall be
treated as a portion of Available Investor Principal Collections for such
Distribution Date;
(c) an amount equal to the Class B Required Amount, if any, with
respect to such Distribution Date shall be distributed by the Trustee (I)
to fund any deficiency pursuant to Sections 4.05(b)(i) and (ii) and (II)
for application, up to the Class B Investor Default Amount, as a portion of
Available Investor Principal Collections for such Distribution Date;
provided that in the event the Class B Required Amount for such
--------
Distribution Date exceeds the amount of Excess Spread and Excess Finance
Charges allocated to Series 2002-3 and available to pay such amount
pursuant to this clause (c), such Excess Spread and Excess Finance Charges
shall be applied first to pay amounts due with respect to such Distribution
Date pursuant to Section 4.05(b)(i), second to pay the Class B Servicing
Fee pursuant to Section 4.05(b)(ii) and third as a portion of Available
Investor Principal Collections for such Distribution Date pursuant to
clause (II) above;
28
(d) an amount equal to the aggregate amount by which the Class B
Invested Amount has been reduced pursuant to clauses (c), (d) and (e) of
the definition of "Class B Invested Amount" in Section 2.01 of this
Supplement (but not in excess of the aggregate amount of such reductions
which have not been previously reimbursed) shall be treated as a portion of
Available Investor Principal Collections for such Distribution Date;
(e) an amount equal to the sum of Collateral Minimum Monthly Interest
for such Distribution Date, plus the amount of any Collateral Outstanding
----
Monthly Interest, plus the amount of any Collateral Additional Interest for
----
such Distribution Date and any Collateral Outstanding Additional Interest
shall be distributed to the Collateral Interest Holder;
(f) an amount equal to the Collateral Servicing Fee due but not paid
to the Servicer either on such Distribution Date or a prior Distribution
Date shall be paid to the Servicer;
(g) an amount equal to the Collateral Investor Default Amount for such
Distribution Date shall be treated as a portion of Available Investor
Principal Collections with respect to such Distribution Date;
(h) an amount equal to the aggregate amount by which the Collateral
Invested Amount has been reduced pursuant to clause (c) of the definition
of "Collateral Invested Amount" (but not in excess of the aggregate amount
of such reductions which have not been previously reimbursed) shall be
treated as a portion of Available Investor Principal Collections with
respect to such Distribution Date;
(i) on each Distribution Date from and after the Reserve Account
Funding Date, but prior to the date on which the Reserve Account terminates
as described in Section 4.11(f), an amount up to the excess, if any, of the
Required Reserve Account Amount over the Available Reserve Account Amount
----
shall be deposited into the Reserve Account; and
(j) the balance, if any, will be distributed to the Collateral
Interest Holder.
Section 4.08. Reallocated Principal Collections. The Servicer shall
---------------------------------
apply (if a Seller is the Servicer and the Collection Account is maintained with
such Seller) or shall cause the Trustee to apply on each Distribution Date
Reallocated Principal Collections (applying all such Collections with respect to
the Collateral Invested Amount prior to applying any such Collections with
respect to the Class B Invested Amount and applying no such Collections with
respect to the Class B Invested Amount pursuant to clause (b) below) with
respect to such Distribution Date, to make the following distributions in the
following priority:
(a) an amount equal to the excess, if any, of (i) the Class A Required
Amount, if any, with respect to such Distribution Date over (ii) the amount
----
of Excess Spread and Excess Finance Charges allocated to Series 2002-3 with
respect to the related Monthly Period, shall be distributed by the Trustee
to fund any deficiency pursuant to Sections
29
4.05(a)(i), (ii), (iii) and (iv); provided that, in the event the Class A
--------
Required Amount for such Distribution Date exceeds the sum of the amount of
Excess Spread and Excess Finance Charges allocated to Series 2002-3 and the
amount of Reallocated Principal Collections for the related Monthly Period,
such Excess Spread and Excess Finance Charges allocated to Series 2002-3
and Reallocated Principal Collections shall be applied first to pay amounts
due with respect to such Distribution Date pursuant to Section 4.05(a)(i),
second to pay the Class A Servicing Fee pursuant to Section 4.05(a)(ii) and
third to pay the Class A Investor Default Amount for such Distribution Date
pursuant to Section 4.05(a)(iii);
(b) an amount equal to the excess, if any, of (i) the Class B Required
Amount, if any, with respect to such Distribution Date over (ii) the amount
----
of Excess Spread and Excess Finance Charges to be allocated and available
to the holders of the Class B Certificates pursuant to Section 4.07(c) on
such Distribution Date, shall be distributed by the Trustee to fund any
deficiency pursuant to Sections 4.05(b)(i) and (ii) and Section
4.07(c)(II); provided that, in the event the Class B Required Amount for
--------
such Distribution Date exceeds the sum of the amount of Excess Spread and
Excess Finance Charges to be allocated to the holders of the Class B
Certificates on such Distribution Date and the amount of Reallocated
Principal Collections (other than Reallocated Principal Collections
distributed pursuant to clause (a) above) for the related Monthly Period,
such Excess Spread and Excess Finance Charges and such Reallocated
Principal Collections shall be applied first to pay the amounts due with
respect to such Distribution Date pursuant to Section 4.05(b)(i), second to
pay the Class B Servicing Fee pursuant to Section 4.05(b)(ii) and third to
apply any remaining amount as a portion of Available Investor Principal
Collections for such Distribution Date pursuant to Section 4.07(c)(II); and
(c) the balance, if any, of such Reallocated Principal Collections
shall be treated as a portion of Available Investor Principal Collections
to be applied in accordance with Sections 4.05(d) and (e).
Section 4.09. Excess Finance Charges. Series 2002-3 shall be included
----------------------
in Group One. Subject to Section 4.05 of the Agreement, Excess Finance Charges
with respect to the Series in Group One for any Distribution Date will be
allocated to Series 2002-3 in an amount equal to the product of (x) the
aggregate amount of Excess Finance Charges with respect to all the Series in
Group One for such Distribution Date and (y) a fraction, the numerator of which
is the Finance Charge Shortfall for Series 2002-3 for such Distribution Date and
the denominator of which is the aggregate amount of Finance Charge Shortfalls
for all the Series in Group One for such Distribution Date. The amount of Excess
Finance Charges for Series 2002-3 for any Distribution Date shall be specified
in subsection 3.02(a)(v) of the Transfer Agreement. On each Distribution Date,
the Trustee shall deposit into the Collection Account for application in
accordance with Section 4.05 of the Agreement the aggregate amount of "Excess
Finance Charges" received by the Trustee pursuant to the Transfer Agreement on
such date. The "Finance Charge Shortfall" for Series 2002-3 for any Distribution
Datewill be equal to the excess, if any, of (a) the full amount required to be
paid, without duplication, pursuant to Sections 4.05(a), 4.05(b) and 4.05(c) and
Sections 4.07(a) through (i) on such Distribution Date
30
over (b) the sum of (i) Class A Available Funds, (ii) Class B Available Funds
- ----
and (iii) Collateral Available Funds, each with respect to the related Monthly
Period.
Section 4.10. Shared Principal Collections. Subject to Section 4.04 of
----------------------------
the Agreement, Shared Principal Collections for any Distribution Date will be
allocated to Series 2002-3 in an amount equal to the product of (x) the
aggregate amount of Shared Principal Collections with respect to all Series for
such Distribution Date and (y) a fraction, the numerator of which is the
Principal Shortfall for Series 2002-3 for such Distribution Date and the
denominator of which is the aggregate amount of Principal Shortfalls for all the
Series which are Principal Sharing Series for such Distribution Date. The
"Principal Shortfall" for Series 2002-3 will be equal to (a) for any
Distribution Date with respect to the Revolving Period, zero, (b) for any
Distribution Date with respect to the Accumulation Period, the excess, if any,
of the Controlled Deposit Amount with respect to such Distribution Date, over
----
the amount of Available Investor Principal Collections for such Distribution
Date (excluding any portion thereof attributable to Shared Principal
Collections) and (c) for any Distribution Date with respect to the Early
Amortization Period, the excess, if any, of the Invested Amount over the amount
----
of Available Investor Principal Collections for such Distribution Date
(excluding any portion thereof attributable to Shared Principal Collections).
Section 4.11. Reserve Account.
---------------
(a) The Servicer shall establish and maintain, in the name of the
Trustee, on behalf of the Trust, for the benefit of the Series 2002-3 Holders,
an Eligible Deposit Account (the "Reserve Account") bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Series 2002-3 Holders. The Reserve Account shall initially be established
with The Bank of New York. The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Reserve Account and in
all proceeds thereof. The Reserve Account shall be under the sole dominion and
control of the Trustee for the benefit of the Series 2002-3 Holders. If at any
time the Reserve Account ceases to be an Eligible Deposit Account, the Trustee
(or the Servicer on its behalf) shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency may
consent) establish a new Reserve Account meeting the conditions specified above
as an Eligible Deposit Account, and shall transfer any cash and/or any
investments to such new Reserve Account. The Trustee, at the direction of the
Servicer, shall (i) make withdrawals from the Reserve Account from time to time
in an amount up to the Available Reserve Account Amount at such time, for the
purposes set forth in this Supplement, and (ii) on each Distribution Date (from
and after the Reserve Account Funding Date) prior to the termination of the
Reserve Account make a deposit into the Reserve Account in the amount specified
in, and otherwise in accordance with, Section 4.07(i).
