Exhibit 4.6
EXECUTION COPY
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CAPITAL ONE MULTI-ASSET EXECUTION TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
CARD SERIES INDENTURE SUPPLEMENT
dated as of October 9, 2002
to
ASSET POOL 1 SUPPLEMENT
dated as of October 9, 2002
to
INDENTURE
dated as of October 9, 2002
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions of General Application
Section 1.01. Definitions ............................................................................ 1
Section 1.02. Governing Law .......................................................................... 22
Section 1.03. Counterparts ........................................................................... 22
Section 1.04. Ratification of Indenture and Asset Pool 1 Supplement .................................. 23
ARTICLE II
The Notes
Section 2.01. Creation and Designation ............................................................... 24
Section 2.02. New Issuances of Notes ................................................................. 24
ARTICLE III
Allocations, Deposits and Payments
Section 3.01. Allocations of Card Series Finance Charge Amounts ...................................... 26
Section 3.02. Targeted Deposits of Card Series Finance Charge Amounts to the Interest Funding
Account ................................................................................ 27
Section 3.03. Allocations of Card Series Finance Charge Amounts to Interest Funding sub-Accounts ..... 27
Section 3.04. Amounts to be Treated as Card Series Finance Charge Amounts; Payments Received from
Derivative Counterparties for Interest in Foreign Currencies; Other Deposits to the
Interest Funding sub-Accounts .......................................................... 28
Section 3.05. Allocations of Reductions to the Nominal Liquidation Amount Due to Investor
Charge-Offs ............................................................................ 29
Section 3.06. Allocations of Reimbursements of Nominal Liquidation Amount Deficits ................... 33
Section 3.07. Application of Card Series Principal Amounts ........................................... 34
Section 3.08. Allocation of Reductions of Nominal Liquidation Amount of Subordinated Notes from
Reallocations of Card Series Principal Amounts to Cover Interest Funding Account
Shortfalls or Servicing Fee Shortfalls ................................................. 36
Section 3.09. Allocation of Servicing Fee Shortfalls ................................................. 40
Section 3.10. Targeted Deposits of Card Series Principal Amounts to the Principal Funding Account .... 41
Section 3.11. Allocations among Principal Funding sub-Accounts ....................................... 42
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TABLE OF CONTENTS
(continued)
Page
Section 3.12. Amounts to be Treated as Card Series Principal Amounts; Payments Received from
Derivative Counterparties for Principal; Other Deposits to Principal Funding
sub-Accounts ........................................................................... 44
Section 3.13. Withdrawals from Interest Funding Account .............................................. 44
Section 3.14. Withdrawals from Principal Funding Account ............................................. 46
Section 3.15. Limit on Deposits to the Principal Funding sub-Account of Subordinated Note; Limit on
Repayments of all Tranches ............................................................. 47
Section 3.16. Calculation of Nominal Liquidation Amount .............................................. 49
Section 3.17. Reinvestment in the COMT Collateral Certificate ........................................ 50
Section 3.18. Netting of Deposits and Payments ....................................................... 50
Section 3.19. Pro rata Payments within a Tranche ..................................................... 50
Section 3.20. Sale of Collateral for Accelerated Notes ............................................... 50
Section 3.21. Calculation of Prefunding Target Amount ................................................ 52
Section 3.22. Targeted Deposits to the Class C Reserve Account ....................................... 55
Section 3.23. Withdrawals from the Class C Reserve Account ........................................... 55
Section 3.24. Targeted Deposits to the Accumulation Reserve Account .................................. 56
Section 3.25. Withdrawals from the Accumulation Reserve Account ...................................... 57
Section 3.26. Computation of Interest ................................................................ 57
Section 3.27. Excess Finance Charge Amounts Sharing .................................................. 58
Section 3.28. Excess Available Principal Amount Sharing .............................................. 59
Section 3.29. Targeted Deposits to the Class D Reserve Account ....................................... 59
Section 3.30. Withdrawals from the Class D Reserve Account ........................................... 60
ARTICLE IV
Early Redemption of Notes
Section 4.01. Early Redemption Events ................................................................ 62
ARTICLE V
Issuer Accounts and Investments
Section 5.01. Issuer Accounts ........................................................................ 63
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EXHIBITS
EXHIBIT A-1 [FORM OF] CLASS A NOTE
EXHIBIT A-2 [FORM OF] CLASS B NOTE
EXHIBIT A-3 [FORM OF] CLASS C NOTE
EXHIBIT A-4 [FORM OF] CLASS D NOTE
EXHIBIT B [FORM OF] CARD SERIES SCHEDULE TO PAYMENT INSTRUCTIONS
EXHIBIT C [FORM OF] CARD SERIES SCHEDULE TO MONTHLY NOTEHOLDERS' STATEMENT
EXHIBIT D THRESHOLD CONDITIONS
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This CARD SERIES INDENTURE SUPPLEMENT (this "Indenture Supplement"), by and
between CAPITAL ONE MULTI-ASSET EXECUTION TRUST, a statutory trust created under
the laws of the State of Delaware (the "Issuer"), having its principal office at
E.A. Delle Donne Corporate Center, Montgomery Building, 1011 Centre Road,
Wilmington, Delaware 19805, and THE BANK OF NEW YORK, a New York banking
corporation, as Indenture Trustee (the "Indenture Trustee"), is made and entered
into as of October 9, 2002.
Pursuant to this Indenture Supplement, the Issuer shall create a new Series
of Asset Pool 1 Notes and shall specify the principal terms thereof.
ARTICLE I
Definitions and Other Provisions of General Application
Section 1.01. Definitions. For all purposes of this Indenture Supplement,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Indenture or the
Asset Pool 1 Supplement, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder means such accounting
principles as are generally accepted in the United States of America
at the date of such computation;
(4) all references in this Indenture to designated "Articles," "Sections"
and other subdivisions are to the designated Articles, Sections and
other subdivisions of this Indenture Supplement. The words "herein,"
"hereof" and "hereunder" and other words of similar import refer to
this Indenture Supplement as a whole and not to any particular
Article, Section or other subdivision;
(5) in the event that any term or provision contained herein shall
conflict with or be inconsistent with any term or provision contained
in the Indenture, the Asset Pool 1 Supplement or the Transfer and
Administration Agreement, the terms and provisions of this Indenture
Supplement shall be controlling;
(6) each capitalized term defined herein shall relate only to the Card
Series Notes and no other Series of Notes issued by the Issuer; and
1
(7) "including" and words of similar import will be deemed to be followed
by "without limitation."
"Accumulation Commencement Date" means, for each Tranche of Notes, the
first Business Day of the month that is twelve (12) whole calendar months prior
to the Expected Principal Payment Date for such Tranche of Notes; provided,
however, that, if the Accumulation Period Length for such Tranche of Notes is
less than twelve (12) months, the Accumulation Commencement Date will be the
first Business Day of the month that is the number of whole months prior to such
Expected Principal Payment Date at least equal to the Accumulation Period Length
such that the number of Monthly Periods during the period from the Accumulation
Commencement Date to such Expected Principal Payment Date will at least equal
the Accumulation Period Length.
"Accumulation Period" means, for any Tranche of Card Series Notes, each
Monthly Period with respect to which a deposit is required to be made into the
Principal Funding sub-Account for such Tranche of Notes pursuant to Section
3.07(g) and Section 3.10.
"Accumulation Period Amount" shall mean, for any Tranche of Notes for each
Monthly Period, an amount equal to (x) for any Tranche of Notes not in an
Accumulation Period, zero and (y) otherwise, the product of (i) Available
Expected Principal for such Monthly Period and (ii) a fraction, the numerator of
which is the Principal Allocation Amount for such Tranche of Notes and the
denominator of which is the sum of (a) the Principal Allocation Amount for all
Outstanding Tranches of Notes and (b) the Invested Amounts of all Variable
Accumulation Series (as defined in the Series 2002-CC Supplement) of Investor
Certificates issued by the Master Trust which are not scheduled to be in their
revolving periods as of such Monthly Period; provided that, for purposes of this
definition, the commencement date of the accumulation period of each such
Variable Accumulation Series shall be deemed to have been postponed to the
latest permissible date, determined as if the provisions of Section 3.10(b)(ii)
applied to each such Series of Investor Certificates with such changes as may be
specified with respect to such Series of Investor Certificates (applying such
provisions first to the Variable Accumulation Series with the latest expected
final payment date and next to each Series of Investor Certificates with the
next preceding expected final payment date).
"Accumulation Period Length" is defined in Section 3.10(b)(ii).
"Accumulation Reserve Account" means the trust account designated as such
and established pursuant to Section 5.01(a).
"Accumulation Reserve Sub-Account Earnings" means, for each Distribution
Date, the investment earnings on funds in the Accumulation Reserve Account (net
of investment expenses and losses) for the period from and including the
immediately preceding Distribution Date to but excluding such Distribution Date.
"Aggregate Series Finance Charge Amounts Shortfall" means the sum of the
Series Finance Charge Amounts Shortfalls (as such term is defined in each of the
related Indenture Supplements) for each Excess Finance Charge Amounts Sharing
Series in Excess Finance Charge Amounts Sharing Group A.
2
"Aggregate Series Principal Amounts Shortfall" means the sum of the Series
Principal Amounts Shortfalls (as such term is defined in each of the related
Indenture Supplements) for each Excess Principal Amounts Sharing Series in
Excess Principal Amounts Sharing Group A.
"Asset Pool 1 Supplement" means the Asset Pool 1 Supplement dated as of
October 9, 2002, by and between the Issuer and the Indenture Trustee, as the
same may be amended, supplemented or otherwise modified from time to time.
"Asset Sales Proceeds" means, for any Tranche of Notes, the proceeds of the
sale of Collateral with respect to such Tranche pursuant to Section 3.20. Asset
Sales Proceeds do not constitute Card Series Principal Amounts.
"Asset Sales Proceeds Deposit Amount" means, for any Tranche of Notes in
respect of which the Trust has received Asset Sales Proceeds, the amount of
Asset Sales Proceeds on deposit in the Principal Funding sub-Account for such
Tranche.
"Available Expected Principal" for any date of determination during each
Monthly Period shall be equal to the excess of (a) the Expected Monthly
Principal for such Monthly Period over (b) the sum, without duplication, of all
scheduled amortizations or accumulations of principal for such Monthly Period,
including past due shortfalls as of such date of determination, for all
Nonvariable Accumulation Series (as defined in the Series 2002-CC Supplement) of
Investor Certificates issued by the Master Trust which are not scheduled to be
in their revolving periods as of such Monthly Period.
"Beneficial Interest" has the meaning specified in the Trust Agreement.
"Card Series Defaulted Amount" means, with respect to any Monthly Period,
the portion of the Asset Pool 1 Defaulted Amount allocated to the Card Series
pursuant to Section 3.2(b) of the Asset Pool 1 Supplement.
"Card Series Finance Charge Amounts" means, for any Distribution Date, the
sum of (a) Asset Pool 1 Finance Charge Amounts allocated to the Card Series
pursuant to Section 3.2(a) of the Asset Pool 1 Supplement, (b) any amounts to be
treated as Card Series Finance Charge Amounts pursuant to Sections 3.04(a) and
3.20(d) and (c) any amounts to be treated as Card Series Finance Charge Amounts
pursuant to any Terms Document.
"Card Series Notes" means the Series of Asset Pool 1 Notes created pursuant
to Section 2.01(a).
"Card Series Principal Amounts" means, for any Monthly Period, the sum of
(a) Asset Pool 1 Principal Amounts allocated to the Card Series pursuant to
Section 3.3 of the Asset Pool 1 Supplement and (b) any amounts to be treated as
Card Series Principal Amounts pursuant to Section 3.12(a).
"Card Series Servicing Fee" means, with respect to any Monthly Period, the
amount of the Asset Pool 1 Servicing Fee allocated to the Card Series pursuant
to Section 3.4(b) of the Asset Pool 1 Supplement.
3
"Card Series Servicing Fee Percentage" means, for any Monthly Period, an
amount equal to the Net Servicing Fee Rate (as defined in the Series 2002-CC
Supplement); provided, however, that if any Collateral Certificate (other than
the COMT Collateral Certificate) is included in Asset Pool 1, the Card Series
Servicing Fee Percentage will be the rate specified by the Administrator.
"Class A Available Subordinated Amount of Class B Notes" means, for any
Tranche of Class A Notes, with respect to any Distribution Date, an amount equal
to the Required Subordinated Amount of Class B Notes minus the Class A Usage
Amount of Class B Notes, each for such Tranche of Class A Notes as of such
Distribution Date.
"Class A Available Subordinated Amount of Class C Notes" means, for any
Tranche of Class A Notes, with respect to any Distribution Date, an amount equal
to the Required Subordinated Amount of Class C Notes minus the Class A Usage
Amount of Class C Notes, each for such Tranche of Class A Notes as of such
Distribution Date.
"Class A Available Subordinated Amount of Class D Notes" means, for any
Tranche of Class A Notes, with respect to any Distribution Date, an amount equal
to the Required Subordinated Amount of Class D Notes minus the Class A Usage
Amount of Class D Notes, each for such Tranche of Class A Notes as of such
Distribution Date.
"Class A Available Subordinated Amount of Subordinated Notes" means, for
any Tranche of Class A Notes, with respect to any Distribution Date, an amount
equal to the Required Subordinated Amount of Subordinated Notes minus the Class
A Usage Amount of Subordinated Notes, each for such Tranche of Class A Notes as
of such Distribution Date.
"Class A Notes" means a Note specified in the applicable Terms Document as
belonging to Class A.
"Class A Usage Amount of Class B Notes" means, with respect to any Tranche
of Class A Notes, on any Distribution Date, an amount, not to exceed the
Required Subordinated Amount of Class B Notes for such Tranche of Class A Notes,
equal to the excess, if any, of the Class A Usage Amount of Subordinated Notes
over the sum of the Required Subordinated Amount of Class C Notes and the
Required Subordinated Amount of Class D Notes, in each case for such
Distribution Date, in each case, for such Tranche of Class A Notes.
"Class A Usage Amount of Class C Notes" means, with respect to any Tranche
of Class A Notes for any Distribution Date, an amount, not to exceed the
Required Subordinated Amount of Class C Notes for such Tranche of Class A Notes,
equal to the excess, if any, of the Class A Usage Amount of Subordinated Notes
over the Required Subordinated Amount of Class D Notes, in each case, for such
Tranche of Class A Notes.
"Class A Usage Amount of Class D Notes" means, with respect to any Tranche
of Class A Notes for any Distribution Date, an amount, not to exceed the
Required Subordinated Amount of Class D Notes for such Tranche of Class A Notes,
equal to the Class A Usage Amount of Subordinated Notes.
4
"Class A Usage Amount of Subordinated Notes" means, with respect to any
Tranche of Class A Notes, zero on the date of issuance of such Tranche and on
any Distribution Date thereafter the Class A Usage Amount of Subordinated Notes
as of the preceding date of determination for such Tranche, plus the sum of the
following amounts (in each case, such amount shall not exceed the Class A
Available Subordinated Amount of Subordinated Notes for such Tranche after
giving effect to the previous clauses, if any):
(a) an amount equal to the product of (i) the aggregate amount
allocated to the Class B Notes pursuant to Section 3.05(a) on such date and
(ii) a fraction, the numerator of which is the Class A Available
Subordinated Amount of Class B Notes for such Tranche of Class A Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class B Notes as of the close of business on the last day of the preceding
Monthly Period; plus
(b) an amount equal to the product of (i) the aggregate amount
allocated to the Class C Notes pursuant to Section 3.05(a) on such date and
(ii) a fraction, the numerator of which is the Class A Available
Subordinated Amount of Class C Notes for such Tranche of Class A Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class C Notes as of the close of business on the last day of the preceding
Monthly Period; plus
(c) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.05(a) on such date and
(ii) a fraction, the numerator of which is the Class A Available
Subordinated Amount of Class D Notes for such Tranche of Class A Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class D Notes as of the close of business on the last day of the preceding
Monthly Period; plus
(d) the aggregate amount reallocated from such Tranche of Class A
Notes to the Class B Notes, Class C Notes or Class D Notes pursuant to
Section 3.05(b) on such date; plus
(e) the aggregate amount of Card Series Principal Amounts allocated to
the Interest Funding sub-Account of such Tranche of Class A Notes pursuant
to Section 3.07(a) on such date; plus
(f) an amount equal to the product of (i) an amount, not less than
zero, equal to the aggregate amount allocated to the Class C Notes pursuant
to Section 3.08(d)(i) on such date, minus the aggregate amount reallocated
to the Class D Notes pursuant to Section 3.08(e) on such date and (ii) a
fraction, the numerator of which is the Class A Available Subordinated
Amount of Class C Notes for such Tranche of Class A Notes and the
denominator of which is the aggregate Nominal Liquidation Amount of the
Class C Notes, in each case, after giving effect to Section 3.05; plus
(g) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(d)(ii) or
reallocated to the Class D Notes pursuant to Section 3.08(e) on such date
and (ii) a fraction, the numerator of which is the Class A
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Available Subordinated Amount of Class D Notes and the denominator of which
is the aggregate Nominal Liquidation Amount of the Class D Notes, in each
case, after giving effect to Section 3.05; plus
(h) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(f) on such date and
(ii) a fraction, the numerator of which is the Class A Available
Subordinated Amount of Class D Notes for such Tranche of Class A Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class D Notes, in each case, after giving effect to Section 3.05; plus
(i) the aggregate amount of Card Series Principal Amounts paid to the
Servicer pursuant to Section 3.07(d) on such date; plus
(j) an amount equal to the product of (i) an amount, not less than
zero, equal to the aggregate amount allocated to the Class C Notes pursuant
to Section 3.08(j)(i) on such date, minus the aggregate amount reallocated
to the Class D Notes pursuant to Section 3.08(k) on such date and (ii) a
fraction, the numerator of which is the Class A Available Subordinated
Amount of Class C Notes for such Tranche of Class A Notes and the
denominator of which is the aggregate Nominal Liquidation Amount of the
Class C Notes, in each case, after giving effect to Section 3.05; plus
(k) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(j)(ii) or
reallocated to the Class D Notes pursuant to Section 3.08(k) on such date
and (ii) a fraction, the numerator of which is the Class A Available
Subordinated Amount of Class D Notes for such Tranche of Class A Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class D Notes, in each case, after giving effect to Section 3.05; plus
(l) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(f) on such date and
(ii) a fraction, the numerator of which is the Class A Available
Subordinated Amount of Class D Notes for such Tranche of Class A Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class D Notes, in each case, after giving effect to Section 3.05; minus
(m) an amount (not to exceed the Class A Usage Amount of Class B Notes
for such Tranche of Class A Notes after giving effect to the amounts
computed pursuant to clauses (a) through (l) above) equal to the product of
(i) the aggregate Nominal Liquidation Amount Deficits of all Class B Notes
which are reimbursed on such Distribution Date pursuant to Section 3.06 and
(ii) a fraction, the numerator of which is the Class A Usage Amount of
Class B Notes (prior to giving effect to any reimbursement of Nominal
Liquidation Amount Deficits on such Distribution Date) for such Tranche of
Class A Notes and the denominator of which is the aggregate Nominal
Liquidation Amount Deficits (prior to giving effect to such reimbursement)
of all Class B Notes; minus
6
(n) an amount (not to exceed the Class A Usage Amount of Class C Notes
for such Tranche of Class A Notes after giving effect to the amounts
computed pursuant to clauses (a) through (l) above) equal to the product of
(i) the aggregate Nominal Liquidation Amount Deficits of all Class C Notes
which are reimbursed on such Distribution Date pursuant to Section 3.06 and
(ii) a fraction, the numerator of which is the Class A Usage Amount of
Class C Notes (prior to giving effect to any reimbursement of Nominal
Liquidation Amount Deficits on such Distribution Date) for such Tranche of
Class A Notes and the denominator of which is the aggregate Nominal
Liquidation Amount Deficits (prior to giving effect to such reimbursement)
of all Class C Notes; minus
(o) an amount (not to exceed the Class A Usage Amount of Class D Notes
for such Tranche of Class A Notes after giving effect to the amounts
computed pursuant to clauses (a) through (l) above) equal to the product of
(i) the aggregate Nominal Liquidation Amount Deficits of all Class D Notes
which are reimbursed on such Distribution Date pursuant to Section 3.06 and
(ii) a fraction, the numerator of which is the Class A Usage Amount of
Class D Notes (prior to giving effect to any reimbursement of Nominal
Liquidation Amount Deficits on such Distribution Date) for such Tranche of
Class A Notes and the denominator of which is the aggregate Nominal
Liquidation Amount Deficits (prior to giving effect to such reimbursement)
of all Class D Notes.
"Class B Available Subordinated Amount of Class C Notes" means, for any
Tranche of Class B Notes, with respect to any Distribution Date, an amount equal
to the Required Subordinated Amount of Class C Notes minus the Class B Usage
Amount of Class C Notes, each for such Tranche of Class B Notes as of such
Distribution Date.
"Class B Available Subordinated Amount of Class D Notes" means, for any
Tranche of Class B Notes, with respect to any Distribution Date, an amount equal
to the Required Subordinated Amount of Class D Notes minus the Class B Usage
Amount of Class D Notes, each for such Tranche of Class B Notes as of such
Distribution Date.
"Class B Available Subordinated Amount of Subordinated Notes" means, for
any Tranche of Class B Notes, with respect to any Distribution Date, an amount
equal to the Required Subordinated Amount of Subordinated Notes minus the Class
B Usage Amount of Subordinated Notes, each for such Tranche of Class B Notes as
of such Distribution Date.
"Class B Notes" means a Note specified in the applicable Terms Document as
belonging to Class B.
"Class B Principal Allocation" means, for any Monthly Period, an amount
equal to the product of (a) the aggregate amount of Asset Pool 1 Principal
Amounts allocated to the Card Series pursuant to Section 3.3 of the Asset Pool 1
Supplement for such Monthly Period and (b) the percentage equivalent of a
fraction, the numerator of which is the sum of the Principal Allocation Amounts
for such Monthly Period for all Class B Notes in the Card Series and the
denominator of which is sum of the Principal Allocation Amounts for such Monthly
Period for all Notes in the Card Series.
7
"Class B Usage Amount of Class C Notes" means, with respect to any Tranche
of Class B Notes for any Distribution Date, an amount, not to exceed the
Required Subordinated Amount of Class C Notes for such Tranche of Class B Notes,
equal to the excess, if any, of the Class B Usage Amount of Subordinated Notes
over the Required Subordinated Amount of Class D Notes, in each case, for such
Tranche of Class B Notes.
"Class B Usage Amount of Class D Notes" means, with respect to any Tranche
of Class B Notes for any Distribution Date, an amount, not to exceed the
Required Subordinated Amount of Class D Notes for such Tranche of Class B Notes,
equal to the Class B Usage Amount of Subordinated Notes for such Tranche of
Class B Notes.