(b) Funds on deposit in the Reserve Account shall be invested at the
direction of the Servicer by the Trustee in Eligible Investments. Funds on
deposit in the Reserve Account on any Transfer Date, after giving effect to any
withdrawals from the Reserve Account on such Transfer Date, shall be invested in
such investments that will mature so that such funds will be available for
withdrawal on or prior to the following Transfer Date. The Trustee shall (i)
hold each Eligible Investment that constitutes investment property through a
securities intermediary, which securities intermediary shall agree with the
Trustee that (A) such investment property shall at all times be credited to a
securities account of the Trustee, (B) such securities
31
intermediary shall treat the Trustee as entitled to exercise the rights that
comprise each financial asset credited to such securities account, (C) all
property credited to such securities account shall be treated as a financial
asset, (D) such securities intermediary shall comply with entitlement orders
originated by the Trustee without the further consent of any other person or
entity, (E) such securities intermediary shall not agree with any person or
entity other than the Trustee to comply with entitlement orders originated by
such other person or entity, (F) such securities intermediary waives any lien
on, security interest in, or right of set-off with respect to any property
credited to such securities account, and (G) such agreement shall be governed by
the laws of the State of New York; and (ii) maintain possession of each other
Eligible Investment not described in clause (i) above in the State of New York.
Terms used in clause (i) above that are defined in the New York UCC and not
otherwise defined herein shall have the meaning set forth in the New York UCC.
No Eligible Investment shall be disposed of prior to its maturity. 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 Reserve Account shall be retained in the Reserve Account (to the extent that
the Available Reserve Account Amount is less than the Required Reserve Account
Amount) and the balance, if any, shall be deposited in the Collection Account
and treated as Collections of Finance Charge Receivables allocable to Series
2002-3. For purposes of determining the availability of funds or the balance in
the Reserve Account for any reason under this Supplement, except as otherwise
provided in the preceding sentence, investment earnings on such funds shall be
deemed not to be available or on deposit.
(c) On the Determination Date preceding each Distribution Date with
respect to the Accumulation Period and the first Special Payment Date, the
Servicer shall calculate the "Reserve Draw Amount" which shall be equal to the
sum of the excesses, if any, identified in subsections 4.11(d)(i), (ii) and
(iii); provided that such amount will be reduced to the extent that funds
--------
otherwise would be available for deposit in the Reserve Account under Section
4.07(i) with respect to such Distribution Date or Special Payment Date.
(d) In the event that for any Distribution Date the Reserve Draw
Amount is greater than zero, the Reserve Draw Amount, up to the Available
Reserve Account Amount, shall be withdrawn from the Reserve Account on the
related Distribution Date by the Trustee (acting in accordance with the
instructions of the Servicer), deposited into the Collection Account and applied
in the following priority:
(i) an amount up to the excess, if any, of (x) an amount equal to that
portion of the Covered Amount computed pursuant to clause (a) of the
definition of Covered Amount over (y) an amount equal to that portion of
the Class A Available Funds computed pursuant to clause (a) of the
definition of Class A Available Funds shall be included as Class A
Available Funds; and
(ii) an amount up to the excess, if any, of (x) an amount equal to
that portion of the Covered Amount computed pursuant to clause (b) of the
definition of Covered Amount over (y) an amount equal to that portion of
the Class B Available Funds computed pursuant to clause (a) of the
definition of Class B Available Funds shall be treated as Class B Available
Funds; and
32
(iii) on and after the Distribution Date on which the Principal
Funding Account Balance equals the sum of the Class A Invested Amount and
the Class B Invested Amount, an amount up to the excess, if any, of (x) an
amount equal to that portion of the Covered Amount computed pursuant to
clause (c) of the definition of Covered Amount over (y) an amount equal to
the aggregate amount of Excess Spread and Excess Finance Charge Collections
allocated to Series 2002-3 with respect to such Distribution Date or
Special Payment Date available after application in accordance with
subsections 4.07(a) through (d) shall be distributed to the Collateral
Interest Holder.
(e) In the event that the Reserve Account Surplus on any Distribution
Date, after giving effect to all deposits to and withdrawals from the Reserve
Account with respect to such Distribution Date, is greater than zero, the
Trustee, acting in accordance with the instructions of the Servicer, shall
withdraw from the Reserve Account, and distribute to the Collateral Interest
Holder, an amount equal to such Reserve Account Surplus.
(f) Upon the earliest to occur of (i) the termination of the Trust
pursuant to Article XII of the Agreement, (ii) the day on which the Invested
Amount is paid in full to the Class A Certificateholders, the Class B
Certificateholders and the Collateral Interest Holder, (iii) if the Accumulation
Period has not commenced, the occurrence of a Pay Out Event with respect to
Series 2002-3 and (iv) if the Accumulation Period has commenced, the earlier of
the first Special Payment Date and the Expected Final Payment Date, the Trustee,
acting in accordance with the instructions of the Servicer, after the prior
payment of all amounts owing to the Series 2002-3 Certificateholders which are
payable from the Reserve Account as provided herein, shall withdraw from the
Reserve Account and distribute to the Collateral Interest Holder all amounts, if
any, on deposit in the Reserve Account and the Reserve Account shall be deemed
to have terminated for purposes of this Supplement.
33
ARTICLE V
Distributions and Reports to Series 2002-3 Certificateholders
-------------------------------------------------------------
Section 5.01. Distributions.
-------------
(a) On each Payment Date, the Paying Agent shall distribute to each
Class A Certificateholder of record on the related Record Date (other than as
provided in Section 12.02 of the Agreement) such Class A Certificateholder's pro
---
rata share of the amounts that are allocated and available on such Payment Date
- ----
to pay interest on the Class A Certificates pursuant to this Supplement.
(b) On each Special Payment Date and on the Expected Final Payment
Date, the Paying Agent shall distribute to each Class A Certificateholder of
record on the related Record Date (other than as provided in Section 12.02 of
the Agreement) such Class A Certificateholder's pro rata share of the amounts on
--------
deposit in the Principal Funding Account (in an amount not to exceed the Class A
Invested Amount) or otherwise held by the Paying Agent and which are allocated
and available on such date to pay principal of the Class A Certificates pursuant
to this Supplement up to a maximum amount on any such date equal to the Class A
Invested Amount on such date (unless there has been an optional repurchase of
the Certificateholders' Interest with respect to Series 2002-3 pursuant to
Section 10.01 of the Agreement, in which event the foregoing limitation will not
apply).
(c) On each Payment Date, the Paying Agent shall distribute to each
Class B Certificateholder of record on the related Record Date (other than as
provided in Section 12.02 of the Agreement) such Class B Certificateholder's pro
---
rata share of the amounts that are allocated and available on such Payment Date
- ----
to pay interest on the Class B Certificates pursuant to this Supplement.
(d) On each Special Payment Date, if any, commencing on the first
Special Payment Date on which the Class A Invested Amount is paid in full and on
the Expected Final Payment Date, the Paying Agent shall distribute to each Class
B Certificateholder of record on the related Record Date (other than as provided
in Section 12.02 of the Agreement) such Class B Certificateholder's pro rata
--------
share of the amounts on deposit in the Principal Funding Account in excess of
the Class A Invested Amount (in an amount not to exceed the Class B Invested
Amount) or otherwise held by the Paying Agent and which are allocated and
available on such date to pay principal of the Class B Certificates pursuant to
this Supplement up to a maximum amount on any such date equal to the Class B
Invested Amount on such date (unless there has been an optional repurchase of
the Certificateholders' Interest with respect to Series 2002-3 pursuant to
Section 10.01 of the Agreement, in which event the foregoing limitation will not
apply).
(e) On each Payment Date, the Paying Agent shall distribute to each
Collateral Interest Holder of record on the related Record Date (other than as
provided in Section 12.02 of the Agreement) such Collateral Interest Holder's
pro rata share of the amounts that are
- --------
34
allocated and available on such Payment Date to pay interest on the Collateral
Interest pursuant to this Supplement.
(f) On each Special Payment Date, if any, commencing on the first
Special Payment Date on which the Class B Invested Amount is paid in full and on
the Expected Final Payment Date, the Paying Agent shall distribute to each
Collateral Interest Holder of record on the related Record Date such Collateral
Interest Holder's pro rata share of the amounts on deposit in the Principal
--------
Funding Account in excess of the sum of the Class A Invested Amount and the
Class B Invested Amount (in an amount not to exceed the Collateral Invested
Amount), held by the Paying Agent or otherwise allocated and available on such
date to pay principal of the Collateral Interest pursuant to this Supplement up
to a maximum amount on any such date equal to the Collateral Invested Amount
(unless there has been an optional repurchase of the Certificateholders'
Interest with respect to Series 2002-3 pursuant to Section 10.01 of the
Agreement, in which event the foregoing limitation will not apply).
(g) The distributions to be made pursuant to this Section 5.01 are
subject to the provisions of Sections 2.06, 9.02, 10.01 and 12.02 of the
Agreement and Sections 8.01 and 8.02 of this Supplement.
(h) Except as provided in Section 12.02 of the Agreement with respect
to a final distribution, distributions to each Series 2002-3 Certificateholder
hereunder shall be made by check mailed to each Series 2002-3 Certificateholder
at such Series 2002-3 Certificateholder's address appearing in the Certificate
Register without presentation or surrender of any Series 2002-3 Certificate or
the making of any notation thereon; provided, however, that with respect to the
-------- -------
Series 2002-3 Certificates registered in the name of a Clearing Agency, such
distributions shall be made to such Clearing Agency in immediately available
funds. Distributions to each Collateral Interest Holder hereunder shall be made
(i) by wire transfer in same day funds to an account at a bank or other
depository institution located within the United States as shall have been
designated by such Collateral Interest Holder by notice in writing on or before
the related Payment Date or (ii) in the absence of such designation, by check
mailed to each Collateral Interest Holder at the address appearing in the
Transfer Agreement.
Section 5.02. Reports and Statements to Series 2002-3
---------------------------------------
Certificateholders.
- ------------------
(a) On each Distribution Date, the Paying Agent, on behalf of the
Trustee, shall make available for inspection upon request to each Series 2002-3
Holder free of charge at the office of such Paying Agent a statement
substantially in the form of Exhibit C prepared by the Servicer for a period of
six months commencing on such Distribution Date.
(b) Not later than each Determination Date, the Servicer shall deliver
to the Trustee, the Paying Agent and each Rating Agency (i) a statement
substantially in the form of Exhibit B prepared by the Servicer and (ii) a
certificate of a Servicing Officer substantially in the form of Exhibit C.
(c) On or before January 31 of each calendar year, beginning with the
calendar year next succeeding the Closing Date, the Paying Agent, on behalf of
the Trustee, shall make available for inspection upon request to each Person who
at any time during the preceding
35
calendar year was a Series 2002-3 Holder free of charge at the office of such
Paying Agents, a statement prepared by the Servicer containing the information
which is required to be contained in the statement to Series 2002-3 Holders, as
set forth in paragraph (a) or (b) above, as applicable, aggregated for such
calendar year or the applicable portion thereof during which such Person was a
Series 2002-3 Holder, together with other information as is required to be
provided by an issuer of indebtedness under the Internal Revenue Code for a
period of eighteen months commencing on February 1 of such calendar year. Such
obligation of the Servicer shall be deemed to have been satisfied to the extent
that substantially comparable information shall be made available for inspection
by the Paying Agent pursuant to any requirements of the Internal Revenue Code as
from time to time in effect.
ARTICLE VI
Additional Pay Out Events
-------------------------
Section 6.01. Additional Pay Out Events. If any one of the following
-------------------------
events shall occur with respect to the Series 2002-3 Certificates:
(a) failure on the part of a Seller (i) to make any payment or deposit
required by the terms of the Agreement or this Supplement on or before the date
occurring five Business Days after the date such payment or deposit is required
to be made therein or herein or (ii) duly to observe or perform any other
covenants or agreements of such Seller set forth in the Agreement or this
Supplement (including the covenants of the Seller contained in Article IX of
this Supplement), which failure has a material adverse effect on the Series
2002-3 Holders and which continues unremedied for a period of 60 days after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Sellers by the Trustee, or to the Sellers and the
Trustee by any Series 2002-3 Holder;
(b) any representation or warranty made by a Seller in the Agreement
or this Supplement, or any information contained in a computer file or
microfiche list required to be delivered by a Seller pursuant to Section 2.01 or
2.08(g) of the Agreement shall prove to have been incorrect in any material
respect when made or when delivered, which continues to be incorrect in any
material respect for a period of 60 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given to the
Sellers by the Trustee, or to the Sellers and the Trustee by any Holder of the
Series 2002-3 Interests and as a result of which the interests of the Series
2002-3 Holders are materially and adversely affected and continue to be
materially and adversely affected for such period; provided, however, that a Pay
-------- -------
Out Event pursuant to this Section 6.01(b) shall not be deemed to have occurred
hereunder if the Seller has accepted reassignment of the related Receivable, or
all of such Receivables, if applicable, during such period in accordance with
the provisions of the Agreement;
(c) a failure by a Seller to convey Receivables in Additional Accounts
or Participation Interests to the Trust within five Business Days after the day
on which it is required to convey such Receivables or Participation Interests
pursuant to Section 2.08(a) of the Agreement or Section 9.02 of this Supplement;
36
(d) any Servicer Default shall occur;
(e) a Transfer Restriction Event shall occur;
(f) the average Portfolio Yield for any three consecutive Monthly
Periods is reduced to a rate which is less than the average Base Rate for such
three Monthly Periods; or
(g) the Invested Amount shall not be paid in full on the Expected
Final Payment Date;
then, in the case of any event described in subparagraph (a), (b) or (d), after
the applicable grace period, if any, set forth in such subparagraphs, either the
Trustee or the holders of Investor Certificates (including the Collateral
Interest Holder) of Series 2002-3 evidencing more than 50% of the aggregate
unpaid principal amount of Investor Certificates (including the Collateral
Interest ) by notice then given in writing to the Sellers and the Servicer (and
to the Trustee if given by the holders of Investor Certificates (including the
Collateral Interest Holder) of Series 2002-3) may declare that a Pay Out Event
has occurred with respect to Series 2002-3 as of the date of such notice, and,
in the case of any event described in subparagraph (c), (e), (f) or (g) a Pay
Out Event shall occur with respect to Series 2002-3 without any notice or other
action on the part of the Trustee or holders of Investor Certificates (including
the Collateral Interest Holder) of Series 2002-3 immediately upon the occurrence
of such event.
ARTICLE VII
Optional Repurchase; Series Termination
---------------------------------------
Section 7.01. Optional Repurchase.
-------------------
(a) On any day occurring on or after the date on which the Invested
Amount is reduced to 5% or less of the Initial Invested Amount, a Seller (so
long as such Seller is the Servicer or an Affiliate thereof) shall have the
option to purchase the interest of the Series 2002-3 Holders, at a purchase
price equal to (i) if such day is a Distribution Date, the Reassignment Amount
for such Distribution Date or (ii) if such day is not a Distribution Date, the
Reassignment Amount for the Distribution Date following such day.
(b) Such Seller shall give the Servicer and the Trustee at least 30
days prior written notice of the date on which such Seller intends to exercise
such purchase option. Not later than 12:00 noon, Richmond time, on such day that
Seller shall deposit the Reassignment Amount into the Collection Account in
immediately available funds. Such purchase option is subject to payment in full
of the Reassignment Amount. Following the deposit of the Reassignment Amount
into the Collection Account in accordance with the foregoing, the Invested
Amount for Series 2002-3 shall be reduced to zero and the Series 2002-3
Certificateholders and the Collateral Interest Holder shall have no further
interest in the Receivables. The Reassignment Amount shall be distributed as set
forth in Section 8.01(b).
37
Section 7.02. Series Termination
------------------
(a) If, on the December 2007 Distribution Date, the Invested Amount
(after giving effect to all changes therein on such Distribution Date) would be
greater than zero, the Servicer, on behalf of the Trustee, shall, within the
40-day period which begins on such Distribution Date, solicit bids for the sale
of Principal Receivables and the related Finance Charge Receivables (or
interests therein) in an amount equal to the Invested Amount at the close of
business on the last day of the Monthly Period preceding the Termination Date
(after giving effect to all distributions required to be made on the Termination
Date, except pursuant to this Section 7.02). Such bids shall require that such
sale shall (subject to Section 7.02(b)) occur on the Termination Date.
(b) The Servicer, on behalf of the Trustee, shall sell such
Receivables (or interests therein) on the Termination Date to the bidder who
made the highest cash purchase offer. The proceeds of any such sale shall be
deposited in the Collection Account and treated as Collections on the
Receivables allocated to the Series 2002-3 Holders pursuant to the Agreement and
this Supplement; provided, however, that the Servicer shall determine
-------- -------
conclusively the amount of such proceeds which are allocable to Finance Charge
Receivables and the amount of such proceeds which are allocable to Principal
Receivables. During the period from the December 2007 Distribution Date to the
Termination Date, the Servicer shall continue to collect payments on the
Receivables and allocate and deposit such collections in accordance with the
provisions of the Agreement and the Supplements.
ARTICLE VIII
Final Distributions
-------------------
Section 8.01. Sale of Receivables or Certificateholders' Interest
---------------------------------------------------
pursuant to Section 2.06 or 10.01 of the Agreement.
- --------------------------------------------------
(a) Purchase Price. (i) The amount to be paid by a Seller with respect
--------------
to Series 2002-3 in connection with a reassignment of Receivables to such
Seller pursuant to Section 2.06 of the Agreement shall equal the
Reassignment Amount for the first Distribution Date following the Monthly
Period in which the reassignment obligation arises under the Agreement.
(ii) The amount to be paid by a Seller with respect to Series 2002-3
in connection with a repurchase of the Certificateholders' Interest
pursuant to Section 10.01 of the Agreement shall equal the sum of (x) the
Reassignment Amount for the Distribution Date of such repurchase and (y)
the sum of (A) the excess, if any, of (I) a price equivalent to the average
of bids quoted on the Record Date preceding the date of repurchase (or, if
not a Business Day, on the next succeeding Business Day) by at least two
recognized dealers selected by the Trustee at the written direction of the
Servicer, for the purchase by such dealers of a security which is similar
to the Class A Certificates with a remaining maturity approximately equal
to the remaining maturity of the Class A Certificates and rated by each
Rating Agency in the rating category originally assigned to the Class A
Certificates over (II) the portion of the Reassignment Amount attributable
----
to
38
the Class A Certificates, (B) the excess, if any, of (I) a price equivalent
to the average of bids quoted on such Record Date or, if not a Business
Day, on the next succeeding Business Day by at least two recognized dealers
selected by the Trustee at the written direction of the Servicer, for the
purchase by such dealers of a security which is similar to the Class B
Certificates with a remaining maturity approximately equal to the remaining
maturity of the Class B Certificates and rated by each Rating Agency in the
rating category originally assigned to the Class B Certificates over (II)
----
the portion of the Reassignment Amount attributable to the Class B
Certificates and (C) the excess, if any, of (I) a price equivalent to the
average of bids quoted on such Record Date or, if not a Business Day, on
the next succeeding Business Day by at least two recognized dealers
selected by the Trustee at the written direction of the Servicer, for the
purchase by such dealers of a security which is similar to the Notes (as
defined in the Transfer Agreement) with a remaining maturity approximately
equal to the remaining maturity of the Notes and rated by each rating
agency selected to rate the Notes in the rating category originally
assigned to the Notes over (II) the portion of the Reassignment Amount
attributable to the Collateral Interest.