"Class B Usage Amount of Subordinated Notes" means, with respect to any
Tranche of Outstanding Class B Notes, zero on the date of issuance of such
Tranche and on any Distribution Date thereafter the Class B Usage Amount of
Subordinated Notes as of the preceding date of determination for such Tranche,
plus the sum of the following amounts (in each case, such amount shall not
exceed the Class B Available Subordinated Amount of Subordinated Notes for such
Tranche after giving effect to the previous clauses, if any):
(a) an amount equal to the product of (i) the aggregate amount
allocated to the Class C Notes pursuant to Section 3.05(a) on such date and
(ii) a fraction, the numerator of which is the Class B Available
Subordinated Amount of Class C Notes for such Tranche of Class B Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class C Notes, in each case, after giving effect to Sections 3.05(a) and
(b); plus
(b) an amount equal to the product of (i) the aggregate amount
reallocated pursuant to Section 3.05(b)(ii) on such date from all Class A
Notes with a Required Subordinated Amount of Class B Notes greater than
zero to the Class C Notes and (ii) a fraction, the numerator of which is
the Class B Available Subordinated Amount of Class C Notes for such Tranche
of Class B Notes and the denominator of which is the aggregate Class B
Available Subordinated Amount of Class C Notes for all Tranches of Class B
Notes in the Card Series, in each case, after giving effect to Sections
3.05(a) and (b); plus
(c) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.05(a) on such date and
(ii) a fraction, the numerator of which is the Class B Available
Subordinated Amount of Class D Notes for such Tranche of Class B Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class D Notes, in each case, after giving effect to Sections 3.05(a) and
(b); plus
(d) an amount equal to the product of (i) the aggregate amount
reallocated pursuant to Section 3.05(b)(iii) on such date from the Class A
Notes with a Required Subordinated Amount of Class B Notes greater than
zero to the Class D Notes and (ii) a fraction, the numerator of which is
the Class B Available Subordinated Amount of Class D Notes for such Tranche
of Class B Notes and the denominator of which is the aggregate Class B
Available Subordinated Amount of Class D Notes for all Tranches of
8
Class B Notes in the Card Series, in each case, after giving effect to
Sections 3.05(a) and (b); plus
(e) the aggregate amount reallocated from such Tranche of Class B
Notes to the Class C Notes or Class D Notes pursuant to Section 3.05(c) on
such date; plus
(f) an amount equal to the product of (i) an amount equal to the
aggregate amount allocated to the Class C Notes pursuant to Section
3.08(a)(ii) on such date with respect to Class A Notes with a Required
Subordinated Amount of Class B Notes greater than zero and (ii) a fraction,
the numerator of which is the Class B Available Subordinated Amount of
Class C Notes for such Tranche of Class B Notes and the denominator of
which is the aggregate Class B Available Subordinated Amount of Class C
Notes for all Tranches of Class B Notes in the Card Series, in each case,
after giving effect to Section 3.05; plus
(g) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(a)(iii) on such
date with respect to Class A Notes with a Required Subordinated Amount of
Class B Notes greater than zero and (ii) a fraction, the numerator of which
is the Class B Available Subordinated Amount of Class D Notes for such
Tranche of Class B Notes and the denominator of which is the aggregate
Class B Available Subordinated Amount of Class D Notes for all Tranches of
Class B Notes in the Card Series, in each case, after giving effect to
Section 3.05; plus
(h) the aggregate amount reallocated from such Tranche of Class B
Notes to the Class C Notes and Class D Notes pursuant to Section 3.08(b) on
such date; plus
(i) the aggregate amount of Card Series Principal Amounts allocated to
the Interest Funding sub-Account of such Tranche of Class B Notes pursuant
to Section 3.07(b) on such date; plus
(j) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(f) on such date and
(ii) a fraction, the numerator of which is the Class B Available
Subordinated Amount of Class D Notes for such Tranche of Class B Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class D Notes, in each case, after giving effect to Section 3.05 and
Sections 3.08(a) through (e); plus
(k) an amount equal to the product of (i) the aggregate amount
allocated to the Class C Notes pursuant to Section 3.08(g)(ii) on such date
with respect to Class A Notes with a Required Subordinated Amount of Class
B Notes greater than zero and (ii) a fraction, the numerator of which is
the Class B Available Subordinated Amount of Class C Notes for such Tranche
of Class B Notes and the denominator of which is the aggregate Class B
Available Subordinated Amount of Class C Notes for all Tranches of Class B
Notes in the Card Series, in each case, after giving effect to Section 3.05
and Sections 3.08(a) through (f); plus
(l) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(g)(iii) on such
date with respect to Class A Notes
9
with a Required Subordinated Amount of Class B Notes greater than zero and
(ii) a fraction, the numerator of which is the Class B Available
Subordinated Amount of Class D Notes for such Tranche of Class B Notes and
the denominator of which is the aggregate Class B Available Subordinated
Amount of Class D Notes for all Tranches of Class B Notes in the Card
Series, in each case, after giving effect to Section 3.05 and Sections
3.08(a) through (f); plus
(m) the aggregate amount reallocated from such Tranche of Class B
Notes to the Class C Notes and Class D Notes pursuant to Section 3.08(h) on
such date; plus
(n) the aggregate amount of Card Series Principal Amounts paid to the
Servicer pursuant to Section 3.07(e) on such date; plus
(o) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(l) on such date and
(ii) a fraction, the numerator of which is the Class B Available
Subordinated Amount of Class D Notes for such Tranche of Class B Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class D Notes, in each case, after giving effect to Section 3.05 and
Sections 3.08(a) and (k); minus
(p) an amount (not to exceed the Class B Usage Amount of Class C Notes
for such Tranche of Class B Notes after giving effect to the amounts
computed pursuant to clauses (a) through (o) above) equal to the product of
(i) the aggregate Nominal Liquidation Amount Deficits of all Class C Notes
which are reimbursed on such Distribution Date pursuant to Section 3.06 and
(ii) a fraction, the numerator of which is the Class B Usage Amount of
Class C Notes (prior to giving effect to any reimbursement of Nominal
Liquidation Amount Deficits on such Distribution Date) for such Tranche of
Class B Notes and the denominator of which is the aggregate Nominal
Liquidation Amount Deficits (prior to giving effect to such reimbursement)
of all Class C Notes, minus;
(q) an amount (not to exceed the Class B Usage Amount of Class D Notes
for such Tranche of Class B Notes after giving effect to the amounts
computed pursuant to clauses (a) through (o) above) equal to the product of
(i) the aggregate Nominal Liquidation Amount Deficits of all Class D Notes
which are reimbursed on such Distribution Date pursuant to Section 3.06 and
(ii) a fraction, the numerator of which is the Class B Usage Amount of
Class D Notes (prior to giving effect to any reimbursement of Nominal
Liquidation Amount Deficits on such Distribution Date) for such Tranche of
Class B Notes and the denominator of which is the aggregate Nominal
Liquidation Amount Deficits (prior to giving effect to such reimbursement)
of all Class D Notes;
provided, however, that if on any date of determination the Required
Subordinated Amount of Subordinated Notes for such Tranche of Class B Notes
changes pursuant to any Terms Document, after giving effect to such change, the
Class B Usage Amount of Subordinated Notes will be an amount equal to the
product of (a) the Required Subordinated Amount of Subordinated Notes for such
Tranche of Class B Notes after giving effect to such issuance and (b) a
fraction, the numerator of which is the Class B Usage Amount of Subordinated
Notes prior
10
to giving effect to such issuance and the denominator of which is the Required
Subordinated Amount of Subordinated Notes for such Tranche of Class B Notes
prior to giving effect to such issuance, subject to further adjustment as
described above.
"Class C Available Subordinated Amount of Class D Notes" means, for any
Tranche of Class C Notes, with respect to any Distribution Date, an amount equal
to the Required Subordinated Amount of Class D Notes minus the Class C Usage
Amount of Class D Notes, each for such Tranche of Class C Notes as of such
Distribution Date.
"Class C Notes" means a Note specified in the applicable Terms Document as
belonging to Class C.
"Class C Principal Allocation" means, for any Monthly Period, an amount
equal to the product of (a) the aggregate amount of Asset Pool 1 Principal
Amounts allocated to the Card Series pursuant to Section 3.3 of the Asset Pool 1
Supplement for such Monthly Period and (b) the percentage equivalent of a
fraction, the numerator of which is the sum of the Principal Allocation Amounts
for such Monthly Period for all Class C Notes in the Card Series and the
denominator of which is sum of the Principal Allocation Amounts for such Monthly
Period for all Notes in the Card Series.
"Class C Reserve Account" means the trust account designated as such and
established pursuant to Section 5.01(a).
"Class C Usage Amount of Class D Notes" means, with respect to any Tranche
of Outstanding Class C Notes, zero on the date of issuance of such Tranche and
on any Distribution Date thereafter the Class C Usage Amount of Class D Notes as
of the preceding date of determination for such Tranche, plus the sum of the
following amounts (in each case, such amount shall not exceed the Class C
Available Subordinated Amount of Class D Notes for such Tranche after giving
effect to the previous clauses, if any):
(a) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.05(a) on such date and
(ii) a fraction, the numerator of which is the Class C Available
Subordinated Amount of Class D Notes for such Tranche of Class C Notes and
the denominator of which is the aggregate Nominal Liquidation Amount of the
Class D Notes, in each case, after giving effect to Sections 3.05(a) and
(b); plus
(b) an amount equal to the product of (i) the aggregate amount
reallocated from the Class A Notes or the Class B Notes to the Class D
Notes pursuant to Sections 3.05(b)(iii) and 3.05(c)(ii) on such date and
(ii) a fraction, the numerator of which is the Class C Available
Subordinated Amount of Class D Notes for such Tranche of Class C Notes and
the denominator of which is the aggregate Class C Available Subordinated
Amount of Class D Notes for all Tranches of Class C Notes in the Card
Series, in each case, after giving effect to Sections 3.05(a) and (b); plus
(c) the aggregate amount reallocated from such Tranche of Class C
Notes to the Class D Notes pursuant to Section 3.05(d) on such date; plus
11
(d) an amount equal to the product of (i) the aggregate amount
allocated or reallocated to the Class D Notes pursuant to Sections
3.08(a)(iii) and 3.08(b)(ii) on such date and (ii) a fraction, the
numerator of which is the Class C Available Subordinated Amount of Class D
Notes for such Tranche of Class C Notes and the denominator of which is the
aggregate Class C Available Subordinated Amount of Class D Notes for all
Tranches of Class C Notes in the Card Series, in each case, after giving
effect to Section 3.05; plus
(e) an amount equal to the aggregate amount reallocated from such
Tranche of Class C Notes to the Class D Notes pursuant to Section 3.08(c)
on such date; plus
(f) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(d)(ii) on such date
and (ii) a fraction, the numerator of which is the Class C Available
Subordinated Amount of Class D Notes for such Tranche of Class C Notes and
the denominator of which is the aggregate Class C Available Subordinated
Amount of Class D Notes for all Tranches of Class C Notes in the Card
Series, in each case, after giving effect to Section 3.05 and Sections
3.08(a) through (c); plus
(g) an amount equal to the aggregate amount reallocated from such
Tranche of Class C Notes to the Class D Notes pursuant to Section 3.08(e)
on such date; plus
(h) the aggregate amount of Card Series Principal Amounts allocated to
the Interest Funding sub-Account of such Tranche of Class C Notes pursuant
to Section 3.07(c) on such date; plus
(i) an amount equal to the product of (i) the aggregate amount
allocated or reallocated to the Class D Notes pursuant to Sections
3.08(g)(iii) and 3.08(h)(ii) on such date and (ii) a fraction, the
numerator of which is the Class C Available Subordinated Amount of Class D
Notes for such Tranche of Class C Notes and the denominator of which is the
aggregate Class C Available Subordinated Amount of Class D Notes for all
Tranches of Class C Notes in the Card Series, in each case, after giving
effect to Section 3.05 and Sections 3.08(a) through (f); plus
(j) an amount equal to the aggregate amount reallocated from such
Tranche of Class C Notes to the Class D Notes pursuant to Section 3.08(i)
on such date; plus
(k) an amount equal to the product of (i) the aggregate amount
allocated to the Class D Notes pursuant to Section 3.08(j)(ii) on such date
and (ii) a fraction, the numerator of which is the Class C Available
Subordinated Amount of Class D Notes for such Tranche of Class C Notes and
the denominator of which is the aggregate Class C Available Subordinated
Amount of Class D Notes for all Tranches of Class C Notes in the Card
Series, in each case, after giving effect to Section 3.05 and Sections
3.08(a) through (i); plus
(l) an amount equal to the aggregate amount reallocated from such
Tranche of Class C Notes to the Class D Notes pursuant to Section 3.08(k)
on such date; plus
12
(m) the aggregate amount of Card Series Principal Amounts paid to the
Servicer pursuant to Section 3.07(f) on such date; minus
(n) an amount (not to exceed the Class C Usage Amount of Class D Notes
for such Tranche of Class C Notes after giving effect to the amounts
computed pursuant to clauses (a) through (m) above) equal to the product of
(i) the aggregate Nominal Liquidation Amount Deficits of all Class D Notes
which are reimbursed on such Distribution Date pursuant to Section 3.06 and
(ii) a fraction, the numerator of which is the Class C Usage Amount of
Class D Notes (prior to giving effect to any reimbursement of Nominal
Liquidation Amount Deficits on such Distribution Date) for such Tranche of
Class C Notes and the denominator of which is the aggregate Nominal
Liquidation Amount Deficits (prior to giving effect to such reimbursement)
of all Class D Notes;
provided, however, that if on any date of determination the Required
Subordinated Amount of Class D Notes for such Tranche of Class C Notes changes
pursuant to any Terms Document, after giving effect to such change, the Class C
Usage Amount of Class D Notes will be an amount equal to the product of (a) the
Required Subordinated Amount of Class D Notes for such Tranche of Class C Notes
after giving effect to such issuance and (b) a fraction, the numerator of which
is the Class C Usage Amount of Class D Notes prior to giving effect to such
issuance and the denominator of which is the Required Subordinated Amount of
Class D Notes for such Tranche of Class C Notes prior to giving effect to such
issuance, subject to further adjustment as described above.
"Class D Notes" means a Note specified in the applicable Terms Document as
belonging to Class D.
"Class D Principal Allocation" means, for any Monthly Period, an amount
equal to the product of (a) the aggregate amount of Asset Pool 1 Principal
Amounts allocated to the Card Series pursuant to Section 3.3 of the Asset Pool 1
Supplement for such Monthly Period and (b) the percentage equivalent of a
fraction, the numerator of which is the sum of the Principal Allocation Amounts
for such Monthly Period for all Class D Notes in the Card Series and the
denominator of which is sum of the Principal Allocation Amounts for such Monthly
Period for all Notes in the Card Series.
"Class D Reserve Account" means the trust account designated as such and
established pursuant to Section 5.01(a).
"Derivative Accrual Date" means, for any Monthly Period with respect to any
Tranche of Notes which has a Performing Derivative Agreement for interest, the
date in such Monthly Period corresponding numerically to the next payment date
under the related Derivative Agreement following the end of the related Monthly
Period.
"Excess Finance Charges," for the Card Series for any month, means the
aggregate amount of Card Series Finance Charge Amounts available after giving
effect to Sections 3.01(a) through (k) for such month.
"Excess Spread Amount" means, with respect to any Monthly Period, the
aggregate amount of Card Series Finance Charge Amounts (exclusive of any amounts
to be
13
treated as Card Series Finance Charge Amounts pursuant to Section 3.04(a)(v))
minus the sum of the amounts, without duplication, determined pursuant to
Sections 3.01(a) through (g).
"Expected Monthly Principal" means, for any Monthly Period, an amount equal
to the product of (i) the lowest of the monthly principal payment rates
(determined by dividing Collections of Principal Receivables during a calendar
month by the amount of Principal Receivables in the Master Trust as of the last
day of the preceding month, adjusted for additions to and removals from the
Master Trust occurring after such last day), expressed as a decimal for the 12
calendar months preceding the date of such calculation (or such lower principal
payment rate as the Transferor may select) and (ii) the sum of (A) the sum of
the initial Invested Amounts of all outstanding Series of Investor Certificates
issued by the Master Trust, other than Variable Funding Series and (B) the
Principal Allocation Amount of each Tranche of Asset Pool 1 Notes. Capitalized
terms used in this definition and not otherwise defined herein have the meaning
given to such terms in the COMT Pooling and Servicing Agreement and the Series
2002-CC Supplement.
"Finance Charge Shortfall" means, for the Card Series for any month, an
amount equal to the excess, if any, of (a) the sum of the amounts, without
duplication, determined pursuant to Sections 3.01(a) through (k) over (b) the
aggregate amount of Card Series Finance Charge Amounts.
"Floating Allocation Amount" means, for any Monthly Period, for any Class
or Tranche of Card Series Notes, the sum of:
(a) the Nominal Liquidation Amount of such Class or Tranche of Card
Series Notes as of the last day of the preceding Monthly Period, or with
respect to the first Monthly Period for any Class or Tranche of Card Series
Notes, the Initial Dollar Principal Amount of such Class or Tranche, plus
(b) the aggregate amount of any increase in the Nominal Liquidation
Amount of any Class or Tranche of Card Series Notes during the current
Monthly Period due to (x) the issuance of additional Notes of such Class or
Tranche of Card Series Notes during such Monthly Period or (y) the
accretion of principal on such Class or Tranche of Card Series Discount
Notes during such Monthly Period or (z) the release of Prefunding Excess
Amounts (other than amount that were deposited into the applicable
Principal Funding sub-Account for such Class or Tranche of Card Series
Notes during such Monthly Period) for such Class or Tranche of Card Series
Notes from the applicable Principal Funding sub-Account.
"Floating Allocation Percentage" means, for any Monthly Period, for the
Card Series Notes, the percentage equivalent (which percentage shall not exceed
100%) of a fraction, the numerator of which is the sum of the Floating
Allocation Amounts of all Classes and Tranches of Card Series Notes for such
Monthly Period (exclusive of (x) any Class or Tranche of Card Series Notes which
will be paid in full during such Monthly Period and (y) any Class or Tranche of
Card Series Notes which will have a Nominal Liquidation Amount of zero during
such Monthly Period) and the denominator of which is the sum of the numerators
used to
14
calculate the Floating Allocation Percentages for all Series of Asset Pool 1
Notes for such Monthly Period.
"IFA Reallocation Amount" means, with respect to any Tranche of Notes for
any Distribution Date, the aggregate amount of Card Series Principal Amounts
allocated to the Interest Funding sub-Account for such Tranche of Notes pursuant
to Section 3.07.
"Indenture" means the Indenture dated as of October 9, 2002 by and between
the Issuer and Indenture Trustee.
"Interest Funding Account" means the trust account designated as such and
established pursuant to Section 5.01(a).
"Interest Funding sub-Account Earnings" means, with respect to each
Distribution Date, the investment earnings on funds in the Interest Funding
Account (net of investment expenses and losses) for the period from and
including the immediately preceding Distribution Date to but excluding such
Distribution Date.
"Investor Charge-Offs" means, with respect to any Distribution Date, the
aggregate amount, if any, by which the Card Series Defaulted Amount, if any, for
the preceding Monthly Period exceeds the Card Series Finance Charge Amounts for
such Distribution Date available after giving effect to clauses (a) through (e)
of Section 3.01.
"Monthly Interest Accrual Date" means, with respect to any Outstanding
Class or Tranche of Asset Pool 1 Notes:
(a) each Interest Payment Date for such Class or Tranche, or as
otherwise specified in the applicable Terms Document for such Tranche of
Notes, and
(b) for any Monthly Period in which no Interest Payment Date for such
Class or Tranche occurs, the date in such Monthly Period corresponding
numerically to the next Interest Payment Date for such Class or Tranche of
Notes, or in the case of a Class or Tranche of Discount Notes, the Expected
Principal Payment Date for that Class or Tranche; provided, however, that
(i) for the Monthly Period in which a Class or Tranche of Notes
is issued, the date of issuance of such Class or Tranche will be the
first Monthly Interest Accrual Date for such Monthly Period for such
Class or Tranche of Notes,
(ii) any date on which proceeds from a sale of assets following
an Event of Default and acceleration of any Tranche of Notes are
deposited into the Interest Funding sub-Account for such Notes will be
a Monthly Interest Accrual Date for such Tranche of Notes,
(iii) if there is no such numerically corresponding date in such
Monthly Period, then the Monthly Interest Accrual Date will be the
last Business Day of such Monthly Period, and
15
(iv) if such numerically corresponding date in such Monthly
Period is not a Business Day, then the Monthly Interest Accrual Date
will be the next following Business Day (unless such Business Day
would fall in the following Monthly Period in which case the Monthly
Interest Accrual Date will be the last Business Day of such earlier
month).
"Monthly Principal Accrual Date" means, with respect to any Outstanding
Class or Tranche of Asset Pool 1 Notes:
(a) for any Monthly Period in which an Expected Principal Payment Date
for such Class or Tranche occurs, such Expected Principal Payment Date, or
as otherwise specified in the applicable Terms Document for such Tranche of
Notes, and
(b) for any Monthly Period in which no Expected Principal Payment Date
for such Class or Tranche occurs, the date in such Monthly Period
corresponding numerically to the next Expected Principal Payment Date for
such Tranche of Notes (or for any month following the last Expected
Principal Payment Date, the date in such month corresponding numerically to
the preceding Expected Principal Payment Date for such Tranche of Notes),
or as otherwise specified in the applicable Terms Document, for such
Tranche of Notes; provided, however, that:
(i) following a Pay Out Event as described in subsection 9.01(a)
of the COMT Pooling and Servicing Agreement, the second Business Day
following such Pay Out Event shall be a Monthly Principal Accrual
Date,
(ii) any date on which Prefunded Excess Amounts are released from
any Principal Funding sub-Account and deposited into the Principal
Funding sub-Account of any Tranche of Notes on or after the Expected
Principal Payment Date for such Tranche of Notes will be a Monthly
Principal Accrual Date for such Tranche of Notes,
(iii) any date on which proceeds from a sale of assets following
an Event of Default and acceleration of any Tranche of Notes are
deposited into the Principal Funding sub-Account for such Tranche of
Notes will be a Monthly Principal Accrual Date for such Tranche of
Notes,
(iv) if there is no numerically corresponding date in such
Monthly Period, then the Monthly Principal Accrual Date will be the
last Business Day of such Monthly Period, and
(v) if such numerically corresponding date in such Monthly Period
is not a Business Day, the Monthly Principal Accrual Date will be the
next following Business Day (unless such Business Day would fall in
the following month in which case the Monthly Principal Accrual Date
will be the last Business Day of such earlier Monthly Period).
"Monthly Principal Payment" means, for any Monthly Period for the Card
Series Notes, an amount, not less than zero, equal to (a) the Targeted Principal
Deposit Amount, plus (b) the aggregate amount of Card Series Principal Amounts
applied pursuant to Section 3.07(a) through (f), minus (c) the aggregate amount
of Card Series Finance Charge Amounts treated as
16
Card Series Principal Amounts pursuant to Section 3.01(f) or (g), each with
respect to such Monthly Period.
"Nominal Liquidation Amount" means, with respect to any Tranche of Notes,
the amount calculated pursuant to Section 3.16 of this Indenture Supplement. The
Nominal Liquidation Amount for the Card Series will be the sum of the Nominal
Liquidation Amounts of all of the Tranches of Notes of the Card Series.
"Nominal Liquidation Amount Deficit" means, with respect to any Tranche of
Notes, the excess of the Adjusted Outstanding Dollar Principal Amount of that
Tranche over the Nominal Liquidation Amount of that Tranche.
"Performing" means, with respect to any Derivative Agreement, no payment
default or repudiation of performance by a Derivative Counterparty has occurred,
and such Derivative Agreement has not been terminated.
"PFA Accumulation Earnings" means, with respect to each Distribution Date,
the investment earnings on funds in the Principal Funding Account (net of
investment expenses and losses), other than funds in the Principal Funding
Account in connection with any Prefunding Target Amounts, for the period from
and including the immediately preceding Distribution Date to but excluding such
Distribution Date.
"PFA Accumulation Earnings Shortfall" means, for any Distribution Date,
(a) the aggregate of the PFA Accumulation Earnings Target for each
Tranche of Card Series Notes for such Distribution Date, minus
(b) the PFA Accumulation Earnings for such period.
"PFA Accumulation Earnings Target" means, for any Distribution Date, with
respect to any amount on deposit in a Principal Funding sub-Account (prior to
giving effect to any deposits to be made on such date), other than any amount in
connection with a Prefunding Target Amount, for a Tranche of Notes, the Dollar
amount of interest that would have accrued on such deposit (or portion thereof)
for the period from and including the preceding Distribution Date to but
excluding such Distribution Date if it had borne interest at the following
rates:
(a) in the case of a Tranche of Dollar Interest-bearing Notes with no
Derivative Agreement for interest, at the rate of interest applicable to
that Tranche;
(b) in the case of a Tranche of Discount Notes, at the rate of
accretion (converted to an accrual rate) of that Tranche;
(c) in the case of a Tranche of Notes with a Performing Derivative
Agreement for interest, at the rate at which payments by the Issuer to the
applicable Derivative Counterparty accrue (prior to the netting of such
payments, if applicable); and
(d) in the case of a Tranche of Notes with a non-Performing Derivative
Agreement for interest, at the rate specified in the related Terms
Document.