(b) Distributions Pursuant to Section 7.01 or 7.02 of this Supplement
-----------------------------------------------------------------
and Section 10.01 of the Agreement. With respect to the Reassignment Amount
- ----------------------------------
deposited into the Collection Account pursuant to Section 7.01 or 8.01(a)(ii) or
any amounts allocable to the Series 2002-3 Certificateholders' Interest
deposited into the Collection Account pursuant to Section 7.02, the Trustee
shall, not later than 12:00 noon, Richmond time, on the related Distribution
Date, make deposits or distributions of the following amounts (in the priority
set forth below and, in each case, after giving effect to any deposits and
distributions otherwise to be made on such date) in immediately available funds:
(i) (x) the Class A Invested Amount on such Distribution Date will be
distributed to the Paying Agent for payment to the Class A Certificateholders
and (y) an amount equal to the sum of (A) Class A Monthly Interest for such
Distribution Date, (B) any Class A Outstanding Monthly Interest and (C) the
amount of Class A Additional Interest, if any, for such Distribution Date and
any Class A Outstanding Additional Interest, will be distributed to the Paying
Agent for payment to the Class A Certificateholders, (ii) (x) the Class B
Invested Amount on such Distribution Date will be distributed to the Paying
Agent for payment to the Class B Certificateholders and (y) an amount equal to
the sum of (A) Class B Monthly Interest for such Distribution Date, (B) any
Class B Outstanding Monthly Interest and (C) the amount of Class B Additional
Interest, if any, for such Distribution Date and any Class B Outstanding
Additional Interest, will be distributed to the Paying Agent for payment to the
Class B Certificateholders and (iii) any remaining amounts will be distributed
to the Paying Agent for payment to the Collateral Interest Holder.
Notwithstanding anything to the contrary contained in this Supplement or the
Agreement, the amount of any excess determined pursuant to paragraph (a)(ii)(y)
shall be distributed to the Series 2002-3 Certificateholders.
(c) Distributions Pursuant to Section 2.06 of the Agreement. With
-------------------------------------------------------
respect to any amounts deposited into the Collection Account pursuant to Section
8.01(a)(i), the Trustee shall, not later than 12:00 noon, Richmond time, on the
related Distribution Date, deposit the principal portion of such amounts that
are allocable to the Series 2002-3 Holders into the Principal Funding Account.
39
(d) Notwithstanding anything to the contrary in this Supplement or the
Agreement, all amounts distributed to the Paying Agent pursuant to Section
8.01(b) for payment to the Series 2002-3 Holders shall be deemed distributed in
full to the Series 2002-3 Holders on the date on which such funds are
distributed to the Paying Agent pursuant to this Section and shall be deemed to
be a final distribution pursuant to Section 12.02 of the Agreement.
Section 8.02. Distribution of Proceeds of Sale, Disposition or
------------------------------------------------
Liquidation of the Receivables pursuant to Section 9.02 of the Agreement.
- ------------------------------------------------------------------------
(a) Not later than 12:00 noon, Richmond time, on the Distribution Date
following the date on which the Insolvency Proceeds are deposited into the
Collection Account pursuant to Section 9.02(b) of the Agreement, the Trustee
shall (in the following priority and, in each case, after giving effect to any
deposits and distributions otherwise to be made on such Distribution Date) (i)
deduct an amount equal to the Class A Invested Amount on such Distribution Date
from the portion of the Insolvency Proceeds allocated to Collections of
Principal Receivables and distribute such amount to the Paying Agent for payment
to the Class A Certificateholders, provided that the amount of such distribution
shall not exceed the product of (x) the portion of the Insolvency Proceeds
allocated to Collections of Principal Receivables and (y) the Principal
Allocation Percentage with respect to the related Monthly Period and (ii) deduct
an amount equal to the Class B Invested Amount on such Distribution Date from
the portion of the Insolvency Proceeds allocated to Collections of Principal
Receivables and distribute such amount to the Paying Agent for payment to the
Class B Certificateholders, provided that the amount of such distribution shall
not exceed (x) the product of (A) the portion of such Insolvency Proceeds
allocated to Collections of Principal Receivables and (B) the Principal
Allocation Percentage with respect to the related Monthly Period minus (y) the
-----
amount distributed to the Paying Agent pursuant to clause (i) of this sentence.
To the extent that the product of (A) the portion of the Insolvency Proceeds
allocated to Collections of Principal Receivables and (B) the Principal
Allocation Percentage with respect to the related Monthly Period exceeds the
aggregate amounts distributed to the Paying Agent pursuant to the preceding
sentence, the excess shall be distributed to the Paying Agent for payment to the
Collateral Interest Holder on such Distribution Date.
(b) Not later than 12:00 noon, Richmond time, on such Distribution
Date, the Trustee shall (in the following priority and, in each case, after
giving effect to any deposits and distributions otherwise to be made on such
Distribution Date) (i) deduct an amount equal to the sum of (w) Class A Monthly
Interest for such Distribution Date, (x) any Class A Outstanding Monthly
Interest and (y) the amount of Class A Additional Interest, if any, for such
Distribution Date and any Class A Outstanding Additional Interest, from the
portion of the Insolvency Proceeds allocated to Collections of Finance Charge
Receivables and distribute such amount to the Paying Agent for payment to the
Class A Certificateholders, provided that the amount of such distribution shall
not exceed the product of (A) the portion of the Insolvency Proceeds allocated
to Collections of Finance Charge Receivables, (B) the Floating Allocation
Percentage with respect to the related Monthly Period and (C) the Class A
Floating Percentage with respect to such Monthly Period and (ii) deduct an
amount equal to the sum of (w) Class B Monthly Interest for such Distribution
Date, (x) Class B Outstanding Monthly Interest and (y) the amount of Class B
Additional Interest, if any, for such Distribution Date and any Class B
Outstanding Additional Interest, from the portion of the Insolvency Proceeds
allocated to Collections of
40
Finance Charge Receivables and distribute such amount to the Paying Agent for
payment to the Class B Certificateholders, provided that the amount of such
distribution shall not exceed the product of (A) the portion of the Insolvency
Proceeds allocated to Collections of Finance Charge Receivables, (B) the
Floating Allocation Percentage with respect to the related Monthly Period and
(C) the Class B Floating Percentage with respect to such Monthly Period. To the
extent that the product of (x) the portion of the Insolvency Proceeds allocated
to Collections of Finance Charge Receivables and (y) the Floating Allocation
Percentage with respect to the related Monthly Period exceeds the aggregate
amount distributed to the Paying Agent pursuant to the preceding sentence, the
excess shall be distributed to the Paying Agent for payment to the Collateral
Interest Holder on such Distribution Date.
(c) Notwithstanding anything to the contrary in this Supplement or the
Agreement, all amounts distributed to the Paying Agent pursuant to this Section
for payment to the Series 2002-3 Holders shall be distributed in full to the
Series 2002-3 Holders on the date on which funds are distributed to the
applicable Paying Agents pursuant to this Section and shall be deemed to be a
final distribution pursuant to Section 12.02 of the Agreement.
(d) Notwithstanding any provision of the Agreement or this Supplement,
for purposes of Section 9.02(a) of the Agreement, the Holders of the Series
2002-3 Certificates shall not be deemed to have disapproved a liquidation of the
Receivables following an Insolvency Event with respect to the Seller unless (i)
holders of more than 50% of the aggregate unpaid principal amount of each of the
Class A Certificates and the Class B Certificates and (ii) beneficial owners of
more than 50% of the Collateral Interest shall have disapproved of such
liquidation.
ARTICLE IX
New Issuances
-------------
Section 9.01. New Issuances. The obligation of the Trustee to
-------------
authenticate the Investor Certificates of a new Series and to execute and
deliver the related Supplement shall be subject to the conditions set forth in
Section 6.03(b) of the Agreement and to the additional condition that, as of the
Series Issuance Date and after giving effect to such issuance, the aggregate
amount of Principal Receivables equals or exceeds the Required Principal
Balance.
ARTICLE X
Miscellaneous Provisions
------------------------
Section 10.01. Ratification of Agreement. As supplemented by this
-------------------------
Supplement, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
Section 10.02. Counterparts. This Supplement may be executed in two or
------------
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
41
Section 10.03. GOVERNING LAW. THIS SUPPLEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH 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 10.04. Determination of Material Adverse Effect. Any
----------------------------------------
determination of material adverse effect on the Series 2002-3 Certificateholders
under the Agreement or this Supplement shall be made assuming the Collateral
Invested Amount is zero (including, without limitation, any determination of
whether a representation or warranty made therein is correct or whether a Seller
or the Servicer has duly performed a covenant contained therein or herein).
Section 10.05. Book-Entry Certificates. The Class A Certificates and
-----------------------
the Class B Certificates shall be delivered as Book-Entry Certificates. The
Clearing Agency for the Class A Certificates and the Class B Certificates shall
be The Depository Trust Company, and the Class A Certificates and the Class B
Certificates shall be initially registered in the name of Cede & Co., its
nominee. The Series 2002-3 Certificates are issuable only in minimum
denominations of $1,000 and integral multiples of $1,000.