17
More than one of the aforementioned rates of interest may be applicable to
amounts on deposit in a Principal Funding sub-Account for a Tranche of Notes.
"PFA Prefunding Earnings" means, with respect to each Distribution Date,
the investment earnings on funds in the Principal Funding Account (net of
investment expenses and losses) in connection with any Prefunding Target Amounts
for the period from and including the immediately preceding Distribution Date to
but excluding such Distribution Date.
"PFA Prefunding Earnings Shortfall" means, for any Distribution Date,
(a) the aggregate PFA Prefunding Earnings Targets for each Tranche of
Card Series Notes for such Distribution Date, minus
(b) the PFA Prefunding Earnings for such period.
"PFA Prefunding Earnings Target" means, for any Distribution Date, with
respect to any amount on deposit in a Principal Funding sub-Account in
connection with a Prefunding Target Amount for a Tranche of Notes, the Dollar
amount of interest that would have accrued on such deposit (or portion thereof)
for the period from and including the preceding Distribution Date to but
excluding such Distribution Date if it had borne interest at the following
rates:
(a) in the case of a Tranche of Dollar Interest-bearing Notes with no
Derivative Agreement for interest, at the rate of interest applicable to
that Tranche;
(b) in the case of a Tranche of Discount Notes, at the rate of
accretion (converted to an accrual rate) of that Tranche;
(c) in the case of a Tranche of Notes with a Performing Derivative
Agreement for interest, at the rate at which payments by the Issuer to the
applicable Derivative Counterparty accrue (prior to the netting of such
payments, if applicable); and
(d) in the case of a Tranche of Notes with a non-Performing Derivative
Agreement for interest, at the rate specified in the related Terms
Document.
More than one of the aforementioned rates of interest may be applicable to
amounts on deposit in a Principal Funding sub-Account for a Tranche of Notes.
"Prefunding Excess Amount" means, with respect to any Senior Class of Notes
for any date, after giving effect to all issuances, allocations, deposits and
payments with respect to that date, the aggregate amounts on deposit in the
Principal Funding sub-Accounts of the Notes of that Class that are in excess of
the aggregate amount targeted to be on deposit in those Principal Funding
sub-Accounts pursuant to Section 3.10.
"Prefunding Target Amount" means the amount calculated pursuant to Section
3.21.
"Principal Allocation Amount" means, for any Monthly Period, for the Card
Series Notes,
18
(a) for all Classes or Tranches of Card Series Notes in an
Accumulation Period, the Nominal Liquidation Amount of such Class or
Tranche of Card Series Notes as of the close of business on the day prior
to the commencement of the most recent Accumulation Period for such Class
or Tranche of the Card Series, and
(b) for all other Classes or Tranches of Outstanding Card Series
Notes, the sum of:
(i) the Nominal Liquidation Amount of such Classes or Tranches of
Card Series Notes, as of the close of business on the last day of the
immediately preceding Monthly Period, or with respect to the first
Monthly Period for any Class or Tranche of Card Series Notes, the
Initial Dollar Principal Amount of such Class or Tranche, and
(ii) the aggregate amount of any increase in the Nominal
Liquidation Amount of such Class or Tranche of Card Series Notes
during the current Monthly Period due to (x) the issuance of
additional Notes of such Class or Tranche of Card Series Notes during
such Monthly Period or (y) the accretion of principal on such Class or
Tranche of Card Series Discount Notes during such Monthly Period or
(z) the release of Prefunding Excess Amounts (other than amounts that
were deposited into the applicable Principal Funding sub-Account for
such Class or Tranche of Card Series Notes during such Monthly Period)
for such Class or Tranche of Card Series Notes from the Principal
Funding Account or applicable Principal Funding sub-Account;
provided, however, that if after the commencement of an Accumulation Period
for a Tranche of Notes, another Tranche of Notes that was designated in or
under the Terms Document therefor as a Tranche that is a "Paired Tranche"
with respect to the first Tranche of Notes, the Administrator, on behalf of
the Issuer, may, by written notice delivered to the Indenture Trustee,
designate an amount (the "Paired Amount") to be subtracted from the amount
calculated pursuant to clause (a) or (b) above for the second Tranche of
Notes, provided that (x) such amount shall not exceed 90% of the aggregate
amount on deposit in the Principal Funding sub-Account for such first
Tranche of Notes and (y) the Issuer shall have received written notice from
each Note Rating Agency that such designation will not have a Ratings
Effect and shall have delivered copies of each such written notice to the
Indenture Trustee and the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate to the effect that, based on the facts
known to such officer at that time, in the reasonable belief of the Issuer,
such designation will not have an Adverse Effect with respect to any
Outstanding Notes.
"Principal Allocation Percentage" means, for any Monthly Period, for the
Card Series Notes, the percentage equivalent (which percentage shall not exceed
100%) of a fraction, the numerator of which is equal to the sum of the Principal
Allocation Amounts for all Classes or Tranches of Card Series Notes (exclusive
of (x) any Class or Tranche of Card Series Notes which will be paid in full
during such Monthly Period and (y) any Class or Tranche of Card Series Notes
which will have a Nominal Liquidation Amount of zero during such Monthly
19
Period) and the denominator of which is the sum of the numerators used to
calculate the Principal Allocation Percentages for all Series of Asset Pool 1
Notes for such Monthly Period.
"Principal Funding Account" means the trust account designated as such and
established pursuant to Section 5.01(a).
"Principal Funding sub-Account Amount" means, with respect to any Tranche
of Notes as of any date, the amount on deposit in the Principal Funding
sub-Account for such Tranche of Notes on such date.
"Principal Shortfall" means, for the Card Series for any month, an amount
equal to the excess, if any, of (a) the aggregate amount of Card Series
Principal Amounts over (b) the sum of the amounts, without duplication,
determined pursuant to Sections 3.07(a) through (g).
"Reallocated Principal Amount" means, with respect to any Distribution
Date, the aggregate amount of Card Series Principal Amounts which are allocated
to be deposited in the Interest Funding sub-Account of any Class A Notes, Class
B Notes or Class C Notes pursuant to Section 3.07(a), (b) or (c) or allocated to
the Servicer pursuant to Section 3.07(d), (e) or (f) on such Distribution Date.
"Required Excess Spread Amount" means, with respect to any Monthly Period,
an amount equal to zero; provided, however, that the Issuer may, from time to
time, change such amount (which will never be less than zero) upon (i) written
notice to the Indenture Trustee, (ii) prior written confirmation from the Note
Rating Agencies that a Ratings Effect will not occur with respect to such change
and (iii) delivery by the Issuer of an Officer's Certificate to the effect that,
in its reasonable belief, such change will not have an Adverse Effect.
"Required Subordinated Amount of Class B Notes" at any time, for any
Tranche of Class A Notes, is defined in the Terms Document for such Tranche of
Class A Notes.
"Required Subordinated Amount of Class C Notes" at any time, for any
Tranche of Class A Notes or Class B Notes, is defined in the related Terms
Document for such Tranche of Notes.
"Required Subordinated Amount of Class D Notes" at any time, for any
Tranche of Class A Notes, Class B Notes or Class C Notes, is defined in the
related Terms Document for such Tranche of Notes.
"Required Subordinated Amount of Subordinated Notes" at any time, for any
Tranche of Class A Notes, Class B Notes or Class C Notes, is equal to the sum of
the Required Subordinated Amount of Class B Notes, if any, the Required
Subordinated Amount of Class C Notes, if any, and the Required Subordinated
Amount of Class D Notes, if any, in each case, for such Tranche of Notes.
"Senior Class" means (a) with respect to the Class B Notes, the Class A
Notes, (b) with respect to the Class C Notes, the Class A Notes or Class B Notes
and (c) with respect to the Class D Notes, the Class A Notes, Class B Notes or
Class C Notes.
20
"Series Finance Charge Amounts Shortfall" means, with respect to any
Distribution Date with respect to the Card Series, the excess, if any, of (a)
the aggregate amount targeted to be paid or applied pursuant to Sections 3.01(a)
through (g) for any Distribution Date over (b) the Card Series Finance Charge
Amounts (excluding any amounts to be treated as Card Series Finance Charge
Amounts pursuant to Section 3.27(a)) for such Distribution Date; provided,
however, that the Issuer, when authorized by an Officer's Certificate, may amend
or otherwise modify this definition of Series Finance Charge Amounts Shortfall
provided the Note Rating Agencies confirm in writing that the amendment or
modification will not cause a Ratings Effect with respect to any Outstanding
Notes.
"Series Principal Amounts Shortfall" means, with respect to any
Distribution Date with respect to the Card Series, the excess, if any, of (a)
the aggregate amount targeted to be paid or applied pursuant to Sections 3.07(a)
through (g) for any Distribution Date over (b) the Card Series Principal Amounts
(excluding any amounts to be treated as Card Series Principal Amounts pursuant
to Section 3.28(a)) for such Distribution Date; provided, however, that the
Issuer, when authorized by an Officer's Certificate, may amend or otherwise
modify this definition of Series Principal Amounts Shortfall provided the Note
Rating Agencies confirm in writing that the amendment or modification will not
cause a Ratings Effect with respect to any Outstanding Notes.
"Servicer" means the Servicer under the COMT Pooling and Servicing
Agreement.
"Servicing Fee Shortfall" means for any Distribution Date, the excess, if
any, of (a) the aggregate amount payable to the Servicer pursuant to Section
3.01(d) with respect to such Distribution Date, and (b) the aggregate amount of
Card Series Finance Charge Amounts available after giving effect to Section
3.01(c) on such Distribution Date.
"Shared Excess Finance Charge Amounts" means, with respect to any
Distribution Date with respect to any Series of Notes, either (a) the amount of
Card Series Finance Charge Amounts for such Distribution Date available after
application in accordance with Sections 3.01(a) through (j) or (b) the amounts
allocated to other Series of Notes or Investor Certificates which the applicable
Indenture Supplements for such Series of Notes or the applicable Series
Supplements for such Investor Certificates specify are to be treated as "Shared
Excess Finance Charge Amounts."
"Shared Excess Principal Amounts" means, with respect to any Distribution
Date with respect to any Series of Notes, either (a) the amount of Card Series
Principal Amounts for such Distribution Date available after application in
accordance with Sections 3.07(a) through (e) or (b) the amounts allocated to
other Series of Notes or Investor Certificates which the applicable Indenture
Supplements for such Series specify are to be treated as "Shared Excess
Principal Amounts."
"Spot Exchange Rate," for any Tranche of Notes, has the meaning specified
in the related Terms Document.
21
"Subordinated Class" means (a) with respect to the Class A Notes, the Class
B Notes, Class C Notes or Class D Notes, (b) with respect to the Class B Notes,
the Class C Notes or Class D Notes, and (c) with respect to the Class C Notes,
the Class D Notes.
"Targeted Interest Deposit Amount" means, with respect to the Card Series
Notes for any Distribution Date, the aggregate amount targeted to be deposited
in the Interest Funding Account pursuant to Section 3.02 for such Distribution
Date.
"Targeted Principal Deposit Amount" means, with respect to the Card Series
Notes for any Distribution Date, the aggregate amount targeted to be deposited
in the Principal Funding Account pursuant to Section 3.10 for such Distribution
Date.
"Threshold Conditions" shall mean the conditions listed on Exhibit D, which
Exhibit D may be amended, modified or supplemented by the Issuer upon receipt of
the prior written consent of the Note Rating Agencies.
"Weighted Average Interest Rates" means, with respect to any Outstanding
Notes of a Class or Tranche of the Card Series, or of all of the Outstanding
Notes of the Card Series, on any date, the weighted average (weighted based on
the Outstanding Dollar Principal Amount of the related Notes on such date) of
the following rates of interest:
(a) in the case of a Tranche of Dollar Interest-bearing Notes with no
Derivative Agreement for interest, the annualized rate of interest
applicable to that Tranche on that date;
(b) in the case of a Tranche of Discount Notes, the rate of accretion
(converted to an annualized accrual rate) of that Tranche on that date;
(c) in the case of a Tranche of Notes with a payment due under a
Performing Derivative Agreement for interest, the annualized rate at which
payments by the Issuer to the applicable Derivative Counterparty accrue on
that date (prior to the netting of such payments, if applicable); and
(d) in the case of a Tranche of Notes with a non-Performing Derivative
Agreement for interest, the annualized rate specified for that date in the
related Terms Document.
Section 1.02. Governing Law. THIS INDENTURE SUPPLEMENT WILL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATION LAW, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 1.03. Counterparts. This Indenture Supplement may be executed in
any number of counterparts, each of which so executed will be deemed to be an
original, but all such counterparts will together constitute but one and the
same instrument.
22
Section 1.04. Ratification of Indenture and Asset Pool 1 Supplement. As
supplemented by this Indenture Supplement, the Indenture and the Asset Pool 1
Supplement are in all respects ratified and confirmed and the Indenture and the
Asset Pool 1 Supplement as so supplemented by this Indenture Supplement shall be
read, taken and construed as one and the same instrument.
[END OF ARTICLE I]
23
ARTICLE II
The Notes
Section 2.01. Creation and Designation.
(a) There is hereby created a Series of Asset Pool 1 Notes to be issued
pursuant to the Indenture, the Asset Pool 1 Supplement and this Indenture
Supplement to be known as "Capital One Multi-Asset Execution Trust, Card Series"
or the "Card Series Notes." The Card Series Notes will be issued in four
Classes, the first of which shall be known as the "Card Series Class A Notes,"
the second of which shall be known as the "Card Series Class B Notes," the third
of which shall be known as the "Card Series Class C Notes" and the fourth of
which shall be known as the "Card Series Class D Notes."
(b) The Card Series shall be an Excess Finance Charge Amounts Sharing
Series in Excess Finance Charge Amounts Sharing Group A and an Excess Principal
Amounts Sharing Series in Excess Principal Amounts Sharing Group A, and shall
not be in any other Group. The Card Series Notes shall not be subordinated to
any other Series of Notes.
(c) Notwithstanding the allocation provisions of the Indenture, the Asset
Pool 1 Supplement, each additional Asset Pool Supplement, this Indenture
Supplement and the Indenture Supplements for each other Series of Notes, if any,
to the extent that the Card Series Noteholders are deemed to have any interest
in any assets of the Issuer allocated to other Series of Notes secured by Asset
Pool 1 or another Asset Pool, the Card Series Noteholders agree by acceptance of
their Card Series Notes that their interest in those assets is subordinate to
claims or rights of the Noteholders of such other Series of Notes to those other
assets. Further, the Card Series Noteholders shall agree by their acceptance of
their Card Series Notes that such agreement constitutes a subordination
agreement for purposes of Section 510(a) of the Bankruptcy Code.
Section 2.02. New Issuances of Notes. The Issuer may issue new Tranches of
Notes (including additional Notes of an Outstanding Tranche) to be included in
the Card Series, so long as the following conditions precedent are satisfied:
(i) on or before the date that the new issuance is to occur, the
Issuer shall have delivered to the Indenture Trustee a Terms Document
relating to the applicable Tranche of Notes;
(ii) if the issuance of Notes results in an increase in the targeted
deposit amount of any Class C Reserve sub-Account of a Tranche of Class C
Notes or any Class D Reserve sub-Account of a Tranche of Class D Notes, on
such issuance date the Issuer shall have funded such increase with a cash
deposit to such Class C Reserve sub-Account or Class D Reserve sub-Account,
as applicable;
(iii) unless the Threshold Conditions with respect to the related
Class of Notes have been satisfied, the conditions specified in Section 310
of the Indenture, as applicable, are satisfied;
24
(iv) immediately after giving effect to such issuance, the Nominal
Liquidation Amount of the Class B Notes in the Card Series must be at least
equal to the Class A Available Subordinated Amount of Class B Notes for all
Class A Notes in the Card Series;
(v) immediately after giving effect to such issuance, the Nominal
Liquidation Amount of the Class C Notes in the Card Series must be at least
equal to the sum of (x) the aggregate Class A Available Subordinated Amount
of Class C Notes for all Class A Notes in the Card Series with a Required
Subordinated Amount of Class B Notes equal to zero and (y) the aggregate
Class B Available Subordinated Amount of Class C Notes for all Class B
Notes in the Card Series;
(vi) immediately after giving effect to such issuance, the Nominal
Liquidation Amount of the Class D Notes in the Card Series must be at least
equal to the greater of (A) the sum of (x) the aggregate Class A Available
Subordinated Amount of Class D Notes for all Class A Notes in the Card
Series with a Required Subordinated Amount of Class B Notes of zero and (y)
the aggregate Class B Available Subordinated Amount of Class D Notes for
all Class B Notes in the Card Series and (B) the aggregate Class C
Available Subordinated Amount of Class D Notes for all Class C Notes in the
Card Series; and
(vii) any other conditions specified in the related Terms Document.
[END OF ARTICLE II]
25
ARTICLE III
Allocations, Deposits and Payments
Section 3.01. Allocations of Card Series Finance Charge Amounts. On each
Distribution Date, the Indenture Trustee will apply Card Series Finance Charge
Amounts, as follows:
(a) first, to make the targeted deposits with respect to the Class A Notes
to the Interest Funding Account pursuant to Section 3.02;
(b) second, to make the targeted deposits with respect to the Class B Notes
to the Interest Funding Account pursuant to Section 3.02;
(c) third, to make the targeted deposits with respect to the Class C Notes
to the Interest Funding Account pursuant to Section 3.02;
(d) fourth, to pay the Card Series Servicing Fee plus any previously due
and unpaid Card Series Servicing Fee to the Servicer;
(e) fifth, to make the targeted deposits with respect to the Class D Notes
to the Interest Funding Account pursuant to Section 3.02;
(f) sixth, to be treated as Card Series Principal Amounts for application
in accordance with Section 3.07 in an amount equal to the Card Series Defaulted
Amount, if any, for the preceding Monthly Period;
(g) seventh, to be treated as Card Series Principal Amounts for application
in accordance with Section 3.07 in an amount equal to the aggregate Nominal
Liquidation Amount Deficits, if any, of all Card Series Notes;
(h) eighth, to make the targeted deposit to the Accumulation Reserve
Account, if any, pursuant to Section 3.24;
(i) ninth, to make the targeted deposit to the Class C Reserve Account, if
any, pursuant to Section 3.22;
(j) tenth, to make the targeted deposit to the Class D Reserve Account, if
any, pursuant to Section 3.29;
(k) eleventh, to make any other payment or deposit required by the Terms
Documents of any Class or Tranche of Card Series Notes;
(l) twelfth, to be treated as Shared Excess Finance Charge Amounts for
application in accordance with Section 3.27;
(m) thirteenth, to make any other payment or deposit required by the Terms
Documents of any Class or Tranche of Card Series Notes; and
26
(n) fourteenth, to the holder of Asset Pool 1 Transferor Interest or,
provided that the conditions set forth in Section 10.02 of the Trust Agreement
with respect to transfers of a portion of the Beneficial Interest are met, to
the designee of the holder of the Asset Pool 1 Transferor Interest as though
such designee were a transferee of such portion.
Section 3.02. Targeted Deposits of Card Series Finance Charge Amounts to
the Interest Funding Account. The aggregate amount of Card Series Finance Charge
Amounts targeted to be deposited into the Interest Funding Account for each
Tranche within the related Class of Notes pursuant to Sections 3.01(a), (b), (c)
or (e) on each Distribution Date is equal to the sum of the following amounts.
The targeted deposit on any Distribution Date will also include any shortfall in
the targeted deposit with respect to any prior Distribution Date which has not
been previously deposited.
(a) Specified Deposits. If the Terms Document for a Tranche of Notes
specifies a deposit to be made to the Interest Funding sub-Account for that
Tranche, the deposit targeted for that Tranche of Notes with respect to that
Distribution Date is such specified amount.
(b) Interest Payments. The deposit targeted for any Tranche of Outstanding
Interest-bearing Notes on each Distribution Date will be equal to the amount of
interest accrued on the Outstanding Dollar Principal Amount of that Tranche
during the period from and including the first Monthly Interest Accrual Date in
the prior Monthly Period to but excluding the first Monthly Interest Accrual
Date for the current Monthly Period.
(c) Amounts Owed to Derivative Counterparties. If a Tranche of Outstanding
Dollar Notes or foreign currency Notes that has a Performing or non-Performing
Derivative Agreement for interest provides for a payment to the applicable
Derivative Counterparty, the deposit targeted for that Tranche of Notes on each
Distribution Date with respect to any payment to the Derivative Counterparty
will be specified in the related Terms Document.
(d) Discount Notes. The deposit targeted for a Tranche of Outstanding
Discount Notes on each Distribution Date is the amount of accretion of principal
of that Tranche of Notes from and including the prior Monthly Principal Accrual
Date in the related Monthly Period (or in the case of the first Monthly
Principal Accrual Date with respect to any Tranche of Discount Notes, from and
including the date of issuance of that Tranche of Notes) to but excluding the
first Monthly Principal Accrual Date for the next month.
(e) Additional Interest. Unless otherwise specified in the applicable Terms
Document, the deposit targeted for any Tranche of Outstanding Notes (other than
Discount Notes) for any month that has previously due and unpaid interest will
include the interest accrued on that overdue interest during the period from and
including the first Monthly Interest Accrual Date in the prior month to but
excluding the first Monthly Interest Accrual Date for the current month at the
rate of interest applicable to the principal of that Tranche during that period.
Section 3.03. Allocations of Card Series Finance Charge Amounts to Interest
Funding sub-Accounts. The aggregate amount to be deposited to the Interest
Funding Account for a Class of Notes pursuant to Sections 3.01(a), (b), (c) or
(e) for each Monthly Period will be allocated,
27
and a portion deposited into the Interest Funding sub-Account for each Tranche
of Notes within such Class, as follows:
(a) Card Series Finance Charge Amounts are at Least Equal to Targeted
Amounts. If the amount of funds available for a Monthly Period pursuant to
Section 3.01 (after giving effect to any previous deposits pursuant to Section
3.01 on such Distribution Date) is at least equal to the aggregate amount of the
deposits and payments targeted by Section 3.02 for the related Class of Notes,
then the targeted amount of each such deposit and payment will be made to the
applicable Interest Funding sub-Accounts.
(b) Card Series Finance Charge Amounts are Less than Targeted Amounts. If
the amount of funds available for a Monthly Period pursuant to Section 3.01
(after giving effect to any previous deposits pursuant to Section 3.01 on such
Distribution Date) is less than the aggregate amount of the deposits targeted by
Section 3.02 for the related Class of Notes, then the amount available will be
allocated to each Tranche within such Class of Notes pro rata based on the ratio
of (A) the aggregate amount of the deposits targeted by Section 3.02 with
respect to that Tranche of Notes, to (B) the aggregate amount of the deposits
targeted by Section 3.02 with respect to all Tranches within the related Class
of Notes.
Section 3.04. Amounts to be Treated as Card Series Finance Charge Amounts;
Payments Received from Derivative Counterparties for Interest in Foreign
Currencies; Other Deposits to the Interest Funding sub-Accounts. The following
deposits and payments will be made on the following dates:
(a) Amounts to be Treated as Card Series Finance Charge Amounts. In
addition to Asset Pool 1 Finance Charge Amounts allocated to the Card Series
pursuant to Section 3.2(a) of the Asset Pool 1 Supplement, the following amounts
shall be treated as Card Series Finance Charge Amounts for application in
accordance with this Article III for any Monthly Period:
(i) PFA Accumulation Earnings Shortfall. The aggregate amount
withdrawn from the Accumulation Reserve Account pursuant to Section 3.25(a)
will be treated as Card Series Finance Charge Amounts for such Monthly
Period.
(ii) PFA Prefunding Earnings Shortfall. On or prior to each
Distribution Date, the Issuer will calculate the PFA Prefunding Earnings
Shortfall (if any) for the Principal Funding sub-Account for each Tranche
of Notes. If there is any PFA Prefunding Earnings Shortfall for any
Principal Funding sub-Account for that Distribution Date, or any unpaid PFA
Prefunding Earnings Shortfall for any Principal Funding sub-Account from
any earlier Distribution Date, in each case for any Tranche of Notes, the
Issuer will notify the Transferor and the Master Trust pursuant to the
related Series Supplement of that amount. On each Distribution Date, the
Indenture Trustee will treat as Card Series Finance Charge Amounts the
amount received by the Issuer in respect of segregated transferor interest
finance charge amounts payable to the Issuer pursuant to the related Series
Supplement with respect to each Principal Funding sub-Account, if any;
provided, however, that any such amounts paid to the Issuer following an
insolvency of the related transferor will be deposited directly into the
applicable Interest Funding sub-Accounts
28
pro rata based on the Floating Allocation Amount for such Monthly Period
for each Tranche with prefunded amounts in its Principal Funding
sub-Account.
(iii) Dollar Payments from Derivative Counterparties for Interest.
Dollar payments received under Derivative Agreements for interest for any
Tranche of Notes will be treated as Card Series Finance Charge Amounts.
(iv) Sub-Account Earnings. Any PFA Accumulation Earnings, any PFA
Prefunding Earnings, any Accumulation Reserve Account Earnings and any
Interest Funding sub-Account Earnings for any Distribution Date will be
treated as Card Series Finance Charge Amounts for such Distribution Date.
(v) Shared Excess Finance Charge Amounts. Any Shared Excess Finance
Charge Amounts allocable to the Card Series will be treated as Card Series
Finance Charge Amounts pursuant to Section 3.27(a).
(vi) Other Amounts. This Indenture Supplement or the Terms Document
for any Tranche of Notes may include additional amounts which are to be
treated as Card Series Finance Charge Amounts for any Distribution Date.
(b) Payments Received From Derivative Counterparties. Payments received
under Derivative Agreements for Notes with interest payable in foreign
currencies will be applied as specified in the applicable Terms Document.
(c) Other Deposits to the Interest Funding sub-Accounts.
(i) Class C Reserve Account. Withdrawals made from the Class C Reserve
Account pursuant to Section 3.23(a) will be deposited into the applicable
Interest Funding sub-Account on the Distribution Date.
(ii) Class D Reserve Account. Withdrawals made from the Class D
Reserve Account pursuant to Section 3.30(a) will be deposited into the
applicable Interest Funding sub-Account on the Distribution Date.
(iii) Asset Sales Proceeds. Asset Sales Proceeds received by the
Issuer pursuant to Section 3.20(c)(ii) for any Tranche of Notes will be
deposited into the applicable Interest Funding sub-Account on the date of
receipt by the Issuer.
(iv) Other Amounts. This Indenture Supplement or the Terms Document
for any Tranche may include additional amounts which are to be deposited
into the applicable Interest Funding sub-Account on the Distribution Date.
Section 3.05. Allocations of Reductions to the Nominal Liquidation Amount
Due to Investor Charge-Offs. On each Distribution Date when there is an Investor
Charge-Off with respect to the related Monthly Period, the amount of such
Investor Charge-Off will be allocated (and reallocated) on that date to each
Tranche of Notes as set forth in this Section. In the case of each Tranche of
Notes, the Nominal Liquidation Amount of each such Tranche of Notes will be
reduced by an amount equal to the amounts that are allocated or reallocated to
that Tranche of
29
Notes pursuant to this Section 3.05, less the amounts that are reallocated from
that Tranche of Notes to other Notes pursuant to this Section 3.05.
(a) Initial Allocation. Initially, the amount of each Investor Charge-Off
will be allocated to each Tranche of Outstanding Notes in the Card Series pro
rata based on the ratio of the Nominal Liquidation Amount of such Tranche of
Notes to the Nominal Liquidation Amount of the Card Series Notes, each as of the
close of business on the last day of the preceding Monthly Period. Any such
allocation (or portion thereof) that would otherwise have reduced the Nominal
Liquidation Amount of a Tranche of Notes below zero will be reallocated to the
remaining Tranches of Outstanding Notes in the Card Series as set forth in this
clause (a), but in no event will the Nominal Liquidation Amount (after giving
effect to this clause (a)) of any Tranche of Notes be reduced below zero.
(b) Reallocation from Class A Notes. (i) Immediately after giving effect to
clause (a) above, the amount allocated to each Tranche of Class A Notes pursuant
to clause (a) above, subject to the limitation in clause (e) below, will be
reallocated to the Class B Notes, in an amount (not less than zero) not to
exceed:
(x) the Class A Available Subordinated Amount of Class B Notes for
such Tranche of Class A Notes as of the close of business on the last day
of the preceding Monthly Period, minus
(y) the product of (A) the aggregate amount allocated to the Class B
Notes pursuant to clause (a) above and (B) a fraction, the numerator of
which is the amount determined pursuant to clause (b)(i)(x) above and the
denominator of which is the aggregate Nominal Liquidation Amount of all the
Class B Notes in the Card Series as of the close of business of the last
day of the preceding Monthly Period.
(ii) The amount allocated to each Tranche of Class A Notes pursuant to
clause (a) above and not reallocated to the Class B Notes due to the limitations
set forth in clause (b)(i) above and clause (e) below, subject to the limitation
in clause (e) below, will be reallocated to the Class C Notes, in an amount (not
less than zero) not to exceed:
(x) the Class A Available Subordinated Amount of Class C Notes for
such Tranche of Class A Notes as of the close of business on the last day
of the preceding Monthly Period, minus
(y) the product of (A) the aggregate amount allocated to the Class C
Notes pursuant to clause (a) above and (B) a fraction, the numerator of
which is the amount determined pursuant to clause (b)(ii)(x) above and the
denominator of which is the aggregate Nominal Liquidation Amount of all the
Class C Notes in the Card Series as of the close of business on the last
day of the preceding Monthly Period.
(iii) The amount allocated to each Tranche of Class A Notes pursuant to
clause (a) above and not reallocated to the Class B Notes or the Class C Notes
due to the limitations set forth in clauses (b)(i) and (b)(ii) above and clause
(e) below, subject to the
30
limitation in clause (e) below, will be reallocated to the Class D Notes, in an
amount (not less then zero) not to exceed:
(x) the Class A Available Subordinated Amount of Class D Notes for
such Tranche of Class A Notes as of the close of business on the last day
of the preceding Monthly Period, minus
(y) the product of (A) the aggregate amount allocated to the Class D
Notes pursuant to clause (a) above and (B) a fraction, the numerator of
which is the amount determined pursuant to clause (b)(iii)(x) above and the
denominator of which is the Nominal Liquidation Amount of all the Class D
Notes in the Card Series as of the close of business on the last day of the
preceding Monthly Period.
(c) Reallocation from Class B Notes. (i) Immediately after giving effect to
clause (b) above, the amount allocated to each Tranche of Class B Notes pursuant
to clause (a) above or reallocated to such Tranche of Class B Notes pursuant to
clause (b)(i) above, subject to the limitation in clause (e) below, will be
reallocated to the Class C Notes, in an amount (not less than zero) not to
exceed:
(x) the Class B Available Subordinated Amount of Class C Notes for
such Tranche of Class B Notes as of the close of business on the last day
of the preceding Monthly Period, minus
(y) the sum of:
(A) the product of (1) the aggregate amount allocated to the
Class C Notes pursuant to clause (a) above and (2) a fraction, the
numerator of which is the amount determined pursuant to clause
(c)(i)(x) above and the denominator of which is the Nominal
Liquidation Amount of all the Class C Notes in the Card Series as of
the close of business on the last day of the preceding Monthly Period,
plus
(B) the product of (1) the aggregate amount reallocated to the
Class C Notes pursuant to clause (b)(ii) above and (B) a fraction, the
numerator of which is the amount determined pursuant to clause
(c)(i)(x) above and the denominator of which is the aggregate Class B
Available Subordinated Amount of Class C Notes for all Class B Notes
in the Card Series as of the close of business on the last day of the
preceding Monthly Period.
(ii) The amount allocated to each Tranche of Class B Notes pursuant to
clause (a) above or reallocated to such Tranche of Class B Notes pursuant to
clause (b)(i) above and not reallocated to the Class C Notes due to the
limitations set forth in clause (c)(i) above and clause (e) below, subject to
the limitation in clause (e) below, will be reallocated to the Class D Notes, in
an amount (not less than zero) not to exceed:
31
(x) the Class B Available Subordinated Amount of Class D Notes for
such Tranche of Class B Notes as of the close of business on the last day
of the preceding Monthly Period, minus
(y) the sum of:
(A) the product of (1) the aggregate amount allocated to the
Class D Notes pursuant to clause (a) above and (2) a fraction, the
numerator of which is the amount determined pursuant to clause
(c)(ii)(x) above and the denominator of which is the Nominal
Liquidation Amount of all the Class D Notes in the Card Series as of
the close of business on the last day of the preceding Monthly Period,
plus
(B) the product of (1) the aggregate amount reallocated to the
Class D Notes pursuant to clause (b)(iii) above and (B) a fraction,
the numerator of which is the amount determined pursuant to clause
(c)(ii)(x) above and the denominator of which is the aggregate Class B
Available Subordinated Amount of Class D Notes for all Class B Notes
in the Card Series as of the close of business on the last day of the
preceding Monthly Period.
(d) Reallocation from Class C Notes. Immediately after giving effect to
clause (c) above, the amount allocated to each Tranche of Class C Notes pursuant
to clause (a) above or reallocated to such Tranche of Class C Notes pursuant to
clause (b)(ii) or (c)(i) above, subject to the limitation in clause (e) below,
will be reallocated to the Class D Notes, in an amount (not less than zero) not
to exceed:
(x) the Class C Available Subordinated Amount of Class D Notes for
such Tranche of Class C Notes as of the close of business on the last day
of the preceding Monthly Period, minus
(y) the sum of:
(A) the product of (1) the aggregate amount allocated to the
Class D Notes pursuant to clause (a) above and (2) a fraction, the
numerator of which is the amount determined pursuant to clause (d)(x)
above and the denominator of which is the Nominal Liquidation Amount
of all the Class D Notes in the Card Series as of the close of
business on the last day of the preceding Monthly Period, plus
(B) the product of (1) the aggregate amount reallocated to the
Class D Notes pursuant to clauses (b)(iii) and (c)(ii) above and (2) a
fraction, the numerator of which is the amount determined pursuant to
clause (d)(x) above and the denominator of which is the aggregate
Class C Available Subordinated Amount of Class D Notes for all Class C
Notes in the Card Series as of the close of business on the last day
of the preceding Monthly Period.
32
(e) (i) The amount reallocated to the Class B Notes pursuant to clause
(b)(i) above will be applied to each Tranche of Class B Notes outstanding
as of the last day of the preceding Monthly Period pro rata based on the
ratio of the Nominal Liquidation Amount of such Tranche of Class B Notes to
the Nominal Liquidation Amount of all the Class B Notes in the Card Series,
each as of the close of business on the last day of the preceding Monthly
Period. Any such reallocation (or portion thereof) that would otherwise
have reduced the Nominal Liquidation Amount of a Tranche of Class B Notes
below zero will be reallocated to the remaining Tranches of Class B Notes
as set forth in this clause (e)(i), but in no event will the Nominal
Liquidation Amount (after giving effect to this clause (e)(i)) of any
Tranche of Class B Notes be reduced below zero.
(ii) The amount reallocated to the Class C Notes pursuant to clause
(b)(ii) or (c)(i) above, in each case, will be applied to each Tranche of
Class C Notes outstanding as of the last day of the preceding Monthly
Period pro rata based on the ratio of the Nominal Liquidation Amount of
such Tranche of Class C Notes to the Nominal Liquidation Amount of all the
Class C Notes in the Card Series, in each case, as of the close of business
on the last day of the preceding Monthly Period. Any such reallocation (or
portion thereof) that would otherwise have reduced the Nominal Liquidation
Amount of a Tranche of Class C Notes below zero will be reallocated to the
remaining Tranches of Class C Notes as set forth in this clause (e)(ii),
but in no event will the Nominal Liquidation Amount (after giving effect to
this clause (e)(ii)) of any Tranche of Class C Notes be reduced below zero.
(iii) The amount reallocated to the Class D Notes pursuant to clause
(b)(iii), (c)(ii) or (d) above, in each case, will be applied to each
Tranche of Class D Notes outstanding as of the last day of the preceding
Monthly Period pro rata based on the ratio of the Nominal Liquidation
Amount of such Tranche of Class D Notes to the Nominal Liquidation Amount
of all the Class D Notes in the Card Series, in each case, as of the close
of business on the last day of the preceding Monthly Period. Any such
reallocation (or portion thereof) that would otherwise have reduced the
Nominal Liquidation Amount of a Tranche of Class D Notes below zero will be
reallocated to the remaining Tranches of Class D Notes as set forth in this
clause (e)(iii), but in no event will the Nominal Liquidation Amount (after
giving effect to this clause (e)(iii)) of any Tranche of Class D Notes be
reduced below zero.
Section 3.06. Allocations of Reimbursements of Nominal Liquidation Amount
Deficits. If, as of any Distribution Date, there are Card Series Finance Charge
Amounts available pursuant to Section 3.01(g) to reimburse any Nominal
Liquidation Amount Deficits as of such Distribution Date, such funds will be
allocated to each Tranche of Notes as follows:
(a) first, to each Tranche of Class A Notes pro rata based on the ratio of
the Nominal Liquidation Amount Deficit thereof to the aggregate Nominal
Liquidation Amount Deficits of all Tranches of Class A Notes, but in no event
will the Nominal Liquidation Amount of such a Tranche of Notes be increased
above the Adjusted Outstanding Dollar Principal Amount of such Tranche;
33
(b) second, to each Tranche of Class B Notes pro rata based on the ratio of
the Nominal Liquidation Amount Deficit thereof to the aggregate Nominal
Liquidation Amount Deficit of all Tranches of Class B Notes, but in no event
will the Nominal Liquidation Amount of such a Tranche of Notes be increased
above the Adjusted Outstanding Dollar Principal Amount of such Tranche;
(c) third, to each Tranche of Class C Notes pro rata based on the ratio of
the Nominal Liquidation Amount Deficit thereof to the aggregate Nominal
Liquidation Amount Deficit of all Tranches of Class C Notes, but in no event
will the Nominal Liquidation Amount of such a Tranche of Notes be increased
above the Adjusted Outstanding Dollar Principal Amount of such Tranche; and
(d) fourth, to each Tranche of Class D Notes pro rata based on the ratio of
the Nominal Liquidation Amount Deficit thereof to the aggregate Nominal
Liquidation Amount Deficit of all Tranches of Class D Notes, but in no event
will the Nominal Liquidation Amount of such a Tranche of Notes be increased
above the Adjusted Outstanding Dollar Principal Amount of such Tranche.
Section 3.07. Application of Card Series Principal Amounts. On each
Distribution Date, the Indenture Trustee will apply Card Series Principal
Amounts as follows:
(a) Class A Interest Funding Account Shortfalls. First, with respect to
each Monthly Period, if after giving effect to deposits to be made with respect
to such Monthly Period pursuant to Section 3.01(a) any Tranche of Class A Notes
has not received the full amount targeted to be deposited pursuant to Section
3.02 with respect to that Monthly Period, then Card Series Principal Amounts (in
an amount not to exceed the sum of the Class B Principal Allocation, the Class C
Principal Allocation and the Class D Principal Allocation, each for such Monthly
Period) will be allocated to the Interest Funding sub-Account of each such
Tranche of Class A Notes pro rata based on, in the case of each such Tranche of
Class A Notes, the lesser of the following amounts:
(i) the amount of the deficiency in the targeted amount to be
deposited into the Interest Funding sub-Account of such Tranche of Class A
Notes; and
(ii) an amount equal to the Class A Available Subordinated Amount of
Subordinated Notes for such Tranche of Class A Notes (determined after
giving effect to Section 3.05, but prior to giving effect to this Section
3.07).
(b) Class B Interest Funding Account Shortfalls. Second, with respect to
each Monthly Period, if after giving effect to deposits to be made with respect
to such Monthly Period pursuant to Section 3.01(b) any Tranche of Class B Notes
has not received the full amount targeted to be deposited pursuant to Section
3.02 with respect to that Monthly Period, then Card Series Principal Amounts (in
an amount, not less than zero, not to exceed the sum of the Class B Principal
Allocation, the Class C Principal Allocation and the Class D Principal
Allocation, each for such Monthly Period minus the greater of (x) the Class B
Principal Allocation for such Monthly Period and (y) the aggregate amount of
Card Series Principal Amounts applied pursuant to clause (a) above) will be
allocated to the Interest Funding sub-Account of each such Tranche
34
of Class B Notes pro rata based on, in the case of each such Tranche of Class B
Notes, the lesser of the following amounts:
(i) the amount of the deficiency in the targeted amount to be
deposited into the Interest Funding sub-Account of such Tranche of Class B
Notes; and
(ii) an amount equal to the Class B Available Subordinated Amount of
Subordinated Notes for such Tranche of Class B Notes (determined after
giving effect to Sections 3.05 and 3.08(a) through (c)).
(c) Class C Interest Funding Account Shortfalls. Third, with respect to
each Monthly Period, if after giving effect to deposits to be made with respect
to such Monthly Period pursuant to Section 3.01(c) any Tranche of Class C Notes
has not received the full amount targeted to be deposited pursuant to Section
3.02 with respect to that Monthly Period, then Card Series Principal Amounts (in
an amount, not less than zero, not to exceed the sum of the Class B Principal
Allocation, the Class C Principal Allocation and the Class D Principal
Allocation, each for such Monthly Period minus the greater of (x) the sum of the
Class B Principal Allocation and the Class C Principal Allocation, each for such
Monthly Period and (y) the aggregate amount of Card Series Principal Amounts
applied pursuant to clauses (a) and (b) above) will be allocated to the Interest
Funding sub-Account of each such Tranche of Class C Notes pro rata based on, in
the case of each such Tranche of Class C Notes, the lesser of the following
amounts:
(i) the amount of the deficiency in the targeted amount to be
deposited into the Interest Funding sub-Account of such Tranche of Class C
Notes; and
(ii) an amount equal to the Class C Available Subordinated Amount of
Class D Notes for such Tranche of Class C Notes (determined after giving
effect to Sections 3.05 and 3.08(a) through (e)).
(d) Class A Servicing Fee Shortfalls. Fourth, with respect to each Monthly
Period, if there is a Servicing Fee Shortfall allocated to any Tranche of Class
A Notes pursuant to Section 3.09, then Card Series Principal Amounts (in an
amount, not less than zero, not to exceed the sum of the Class B Principal
Allocation, the Class C Principal Allocation and the Class D Principal
Allocation, each for such Monthly Period minus the aggregate amount of Card
Series Principal Amounts reallocated pursuant to clauses (a) through (c) above)
will be paid to the Servicer in an amount equal to, and allocated to each such
Tranche of Class A Notes pro rata based on, in the case of each such Tranche of
Class A Notes, the lesser of the following amounts:
(i) the amount of the Servicing Fee Shortfall allocated to such
Tranche of Class A Notes; and
(ii) an amount equal to the Class A Available Subordinated Amount of
Subordinated Notes for such Tranche of Class A Notes (determined after
giving effect to Sections 3.05 and 3.08(a) through (f)).
(e) Class B Servicing Fee Shortfalls. Fifth, with respect to each Monthly
Period, if there is a Servicing Fee Shortfall allocated to any Tranche of Class
B Notes pursuant to Section 3.09, then Card Series Principal Amounts (in an
amount, not less than zero, not to exceed the
35
sum of the Class B Principal Allocation, the Class C Principal Allocation and
the Class D Principal Allocation, each for such Monthly Period minus the greater
of (x) the Class B Principal Allocation for such Monthly Period and (y) the
aggregate amount of Card Series Principal Amounts reallocated pursuant to
clauses (a) through (d) above) will be paid to the Servicer in an amount equal
to, and allocated to each such Tranche of Class B Notes pro rata based on, in
the case of each such Tranche of Class B Notes, the lesser of the following
amounts:
(i) the amount of the remaining Servicing Fee Shortfall allocated to
such Tranche of Class B Notes; and
(ii) an amount equal to the Class B Available Subordinated Amount of
Class C Notes for such Tranche of Class B Notes (determined after giving
effect to Sections 3.05 and 3.08(a) through (i)).
(f) Class C Servicing Fee Shortfalls. Sixth, with respect to each Monthly
Period, if there is a Servicing Fee Shortfall allocated to any Tranche of Class
C Notes pursuant to Section 3.09, then Card Series Principal Amounts (in an
amount, not less than zero, not to exceed the sum of the Class B Principal
Allocation, the Class C Principal Allocation and the Class D Principal
Allocation, each for such Monthly Period minus the greater of (x) the sum of the
Class B Principal Allocation and the Class C Principal Allocation, each for such
Monthly Period and (y) the aggregate amount of Card Series Principal Amounts
reallocated pursuant to clauses (a) through (e) above) will be paid to the
Servicer in an amount equal to, and allocated to each such Tranche of Class C
Notes pro rata based on, in the case of each such Tranche of Class C Notes, the
lesser of the following amounts:
(i) the amount of the Servicing Fee Shortfall allocated to such
Tranche of Class C Notes; and
(ii) an amount equal to the Class C Available Subordinated Amount of
Class D Notes for such Tranche of Class C Notes (determined after giving
effect to Sections 3.05 and 3.08(a) through (k)).
(g) Principal Funding Account. Seventh, to make the targeted deposits to
the Principal Funding Account pursuant to Section 3.10;
(h) Shared Excess Principal Amounts. Eighth, to be treated as Shared Excess
Principal Amounts for application in accordance with Section 3.28; and
(i) Transferor. Ninth, to the holder of the Asset Pool 1 Transferor
Interest or, provided that the conditions set forth in Section 10.02 of the
Trust Agreement with respect to transfers of a portion of the Beneficial
Interest are met, to the designee of the holder of the Asset Pool 1 Transferor
Interest as though such designee were a transferee of such portion.
Section 3.08. Allocation of Reductions of Nominal Liquidation Amount of
Subordinated Notes from Reallocations of Card Series Principal Amounts to Cover
Interest Funding Account Shortfalls or Servicing Fee Shortfalls. On each
Distribution Date when Card Series Principal Amounts are deposited in the
Interest Funding sub-Account for any Tranche of Notes or paid to the Servicer
pursuant to Section 3.07, the Nominal Liquidation Amount of Subordinated Notes
36
will be reduced on that date as set forth in this Section. In the case of each
Tranche of Notes, the Nominal Liquidation Amount of each such Tranche of Notes
will be reduced by an amount equal to the amounts of such deposits or payments
which are allocated or reallocated to that Tranche of Notes, less the amount of
Card Series Principal Amounts that are reallocated from that Tranche of Notes to
other Notes.
(a) Class A Interest Funding Account Shortfalls. (i) Immediately after
giving effect to Section 3.07(a), the amount of Card Series Principal
Amount applied pursuant to Section 3.07(a), subject to the limitation in
clause (m) below, will be allocated to the Class B Notes, in an amount not
to exceed the Class A Available Subordinated Amount of Class B Notes for
such Tranche of Class A Notes as of the close of business on the last day
of the preceding Monthly Period.
(ii) The amount of Card Series Principal Amount applied pursuant to
Section 3.07(a), and not reallocated to the Class B Notes due to the
limitations set forth in clause (a)(i) above and clause (m) below, subject
to the limitation in clause (m) below, will be allocated to the Class C
Notes, in an amount not to exceed the Class A Available Subordinated Amount
of Class C Notes for such Tranche of Class A Notes as of the close of
business on the last day of the preceding Monthly Period.