Section 10.06. Uncertificated Securities. The Collateral Interest
-------------------------
shall be delivered in uncertificated form.
Section 10.07. Transfers of the Collateral Interest.
------------------------------------
(a) Unless otherwise consented to by the Sellers, no portion of the
Collateral Interest or any interest therein may be sold, conveyed, assigned,
hypothecated, pledged, participated, exchanged or otherwise transferred (each, a
"Transfer") except in accordance with this Section 10.07 and only to a Permitted
Assignee. Any attempted or purported transfer, assignment, exchange, conveyance,
pledge, hypothecation or grant other than to a Permitted Assignee shall be void.
Unless otherwise consented to by the Sellers, no portion of the Collateral
Interest or any interest therein may be Transferred to any Person (each such
Person acquiring the Collateral Interest or any interest therein, an "Assignee")
unless such Assignee shall have executed and delivered to the Sellers on or
before the effective date of any Transfer a letter substantially in the form
attached hereto as Exhibit D (an "Investment Letter"), executed by such
Assignee, with respect to the related Transfer to such Assignee of all or a
portion of the Collateral Interest.
(b) Each Assignee will certify that the Collateral Interest or the
interest therein purchased by such Assignee will be acquired for investment only
and not with a view to any public distribution thereof, and that such Assignee
will not offer to sell or otherwise dispose of the Collateral Interest or any
interest therein so acquired by it in violation of any of the registration
requirements of the Act, or any applicable state or other securities laws. Each
Assignee will acknowledge and agree that (i) it has no right to require the
Seller to register under the Act or any other securities law the Collateral
Interest or the interest therein to be acquired by the Assignee and (ii) the
sale of the Collateral Interest is not being made by means of the Prospectus.
Each Assignee will agree with the Seller that: (a) such Assignee will deliver to
the Seller on or before the effective date of any Transfer an Investment Letter,
executed by such
42
Assignee with respect to the purchase by such Assignee of all or a portion of
the Collateral Interest and (b) all of the statements made by such Assignee in
its Investment Letter shall be true and correct as of the date made.
(c) No portion of the Collateral Interest or any interest therein may
be Transferred, and each Assignee will certify that it is not, (a) an "employee
benefit plan" (as defined in Section 3(3) of ERISA), including governmental
plans and church plans, (b) any "plan" (as defined in Section 4975(e)(1) of the
Code) including individual retirement accounts and Keogh plans, or (c) any other
entity whose underlying assets include "plan assets" (within the meaning of
Department of Labor Regulation Section 2510.3-101, 29 C.F.R. (S) 2510.3-101 or
otherwise under ERISA) by reason of a plan's investment in the entity,
including, without limitation, an insurance company general account.
(d) This Section 10.07 shall not apply to the transfer and pledge of
the Collateral Interest on the Closing Date by the Sellers pursuant to the
Transfer Agreement or by the Capital One Secured Note Trust 2002-3 to the
Indenture Trustee (as defined in the Transfer Agreement) pursuant to the
Indenture (as defined in the Transfer Agreement).
Section 10.08. Certain Accounting Related Amendments. Notwithstanding
-------------------------------------
any other provision of this Agreement to the contrary, the consent of the
Servicer, the Trustee and any Investor Certificateholder is hereby deemed to be
given in connection with the amendment of the Agreement or this Supplement to
account for the transfer of assets as sales in accordance with FASB Statement
No. 140, including providing for the transfer of receivables from the Sellers to
a bankruptcy-remote special purpose entity and from that entity to the trust;
provided that the Sellers shall have delivered a Tax Opinion on the date of such
- --------
amendment. Promptly after the effectiveness of any amendment pursuant to this
Section 10.08, the Sellers shall deliver a copy of such amendment to each of the
Servicer, the Trustee, each Rating Agency.
Section 10.09. Additional Representations and Warranties of the
------------------------------------------------
Sellers. Each Seller hereby makes the following representations and warranties.
- -------
Such representations and warranties shall survive until the termination of this
Series Supplement. Such representations and warranties speak of the date that
the Collateral (as defined below) is transferred to the Trustee but shall not be
waived by any of the parties to this Series Supplement unless each Rating Agency
shall have notified the Sellers, the Servicer and the Trustee in writing that
such waiver will not result in a reduction or withdrawal of the rating of any
outstanding Series or Class to which it is a Rating Agency.
(a) The Agreement creates a valid and continuing security
interest (as defined in the applicable UCC) in favor of the Trustee in the
Receivables described in Section 2.01 of the Agreement (the "Collateral"),
which security interest is prior to all other liens, and is enforceable as
such against creditors of and purchasers from such Seller.
(b) The Collateral constitutes "accounts" within the meaning of
the applicable UCC.
43
(c) At the time of its transfer of any item of collateral to the
Trustee pursuant to the Agreement, such Seller owned and had good and
marketable title to such item of collateral free and clear of any lien,
claim or encumbrance of any Person.
(d) Such Seller has caused or will have caused, within ten (10)
days of the initial execution of the Agreement, the filing of all
appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
security interest in the Collateral granted to the Trustee pursuant to the
Agreement.
(e) Other than the security interest granted to the Trustee
pursuant to the Agreement or an Assignment, such Seller has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed the
Collateral. Such Seller has not authorized the filing of and is not aware
of any financing statements against such Seller that include a description
of the Collateral other than any financing statement relating to the
security interest granted to the Trustee pursuant to the Agreement or an
Assignment or that has been terminated. Such Seller is not aware of any
judgment or tax lien filings against such Seller.
44
IN WITNESS WHEREOF, the undersigned have caused this Supplement to be
duly executed and delivered by their respective duly authorized officers on the
day and year first above written.
CAPITAL ONE BANK,
Seller and Servicer
By:
--------------------------------
Name: Bonnie A. Seideman
Title: Manager of Securitization
CAPITAL ONE, F.S.B.,
Seller
By:
--------------------------------
Name: Bonnie A. Seideman
Title: Manager of Securitization
THE BANK OF NEW YORK,
Trustee
By:
--------------------------------
Name:
Title:
EXHIBIT A-1
REGISTERED ` $1,096,875,000/1/
No. R-1 CUSIP No. 14040K CL 0
Unless this Class A Certificate 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 certificate issued is registered in the name of Cede & Co. or in 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.
CAPITAL ONE MASTER TRUST
Series 2002-3
CLASS A FLOATING RATE ASSET BACKED CERTIFICATE
Expected Final Payment Date:
April 2005 Distribution Date
Each $1,000 minimum denomination represents a
1/1,096,875 undivided interest
in certain assets of the
CAPITAL ONE MASTER TRUST
Evidencing an undivided interest in a trust, the corpus of which consists
primarily of receivables generated from time to time in the ordinary course of
business in a portfolio of consumer revolving credit card accounts by
CAPITAL ONE BANK
and
CAPITAL ONE, F.S.B.
and, in certain circumstances, certain Additional Sellers (as defined in the
Pooling and Servicing Agreement referred to below).
(Not an interest in or obligation of Capital One Bank,
Capital One, F.S.B., any Additional Seller or any affiliate thereof)
- ----------
/1/ Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
A-1-1
This certifies that CEDE & CO. (the "Class A Certificateholder") is
the registered owner of a fractional undivided interest in certain assets of a
trust (the "Trust") created pursuant to the Pooling and Servicing Agreement,
dated as of September 30, 1993, as amended and restated as of April 9, 2001 (as
amended and restated and as amended and supplemented, the "Agreement"), as
supplemented by the Series 2002-3 Supplement, dated as of May 9, 2002 (as
amended and supplemented, the "Series Supplement"), among Capital One Bank, as a
Seller and Servicer, Capital One, F.S.B., as a Seller, and The Bank of New York,
a New York banking corporation, as trustee (the "Trustee"). The corpus of the
Trust consists of (i) a portfolio of all receivables (the "Receivables")
existing in the consumer revolving credit card accounts and other consumer
revolving credit accounts identified under the Agreement from time to time (the
"Accounts"), (ii) all Receivables generated under the Accounts from time to time
thereafter, (iii) funds collected or to be collected from accountholders in
respect of the Receivables, (iv) all funds which are from time to time on
deposit in the Collection Account and in the Series Accounts, (v) an interest in
any Funds Collateral (as defined in the Agreement) relating to secured accounts,
(vi) the benefits of any Series Enhancement and (vii) all other assets and
interests constituting the Trust. The Holder of this Class A Certificate is
entitled to the benefit of any Series Enhancement to the extent provided in the
Series Supplement. Although a summary of certain provisions of the Agreement and
the Series Supplement is set forth below and on the Summary of Terms and
Conditions attached hereto and made a part hereof, this Class A Certificate does
not purport to summarize the Agreement and the Series Supplement and reference
is made to the Agreement and the Series Supplement for information with respect
to the interests, rights, benefits, obligations, proceeds and duties evidenced
hereby and the rights, duties and obligations of the Trustee. In the event of
any conflict between this Class A Certificate and the Series Supplement or the
Agreement, the Series Supplement or the Agreement, as the case may be, shall
control. A copy of the Agreement and the Series Supplement (without schedules)
may be requested from the Trustee by writing to the Trustee at the Corporate
Trust Office. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to them in the Agreement or the Series
Supplement, as applicable.
This Class A Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement and the Series Supplement, to which
Agreement and Series Supplement, each as amended and supplemented from time to
time, the Class A Certificateholder by virtue of the acceptance hereof assents
and is bound.