(iii) The amount of Card Series Principal Amount applied pursuant to
Section 3.07(a), and not reallocated to the Class B Notes or Class C Notes
due to the limitations set forth in clauses(a)(i) and (a)(ii) above and
clause (m) below, subject to the limitation in clause (m) below, will be
allocated to the Class D Notes, in an amount not to exceed the Class A
Available Subordinated Amount of Class D Notes for such Tranche of Class A
Notes as of the close of business on the last day of the preceding Monthly
Period.
(b) (i) Immediately after giving effect to clause (a) above, the amount
allocated to the Class B Notes pursuant to clause (a)(i), subject to the
limitation in clause (m) below, will be reallocated to the Class C Notes,
in an amount not to exceed the Class B Available Subordinated Amount of
Class C Notes for such Tranche of Class B Notes after giving effect to
clause (a) above.
(ii) The amount allocated to the Class B Notes pursuant to clause
(a)(i) and not reallocated to the Class C Notes due to the limitations set
forth in clause (b)(i) above and clause (m) below, subject to the
limitation in clause (m) below, will be reallocated to the Class D Notes,
in an amount not to exceed the Class B Available Subordinated Amount of
Class D Notes for such Tranche of Class B Notes after giving effect to
clause (a) above.
(c) Immediately after giving effect to clause (b) above, the amount
allocated to the Class C Notes pursuant to clause (a)(iii) plus the amount
reallocated to the Class C Notes pursuant to clause (b)(i) above, subject to the
limitation in clause (m) below, will be reallocated to the Class D Notes, in an
amount not to exceed the Class C Available Subordinated Amount of Class D Notes
for such Tranche of Class C Notes after giving effect to clauses (a) and (b)
above.
37
(d) Class B Interest Funding Account Shortfalls. (i) Immediately after
giving effect to Section 3.07(b), the amount of Card Series Principal
Amount applied pursuant to Section 3.07(b), subject to the limitation in
clause (m) below, will be allocated to the Class C Notes, in an amount not
to exceed the Class B Available Subordinated Amount of Class C Notes for
such Tranche of Class B Notes after giving effect to clauses (a) through
(c) above.
(ii) The amount of Card Series Principal Amount applied pursuant to
Section 3.07(b), and not reallocated to the Class C Notes due to the
limitations set forth in clause (d)(i) above and clause (m) below, subject
to the limitation in clause (m) below, will be reallocated to the Class D
Notes, in an amount not to exceed the Class B Available Subordinated Amount
of Class D Notes for such Tranche of Class B Notes after giving effect to
clauses (a) through (c) above.
(e) Immediately after giving effect to clause (d) above, the amount
allocated to the Class C Notes pursuant to clause (d)(i), subject to the
limitation in clause (m) below, will be reallocated to the Class D Notes, in an
amount not to exceed the Class C Available Subordinated Amount of Class D Notes
for such Tranche of Class C Notes after giving effect to clauses (a) through (d)
above.
(f) Class C Interest Funding Account Shortfalls. Immediately after giving
effect to Section 3.07(c), the amount of Card Series Principal Amount applied
pursuant to Section 3.07(c), subject to the limitation in clause (m) below, will
be allocated to the Class D Notes, in an amount not to exceed the Class C
Available Subordinated Amount of Class D Notes for such Tranche of Class C Notes
after giving effect to clauses (a) through (e) above.
(g) Class A Servicing Fee Shortfalls. (i) Immediately after giving effect
to Section 3.07(d), the amount of Card Series Principal Amount applied
pursuant to Section 3.07(d), subject to the limitation in clause (m) below,
will be allocated to the Class B Notes, in an amount not to exceed the
Class A Available Subordinated Amount of Class B Notes for such Tranche of
Class A Notes after giving effect to clauses (a) through (f) above.
(ii) The amount of Card Series Principal Amount applied pursuant to
Section 3.07(d), and not reallocated to the Class B Notes due to the
limitations set forth in clause (g)(i) above and clause (m) below, subject
to the limitation in clause (m) below, will be allocated to the Class C
Notes, in an amount not to exceed the Class A Available Subordinated Amount
of Class C Notes for such Tranche of Class A Notes after giving effect to
clauses (a) through (f) above.
(iii) The amount of Card Series Principal Amount applied pursuant to
Section 3.07(d), and not reallocated to the Class B Notes or Class C Notes
due to the limitations set forth in clauses(g)(i) and (g)(ii) above and
clause (m) below, subject to the limitation in clause (m) below, will be
allocated to the Class D Notes, in an amount not to exceed the Class A
Available Subordinated Amount of Class D Notes for such Tranche of Class A
Notes after giving effect to clauses (a) through (f) above.
38
(h) (i) Immediately after giving effect to clause (g) above, the amount
reallocated to the Class B Notes pursuant to clause (g)(i), subject to the
limitation in clause (m) below, will be reallocated to the Class C Notes,
in an amount not to exceed the Class B Available Subordinated Amount of
Class C Notes for such Tranche of Class B Notes after giving effect to
clauses (a) through (g) above.
(ii) The amount allocated to the Class B Notes pursuant to clause
(g)(i) and not reallocated to the Class C Notes due to the limitations set
forth in clause (h)(i) above and clause (m) below, subject to the
limitation in clause (m) below, will be reallocated to the Class D Notes,
in an amount not to exceed the Class B Available Subordinated Amount of
Class D Notes for such Tranche of Class B Notes after giving effect to
clauses (a) through (g) above.
(i) Immediately after giving effect to clause (h) above, the amount
allocated to the Class C Notes pursuant to clause (g)(iii) plus the amount
reallocated to the Class C Notes pursuant to clause (h)(i) above, subject to the
limitation in clause (m) below, will be reallocated to the Class D Notes, in an
amount not to exceed the Class C Available Subordinated Amount of Class D Notes
for such Tranche of Class C Notes after giving effect to clauses (a) through (h)
above.
(j) Class B Servicing Fee Shortfalls. (i) Immediately after giving effect
to Section 3.07(e), the amount of Card Series Principal Amount applied
pursuant to Section 3.07(e), subject to the limitation in clause (m) below,
will be allocated to the Class C Notes, in an amount not to exceed the
Class B Available Subordinated Amount of Class C Notes for such Tranche of
Class B Notes after giving effect to clauses (a) through (i) above.
(ii) The amount of Card Series Principal Amount applied pursuant to
Section 3.07(e), and not reallocated to the Class C Notes due to the
limitations set forth in clause (j)(i) above and clause (m) below, subject
to the limitation in clause (m) below, will be allocated to the Class D
Notes, in an amount not to exceed the Class B Available Subordinated Amount
of Class D Notes for such Tranche of Class B Notes after giving effect to
clauses (a) through (i) above.
(k) Immediately after giving effect to clause (j) above, the amount
reallocated to the Class C Notes pursuant to clause (j)(i), subject to the
limitation in clause (m) below, will be reallocated to the Class D Notes, in an
amount not to exceed the Class C Available Subordinated Amount of Class D Notes
for such Tranche of Class C Notes after giving effect to clauses (a) through (j)
above.
(l) Class C Servicing Fee Shortfalls. Immediately after giving effect to
Section 3.07(f), the amount of Card Series Principal Amount applied pursuant to
Section 3.07(f), subject to the limitation in clause (m) below, will be
allocated to the Class D Notes, in an amount not to exceed the Class C Available
Subordinated Amount of Class D Notes for such Tranche of Class C Notes after
giving effect to clauses (a) through (k) above.
(m) General. (i) The amount allocated to the Class B Notes pursuant to
clause (a)(i) or (g)(i) above will be applied to each Tranche of Class B Notes
pro rata based on the
39
ratio of the Nominal Liquidation Amount of such Tranche of Class B Notes to
the Nominal Liquidation Amount of all the Class B Notes in the Card Series,
with respect to clause (a)(i), after giving effect to Section 3.05, and
with respect to clause (g)(i), after giving effect to Section 3.05 and
clauses (a) through (f) above. Any such allocation that would otherwise
have reduced the Nominal Liquidation Amount of a Tranche of Class B Notes
below zero will be reallocated to the remaining Tranches of Class B Notes
as set forth in this clause (m)(i), but in no event will the Nominal
Liquidation Amount (after giving effect to this clause (m)(i)) of any
Tranche of Class B Notes be reduced below zero.
(ii) The amount allocated or reallocated to the Class C Notes pursuant
to clause (a)(ii), (b)(i), (d)(i), (g)(ii), (h)(i) or (j)(i) above will be
applied to each Tranche of Class C Notes pro rata based on the ratio of the
Nominal Liquidation Amount of such Tranche of Class C Notes to the Nominal
Liquidation Amount of all the Class C Notes in the Card Series, with
respect to clauses (a)(ii) and (b)(i), after giving effect to Section 3.05,
with respect to clause (d)(i), after giving effect to Section 3.05 and
clauses (a) through (c) above, with respect to clauses (g)(ii) and (h)(i),
after giving effect to Section 3.05 and clauses (a) through (f) above, and
with respect to clause (j)(i), after giving effect to Section 3.05 and
clauses (a) through (i) above. Any such allocation that would otherwise
have reduced the Nominal Liquidation Amount of a Tranche of Class C Notes
below zero will be reallocated to the remaining Tranches of Class C Notes
as set forth in this clause (m)(ii), but in no event will the Nominal
Liquidation Amount (after giving effect to this clause (m)(ii)) of any
Tranche of Class C Notes be reduced below zero.
(iii) The amount allocated or reallocated to the Class D Notes
pursuant to clause (a)(iii), (b)(ii), (c), (d)(ii), (e), (f), (g)(iii),
(h)(ii), (i), (j)(ii), (k) or (l) above will be applied to each Tranche of
Class D Notes pro rata based on the ratio of the Nominal Liquidation Amount
of such Tranche of Class D Notes to the Nominal Liquidation Amount of all
the Class D Notes in the Card Series, with respect to clauses (a)(iii),
(b)(ii) and (c), after giving effect to Section 3.05, with respect to
clauses (d)(ii) and (e), after giving effect to Section 3.05 and clauses
(a) through (c) above, with respect to clause (f), after giving effect to
Section 3.05 and clauses (a) through (e) above, with respect to clauses
(g)(iii), (h)(ii) and (i), after giving effect to Section 3.05 and clauses
(a) through (f) above, with respect to clauses (j)(ii) and (k), after
giving effect to Section 3.05 and clauses (a) through (i) above, and with
respect to clause (l), after giving effect to clauses (a) through (k)
above. Any such allocation that would otherwise have reduced the Nominal
Liquidation Amount of a Tranche of Class D Notes below zero will be
reallocated to the remaining Tranches of Class D Notes as set forth in this
clause (m)(iii), but in no event will the Nominal Liquidation Amount (after
giving effect to this clause (m)(iii)) of any Tranche of Class D Notes be
reduced below zero.
Section 3.09. Allocation of Servicing Fee Shortfalls. On each Distribution
Date, if after giving effect to payments to be made with respect to the related
Monthly Period pursuant to Section 3.01(d), the Servicer has not received the
full amount to be paid pursuant to Section 3.01(d), the aggregate amount of such
shortfall will be allocated to each Tranche of Outstanding Notes in the Card
Series pro rata based on the ratio of the Nominal Liquidation Amount of such
40
Tranche of Notes to the Nominal Liquidation Amount of the Card Series Notes,
each as of the close of business on the last day of the preceding Monthly
Period.
Section 3.10. Targeted Deposits of Card Series Principal Amounts to the
Principal Funding Account. With respect to any Monthly Period, the amount
targeted to be deposited into the Principal Funding sub-Account for any Tranche
of Notes will be the sum of (i) the amount determined pursuant to clause (a),
(b), (c), (d) or (e) below with respect to such Tranche for such Monthly Period,
as applicable, or if more than one such clause is applicable, the highest amount
determined pursuant to any one of such clauses, and (ii) any deposit targeted
pursuant to clause (i) with respect to such Tranche for any prior Monthly Period
but for which the full targeted deposit was not made, but in no case more than
the Nominal Liquidation Amount of such Tranche (computed immediately before
giving effect to such deposit but after giving effect to any Investor
Charge-Offs and any reallocations of Card Series Principal Amounts on such
date).
(a) Principal Payment Date. With respect to the Monthly Period immediately
preceding each Principal Payment Date for a Tranche of Notes, the deposit
targeted for that Tranche of Notes, unless otherwise specified in the related
Terms Document, is equal to the Nominal Liquidation Amount of that Tranche of
Notes as of the close of business on the last day of the Monthly Period
preceding such Monthly Period (determined after giving effect to any Investor
Charge-Offs and any reallocations, payments or deposits of Card Series Principal
Amounts occurring on the following Distribution Date).
(b) Budgeted Deposits.
(i) Subject to Section 3.10(d), with respect to each Monthly Period,
beginning with the Accumulation Commencement Date, the deposit targeted to
be made into the Principal Funding sub-Account for that Tranche will be the
Accumulation Period Amount for that Tranche specified in the applicable
Terms Document, or if no such amount is specified, beginning with the
twelfth Monthly Period before the Monthly Period in which the Expected
Principal Payment Date of that Tranche of Notes occurs, an amount equal to
one-twelfth of the expected Outstanding Dollar Principal Amount of such
Tranche of Notes as of such Expected Principal Payment Date.
(ii) Notwithstanding anything to the contrary in clause (i), on or
before the Distribution Date immediately preceding the first Business Day
of the month that is twelve (12) months prior to the Expected Principal
Payment Date of any Tranche of Notes, and each determination date
thereafter until the Accumulation Commencement Date, the Issuer will
determine the "Accumulation Period Length" which will equal the number of
whole months such that the Accumulation Period Amount for such Tranche for
the Monthly Period immediately preceding the Expected Principal Payment
Date, when aggregated with the Accumulation Period Amounts for such Tranche
for each preceding Monthly Period, will equal or exceed the Initial Dollar
Principal Amount of such Tranche; provided, however, that the Accumulation
Period Length will not be determined to be less than one month; provided
further, however, that the determination of the Accumulation Period Length
may be changed at any time if the Note Rating Agencies provide prior
written confirmation that a Ratings Effect will not occur with respect to
such change.
41
(c) Prefunding of the Principal Funding Account of Senior Classes. If the
Issuer determines as of the end of the preceding Monthly Period with respect to
any Class A Notes, Class B Notes or Class C Notes that, after giving effect to
all allocations and payments with respect to that Monthly Period, the Prefunding
Target Amount of that Tranche will be greater than zero, the targeted deposit to
the Principal Funding sub-Account for the affected Tranches will be the
Prefunding Target Amounts for such Tranche.
(d) Event of Default, Early Redemption Event, Other Optional or Mandatory
Redemption. If any Tranche of Notes has been accelerated during a Monthly Period
after the occurrence of an Event of Default, or if an Early Redemption Event
with respect to any Tranche of Notes occurs during such Monthly Period, or with
respect to the Monthly Period immediately preceding any other date fixed for any
other optional or mandatory redemption of any Tranche of Notes, the deposit
targeted for that Tranche of Notes with respect to that Monthly Period and each
following Monthly Period is equal to Nominal Liquidation Amount of that Tranche
of Notes as of the close of business on the last day of the preceding Monthly
Period (after taking into account any reallocations, payments or deposits
occurring on the following Distribution Date).
(e) Amounts Owed to Derivative Counterparties. If a Tranche of Outstanding
Dollar Notes or foreign currency Notes that has a Performing or non-Performing
Derivative Agreement for principal provides for a payment to the applicable
Derivative Counterparty, the deposit targeted for that Tranche of Notes on each
Distribution Date with respect to any payment to the Derivative Counterparty
will be specified in the related Terms Document.
Section 3.11. Allocations among Principal Funding sub-Accounts. Subject to
the restrictions of Section 3.15, the aggregate amount of the deposits to be
made to the Principal Funding Account for each Tranche of Notes pursuant to
Section 3.10 for each Monthly Period will be allocated, and a portion deposited
in the Principal Funding sub-Account for each Tranche of Notes, as follows:
(a) Card Series Principal Amounts Equal to Targeted Amount. Subject to
clause (c) below, if Card Series Principal Amounts remaining after giving effect
to Sections 3.07(a) through (f) are equal to the aggregate amount of Card Series
Principal Amounts targeted to be deposited into the Principal Funding Account
for all Tranches of Notes pursuant to Section 3.10, then that targeted amount is
deposited in the Principal Funding sub-Account established for each Tranche.
(b) Card Series Principal Amounts Are Less Than Targeted Amounts. Subject
to clause (c) below, if Card Series Principal Amounts remaining after giving
effect to Sections 3.07(a) through (f) are less than the aggregate amount
targeted to be deposited into the Principal Funding Account for all Tranches of
Notes pursuant to Section 3.10, then the amount available will be deposited in
the Principal Funding sub-Account established for each Tranche in the following
priority:
(i) first, the amount available will be allocated to the Class A Notes
pro rata based on the ratio of (A) the amount targeted to be deposited into
the Principal Funding sub-Account for such Tranche of Class A Notes
pursuant to Section 3.10, to (B) the
42
aggregate amount targeted to be deposited into the Principal Funding
sub-Account for all Tranches of Class A Notes pursuant to Section 3.10;
(ii) second, the amount available after the application in clause (i)
above will be allocated to the Class B Notes, pro rata based on the ratio
of (A) the amount targeted to be deposited into the Principal Funding
sub-Account for such Tranche of Class B Notes pursuant to Section 3.10, to
(B) the aggregate amount targeted to be deposited into the Principal
Funding sub-Account for all Tranches of Class B Notes pursuant to Section
3.10;
(iii) third, the amount available after the applications in clauses
(i) and (ii) above will be allocated to the Class C Notes, pro rata based
on the ratio of (A) the amount targeted to be deposited into the Principal
Funding sub-Account for such Tranche of Class C Notes pursuant to Section
3.10, to (B) the aggregate amount targeted to be deposited into the
Principal Funding sub-Account for all Tranches of Class C Notes pursuant to
Section 3.10; and
(iv) fourth, the amount available after the applications in clauses
(i) through (iii) above will be allocated to the Class D Notes, pro rata
based on the ratio of (A) the amount targeted to be deposited into the
Principal Funding sub-Account for such Tranche of Class D Notes pursuant to
Section 3.10, to (B) the aggregate amount targeted to be deposited into the
Principal Funding sub-Account for all Tranches of Class D Notes pursuant to
Section 3.10.
(c) Reallocation of Deposits to the Principal Funding sub-Account of
Subordinated Notes. If the restrictions of Section 3.15(a) prevent the deposit
of Card Series Principal Amounts into the Principal Funding sub-Account of any
Subordinated Note, the aggregate amount of Card Series Principal Amounts
available to make the targeted deposit for such Tranche of Subordinated Notes
will be allocated first, to each Tranche of Class A Notes pro rata based on the
ratio of (A) the Required Subordinated Amount of Subordinated Notes for such
Tranche of Class A Notes to (B) the Required Subordinated Amount of Subordinated
Notes for all Class A Notes in the Card Series, second, if applicable, to each
Tranche of Class B Notes pro rata based on the ratio of (A) the Required
Subordinated Amount of Subordinated Notes for such Tranche of Class B Notes to
(B) the Required Subordinated Amount of Subordinated Notes for all Class B Notes
in the Card Series and, third, if applicable, to each Tranche of Class C Notes
pro rata based on the ratio of (A) the Required Subordinated Amount of Class D
Notes for such Tranche of Class C Notes to (B) the Required Subordinated Amount
of Class D Notes for all Class C Notes in the Card Series.
43
Section 3.12. Amounts to be Treated as Card Series Principal Amounts;
Payments Received from Derivative Counterparties for Principal; Other Deposits
to Principal Funding sub-Accounts. The following deposits and payments will be
made on the following dates:
(a) Amounts to be Treated as Card Series Principal Amounts. In addition to
Asset Pool 1 Principal Amounts allocated to the Card Series pursuant to Section
3.3 of the Asset Pool 1 Supplement, the following amounts shall be treated as
Card Series Principal Amounts for application in accordance with this Article
III for any Monthly Period:
(i) Reallocated Card Series Finance Charge Amounts. Card Series
Principal Amounts will include Card Series Finance Charge Amounts
reallocated to be treated as Card Series Principal Amounts pursuant to
Section 3.01(f) or 3.01(g).
(ii) Dollar Payments from Derivative Counterparties for Principal.
Dollar payments received under Derivative Agreements for principal for any
Tranche of Notes will be treated as Card Series Principal Amounts.
(iii) Shared Excess Principal Amounts. Any Shared Excess Principal
Amounts allocable to the Card Series will be treated as Card Series
Principal Amounts pursuant to Section 3.28(a).
(iv) Other Amounts. The Terms Document for any Tranche of Notes may
include additional amounts which are to be treated as Card Series Principal
Amounts for any Distribution Date.
(b) Payments Received from Derivative Counterparties. Payments received
under Derivative Agreements for Notes with principal payable in foreign
currencies will be applied as specified in the applicable Terms Document.
(c) Class C Reserve sub-Account. Withdrawals made from the Class C Reserve
sub-Account for any Tranche of Class C Notes pursuant to Section 3.23(b) will be
deposited into the applicable Principal Funding sub-Account on the Distribution
Date.
(d) Class D Reserve sub-Account. Withdrawals made from the Class D Reserve
sub-Account for any Tranche of Class D Notes pursuant to Section 3.30(b) will be
deposited into the applicable Principal Funding sub-Account on the Distribution
Date.
(e) Asset Sales Proceeds. Asset Sales Proceeds received pursuant to Section
3.20(c)(i) for any Tranche of Notes will be deposited into the applicable
Principal Funding sub-Account on the date of receipt by the Issuer.
Section 3.13. Withdrawals from Interest Funding Account. Withdrawals made
pursuant to this Section 3.13 with respect to any Tranche of Notes will be made
from the Interest Funding sub-Account established for that Tranche only after
all allocations and reallocations have been made pursuant to Sections 3.02,
3.03, 3.04 and 3.07. In no event will the aggregate amount of the withdrawals
from an Interest Funding sub-Account for any month be more than the amount on
deposit in the applicable Interest Funding sub-Account. A single Tranche of
Notes may be entitled to more than one of the following withdrawals in any
month.
44
(a) Withdrawals for Dollar Notes. On each Interest Payment Date (or as
specified in the applicable Terms Document) with respect to each Tranche of
Dollar Notes, an amount equal to the interest due on the applicable Tranche of
Notes on such Interest Payment Date (including any overdue and additional
interest with respect to prior Interest Payment Dates) will be withdrawn from
that Interest Funding sub-Account and remitted to the applicable Paying Agent(s)
or as otherwise provided in the applicable Terms Document.
(b) Withdrawals for Foreign Currency Notes with a non-Performing Derivative
Agreement for Interest. On each Interest Payment Date (or as specified in the
applicable Terms Document) with respect to a Tranche of foreign currency Notes
that has a non-Performing Derivative Agreement for interest, the amount
specified in the applicable Terms Document will be withdrawn from that Interest
Funding sub-Account and, if so specified in the applicable Terms Document,
converted to the applicable foreign currency at the Spot Exchange Rate and
remitted to the applicable Paying Agent(s) or as otherwise provided in the
applicable Terms Document.
(c) Withdrawals for Discount Notes. On each applicable Principal Payment
Date, with respect to each Tranche of Discount Notes, an amount equal to the
amount of the accretion of principal of that Tranche of Notes from the prior
Principal Payment Date (or, in the case of the first Principal Payment Date, the
date of issuance of that Tranche) to but excluding the applicable Principal
Payment Date will be withdrawn from that Interest Funding sub-Account and
invested in the Invested Amount of any Collateral Certificate in Asset Pool 1
pursuant to Section 3.17.