It is the intent of the Sellers and the Investor Certificateholders
that, for federal, state and local income and franchise tax purposes only, the
Investor Certificates will qualify as indebtedness of the Sellers secured by the
Receivables. The Class A Certificateholder, by the acceptance of this Class A
Certificate, agrees to treat this Class A Certificate for federal, state and
local income and franchise tax purposes as indebtedness of the Sellers.
In general, payments of principal with respect to the Class A
Certificates are limited to the Class A Invested Amount, which may be less than
the unpaid principal balance of the Class A Certificates. The Expected Final
Payment Date is the April 2005 Distribution Date, but principal with respect to
the Class A Certificates may be paid earlier or later under certain
circumstances described in the Agreement and the Series Supplement. If for one
or more months during the Accumulation Period there are not sufficient funds to
pay the Controlled Deposit
A-1-2
Amount, then to the extent that excess funds are not available on subsequent
Distribution Dates with respect to the Accumulation Period to make up for such
shortfalls, the final payment of principal of the Class A Certificates will
occur later than the Expected Final Payment Date.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, this Class A Certificate shall
not be entitled to any benefit under the Agreement or the Series Supplement or
be valid for any purpose.
A-1-3
IN WITNESS WHEREOF, the Sellers have caused this Class A Certificate
to be duly executed.
CAPITAL ONE BANK
By:
--------------------------------
Name:
Title:
CAPITAL ONE, F.S.B.
By:
--------------------------------
Name:
Title:
Dated: May 9, 2002
A-1-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates described in the
within-mentioned Agreement and Series Supplement.
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------
Authorized Officer
or
By:
--------------------------------
as Authenticating Agent
for the Trustee
By:
--------------------------------
Authorized Officer
A-1-5
CAPITAL ONE MASTER TRUST
SERIES 2002-3
CLASS A FLOATING RATE ASSET BACKED CERTIFICATE
Summary of Terms and Conditions
The Receivables consist of Principal Receivables which arise generally
from the purchase of goods and services and amounts advanced to accountholders
as cash advances and Finance Charge Receivables. This Class A Certificate is one
of a Series of Investor Certificates entitled "Capital One Master Trust, Series
2002-3." The Series 2002-3 Certificates are being issued in two Classes, the
first of which is known as the "Class A Floating Rate Asset Backed Certificates,
Series 2002-3" (the "Class A Certificates") and the second Class is known as the
"Class B 4.55% Asset Backed Certificates, Series 2002-3" (the "Class B
Certificates"). In addition, as part of Series 2002-3, the Trust is creating a
third Class of uncertificated interest in the Trust which uncertificated
interest, except as expressly provided in the Series Supplement, is deemed to be
an "Investor Certificate" and is known as the "Collateral Interest, Series
2002-3" (the "Collateral Interest"). This Class A Certificate represents a
fractional undivided interest in certain assets of the Trust. The Trust Assets
are allocated in part to the certificateholders of all outstanding Series (the
"Certificateholders' Interest") with the remainder allocated to the Sellers'
Interest. The aggregate interest represented by the Class A Certificates at any
time in the Principal Receivables in the Trust shall not exceed an amount equal
to the Class A Invested Amount at such time. The Class A Initial Invested Amount
is $1,096,875,000. The Class A Invested Amount on any date of determination will
be an amount equal to (a) the Class A Initial Invested Amount, minus (b) the
-----
aggregate amount of principal payments made to the Class A Certificateholders on
or prior to such date, minus (c) the excess, if any, of the aggregate amount of
-----
Class A Investor Charge-Offs for all prior Distribution Dates over the aggregate
----
amount of Class A Investor Charge-Offs reimbursed pursuant to subsection 4.06(a)
of the Series Supplement prior to such date. Also, Capital One Bank and Capital
One, F.S.B. have received an adjustment to the Sellers' Interest on the date
hereof.
Subject to the terms and conditions of the Agreement, the Seller may
from time to time direct the Trustee, on behalf of the Trust, to issue one or
more new Series of Investor Certificates, which will represent fractional
undivided interests in certain of the Trust Assets.
On each Payment Date, the Paying Agent shall distribute to each Class
A Certificateholder of record on the last day of the preceding calendar month
(each, a "Record Date") such Class A Certificateholder's pro rata share of such
amounts (including amounts on deposit in the Collection Account and the
Principal Funding Account) as are payable to the Class A Certificateholders
pursuant to the Agreement and the Series Supplement. Distributions with respect
to this Class A Certificate will be made by the Paying Agent by check mailed to
the address of the Class A Certificateholder of record appearing in the
Certificate Register without the presentation or surrender of this Class A
Certificate or the making of any notation thereon (except for the final
distribution in respect of this Class A Certificate), except that with respect
to
A-1-6
Class A Certificates registered in the name of Cede & Co., the nominee for The
Depository Trust Company, distributions will be made in the form of immediately
available funds. Final payment of this Class A Certificate will be made only
upon presentation and surrender of this Class A Certificate at the office or
agency specified in the notice of final distribution delivered by the Trustee to
the Class A Certificateholders in accordance with the Agreement and the Series
Supplement.
On any day occurring on or after the day on which the Invested Amount
is reduced to 5% or less of the Initial Invested Amount, a Seller (so long as
such Seller is the Servicer or an Affiliate thereof) has the option to
repurchase the Certificateholders' Interest in the Trust. The repurchase price
will be equal to (a) if such day is a Distribution Date, the Reassignment Amount
for such Distribution Date or (b) if such day is not a Distribution Date, the
Reassignment Amount for the Distribution Date following such day. Following the
deposit of the Reassignment Amount in the Collection Account, Class A
Certificateholders, the Class B Certificateholders and the Collateral Interest
Holder will not have any interest in the Receivables and the Class A
Certificates will represent only the right to receive such Reassignment Amount.
This Class A Certificate does not represent an obligation of, or an
interest in, the Sellers, the Servicer or any affiliate of any of them and is
not insured or guaranteed by the Federal Deposit Insurance Corporation or any
other governmental agency or instrumentality. This Class A Certificate is
limited in right of payment to certain Collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
herein above and in the Agreement and the Series Supplement.
The Agreement or any Supplement may, subject to certain conditions, be
amended by the Sellers, the Servicer and the Trustee without Certificateholder
consent. The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's rights, duties or immunities under the
Agreement or otherwise.
The Agreement or any Supplement may also be amended from time to time
by the Servicer, the Sellers and the Trustee, with the consent of the Holders of
Investor Certificates evidencing not less than 662/3% of the aggregate unpaid
principal amount of the Investor Certificates of all adversely affected Series,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Agreement or any Supplement or of
modifying in any manner the rights of the Investor Certificateholders; provided,
--------
however, that no such amendment shall (i) reduce in any manner the amount of or
- -------
delay the timing of any distributions to be made to Investor Certificateholders
or deposits of amounts to be so distributed or the amount available under any
Series Enhancement without the consent of each affected Investor
Certificateholder, (ii) change the definition of or the manner of calculating
the interest of any Investor Certificateholder without the consent of each
affected Investor Certificateholder, (iii) reduce the aforesaid percentage
required to consent to any such amendment without the consent of each Investor
Certificateholder or (iv) adversely affect the rating of any Series or Class by
each Rating Agency without the consent of the Holders of Investor Certificates
of such Series or Class evidencing not less than 66 2/3% of the aggregate unpaid
principal amount of the Investor Certificates of such Series or Class. The
Trustee may,
A-1-7
but shall not be obligated to, enter into any such amendment which affects the
Trustee's rights, duties or immunities under the Agreement or otherwise.
The Class A Certificates are issuable only in minimum denominations of
$1,000 and integral multiples of $1,000. The transfer of this Class A
Certificate shall be registered in the Certificate Register upon surrender of
this Class A Certificate for registration of transfer at any office or agency
maintained by the Transfer Agent and Registrar accompanied by a written
instrument of transfer, in a form satisfactory to the Trustee or the Transfer
Agent and Registrar, duly executed by the Class A Certificateholder or such
Class A Certificateholder's attorney, and duly authorized in writing with such
signature guaranteed, and thereupon one or more new Class A Certificates of
authorized denominations and for the same aggregate fractional undivided
interest will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations
therein set forth, Class A Certificates are exchangeable for new Class A
Certificates evidencing like aggregate fractional undivided interests as
requested by the Class A Certificateholder surrendering such Class A
Certificates. No service charge may be imposed for any such exchange but the
Servicer or Transfer Agent and Registrar may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Servicer, the Trustee, the Paying Agent and the Transfer Agent and
Registrar and any agent of any of them, may treat the person in whose name this
Class A Certificate is registered as the owner hereof for all purposes, and
neither the Servicer nor the Trustee, the Paying Agent, the Transfer Agent and
Registrar, nor any agent of any of them, shall be affected by notice to the
contrary except in certain circumstances described in the Agreement.
THIS CLASS A CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH 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.
A-1-8
ASSIGNMENT
Social Security or other identifying number of assignee
------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
(name and address of assignee)
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints , attorney, to transfer said
----------------------
certificate 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 Certificate in every
particular, without alteration, enlargement or any change whatsoever.
A-1-9
EXHIBIT A-2
REGISTERED $135,000,000*
No. R-1 CUSIP No. 14040K CM 8
THIS CLASS B CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF
PERSONS INVESTING ASSETS OF A BENEFIT PLAN OR AN INDIVIDUAL RETIREMENT ACCOUNT
OTHER THAN AN INSURANCE COMPANY GENERAL ACCOUNT.
Unless this Class B Certificate 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 certificate issued is registered in the name of Cede & Co. or in 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.