(d) Withdrawals for Payments to Derivative Counterparties. On each date on
which a payment is required to be made to the Derivative Counterparty under the
applicable Derivative Agreement (or as specified in the applicable Terms
Document) with respect to any Tranche of Notes which has a Performing or
non-Performing Derivative Agreement for interest, an amount equal to the amount
of the payment to be made to the Derivative Counterparty under the applicable
Derivative Agreement (including any overdue payment and any additional interest
on overdue payments) will be withdrawn from that Interest Funding sub-Account
and paid to the applicable Derivative Counterparty or as otherwise provided in
the applicable Terms Document.
(e) Excess Amounts. After payment in full of any Tranche of Notes, any
amount remaining on deposit in the applicable Interest Funding sub-Account will
be first, allocated among and deposited to the Interest Funding sub-Account of
the Tranches of Notes in the manner, order and priority set forth in Section
3.03(b), second, allocated among and deposited to the Principal Funding
sub-Account of the Tranches of Notes in the manner, order and priority set forth
in Section 3.11(b), and third, paid to the holder of the Asset Pool 1 Transferor
Interest or, provided that the conditions set forth in Section 10.02 of the
Trust Agreement with respect to transfers of a portion of the Beneficial
Interest are met, to the designee of the holder of the Asset Pool 1 Transferor
Interest as though such designee were a transferee of such portion.
If the aggregate amount available for withdrawal from an Interest Funding
sub-Account for any Tranche of Notes is less than all withdrawals required to be
made from that Interest Funding sub-Account for that Tranche in a month after
giving effect to all deposits, then the amounts on deposit in the Interest
Funding sub-Account will be withdrawn and, if payable to
45
more than one Person, applied pro rata based on the amounts of the withdrawals
required to be made.
Section 3.14. Withdrawals from Principal Funding Account. Withdrawals made
pursuant to this Section 3.14 with respect to any Tranche of Notes will be made
from the Principal Funding sub-Accounts established for that Tranche only after
all allocations have been made pursuant to Sections 3.10, 3.11 and 3.12. In no
event will the amount of the withdrawal be more than the amount on deposit in
the applicable Principal Funding sub-Account. A single Tranche may be entitled
to more than one of the following withdrawals with respect to any Monthly
Period.
(a) Withdrawals for Dollar Notes with no Derivative Agreement for
Principal. On each applicable Principal Payment Date (or as specified in the
applicable Terms Document) with respect to each Tranche of Dollar Notes that has
no Derivative Agreement for principal, an amount equal to the principal due on
the applicable Tranche of Notes on the applicable Principal Payment Date will be
withdrawn from such Principal Funding sub-Account and remitted to the applicable
Paying Agent(s) or as otherwise provided by the applicable Terms Document.
(b) Withdrawals for Dollar or Foreign Currency Notes with Performing
Derivative Agreements for Principal. On each date on which a payment is required
under the applicable Derivative Agreement (or as specified in the applicable
Terms Document) with respect to any Tranche of Notes that has a Performing
Derivative Agreement for principal, an amount equal to the amount of the payment
to be made under the applicable Derivative Agreement will be withdrawn from such
Principal Funding sub-Account and paid to the applicable Derivative Counterparty
or as otherwise provided by the applicable Terms Document. The Issuer will
direct the applicable Derivative Counterparty to remit its payments under the
applicable Derivative Agreement to the applicable Paying Agent(s) or as
otherwise provided by the applicable Terms Document.
(c) Withdrawals for Dollar Notes with a non-Performing Derivative Agreement
for Principal. On each applicable Principal Payment Date (or as specified in the
applicable Terms Document) with respect to each Tranche of Dollar Notes with a
non-Performing Derivative Agreement for principal, the amount specified in the
applicable Terms Document will be withdrawn from such Principal Funding
sub-Account and remitted to the applicable Paying Agent(s) or as otherwise
provided by the applicable Terms Document.
(d) Withdrawals for Foreign Currency Notes with non-Performing Derivative
Agreements for Principal. On each Principal Payment Date (or as specified in the
applicable Terms Document) with respect to a Tranche of foreign currency Notes
that has a non-Performing Derivative Agreement for principal, the amount
specified in the applicable Terms Document will be withdrawn from such Principal
Funding sub-Account and, if so specified in the applicable Terms Document,
converted to the applicable foreign currency at the Spot Exchange Rate and
remitted to the applicable Paying Agent(s) or as otherwise provided by the
applicable Terms Document.
(e) Withdrawal of Prefunding Excess Amount. If the Issuer on any date
determines with respect to any Class of Class A Note, Class B Notes or Class C
Notes that, after giving
46
effect to all issuances, deposits, allocations, reallocations and payments on
such date, the Prefunding Excess Amount of that Class is greater than zero, that
amount will be withdrawn from the Principal Funding sub-Account of that Class of
Notes and first, allocated among and deposited to the Principal Funding
sub-Account of the Tranches of Notes in the manner, order and priority set forth
in Section 3.11(b), and then, paid to the holder of the Asset Pool 1 Transferor
Interest or, provided that the conditions set forth in Section 10.02 of the
Trust Agreement with respect to transfers of a portion of the Beneficial
Interest are met, to the designee of the holder of the Asset Pool 1 Transferor
Interest as though such designee were a transferee of such portion.
(f) Legal Maturity Date. On the Legal Maturity Date of any Tranche, after
giving effect to any deposits, allocations, reallocations, sales of Collateral
or other payments to be made on that date, amounts on deposit in the Principal
Funding sub-Account of any Tranche of a Subordinated Class of Notes will be
applied to pay principal of that Tranche, to make a payment under a Derivative
Agreement with respect to principal of that Tranche or to make other payments as
specified in the related Terms Document.
(g) Excess Amounts. Upon payment in full of any Tranche of Notes, any
remaining amount on deposit in the applicable Principal Funding sub-Account will
be first, allocated among and deposited to the Interest Funding sub-Account of
the Tranches of Notes in the manner, order and priority set forth in Section
3.03(b), second, allocated among and deposited to the Principal Funding
sub-Account of the Tranches of Notes in the manner, order and priority set forth
in Section 3.11(b), and third, paid to the holder of the Asset Pool 1 Transferor
Interest or, provided that the conditions set forth in Section 10.02 of the
Trust Agreement with respect to transfers of a portion of the Beneficial
Interest are met, to the designee of the holder of the Asset Pool 1 Transferor
Interest as though such designee were a transferee of such portion.
If the aggregate amount available for withdrawal from a Principal Funding
sub-Account for any Tranche of Notes is less than all withdrawals required to be
made from that Principal Funding sub-Account for that Tranche in a month, then
the amounts on deposit will be withdrawn and, if payable to more than one
Person, applied pro rata based on the amounts of the withdrawals required to be
made.
Section 3.15. Limit on Deposits to the Principal Funding sub-Account of
Subordinated Note; Limit on Repayments of all Tranches.
(a) Limit on Deposits to the Principal Funding sub-Account of Subordinated
Notes.
(i) No Card Series Principal Amounts will be deposited in the
Principal Funding sub-Account of any Tranche of Class B Notes of the Card
Series, unless, after giving effect to such deposit and any reductions and
reallocations on such date, including any resulting changes to the Nominal
Liquidation Amount, the Nominal Liquidation Amount of all Class B Notes in
the Card Series (other than the Class B Notes for which such deposit is
targeted) is at least equal to the Class A Available Subordinated Amount of
Class B Notes for all Class A Notes in the Card Series.
47
(ii) No Card Series Principal Amounts will be deposited in the
Principal Funding sub-Account of any Tranche of Class C Notes of the Card
Series and no funds will be released from a Class C Reserve sub-Account to
pay principal on any Tranche of Class C Notes, unless, after giving effect
to such deposit or release and any reductions and reallocations on such
date, including any resulting changes to the Nominal Liquidation Amount,
the following conditions are satisfied:
(x) the Nominal Liquidation Amount of all Class C Notes in the
Card Series (other than the Class C Notes for which such deposit is
targeted) is at least equal to the Class A Available Subordinated
Amount of Class C Notes for all Class A Notes in the Card Series; and
(y) the Nominal Liquidation Amount of all Class C Notes in the
Card Series (other than the Class C Notes for which such deposit is
targeted) is at least equal to the Class B Available Subordinated
Amount of Class C Notes for all Class B Notes in the Card Series.
(iii) No Card Series Principal Amounts will be deposited in the
Principal Funding sub-Account of any Tranche of Class D Notes of the Card
Series and no funds will be released from a Class D Reserve sub-Account to
pay principal on any Tranche of Class D Notes, unless, after giving effect
to such deposit or release and any reductions and reallocations on such
date, including any resulting changes to the Nominal Liquidation Amount,
the following conditions are satisfied:
(x) the Nominal Liquidation Amount of all Class D Notes in the
Card Series (other than the Class D Notes for which such deposit is
targeted) is at least equal to the Class A Available Subordinated
Amount of Class D Notes for all Class A Notes in the Card Series;
(y) the Nominal Liquidation Amount of all Class D Notes in the
Card Series (other than the Class D Notes for which such deposit is
targeted) is at least equal to the Class B Available Subordinated
Amount of Class D Notes for all Class B Notes in the Card Series; and
(z) the Nominal Liquidation Amount of all Class D Notes in the
Card Series (other than the Class D Notes for which such deposit is
targeted) is at least equal to the Class C Available Subordinated
Amount of Class D Notes for all Class C Notes in the Card Series.
(iv) Notwithstanding anything in the Indenture, the Asset Pool 1
Supplement or this Indenture Supplement to the contrary, Card Series
Principal Amounts will be deposited in the Principal Funding sub-Account of
a Subordinated Note, if and only to the extent that such deposit is not
contrary to clause (a)(i), (a)(ii) or (a)(iii) above and (ii) the
Prefunding Target Amount for each Senior Class of Notes is zero.
48
(v) This Section 3.15(a) shall not prevent deposits to the Principal
Funding sub-Account of a Tranche of Subordinated Notes on the Legal
Maturity Date of such Tranche (or, if the Legal Maturity Date of such
Tranche is not a Distribution Date, on the Distribution Date immediately
preceding such Legal Maturity Date).
(b) Limit on Repayments of all Tranches. No amounts on deposit in a
Principal Funding sub-Account for any Tranche of Class A Notes or Class B Notes
will be applied to pay principal of that Tranche or to make a payment under a
Derivative Agreement with respect to principal of that Tranche in excess of the
highest Outstanding Dollar Principal Amount of that Tranche (or, in the case of
foreign currency notes, such other amount that may be specified in the related
Terms Document). In the case of any Tranche of Class C Notes, no amounts on
deposit in a Principal Funding sub-Account or, if applicable, a Class C Reserve
sub-Account for any such Tranche will be applied to pay principal of that
Tranche or to make a payment under a Derivative Agreement with respect to
principal of that Tranche in excess of the highest Outstanding Dollar Principal
Amount of that Tranche (or, in the case of foreign currency notes, such other
amount that may be specified in the related Terms Document). In the case of any
Tranche of Class D Notes, no amounts on deposit in a Principal Funding
sub-Account or, if applicable, a Class D Reserve sub-Account for any such
Tranche will be applied to pay principal of that Tranche or to make a payment
under a Derivative Agreement with respect to principal of that Tranche in excess
of the highest Outstanding Dollar Principal Amount of that Tranche (or, in the
case of foreign currency notes, such other amount that may be specified in the
related Terms Document).
Section 3.16. Calculation of Nominal Liquidation Amount. On or prior to
each Distribution Date, the Issuer shall calculate the Nominal Liquidation
Amount of each Tranche of Outstanding Notes in the Card Series, which shall be
the following amount:
(a) as of the date of issuance of such Tranche of Notes, the Initial Dollar
Principal Amount of such Tranche of Notes; and
(b) thereafter, the sum of, without duplication:
(i) the Nominal Liquidation Amount of such Tranche of Notes
immediately after the prior date of determination; plus
(ii) the aggregate amount of any increases in the Outstanding Dollar
Principal Amount of such Tranche of Card Series Notes during the current
Monthly Period due to the issuance of additional Notes of such Tranche of
Card Series Notes since the prior date of determination; plus
(iii) with respect to any Tranche of Discount Notes, the aggregate
amount of any accretions of principal on that Tranche paid to the Master
Trust for investment in the Invested Amount pursuant to Section 3.17 since
the prior date of determination; plus
(iv) the aggregate amount withdrawn from the Principal Funding
sub-Account pursuant to Section 3.14(e) for such Tranche since the prior
date of determination; plus
49
(v) such Tranche's allocable share of all reimbursements of its
Nominal Liquidation Amount Deficit pursuant to Section 3.01(g) since the
prior date of determination determined as set forth in Section 3.06; minus
(vi) such Tranche's allocable share of all reallocations of Card
Series Principal Amounts pursuant to Section 3.07 since the prior date of
determination, determined as set forth in Section 3.08; minus
(vii) the amount of the reduction of the Nominal Liquidation Amount of
such Tranche resulting from an allocation of Investor Charge-Offs since the
prior date of determination, determined as set forth in Section 3.05; minus
(viii) the amount deposited in the applicable Principal Funding
sub-Account for such Tranche (after giving effect to any deposits,
allocations, reallocations or withdrawals to be made on that day) since the
prior date of determination;
provided, however, that (1) the Nominal Liquidation Amount of a Tranche of Notes
may never be less than zero, (2) the Nominal Liquidation Amount of any Tranche
of Notes may never be greater than the Outstanding principal amount of such
Tranche and (3) the Nominal Liquidation Amount of any Tranche of Notes that has
caused a sale of Collateral pursuant to Section 3.20 will be zero.
The Nominal Liquidation Amount for the Card Series will be the sum of the
Nominal Liquidation Amounts of all of the Tranches of Notes of the Card Series.
Section 3.17. Reinvestment in the COMT Collateral Certificate. The amount
of principal accreted on any Tranche of Discount Notes available pursuant to
Section 3.13(c) will be paid to the Issuer to increase the Invested Amount of
any Collateral Certificate in Asset Pool 1.
Section 3.18. Netting of Deposits and Payments. The Issuer, in its sole
discretion, may make all deposits to Interest Funding sub-Accounts and Principal
Funding sub-Accounts pursuant to Sections 3.02 and 3.10 with respect to any
Monthly Period net of, and after giving effect to, (a) all reallocations to be
made pursuant to Section 3.07, (b) all payments to be made to Derivative
Counterparties pursuant to Sections 3.13 and 3.14, (c) all reinvestments in the
Invested Amount of the COMT Collateral Certificate to be made pursuant to
Section 3.17 and (d) all payments to the holder of the Asset Pool 1 Transferor
Interest or its designee pursuant to Section 3.07(i).
Section 3.19. Pro rata Payments within a Tranche. All payments of
principal, interest or other amounts to Holders of the Notes of a single Tranche
will be made pro rata based on the Stated Principal Amount of their Notes.
Section 3.20. Sale of Collateral for Accelerated Notes.
(a) (i) If a Tranche of Notes has been accelerated pursuant to Section
602 of the Indenture following an Event of Default, the Indenture Trustee
may, and at the direction of the Majority Holders of that Tranche of Notes
will, sell Collateral (or interests therein) pledged for
50
the benefit of Holders the Asset Pool 1 Notes in an amount up to the Nominal
Liquidation Amount of the affected Tranche plus any accrued, past due or
additional interest on the affected Tranche.
(ii) Such a sale will be permitted only if at least one of the
following conditions is met:
(A) the Holders of 90% of the aggregate Outstanding Dollar
Principal Amount of the accelerated Tranche of Notes consent;
(B) the net proceeds of such sale (plus amounts on deposit in the
applicable sub-Accounts and payments to be received from any
applicable Derivative Agreement, any Supplemental Credit Enhancement
Provider or any Supplemental Liquidity Provider) would be sufficient
to pay all amounts due on the accelerated Tranche of Notes; or
(C) the Indenture Trustee determines that the funds to be
allocated to the accelerated Tranche of Notes, including (1) Card
Series Finance Charge Amounts and Card Series Principal Amounts
allocable to the accelerated Tranche of Notes, (2) payments to be
received under any applicable Derivative Agreement, Supplemental
Credit Enhancement Agreement or Supplemental Liquidity Agreement and
(3) amounts on deposit in the applicable sub-Accounts, may not be
sufficient on any ongoing basis to make payments on the accelerated
Tranche of Notes as such payments would have become due if such
obligations had not been declared due and payable, and the Holders of
66?% of the principal amount of the accelerated Tranche of Notes
consent to the sale.
(iii) In the case of an acceleration of a Tranche of Notes of a
Subordinated Class, if the provisions of Section 3.15 would prevent the
payment of the accelerated Tranche of subordinated Notes, such sale will be
delayed until a level of prefunding of the Principal Funding sub-Accounts
for the Senior Classes of Notes of that Series has been reached such that
the amount of such accelerated Tranche is no longer required to provide
subordination for the Senior Classes of Notes.
(b) If the Nominal Liquidation Amount with respect to any Tranche of Notes
is greater than zero on its Legal Maturity Date (after giving effect to any
adjustments, deposits and distributions otherwise to be made on that Legal
Maturity Date), the Indenture Trustee shall sell Collateral (or interests
therein) pledged for the benefit of the Holders of the Asset Pool 1 Notes on
that Legal Maturity Date in an amount up to the Nominal Liquidation Amount of
the affected Tranche plus any accrued, past due and additional interest on the
affected Tranche.
(c) Sales proceeds received with respect to a Tranche of Notes pursuant to
clause (a) or (b) will be allocated in the following priority:
(i) first, to be deposited in the Principal Funding sub-Account for
that Tranche of Notes, an amount up to the amount that would be necessary
to increase the aggregate amount on deposit in such sub-Account to the
principal amount for such Tranche of Notes (notwithstanding any limitation
in Section 3.10 to the contrary); and
51
(ii) second, to be deposited in the Interest Funding sub-Account of
that Tranche of Notes, the balance of such sales proceeds.
(d) Any amount remaining on deposit in the Interest Funding sub-Account for
a Tranche of Notes that has caused a sale of Collateral pursuant to this Section
3.20 after final payment thereof pursuant to Section 3.5 of the Asset Pool 1
Supplement will be treated as Card Series Finance Charge Amounts.
Section 3.21. Calculation of Prefunding Target Amount.
(a) The Prefunding Target Amount for any Tranche of Class A Notes for any
day during any Monthly Period means an amount, not less than zero, equal to the
sum of the following amounts:
(i) for each Tranche of Class A Notes with a Required Subordinated
Amount of Class B Notes greater than zero, the product of (x) the aggregate
Adjusted Outstanding Dollar Principal Amount of such Tranche of Class A
Notes as of the end of the preceding Monthly Period (taking into
consideration any deposits or withdrawals to be made on the related
Distribution Date) times (y) one minus a fraction (which shall not exceed
one) the numerator of which is the aggregate Adjusted Outstanding Dollar
Principal Amount of all Tranches of Outstanding Class B Notes (other than
Tranches of Class B Notes which have (A) had Early Redemption Events or
other mandatory or optional redemption events in which such Tranches are to
be redeemed in full in or with respect to any preceding Monthly Period, (B)
had Events of Default in or with respect to any preceding Monthly Period,
or (C) reached or are expected to reach their final or only Expected
Principal Payment Date in or with respect to that Monthly Period or earlier
Monthly Periods) and the denominator of which is the aggregate Required
Subordinated Amount of Class B Notes for all Tranches of Class A Notes of
which are Outstanding as of the end of the preceding Monthly Period (taking
into consideration any deposits or withdrawals to be made on the related
Distribution Date);
(ii) for each Tranche of Class A Notes with a Required Subordinated
Amount of Class C Notes greater than zero, the product of (x) the aggregate
Adjusted Outstanding Dollar Principal Amount of such Tranche of Class A
Notes as of the end of the preceding Monthly Period (taking into
consideration any deposits or withdrawals to be made on the related
Distribution Date) times (y) one minus a fraction (which shall not exceed
one) the numerator of which is the aggregate Adjusted Outstanding Dollar
Principal Amount of all Tranches of Outstanding Class C Notes (other than
Tranches of Class C Notes which have (A) had Early Redemption Events or
other mandatory or optional redemption events in which such Tranches are to
be redeemed in full in or with respect to any preceding Monthly Period, (B)
had Events of Default in or with respect to any preceding Monthly Period,
or (C) reached or are expected to reach their final or only Expected
Principal Payment Date in or with respect to that Monthly Period or earlier
Monthly Periods) and the denominator of which is the sum of (1) the
aggregate Required Subordinated Amount of Class C Notes for all Tranches of
Class A Notes which are Outstanding as of the end of the preceding Monthly
Period which have a Class A Required Subordinated Amount of Class B Notes
equal to zero and (2) the aggregate Required Subordinated Amount of
52
Class C Notes for all Tranches of Class B Notes which are Outstanding as of
the end of the preceding Monthly Period (in each case, taking into
consideration any deposits or withdrawals to be made on the related
Distribution Date); and
(iii) for each Tranche of Class A Notes with a Required Subordinated
Amount of Class D Notes greater than zero, the product of (x) the aggregate
Adjusted Outstanding Dollar Principal Amount of such Tranche of Class A
Notes as of the end of the preceding Monthly Period (taking into
consideration any deposits or withdrawals to be made on the related
Distribution Date) times (y) one minus a fraction (which shall not exceed
one) the numerator of which is the aggregate Adjusted Outstanding Dollar
Principal Amount of all Tranches of Outstanding Class D Notes (other than
Tranches of Class D Notes which have (A) had Early Redemption Events or
other mandatory or optional redemption events in which such Tranches are to
be redeemed in full in or with respect to any preceding Monthly Period, (B)
had Events of Default in or with respect to any preceding Monthly Period,
or (C) reached or are expected to reach their final or only Expected
Principal Payment Date in or with respect to that Monthly Period or earlier
Monthly Periods) and the denominator of which is the greater of (1) the sum
of (X) the aggregate Required Subordinated Amount of Class D Notes for all
Tranches of Class A Notes which are Outstanding as of the end of the
preceding Monthly Period which have a Required Subordinated Amount of Class
B Notes equal to zero and (Y) the aggregate Required Subordinated Amount of
Class D Notes for all Tranches of Class B Notes which are Outstanding as of
the end of the preceding Monthly Period (in each case, taking into
consideration any deposits or withdrawals to be made on the related
Distribution Date) and (2) the aggregate Required Subordinated Amount of
Class D Notes for all Tranches of Class C Notes which are Outstanding as of
the end of the preceding Monthly Period (taking into consideration any
deposits or withdrawals to be made on the related Distribution Date).
(b) The Prefunding Target Amount for any Tranche of Class B Notes for any
day during any Monthly Period means an amount, not less than zero, equal to the
sum of the following amounts:
(i) for each Tranche of Class B Notes with a Required Subordinated
Amount of Class C Notes greater than zero, the product of (x) the aggregate
Adjusted Outstanding Dollar Principal Amount of such Tranche of Class B
Notes as of the end of the preceding Monthly Period (taking into
consideration any deposits or withdrawals to be made on the related
Distribution Date) times (y) one minus a fraction (which shall not exceed
one) the numerator of which is the aggregate Adjusted Outstanding Dollar
Principal Amount of all Tranches of Outstanding Class C Notes (other than
Tranches of Class C Notes which have (A) had Early Redemption Events or
other mandatory or optional redemption events in which such Tranches are to
be redeemed in full in or with respect to any preceding Monthly Period, (B)
had Events of Default in or with respect to any preceding Monthly Period,
or (C) reached or are expected to reach their final or only Expected
Principal Payment Date in or with respect to that Monthly Period or earlier
Monthly Periods) and the denominator of which is the sum of (1) the
aggregate Required Subordinated Amount of Class C Notes for all Tranches of
Class A Notes which are Outstanding as of the end of the preceding Monthly
Period which have a Class A Required Subordinated Amount
53
of Class B Notes equal to zero and (2) the aggregate Required Subordinated
Amount of Class C Notes for all Tranches of Class B Notes which are
Outstanding as of the end of the preceding Monthly Period (in each case,
taking into consideration any deposits or withdrawals to be made on the
related Distribution Date); and
(ii) for each Tranche of Class B Notes with a Required Subordinated
Amount of Class D Notes greater than zero, the product of (x) the aggregate
Adjusted Outstanding Dollar Principal Amount of such Tranche of Class B
Notes as of the end of the preceding Monthly Period (taking into
consideration any deposits or withdrawals to be made on the related
Distribution Date) times (y) one minus a fraction (which shall not exceed
one) the numerator of which is the aggregate Adjusted Outstanding Dollar
Principal Amount of all Tranches of Outstanding Class D Notes (other than
Tranches of Class D Notes which have (A) had Early Redemption Events or
other mandatory or optional redemption events in which such Tranches are to
be redeemed in full in or with respect to any preceding Monthly Period, (B)
had Events of Default in or with respect to any preceding Monthly Period,
or (C) reached or are expected to reach their final or only Expected
Principal Payment Date in or with respect to that Monthly Period or earlier
Monthly Periods) and the denominator of which is the greater of (1) the sum
of (X) the aggregate Required Subordinated Amount of Class D Notes for all
Tranches of Class A Notes which are Outstanding as of the end of the
preceding Monthly Period which have a Required Subordinated Amount of Class
B Notes equal to zero and (Y) the aggregate Required Subordinated Amount of
Class D Notes for all Tranches of Class B Notes which are Outstanding as of
the end of the preceding Monthly Period (in each case, taking into
consideration any deposits or withdrawals to be made on the related
Distribution Date) and (2) the aggregate Required Subordinated Amount of
Class D Notes for all Tranches of Class C Notes which are Outstanding as of
the end of the preceding Monthly Period (taking into consideration any
deposits or withdrawals to be made on the related Distribution Date).
(c) The Prefunding Target Amount for any Tranche of Class C Notes with a
Required Subordinated Amount of Class D Notes greater than zero for any day
during any Monthly Period means an amount, not less than zero, equal to the
product of (x) the aggregate Adjusted Outstanding Dollar Principal Amount of
such Tranche of Class C Notes as of the end of the preceding Monthly Period
(taking into consideration any deposits or withdrawals to be made on the related
Distribution Date) times (y) one minus a fraction (which shall not exceed one)
the numerator of which is the aggregate Adjusted Outstanding Dollar Principal
Amount of all Tranches of Outstanding Class D Notes (other than Tranches of
Class D Notes which have (A) had Early Redemption Events or other mandatory or
optional redemption events in which such Tranches are to be redeemed in full in
or with respect to any preceding Monthly Period, (B) had Events of Default in or
with respect to any preceding Monthly Period, or (C) reached or are expected to
reach their final or only Expected Principal Payment Date in or with respect to
that Monthly Period or earlier Monthly Periods) and the denominator of which is
the greater of (1) the sum of (X) the aggregate Required Subordinated Amount of
Class D Notes for all Tranches of Class A Notes which are Outstanding as of the
end of the preceding Monthly Period which have a Required Subordinated Amount of
Class B Notes equal to zero and (Y) the aggregate Required Subordinated Amount
of Class D Notes for all Tranches of Class B Notes which are Outstanding as of
the end of the preceding Monthly Period (in each case, taking into
54
consideration any deposits or withdrawals to be made on the related Distribution
Date) and (2) the aggregate Required Subordinated Amount of Class D Notes for
all Tranches of Class C Notes which are Outstanding as of the end of the
preceding Monthly Period (taking into consideration any deposits or withdrawals
to be made on the related Distribution Date).
(d) On any day during any Monthly Period on which the Prefunding Target
Amount for any Tranche of senior Notes first exceeds zero, the Issuer will
notify the Master Trust pursuant to Section 4.05 of the Series 2002-CC
Supplement and the Note Rating Agencies of such event.
Section 3.22. Targeted Deposits to the Class C Reserve Account.
(a) The aggregate deposit targeted to be made to the Class C Reserve
Account with respect to each Distribution Date is an amount equal to the sum of
Class C Reserve sub-Account deposits, if any, targeted to be made for each
specified Tranche of Class C Notes. The amount of any such deposit, the
aggregate amount targeted to be on deposit after giving effect to any such
deposit and the circumstances that require that a deposit be made will be set
forth in the Terms Document for such Tranche of Class C Notes. Unless another
time is specified for making such deposits in the Terms Document for each such
Tranche of Class C Notes, these deposits will be made on each Distribution Date.
(b) If the amount of funds available for a Distribution Date pursuant to
Section 3.01(i) is at least equal to the aggregate amount of the deposits
targeted by clause (a) above, then the full amount of each such deposit will be
made.
(c) If the amount of funds available for a Distribution Date pursuant to
Section 3.01(i) is less than the aggregate amount of deposits targeted by clause
(a) above, then the amount available will be allocated to each Tranche of Class
C Notes to the extent of its targeted deposit to the applicable Class C Reserve
sub-Account pro rata based on the ratio of the Floating Allocation Amount for
such Monthly Period for such Tranche of Class C Notes to the Floating Allocation
Amount for such Monthly Period for all the Class C Notes in the Card Series that
have a targeted deposit to its Class C Reserve sub-Account for such Monthly
Period; provided, however, that any excess identified in this clause (c),
including in the application of this proviso, will be allocated to each Tranche
of Class C Notes which has a remaining targeted deposit to its Class C Reserve
sub-Account up to the amount of such remaining targeted deposit pro rata based
on the ratio of the Floating Allocation Amount for such Monthly Period for such
Tranche of Class C Notes to the Floating Allocation Amount for such Monthly
Period for all the Class C Notes in the Card Series that have a remaining
targeted deposit to its Class C Reserve sub-Account for such Monthly Period.
Section 3.23. Withdrawals from the Class C Reserve Account. Withdrawals for
any Tranche of Class C Notes will be made from the applicable Class C Reserve
sub-Account as specified below.
(a) Payments of Interest; Payments with Respect to Derivative Agreements
for Interest, Accretion on Discount Notes. If the amount on deposit in the
Interest Funding sub-Account for any Tranche of Class C Notes is insufficient to
pay in full the amounts for which
55
withdrawals are required under Section 3.13, on such payment date an amount
equal to that deficiency will be withdrawn from the Class C Reserve sub-Account
for such Tranche of Class C Notes and deposited into that Interest Funding
sub-Account for such Tranche of Class C Notes.
(b) Payments of Principal; Payments with Respect to Derivative Agreements
for Principal. If, on and after the earliest to occur of (i) the date on which
any Tranche of Class C Notes are accelerated pursuant to Section 602 of the
Indenture following an Event of Default with respect to such Tranche of Class C
Notes, (ii) any date on or after the Expected Principal Payment Date on which
the amount on deposit in the Principal Funding sub-Account for any Tranche of
Class C Notes plus the aggregate amount on deposit in the Class C Reserve
sub-Account for such Tranche of the Class C Notes equals or exceeds the
Outstanding Dollar Principal Amount of such Tranche of Class C Notes, provided
deposits to the Principal Funding sub-Account of such Tranche of Class C Notes
are permitted pursuant to Section 3.15, and (iii) the Legal Maturity Date for
any Tranche of Class C Notes, the amount on deposit in the Principal Funding
sub-Account for any Tranche of Class C Notes is insufficient to pay in full the
amounts for which withdrawals are required under Section 3.14, an amount equal
to that deficiency will be withdrawn from that Class C Reserve sub-Account for
such Tranche of Class C Notes and deposited into that Principal Funding
sub-Account for such Tranche of Class C Notes on the Distribution Date before
the date of the applicable withdrawal required pursuant to Section 3.14.
(c) Withdrawal of Excess Amounts. If on any Distribution Date with respect
to which no Class C Notes have been accelerated, the aggregate amount on deposit
in the Class C Reserve Account exceeds the amount required to be on deposit in
such Class C Reserve Account, the amount of such excess will be withdrawn from
the Class C Reserve Account and first, allocated among and deposited to the
Class C Reserve sub-Account of the Tranches of Class C Notes in the manner,
order and priority set forth in Section 3.22(c), and then, applied in accordance
with the provisions of, and the priority set forth in, Sections 3.01(j) through
(m). Upon payment in full of any Tranche of Class C Notes, any amount remaining
on deposit in the applicable Class C Reserve sub-Account will be applied in
accordance with the preceding sentence.
Section 3.24. Targeted Deposits to the Accumulation Reserve Account.
(a) The aggregate deposit targeted to be made to the Accumulation Reserve
Account with respect to each Monthly Period is an amount equal to the sum of
Accumulation Reserve sub-Account deposits, if any, targeted to be made for each
specified Tranche of Notes. The amount of any such deposit, the aggregate amount
targeted to be on deposit after giving effect to any such deposit and the
circumstances that require that a deposit be made will be set forth in the Terms
Document for such Tranche of Notes. Unless another time is specified for making
such deposits in the Terms Document for each such Tranche of Notes, these
deposits will be made on each Distribution Date.
(b) If the amount of funds available for a Monthly Period pursuant to
Section 3.01(h) is at least equal to the aggregate amount of the deposits
targeted by clause (a) above, then the full amount of each such deposit will be
made.
56
(c) If the amount of funds available for a Monthly Period pursuant to
Section 3.01(h) is less than the aggregate amount of deposits targeted by clause
(a) above, then the amount available will be allocated to each Tranche of Notes
to the extent of its targeted deposit to the applicable Accumulation Reserve
sub-Account pro rata based on the ratio of the Floating Allocation Amount for
such Monthly Period for such Tranche of Notes to the Floating Allocation Amount
for such Monthly Period for all Tranches of Notes in the Card Series that have a
targeted deposit to its Accumulation Reserve sub-Account for such Monthly
Period; provided, however, that any excess identified in this clause (c),
including in the application of this proviso, will be allocated to each Tranche
of Notes which has a remaining targeted deposit to its Accumulation Reserve
sub-Account up to the amount of such remaining targeted deposit pro rata based
on the ratio of the Floating Allocation Amount for such Monthly Period for such
Tranche of Notes to the Floating Allocation Amount for such Monthly Period for
all the Tranches of Notes in the Card Series that have a remaining targeted
deposit to its Accumulation Reserve sub-Account for such Monthly Period.
Section 3.25. Withdrawals from the Accumulation Reserve Account.
Withdrawals for any Tranche of Notes will be made from the applicable
Accumulation Reserve sub-Account as specified below.
(a) Interest. On or prior to each Distribution Date, the Issuer will
calculate the PFA Accumulation Earnings Shortfall (if any) for the Principal
Funding sub-Account for each Tranche of Notes. If there is any PFA Accumulation
Earnings Shortfall for any Principal Funding sub-Account for that Distribution
Date or any prior Distribution Date for any Tranche of Notes, the Issuer will
withdraw such amount from the applicable Accumulation Reserve sub-Account, to
the extent available, for treatment as Card Series Finance Charge Amounts for
such Monthly Period.
(b) Payment to Issuer. If on any Distribution Date the aggregate amount on
deposit in the Accumulation Reserve Account exceeds the amount required to be on
deposit in the Accumulation Reserve Account, the amount of such excess will be
withdrawn from the Accumulation Reserve Account and applied in accordance with
Section 3.01(i) through (m).
Section 3.26. Computation of Interest.
(a) Unless otherwise provided as contemplated in Section 301 of the
Indenture, (i) interest on the Notes computed at a fixed rate will be calculated
on the basis of a 360-day year of twelve 30-day months and (ii) interest on
Notes computed on the basis of a floating or periodic rate will be calculated on
the basis of a 360-day year for the actual number of days elapsed.
(b) Unless otherwise specified in this Indenture Supplement or the
applicable Terms Document, interest for any period will be calculated from and
including the first day of such period, to but excluding the last day of such
period.
57
Section 3.27. Excess Finance Charge Amounts Sharing.
(a) Shared Excess Finance Charge Amounts allocable to the Card Series on
any Distribution Date shall be treated as Card Series Finance Charge Amounts for
such Distribution Date.
(b) Shared Excess Finance Charge Amounts allocable to the Card Series with
respect to any Distribution Date shall mean an amount equal to the Series
Finance Charge Amounts Shortfall, if any, with respect to the Card Series for
such Distribution Date; provided, however, that if the aggregate amount of
Shared Excess Finance Charge Amounts for all Excess Finance Charge Amounts
Sharing Series in Excess Finance Charge Amounts Sharing Group A for such
Distribution Date is less than the Aggregate Series Finance Charge Amounts
Shortfall for such Distribution Date, then Shared Excess Finance Charge Amounts
allocable to the Card Series on such Distribution Date shall equal the product
of (i) Shared Excess Finance Charge Amounts for all Excess Finance Charge
Amounts Sharing Series in Excess Finance Charge Amounts Sharing Group A for such
Distribution Date and (ii) a fraction, the numerator of which is the Series
Finance Charge Amounts Shortfall with respect to the Card Series for such
Distribution Date and the denominator of which is the Aggregate Series Finance
Charge Amounts Shortfall for all Excess Finance Charge Amounts Sharing Series in
Excess Finance Charge Amounts Sharing Group A for such Distribution Date.
(c) On any Distribution Date, the amount of Shared Excess Finance Charge
Amounts available pursuant to Section 3.01(l) shall be allocated:
(i) first, to Series of Asset Pool 1 Notes with Series Finance Charge
Amounts Shortfalls (as such term is defined in the related Indenture
Supplements) in Excess Finance Charge Amounts Sharing Group A;
(ii) second, to the extent available after the allocation pursuant to
Section 3.27(c)(i), to Series of Asset Pool 1 Notes with Series Finance
Charge Amounts Shortfalls (as such term is defined in the related Indenture
Supplements) not included in Excess Finance Charge Amounts Sharing Group A;
(iii) third, to the extent available after the allocation pursuant to
Section 3.27(c)(ii), to the Master Trust for distribution to Series of
Investor Certificates issued pursuant to the COMT Pooling and Servicing
Agreement with Finance Charge Shortfalls (as such term is defined in the
related Series Supplements); and
(iv) fourth, to the extent available after the allocation pursuant to
Section 3.27(c)(iii), to Series of Notes with Series Finance Charge Amounts
Shortfalls (as such term is defined in the related Indenture Supplements)
not secured by Asset Pool 1.
58
Section 3.28. Excess Available Principal Amount Sharing.
(a) Shared Excess Principal Amounts allocable to the Card Series on any
Distribution Date shall be treated as Card Series Principal Amounts for such
Distribution Date.
(b) Shared Excess Principal Amounts allocable to the Card Series with
respect to any Distribution Date shall mean an amount equal to the Series
Principal Amounts Shortfall, if any, with respect to the Card Series for such
Distribution Date; provided, however, that if the aggregate amount of Shared
Excess Principal Amounts for all Excess Principal Amounts Sharing Series in
Excess Principal Amounts Sharing Group A for such Distribution Date is less than
the Aggregate Series Principal Amounts Shortfall for such Distribution Date,
then Shared Excess Principal Amounts allocable to the Card Series on such
Distribution Date shall equal the product of (i) Shared Excess Principal Amounts
for all Excess Principal Amounts Sharing Series in Excess Principal Amounts
Sharing Group A for such Distribution Date and (ii) a fraction, the numerator of
which is the Series Principal Amounts Shortfall with respect to the Card Series
for such Distribution Date and the denominator of which is the Aggregate Series
Principal Amounts Shortfall for all Excess Principal Amounts Sharing Series in
Excess Principal Amounts Sharing Group A for such Distribution Date.
(c) On any Distribution Date, the amount of Shared Excess Principal Amounts
available pursuant to Section 3.07(h) shall be allocated:
(i) first, to Series of Asset Pool 1 Notes with Series Principal
Amounts Shortfalls (as such term is defined in the related Indenture
Supplements) in Excess Principal Amounts Sharing Group A;
(ii) second, to the extent available after the allocation pursuant to
Section 3.28(c)(ii), to Series of Asset Pool 1 Notes with Series Principal
Amounts Shortfalls (as such term is defined in the related Indenture
Supplements) not included in Excess Principal Amounts Sharing Group A; and
(iii) third, to the extent available after the allocation pursuant to
Section 3.28(c)(iii), to the Master Trust for distribution to Series of
Investor Certificates issued pursuant to the COMT Pooling and Servicing
Agreement with Principal Shortfalls (as such term is defined in the related
Series Supplements).
Section 3.29. Targeted Deposits to the Class D Reserve Account.
(a) The aggregate deposit targeted to be made to the Class D Reserve
Account with respect to each Distribution Date is an amount equal to the sum of
Class D Reserve sub-Account deposits, if any, targeted to be made for each
specified Tranche of Class D Notes. The amount of any such deposit, the
aggregate amount targeted to be on deposit after giving effect to any such
deposit and the circumstances that require that a deposit be made will be set
forth in the Terms Document for such Tranche of Class D Notes. Unless another
time is specified for making such deposits in the Terms Document for each such
Tranche of Class D Notes, these deposits will be made on each Distribution Date.
59
(b) If the amount of funds available for a Distribution Date pursuant to
Section 3.01(j) is at least equal to the aggregate amount of the deposits
targeted by clause (a) above, then the full amount of each such deposit will be
made.
(c) If the amount of funds available for a Distribution Date pursuant to
Section 3.01(j) is less than the aggregate amount of deposits targeted by clause
(a) above, then the amount available will be allocated to each Tranche of Class
D Notes to the extent of its targeted deposit to the applicable Class D Reserve
sub-Account pro rata based on the ratio of the Floating Allocation Amount for
such Monthly Period for such Tranche of Class D Notes to the Floating Allocation
Amount for such Monthly Period for all the Class D Notes in the Card Series that
have a targeted deposit to its Class D Reserve sub-Account for such Monthly
Period; provided, however, that any excess identified in this clause (c),
including in the application of this proviso, will be allocated to each Tranche
of Class D Notes which has a remaining targeted deposit to its Class D Reserve
sub-Account up to the amount of such remaining targeted deposit pro rata based
on the ratio of the Floating Allocation Amount for such Monthly Period for such
Tranche of Class D Notes to the Floating Allocation Amount for such Monthly
Period for all the Class D Notes in the Card Series that have a remaining
targeted deposit to its Class D Reserve sub-Account for such Monthly Period.
Section 3.30. Withdrawals from the Class D Reserve Account. Withdrawals for
any Tranche of Class D Notes will be made from the applicable Class D Reserve
sub-Account as specified below.
(a) Payments of Interest; Payments with Respect to Derivative Agreements
for Interest, Accretion on Discount Notes. If the amount on deposit in the
Interest Funding sub-Account for any Tranche of Class D Notes is insufficient to
pay in full the amounts for which withdrawals are required under Section 3.13,
on such payment date an amount equal to that deficiency will be withdrawn from
the Class D Reserve sub-Account for such Tranche of Class D Notes and deposited
into that Interest Funding sub-Account for such Tranche of Class D Notes.
(b) Payments of Principal; Payments with Respect to Derivative Agreements
for Principal. If, on and after the earliest to occur of (i) the date on which
any Tranche of Class D Notes are accelerated pursuant to Section 602 of the
Indenture following an Event of Default with respect to such Tranche of Class D
Notes, (ii) any date on or after the Distribution Date immediately preceding the
Expected Principal Payment Date on which the amount on deposit in the Principal
Funding sub-Account for any Tranche of Class D Notes plus the aggregate amount
on deposit in the Class D Reserve sub-Account for such Tranche of the Class D
Notes equals or exceeds the Outstanding Dollar Principal Amount of such Tranche
of Class D Notes, provided deposits to the Principal Funding sub-Account of such
Tranche of Class D Notes are permitted pursuant to Section 3.15, and (iii) the
Legal Maturity Date for any Tranche of Class D Notes, the amount on deposit in
the Principal Funding sub-Account for any Tranche of Class D Notes is
insufficient to pay in full the amounts for which withdrawals are required under
Section 3.14, an amount equal to that deficiency will be withdrawn from that
Class D Reserve sub-Account for such Tranche of Class D Notes and deposited into
that Principal Funding sub-Account for such Tranche of Class D Notes on the
Distribution Date before the date of the applicable withdrawal required pursuant
to Section 3.14.
60
(c) Withdrawal of Excess Amounts. If on any Distribution Date with respect
to which no Class D Notes have been accelerated, the aggregate amount on deposit
in the Class D Reserve Account exceeds the amount required to be on deposit in
such Class D Reserve Account, the amount of such excess will be withdrawn from
the Class D Reserve Account and first, allocated among and deposited to the
Class D Reserve sub-Account of the Tranches of Class D Notes in the manner,
order and priority set forth in Section 3.29(c), and then, applied in accordance
with the provisions of, and the priority set forth in, Sections 3.01(k) through
(m). Upon payment in full of any Tranche of Class D Notes, any amount remaining
on deposit in the applicable Class D Reserve sub-Account will be applied in
accordance with the preceding sentence.
[END OF ARTICLE III]
61
ARTICLE IV
Early Redemption of Notes
Section 4.01. Early Redemption Events.
(a) In addition to the events identified as Early Redemption Events in
Section 1101 of the Indenture, each of the following events will be an "Early
Redemption Event" with respect to the Card Series Notes:
(i) if for any month, the average of the Excess Spread Amounts for the
three preceding Monthly Periods is less than the Required Excess Spread
Amount for such month; or
(ii) the occurrence of any Pay Out Event as defined in the COMT
Pooling and Servicing Agreement or any Pay Out Event pursuant to Section
6.01 of the Series 2002-CC Supplement, or, if the Note Rating Agencies
require upon the addition of any Collateral Certificate (other than the
COMT Collateral Certificate) to Asset Pool 1, the occurrence of a Pay Out
Event (as such term is defined in the related Pooling and Servicing
Agreement and Series Supplement) with respect to any Collateral Certificate
that has been added to Asset Pool 1.
(b) In addition, the Terms Document for any Tranche of Notes may list
additional events which are "Early Redemption Events" with respect to such
Tranche of Notes.
[END OF ARTICLE IV]
62
ARTICLE V
Issuer Accounts and Investments
Section 5.01. Issuer Accounts.
(a) On or before the Closing Date, the Indenture Trustee will cause to be
established and maintained five Eligible Deposit Accounts denominated as
follows: the "Interest Funding Account," "Principal Funding Account," the
"Accumulation Reserve Account," the "Class C Reserve Account" and the "Class D
Reserve Account" in the name of the Indenture Trustee, bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Card Series Noteholders (or, in the case of the Class C Reserve Account, for
the benefit of the Class C Noteholders or, in the case of the Class D Reserve
Account, for the benefit of the Class D Noteholders). The Interest Funding
Account, the Principal Funding Account, the Accumulation Reserve Account, the
Class C Reserve Account and the Class D Reserve Account constitute Supplemental
Issuer Accounts, shall be maintained in accordance with Article IV of the
Indenture and the Asset Pool 1 Supplement, and shall be under the sole dominion
and control of the Indenture Trustee for the benefit of the Card Series
Noteholders (or, in the case of the Class C Reserve Account, for the benefit of
the Class C Noteholders or, in the case of the Class D Reserve Account, for the
benefit of the Class D Noteholders). If, at any time, the institution holding
either the Interest Funding Account, the Principal Funding Account, the
Accumulation Reserve Account, the Class C Reserve Account or the Class D Reserve
Account ceases to be an Eligible Institution, the Issuer will within ten (10)
Business Days (or such longer period, not to exceed thirty (30) calendar days,
as to which each Note Rating Agency may consent) establish a new Interest
Funding Account, Principal Funding Account, Accumulation Reserve Account, Class
C Reserve Account or the Class D Reserve Account, as the case may be, that is an
Eligible Deposit Account and shall transfer any cash and other property to such
new Interest Funding Account, Principal Funding Account, Accumulation Reserve
Account, Class C Reserve Account or Class D Reserve Account, as the case may be.