CAPITAL ONE MASTER TRUST
Series 2002-3
CLASS B 4.55% ASSET BACKED CERTIFICATE
Expected Final Payment Date:
April 2005 Distribution Date
Each $1,000 denomination represents a
1/135,000 undivided interest
in certain assets of the
CAPITAL ONE MASTER TRUST
Evidencing an undivided interest in a trust, the corpus of which consists
primarily of receivables generated from time to time in the ordinary course of
business in a portfolio of consumer revolving credit card accounts by CAPITAL
ONE BANK and CAPITAL ONE, F.S.B. and, in certain circumstances, certain
Additional Sellers (as defined in the Pooling and Servicing Agreement referred
to below).
(Not an interest in or obligation of Capital One Bank,
Capital One, F.S.B., any Additional Seller or any affiliate thereof)
This certifies that CEDE & CO. (the "Class B Certificateholder") is
the registered owner of a fractional undivided interest in certain assets of a
trust (the "Trust") created pursuant
- ----------
Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
A-2-1
to the Pooling and Servicing Agreement, dated as of September 30, 1993, as
amended and restated as of April 9, 2001 (as amended and supplemented, the
"Agreement"), as supplemented by the Series 2002-3 Supplement, dated as of May
9, 2002 (as amended and supplemented, the "Series Supplement"), among Capital
One Bank, as a Seller and Servicer, Capital One, F.S.B., as a Seller, and The
Bank of New York, a New York banking corporation, as trustee (the "Trustee").
The corpus of the Trust consists of (i) a portfolio of all receivables (the
"Receivables") existing in the consumer revolving credit card accounts and other
consumer revolving credit accounts identified under the Agreement from time to
time (the "Accounts"), (ii) all Receivables generated under the Accounts from
time to time thereafter, (iii) funds collected or to be collected from
accountholders in respect of the Receivables, (iv) all funds which are from time
to time on deposit in the Collection Account and in the Series Accounts, (v) an
interest in any Funds Collateral (as defined in the Agreement) relating to
secured accounts, (vi) the benefits of any Series Enhancement and (vii) all
other assets and interests constituting the Trust. The Holder of this Class B
Certificate is entitled to the benefit of any Series Enhancement to the extent
provided in the Series Supplement. Although a summary of certain provisions of
the Agreement and the Series Supplement is set forth below and on the Summary of
Terms and Conditions attached hereto and made a part hereof, this Class B
Certificate does not purport to summarize the Agreement and the Series
Supplement and reference is made to the Agreement and the Series Supplement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Trustee. In the event of any conflict between this Class B Certificate and
the Series Supplement or the Agreement, the Series Supplement or the Agreement,
as the case may be, shall control. A copy of the Agreement and the Series
Supplement (without schedules) may be requested from the Trustee by writing to
the Trustee at the Corporate Trust Office. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in the
Agreement or the Series Supplement, as applicable.
This Class B Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement and the Series Supplement, to which
Agreement and Series Supplement, each as amended and supplemented from time to
time, the Class B Certificateholder by virtue of the acceptance hereof assents
and is bound.
It is the intent of the Sellers and the Investor Certificateholders
that, for federal, state and local income and franchise tax purposes only, the
Investor Certificates will qualify as indebtedness of the Seller secured by the
Receivables. The Class B Certificateholder, by the acceptance of this Class B
Certificate, agrees to treat this Class B Certificate for federal, state and
local income and franchise tax purposes as indebtedness of the Sellers.
In general, payments of principal with respect to the Class B
Certificates are limited to the Class B Invested Amount, which may be less than
the unpaid principal balance of the Class B Certificates. The Expected Final
Payment Date is the April 2005 Distribution Date, but principal with respect to
the Class B Certificates may be paid earlier or later under certain
circumstances described in the Agreement and the Series Supplement. Principal
payments with respect to the Class B Certificates will not commence until the
Class A Invested Amount is paid in full. In addition, if for one or more months
during the Accumulation Period there are not sufficient funds to pay the
Controlled Deposit Amount, then to the extent that excess funds are not
available on subsequent Distribution Dates with respect to the Accumulation
Period to make up for such shortfalls, the final payment of principal of the
Class B Certificates will occur later than the Expected Final Payment Date.
A-2-2
No Class B Certificate (or any interest therein) may be acquired or
held by any employee benefit or other plan (including an individual retirement
account) that is subject to the Employee Retirement Income Security Act of 1974,
as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended
(each, a "Plan"), any trustee or other person acting on behalf of any Plan, or
any other person using "Plan Assets" to effect such acquisition or holding
(each, a "Plan Investor") unless (i) such acquirer or holder is an insurance
company, (ii) the source of funds used to acquire or hold such Certificate (or
interest therein) is an "insurance company general account" (as defined in U.S.
Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60), and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied. By acquiring an interest in this Class B Certificate, each Class B
Certificateholder or Certificate Owner shall be deemed to have represented,
either (i) that it is not a Plan Investor or (ii) that (1) it is an insurance
company, (2) the source of funds used to acquire or hold an interest in such
Certificate is an "insurance company general account" (as such term is defined
in PTCE 95-60), and (3) the conditions set forth in Sections I and III of PTCE
95-60 have been satisfied.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, this Class B Certificate shall
not be entitled to any benefit under the Agreement or the Series Supplement or
be valid for any purpose.
A-2-3
IN WITNESS WHEREOF, the Sellers have caused this Class B Certificate
to be duly executed.
CAPITAL ONE BANK
By:
--------------------------------
Name:
Title:
CAPITAL ONE, F.S.B.
By:
--------------------------------
Name:
Title:
Dated: May 9, 2002
A-2-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates described in the
within-mentioned Agreement and Series Supplement.
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------
Authorized Officer
or
By:
--------------------------------
as Authenticating Agent
for the Trustee
By:
--------------------------------
Authorized Officer
A-2-5
CAPITAL ONE MASTER TRUST
SERIES 2002-3
CLASS B 4.55% ASSET BACKED CERTIFICATE
Summary of Terms and Conditions
The Receivables consist of Principal Receivables which arise generally
from the purchase of goods and services and amounts advanced to accountholders
as cash advances and Finance Charge Receivables. This Class B Certificate is one
of a Series of Certificates entitled "Capital One Master Trust, Series 2002-3."
The Series 2002-3 Certificates are being issued in two Classes, the first of
which is known as the "Class A Floating Rate Asset Backed Certificates, Series
2002-3" (the "Class A Certificates") and the second Class is known as the "Class
B 4.55% Asset Backed Certificates, Series 2002-3" (the "Class B Certificates").
In addition, as part of Series 2002-3, the Trust is creating a third Class of
uncertificated interest in the Trust which uncertificated interest, except as
expressly provided in the Series Supplement, is deemed to be an "Investor
Certificate" and is known as the "Collateral Interest, Series 2002-3" (the
"Collateral Interest"). This Class B Certificate represents a fractional
undivided interest in certain assets of the Trust. The Trust Assets are
allocated in part to the certificateholders of all outstanding Series (the
"Certificateholders' Interest") with the remainder allocated to the Sellers'
Interest. The aggregate interest represented by the Class B Certificates at any
time in the Principal Receivables in the Trust shall not exceed an amount equal
to the Class B Invested Amount at such time. The Class B Initial Invested Amount
is $135,000,000. The Class B Invested Amount on any date of determination will
be an amount equal to (a) the Class B Initial Invested Amount, minus (b) the
-----
aggregate amount of principal payments made to the Class B Certificateholders on
or prior to such date, minus (c) the aggregate amount of Class B Investor
-----
Charge-Offs for all prior Distribution Dates, minus (d) the aggregate amount of
-----
Reallocated Principal Collections allocated on all prior Distribution Dates
pursuant to subsection 4.08(a) of the Series Supplement (excluding any
Reallocated Principal Collections that have resulted in a reduction in the
Collateral Invested Amount pursuant to subsection 4.06(c) of the Series
Supplement), minus (e) an amount equal to the amount by which the Class B
-----
Invested Amount has been reduced on all prior Distribution Dates pursuant to
subsection 4.06(a) of the Series Supplement and plus (f) the amount of Excess
----
Spread and Excess Finance Charges allocated and available on all prior
Distribution Dates pursuant to Section 4.07(d) of the Series Supplement for the
purpose of reimbursing amounts deducted pursuant to the foregoing clauses (c),
(d) and (e). Also, Capital One Bank and Capital One, F.S.B. have received an
adjustment to the Sellers' Interest on the date hereof.
Subject to the terms and conditions of the Agreement, the Sellers may
from time to time direct the Trustee, on behalf of the Trust, to issue one or
more new Series of Investor Certificates, which will represent fractional
undivided interests in certain of the Trust Assets.
On each Payment Date, the Paying Agent shall distribute to each Class
B Certificateholder of record on the last day of the preceding calendar month
(each, a "Record Date") such Class B Certificateholder's pro rata share of such
amounts (including amounts on deposit in the Collection Account and the
Principal Funding Account) as are payable to the Class
A-2-6
B Certificateholders pursuant to the Agreement and the Series Supplement.
Distributions with respect to this Class B Certificate will be made by check
mailed to the address of the Class B Certificateholder of record appearing in
the Certificate Register without the presentation or surrender of this Class B
Certificate or the making of any notation thereon (except for the final
distribution in respect of this Class B Certificate) except that with respect to
Class B Certificates registered in the name of Cede & Co., the nominee for The
Depository Trust Company, distributions will be made in the form of immediately
available funds. Final payment of this Class B Certificate will be made only
upon presentation and surrender of this Class B Certificate at the office or
agency specified in the notice of final distribution delivered by the Trustee to
the Class B Certificateholders in accordance with the Agreement and the Series
Supplement.
On any day occurring on or after the day on which the Invested Amount
is reduced to 5% or less of the Initial Invested Amount, a Seller (so long as
such Seller is the Servicer or an Affiliate thereof) has the option to
repurchase the Certificateholders' Interest in the Trust. The repurchase price
will be equal to (a) if such day is a Distribution Date, the Reassignment Amount
for such Distribution Date or (b) if such day is not a Distribution Date, the
Reassignment Amount for the Distribution Date following such day. Following the
deposit of the Reassignment Amount in the Collection Account, the Class A
Certificateholders, the Class B Certificateholders and the Collateral Interest
Holder will not have any interest in the Receivables and the Class B
Certificates will represent only the right to receive such Reassignment Amount.
This Class B Certificate does not represent an obligation of, or an
interest in, the Sellers, the Servicer or any affiliate of any of them and is
not insured or guaranteed by the Federal Deposit Insurance Corporation or any
other governmental agency or instrumentality. This Class B Certificate is
limited in right of payment to certain Collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
hereinabove and in the Agreement and the Series Supplement.
The Agreement or any Supplement may, subject to certain conditions, be
amended by the Sellers, the Servicer and the Trustee without Certificateholder
consent. The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's rights, duties or immunities under the
Agreement or otherwise.
The Agreement or any Supplement may also be amended from time to time
by the Servicer, the Sellers and the Trustee, with the consent of the Holders of
Investor Certificates evidencing not less than 662/3% of the aggregate unpaid
principal amount of the Investor Certificates of all adversely affected Series,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Agreement or any Supplement or of
modifying in any manner the rights of the Investor Certificateholders; provided,
--------
however, that no such amendment shall (i) reduce in any manner the amount of or
- -------
delay the timing of any distributions to be made to Investor Certificateholders
or deposits of amounts to be so distributed or the amount available under any
Series Enhancement without the consent of each affected Investor
Certificateholder, (ii) change the definition of or the manner of calculating
the interest of any Investor Certificateholder without the consent of each
affected Investor Certificateholder, (iii) reduce the aforesaid percentage
required to consent to any such amendment without the consent of each Investor
Certificateholder or (iv) adversely affect the rating of any Series or Class by
each Rating Agency without the consent of the Holders of Investor Certificates
of such Series or Class evidencing not less than 66 2/3% of the aggregate
A-2-7
unpaid principal amount of the Investor Certificates of such Series or Class.
The Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's rights, duties or immunities under the Agreement or
otherwise.
The Class B Certificates are issuable in minimum denominations of
$1,000 and integral multiples of $1,000. The transfer of this Class B
Certificate shall be registered in the Certificate Register upon surrender of
this Class B Certificate for registration of transfer at any office or agency
maintained by the Transfer Agent and Registrar accompanied by a written
instrument of transfer, in a form satisfactory to the Trustee or the Transfer
Agent and Registrar, duly executed by the Class B Certificateholder or such
Class B Certificateholder's attorney, and duly authorized in writing with such
signature guaranteed, and thereupon one or more new Class B Certificates of
authorized denominations and for the same aggregate fractional undivided
interest will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations
therein set forth, Class B Certificates are exchangeable for new Class B
Certificates evidencing like aggregate fractional undivided interests as
requested by the Class B Certificateholder surrendering such Class B
Certificates. No service charge may be imposed for any such exchange but the
Servicer or Transfer Agent and Registrar may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Servicer, the Trustee, the Paying Agent and the Transfer Agent and
Registrar and any agent of any of them, may treat the person in whose name this
Class B Certificate is registered as the owner hereof for all purposes, and
neither the Servicer nor the Trustee, the Paying Agent, the Transfer Agent and
Registrar, nor any agent of any of them, shall be affected by notice to the
contrary except in certain circumstances described in the Agreement.
THIS CLASS B CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH 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.
A-2-8
ASSIGNMENT
Social Security or other identifying number of assignee
------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
(name and address of assignee)
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints , attorney, to transfer said
----------------------
certificate 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 Certificate in every
particular, without alteration, enlargement or any change whatsoever.
A-2-9
EXHIBIT C
FORM OF MONTHLY SERVICING OFFICER'S CERTIFICATE
CAPITAL ONE BANK
CAPITAL ONE MASTER TRUST
SERIES 2002-3
The undersigned, a duly authorized representative of Capital One Bank,
as Servicer, pursuant to the Pooling and Servicing Agreement, dated as of
September 30, 1993, as amended and restated as of April 9, 2001 (as amended and
supplemented, the "Agreement"), as supplemented by the Series 2002-3 Supplement
(as amended and supplemented, the "Series Supplement"), dated as of May 9, 2002,
each among Capital One Bank, Capital One, F.S.B., as a Seller, and The Bank of
New York, as Trustee, does hereby certify as follows:
1. Capitalized terms used in this Certificate have their respective
meanings as set forth in the Agreement or Series Supplement, as applicable.
2. Capital One Bank is, as of the date hereof, the Servicer under the
Agreement.
3. The undersigned is a Servicing Officer.
4. This Certificate relates to the Distribution Date occurring on
.
--------
5. As of the date hereof, to the best knowledge of the undersigned,
the Servicer has performed in all material respects all its obligations
under the Agreement through the Monthly Period preceding such Distribution
Date [or, if there has been a default in the performance of any such
obligation, set forth in detail the (i) nature of such default, (ii) the
action taken by the Sellers and Servicer, if any, to remedy such default
and (iii) the current status of each such default; if applicable, insert
"None"].
6. As of the date hereof, to the best knowledge of the undersigned, no
Pay Out Event occurred on or prior to such Distribution Date.
7. As of the date hereof, to the best knowledge of the undersigned, no
Lien has been placed on any of the Receivables other than pursuant to the
Agreement [or, if there is a Lien, such Lien consists of ________].
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Certificate this day of , 20 .
------ ---------- --
CAPITAL ONE BANK,
as Servicer
By:
---------------------------------
Name:
Title:
C-2
EXHIBIT D
---------
FORM OF INVESTMENT LETTER
[Date]
Re: Capital One Master Trust;
Purchases of Series 2002-3 Collateral Interest
----------------------------------------------
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by the undersigned
(the "Purchaser") pursuant to Section 10.07 of the Series 2002-3 Supplement,
dated as of May 9, 2002 (the "Series Supplement") to the Pooling and Servicing
Agreement, dated as of September 30, 1993, as amended and restated as of April
9, 2001 (as amended and supplemented, the "Agreement"), each among The Bank of
New York, as Trustee, Capital One, F.S.B., as a Seller, and Capital One Bank, as
a Seller and Servicer. Capitalized terms used herein without definition shall
have the meanings set forth in the Agreement. The Purchaser represents to and
agrees with the Seller as follows:
(a) The Purchaser has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of its investment in the Collateral Interest and is able to
bear the economic risk of such investment.
(b) The Purchaser is an "accredited investor," as defined in Rule
501, promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), or is a sophisticated institutional investor.
The Purchaser understands that the offering and sale of the
Collateral Interest has not been and will not be registered under
the Securities Act and has not and will not be registered or
qualified under any applicable "Blue Sky" law, and that the
offering and sale of the Collateral Interest has not been
reviewed by, passed on or submitted to any federal or state
agency or commission, securities exchange or other regulatory
body.
(c) The Purchaser is acquiring an interest in the Collateral Interest
without a view to any distribution, resale or other transfer
thereof except, with respect to any Collateral Interest or any
interest or participation therein, as contemplated in the
following sentence. The Purchaser will not resell or otherwise
transfer any interest or participation in the Collateral
Interest, except in accordance with Section 10.07 of the Series
Supplement and (i) in a transaction exempt from the registration
requirements of the Securities Act and applicable state
securities or "blue sky" laws; (ii) to a Seller or any affiliate
of a Seller; or (iii) to a person who the Purchaser reasonably
believes is a qualified institutional buyer (within the meaning
thereof in Rule 144A under the Securities Act) that is aware that
the resale or other transfer is being made in reliance upon Rule
144A. In connection therewith, the Purchaser hereby agrees that
it will not resell or otherwise transfer the Collateral Interest
or any interest therein unless the purchaser thereof provides to
the addressee hereof a letter substantially in the form hereof.
(d) No portion of the Collateral Interest or any interest therein may
be Transferred, and each Assignee will certify that it is not,
(a) an "employee benefit plan" (as defined in Section 3(3) of
ERISA), including governmental plans and church plans, (b) any
"plan" (as defined in Section 4975(e)(1) of the Code) including
individual retirement accounts and Keogh plans, or (c) any other
entity whose underlying assets include "plan assets" (within the
meaning of Department of Labor Regulation Section 2510.3-101, 29
C.F.R. (S) 2510.3-101 or otherwise under ERISA) by reason of a
plan's investment in the entity, including, without limitation,
an insurance company general account.
(e) This Investment Letter has been duly executed and delivered and
constitutes the legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with
its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws or equitable principles affecting the enforcement of
creditors' rights generally and general principles of equity.
Very truly yours,
[NAME OF PURCHASER]
By:
---------------------------------
Name:
Title:
AGREED TO AS OF THE DATE FIRST
ABOVE WRITTEN:
CAPITAL ONE BANK
By:
-----------------------------
Name:
Title:
CAPITAL ONE, F.S.B.
D-2
By:
-----------------------
Name:
Title:
D-3