From the date such new Interest Funding Account, Principal Funding Account,
Accumulation Reserve Account, Class C Reserve Account or Class D Reserve Account
is established, it will be the "Interest Funding Account," "Principal Funding
Account," "Accumulation Reserve Account," "Class C Reserve Account" or a "Class
D Reserve Account," as the case may be. Each Tranche of Notes will have its own
sub-Account within the Interest Funding Account, the Principal Funding Account,
the Accumulation Reserve Account, the Class C Reserve Account and the Class D
Reserve Account. The Interest Funding Account, the Principal Funding Account,
the Accumulation Reserve Account, the Class C Reserve Account and the Class D
Reserve Account will receive deposits pursuant to Article III.
(b) Notwithstanding any provision of Section 403(a) of the Indenture to the
contrary, any prefunded amounts on deposit in the Principal Funding Account will
be invested in Eligible Investments that will mature no later than the following
Business Day.
(c) All payments to be made from time to time by the Indenture Trustee to
Noteholders out of funds in the Interest Funding Account, the Principal Funding
Account, the Accumulation Reserve Account, the Class C Reserve Account or Class
D Reserve Account pursuant to this Indenture Supplement will be made by the
Indenture Trustee to the Paying Agent not later than 12:00 noon (New York City
time) on the applicable Interest Payment Date or
63
Principal Payment Date but only to the extent of Card Series Finance Charge
Amounts in the applicable sub-Account or as otherwise provided in Article III.
(d) On each Distribution Date, all interest and earnings (net of losses and
investment expenses) accrued since the preceding Distribution Date on funds on
deposit in the Class C Reserve Account will be retained in the Class C Reserve
Account (to the extent that the sum of the amount on deposit in the Class C
Reserve Account with respect to the related Monthly Period is less than the
required balance for the Class C Reserve Account for that Monthly Period) and
the excess, if any, will be paid to the Issuer.
(e) On each Distribution Date, all interest and earnings (net of losses and
investment expenses) accrued since the preceding Distribution Date on funds on
deposit in the Class D Reserve Account will be retained in the Class D Reserve
Account (to the extent that the sum of the amount on deposit in the Class D
Reserve Account with respect to the related Monthly Period is less than the
required balance for the Class D Reserve Account for that Monthly Period) and
the excess, if any, will be paid to the Issuer.
[END OF ARTICLE V]
64
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
Supplement to be duly executed all as of the day and year first above written.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
By: DEUTSCHE BANK TRUST COMPANY DELAWARE,
as Owner Trustee and not in its individual
capacity
By: /s/ Michele Voon
---------------------------------
Name: Michele Voon
Title: Attorney-in-Fact
THE BANK OF NEW YORK, as Indenture Trustee
and not in its individual capacity
By: /s/ Scott J. Tepper
---------------------------------
Name: Scott J. Tepper
Title: Assistant Vice President
65
EXHIBIT A-1
[FORM OF] CLASS A NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT
IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER, THE TRANSFEROR OR THE
MASTER TRUST, OR JOIN IN ANY INSTITUTION AGAINST THE ISSUER, THE TRANSFEROR OR
THE MASTER TRUST, OF, ANY BANKRUPTCY PROCEEDINGS UNDER ANY UNITED STATES FEDERAL
OR STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY OBLIGATIONS RELATING
TO THE NOTES OR THE INDENTURE.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF A
BENEFICIAL INTEREST IN THIS NOTE, BY THE ACQUISITION OF A BENEFICIAL INTEREST
THEREIN, AGREE TO TREAT THE NOTES AS INDEBTEDNESS FOR APPLICABLE FEDERAL, STATE,
AND LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED
ON OR MEASURED BY INCOME.
A-1-1
REGISTERED up to $_________ *
No. __ CUSIP NO. __________
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
[Floating Rate]
CARD SERIES CLASS A NOTE
Capital One Multi-asset Execution Trust, a statutory trust created under
the laws of the State of Delaware (herein referred to as the "Issuer"), for
value received, hereby promises to pay to CEDE & CO., or registered assigns,
subject to the following provisions, a principal sum of _______________________
payable on the __________ ____ Payment Date (the "Expected Principal Payment
Date"), except as otherwise provided below or in the Indenture; provided,
however, that the entire unpaid principal amount of this Note shall be due and
payable on the _________ ____ Payment Date (the "Legal Maturity Date"). Interest
will accrue on this Note at the rate of _____ and shall be due and payable on
each Interest Payment Date from the Monthly Interest Accrual Date in the related
Monthly Period (or, in the case of the first Transfer Date, from the date of
issuance of this Note) to but excluding the first Monthly Interest Accrual Date
after the end of that Monthly Period. Interest will be computed on the basis of
a 360-day year [of twelve 30-day months] [and the actual number of days
elapsed]. Such principal of and interest on this Note shall be paid in the
manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
- --------
* Denominations of $1,000 and in integral multiples of $1,000 in excess
thereof.
A-1-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
as Issuer
By: CAPITAL ONE FUNDING, LLC,
as Beneficiary and not in its
individual capacity
By: ___________________________________
Name:
Title:
Date: _______ __, 2002
A-1-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Indenture Trustee
By: ___________________________________
Name:
Title:
Date: __________ __, 2002
A-1-4
[REVERSE OF NOTE]
This Note is one of the Notes of a duly authorized issue of Notes of the
Issuer, designated as its [Floating Rate] Asset Backed Notes (herein called the
"Notes"), all issued under an Indenture dated as of October 9, 2002 (such
Indenture, as supplemented or amended, is herein called the "Indenture"), as
supplemented by an Asset Pool 1 Supplement dated as of October 9, 2002 (the
"Asset Pool 1 Supplement"), as further supplemented by an Indenture Supplement
dated as of October 9, 2002 (the "Indenture Supplement"), between the Issuer and
The Bank of New York, as indenture trustee (the "Indenture Trustee", which term
includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Class B Notes, the Class C Notes and the Class D Notes will also be
issued under the Indenture.
The Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture and the Asset Pool 1
Supplement.
Principal of the Notes is expected to be paid on the Expected Principal
Payment Date in an amount described on the face hereof.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the Legal Maturity Date.
On any day occurring on or after the date on which the aggregate Nominal
Liquidation Amount of any Tranche of Notes is reduced to less than 5% of its
highest Outstanding Dollar Principal Amount, the Servicer or any Affiliate
thereof has the right, but not the obligation, to redeem such tranche of Notes
in whole but not in part, pursuant to Section 1102 of the Indenture. The
redemption price will be an amount equal to the Outstanding principal amount of
such Tranche, plus interest accrued and unpaid or principal accreted and unpaid
on such Tranche to but excluding the date of redemption.
Subject to the terms and conditions of the Indenture, the Beneficiary, on
behalf of the Trust, may from time to time issue, or direct the Owner Trustee,
on behalf of the Trust, to issue, one or more Series, Classes or Tranches of
Notes.
On each Payment Date, the Paying Agent shall distribute to each Noteholder
of record on the related Record Date (except for the final distribution with
respect to this Note) such Noteholder's pro rata share of the amounts held by
the Paying Agent that are allocated and available on such Payment Date to pay
interest and principal on the Notes. Final payments of
A-1-5
this Note will be made only upon presentation and surrender of this Note at the
office or offices therein specified.
[Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the clearing agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five days of such Payment Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in the City of New
York. On any payment of interest or principal being made, details of such
payment shall be entered by the Indenture Trustee on behalf of the Issuer in
Schedule A hereto.]
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by a commercial bank or
trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office is located, or a member
firm of a national securities exchange, and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that it will not at any time institute
against the Transferor, the Master Trust or the Issuer, or join in any
institution against the Transferor, the Master Trust or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other
A-1-6
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, the Indenture or any
Derivative Agreement.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than 66? of the Outstanding Dollar Principal Amount of each affected
Series, Class or Tranche of Notes. The Indenture also contains provisions
permitting the Holders of Notes representing specified percentages of the
Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE WILL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
A-1-7
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note covenant and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection herewith
or therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer or the Owner Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity except as any such Person may have
expressly agreed (it being understood that the Owner Trustee has no such
obligations in its individual capacity). The Holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Indenture,
the Asset Pool 1 Supplement and the Indenture Supplement in the case of an Event
of Default under the Indenture, the Holder shall have no claim against any of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Note.
A-1-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- -----------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: *
-------------------------------- ------------------------------------
Signature Guaranteed:
A-1-9
SCHEDULE A
PART I
INTEREST PAYMENTS
Total Amount Confirmation of
Interest Date of of Interest Amount of payment by or on
Payment Date Payment Payable Interest Paid behalf of the Trust
- --------------------------------------------------------------------------------
First
---------- --------------- ------------- -------------------
Second
---------- --------------- ------------- -------------------
[continue numbering until the appropriate number of interest payment dates for
the Notes is reached]
A-1-10
PART II
PRINCIPAL PAYMENTS
Confirmation of payment by
Date of Payment Total Amount Payable Total Amount Paid or on behalf of the Trust
- ----------------------------------------------------------------------------------------------
- ---------------- --------------------- ------------------ --------------------------
- ---------------- --------------------- ------------------ --------------------------
Confirmation of payment by
Date of Payment Total Amount Payable Total Amount Paid or on behalf of the Trust
- ----------------------------------------------------------------------------------------------
- ---------------- --------------------- ------------------ --------------------------
- ---------------- --------------------- ------------------ --------------------------
[continue numbering until the appropriate number of installment dates for the
Notes is reached]
A-1-11
EXHIBIT A-2
[FORM OF] CLASS B NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT
IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER, THE TRANSFEROR OR THE
MASTER TRUST, OR JOIN IN ANY INSTITUTION AGAINST THE ISSUER, THE TRANSFEROR OR
THE MASTER TRUST, OF, ANY BANKRUPTCY PROCEEDINGS UNDER ANY UNITED STATES FEDERAL
OR STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY OBLIGATIONS RELATING
TO THE NOTES OR THE INDENTURE.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF A
BENEFICIAL INTEREST IN THIS NOTE, BY THE ACQUISITION OF A BENEFICIAL INTEREST
THEREIN, AGREE TO TREAT THE NOTES AS INDEBTEDNESS FOR APPLICABLE FEDERAL, STATE,
AND LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED
ON OR MEASURED BY INCOME.
A-2-1
REGISTERED up to $_________ *
No. __ CUSIP NO. __________
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
[Floating Rate]
CARD SERIES CLASS B NOTE
Capital One Multi-asset Execution Trust, a statutory trust created under
the laws of the State of Delaware (herein referred to as the "Issuer"), for
value received, hereby promises to pay to CEDE & CO., or registered assigns,
subject to the following provisions, a principal sum of _______________________
payable on the __________ ____ Payment Date (the "Expected Principal Payment
Date"), except as otherwise provided below or in the Indenture; provided,
however, that the entire unpaid principal amount of this Note shall be due and
payable on the _________ ____ Payment Date (the "Legal Maturity Date"). Interest
will accrue on this Note at the rate of _______ and shall be due and payable on
each Interest Payment Date from the Monthly Interest Accrual Date in the related
Monthly Period (or, in the case of the first Transfer Date, from the date of
issuance of this Note) to but excluding the first Monthly Interest Accrual Date
after the end of that Monthly Period. Interest will be computed on the basis of
a 360-day year [of twelve 30-day months] [and the actual number of days
elapsed]. Such principal of and interest on this Note shall be paid in the
manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
- --------
* Denominations of $1,000 and in integral multiples of $1,000 in excess
thereof.
A-2-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
as Issuer
By: CAPITAL ONE FUNDING, LLC, as
Beneficiary and not in its individual
capacity
By: ___________________________________
Name:
Title:
Date: _______ __, 2002
A-2-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Indenture Trustee
By: ___________________________________
Name:
Title:
Date: __________ __, 2002
A-2-4
[REVERSE OF NOTE]
This Note is one of the Notes of a duly authorized issue of Notes of the
Issuer, designated as its [Floating Rate] Asset Backed Notes (herein called the
"Notes"), all issued under an Indenture dated as of October 9, 2002 (such
indenture, as supplemented or amended, is herein called the "Indenture"), as
supplemented by an Asset Pool 1 Supplement dated as of October 9, 2002 (the
"Asset Pool 1 Supplement"), as further supplemented by an Indenture Supplement
dated as of October 9, 2002 (the "Indenture Supplement"), between the Issuer and
The Bank of New York, as indenture trustee (the "Indenture Trustee", which term
includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Class A Notes, the Class C Notes and the Class D Notes will also be
issued under the Indenture.
The Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture and the Asset Pool 1
Supplement.
Principal of the Notes is expected to be paid on the Expected Principal
Payment Date in an amount described on the face hereof.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the Legal Maturity Date.
On any day occurring on or after the date on which the aggregate Nominal
Liquidation Amount of any Tranche of Notes is reduced to less than 5% of its
highest Outstanding Dollar Principal Amount, the Servicer or any Affiliate
thereof has the right, but not the obligation, to redeem such Tranche of Notes
in whole but not in part, pursuant to Section 1102 of the Indenture. The
redemption price will be an amount equal to the Outstanding principal amount of
such Tranche, plus interest accrued and unpaid or principal accreted and unpaid
on such Tranche to but excluding the date of redemption.
Subject to the terms and conditions of the Indenture, the Beneficiary, on
behalf of the Trust, may from time to time issue, or direct the Owner Trustee,
on behalf of the Trust, to issue, one or more Series, Classes or Tranches of
Notes.
On each Payment Date, the Paying Agent shall distribute to each Noteholder
of record on the related Record Date (except for the final distribution with
respect to this Note) such Noteholder's pro rata share of the amounts held by
the Paying Agent that are allocated and available on such Payment Date to pay
interest and principal on the Notes. Final payments of this Note will be made
only upon presentation and surrender of this Note at the office or offices
therein specified.
A-2-5
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the clearing agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five days of such Payment Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in the City of New
York. On any payment of interest or principal being made, details of such
payment shall be entered by the Indenture Trustee on behalf of the Issuer in
Schedule A hereto.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by a commercial bank or
trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office is located, or a member
firm of a national securities exchange, and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that it will not at any time institute
against the Transferor, the Master Trust or the Issuer, or join in any
institution against the Transferor, the Master Trust or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or any Derivative Agreement.
A-2-6
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than 66?% of the Outstanding Dollar Principal Amount of each affected
Series, Class or Tranche of Notes. The Indenture also contains provisions
permitting the Holders of Notes representing specified percentages of the
Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE WILL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note covenant and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the
A-2-7
Indenture Trustee on the Notes or under the Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Owner Trustee in
its individual capacity, any holder of a beneficial interest in the Issuer or
the Owner Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in its individual capacity
except as any such Person may have expressly agreed (it being understood that
the Owner Trustee has no such obligations in its individual capacity). The
Holder of this Note by the acceptance hereof agrees that, except as expressly
provided in the Indenture, the Asset Pool 1 Supplement and the Indenture
Supplement in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
A-2-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- ------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: *
-------------------------------- ------------------------------------
Signature Guaranteed:
- ----------
* NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-2-9
SCHEDULE A
PART I
INTEREST PAYMENTS
Total Amount Confirmation of
Interest Date of of Interest Amount of payment by or on
Payment Date Payment Payable Interest Paid behalf of the Trust
- --------------------------------------------------------------------------------
First
---------- --------------- ------------- -------------------
Second
---------- --------------- ------------- -------------------
[continue numbering until the appropriate number of interest payment dates for
the Notes is reached]
A-2-10
PART II
PRINCIPAL PAYMENTS
Confirmation of payment by
Date of Payment Total Amount Payable Total Amount Paid or on behalf of the Trust
- ---------------------------------------------------------------------------------------------
- ---------------- --------------------- ------------------ -------------------------
- ---------------- --------------------- ------------------ -------------------------
Confirmation of payment by
Date of Payment Total Amount Payable Total Amount Paid or on behalf of the Trust
- ---------------------------------------------------------------------------------------------
- ---------------- --------------------- ------------------ -------------------------
- ---------------- --------------------- ------------------ -------------------------
[continue numbering until the appropriate number of installment dates for the
Notes is reached]
A-2-11
EXHIBIT A-3
[FORM OF] CLASS C NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT
IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER, THE TRANSFEROR OR THE
MASTER TRUST, OR JOIN IN ANY INSTITUTION AGAINST THE ISSUER, THE TRANSFEROR OR
THE MASTER TRUST, OF, ANY BANKRUPTCY PROCEEDINGS UNDER ANY UNITED STATES FEDERAL
OR STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY OBLIGATIONS RELATING
TO THE NOTES OR THE INDENTURE.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF A
BENEFICIAL INTEREST IN THIS NOTE, BY THE ACQUISITION OF A BENEFICIAL INTEREST
THEREIN, AGREE TO TREAT THE NOTES AS INDEBTEDNESS FOR APPLICABLE FEDERAL, STATE,
AND LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED
ON OR MEASURED BY INCOME.
A-3-1
REGISTERED up to $_________ *
No. __ CUSIP NO. __________
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
[Floating Rate]
CARD SERIES CLASS C NOTE
Capital One Multi-asset Execution Trust, a statutory trust created under
the laws of the State of Delaware (herein referred to as the "Issuer"), for
value received, hereby promises to pay to CEDE & CO., or registered assigns,
subject to the following provisions, a principal sum of _______________________
payable on the __________ ____ Payment Date (the "Expected Principal Payment
Date"), except as otherwise provided below or in the Indenture; provided,
however, that the entire unpaid principal amount of this Note shall be due and
payable on the _________ ____ Payment Date (the "Legal Maturity Date"). Interest
will accrue on this Note at the rate of ____ and shall be due and payable on
each Interest Payment Date from the Monthly Interest Accrual Date in the related
Monthly Period (or, in the case of the first Transfer Date, from the date of
issuance of this Note) to but excluding the first Monthly Interest Accrual Date
after the end of that Monthly Period. Interest will be computed on the basis of
a 360-day year [of twelve 30-day months] [and the actual number of days
elapsed]. Such principal of and interest on this Note shall be paid in the
manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
- --------
* Denominations of $1,000 and in integral multiples of $1,000 in excess
thereof.
A-3-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
as Issuer
By: CAPITAL ONE FUNDING, LLC, as
Beneficiary and not in its individual
capacity
By: ___________________________________
Name:
Title:
Date: _______ __, 2002
A-3-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Indenture Trustee
By: ___________________________________
Name:
Title:
Date: _______ __, 2002
A-3-4
[REVERSE OF NOTE]
This Note is one of the Notes of a duly authorized issue of Notes of the
Issuer, designated as its [Floating Rate] Asset Backed Notes (herein called the
"Notes"), all issued under an Indenture dated as of October 9, 2002 (such
indenture, as supplemented or amended, is herein called the "Indenture"), as
supplemented by an Asset Pool 1 Supplement dated as of October 9, 2002 (the
"Asset Pool 1 Supplement"), as further supplemented by an Indenture Supplement
dated as of October 9, 2002 (the "Indenture Supplement"), between the Issuer and
The Bank of New York, as indenture trustee (the "Indenture Trustee", which term
includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Class A Notes, the Class B Notes and the Class D Notes will also be
issued under the Indenture.
The Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture and the Asset Pool 1
Supplement.
Principal of the Notes is expected to be paid on the Expected Principal
Payment Date in an amount described on the face hereof.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the Legal Maturity Date.
On any day occurring on or after the date on which the aggregate Nominal
Liquidation Amount of any Tranche of Notes is reduced to less than 5% of its
highest Outstanding Dollar Principal Amount, the Servicer or any Affiliate
thereof has the right, but not the obligation, to redeem such Tranche of Notes
in whole but not in part, pursuant to Section 1102 of the Indenture. The
redemption price will be an amount equal to the Outstanding principal amount of
such Tranche, plus interest accrued and unpaid or principal accreted and unpaid
on such Tranche to but excluding the date of redemption.
Subject to the terms and conditions of the Indenture, the Beneficiary, on
behalf of the Trust, may from time to time issue, or direct the Owner Trustee,
on behalf of the Trust, to issue, one or more Series, Classes or Tranches of
Notes.
On each Payment Date, the Paying Agent shall distribute to each Noteholder
of record on the related Record Date (except for the final distribution with
respect to this Note) such Noteholder's pro rata share of the amounts held by
the Paying Agent that are allocated and available on such Payment Date to pay
interest and principal on the Notes. Final payments of
A-3-5
this Note will be made only upon presentation and surrender of this Note at the
office or offices therein specified.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the clearing agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five days of such Payment Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in the City of New
York. On any payment of interest or principal being made, details of such
payment shall be entered by the Indenture Trustee on behalf of the Issuer in
Schedule A hereto.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by a commercial bank or
trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office is located, or a member
firm of a national securities exchange, and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that it will not at any time institute
against the Transferor, the Master Trust or the Issuer, or join in any
institution against the Transferor, the Master Trust or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other
A-3-6
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, the Indenture or any
Derivative Agreement.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than 66?% of the Outstanding Dollar Principal Amount of each affected
Series, Class or Tranche of Notes. The Indenture also contains provisions
permitting the Holders of Notes representing specified percentages of the
Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE WILL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
A-3-7
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note covenant and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection herewith
or therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer or the Owner Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity except as any such Person may have
expressly agreed (it being understood that the Owner Trustee has no such
obligations in its individual capacity). The Holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Indenture,
the Asset Pool 1 Supplement and the Indenture Supplement in the case of an Event
of Default under the Indenture, the Holder shall have no claim against any of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Note.
A-3-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- -----------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: *
--------------------------- ------------------------------------
Signature Guaranteed:
- ----------
* NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-3-9
SCHEDULE A
PART I
INTEREST PAYMENTS
Total Amount Confirmation of
Interest Date of of Interest Amount of payment by or on
Payment Date Payment Payable Interest Paid behalf of the Trust
- --------------------------------------------------------------------------------
First
---------- --------------- ------------- -------------------
Second
---------- --------------- ------------- -------------------
[continue numbering until the appropriate number of interest payment dates for
the Notes is reached]
A-3-10
PART II
PRINCIPAL PAYMENTS
Confirmation of payment by
Date of Payment Total Amount Payable Total Amount Paid or on behalf of the Trust
- ---------------------------------------------------------------------------------------------
- ---------------- --------------------- ------------------ -------------------------
- ---------------- --------------------- ------------------ -------------------------
Confirmation of payment by
Date of Payment Total Amount Payable Total Amount Paid or on behalf of the Trust
- ---------------------------------------------------------------------------------------------
- ---------------- --------------------- ------------------ -------------------------
- ---------------- --------------------- ------------------ -------------------------
[continue numbering until the appropriate number of installment dates for the
Notes is reached]
A-3-11
EXHIBIT A-4
[FORM OF] CLASS D VARIABLE FUNDING NOTE
THIS CLASS D NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY APPLICABLE STATE SECURITIES LAW OF ANY
STATE AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS TO ANY PERSON WHO THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
THEREOF IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") IN COMPLIANCE WITH
RULE 144A OR A PERSON WHO IS AN INSTITUTIONAL "ACCREDITED INVESTOR" AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT, IN EACH CASE IN
COMPLIANCE WITH THE CERTIFICATION AND OTHER REQUIREMENTS SPECIFIED IN THE
INDENTURE SUPPLEMENT. NONE OF THE ISSUER, THE TRANSFEROR, THE SERVICER, THE
TRANSFER AGENT, NOTE REGISTRAR OR THE INDENTURE TRUSTEE IS OBLIGATED TO REGISTER
THE CLASS D NOTES UNDER THE SECURITIES ACT OR ANY OTHER SECURITIES OR "BLUE SKY"
LAW.
EACH PURCHASER REPRESENTS AND WARRANTS, FOR THE BENEFIT OF CAPITAL ONE
MULTI-ASSET EXECUTION TRUST, THAT SUCH PURCHASER IS NOT (1) AN EMPLOYEE BENEFIT
PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA")) WHICH IS SUBJECT TO THE PROVISIONS OF ERISA, (2)
A PLAN (AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE") WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, OR (3) AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY SUCH PLAN'S
INVESTMENT IN THE ENTITY (UNLESS REGISTERED UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED).
NEITHER THIS CLASS D NOTE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED TO AN
EMPLOYEE BENEFIT PLAN, TRUST OR ACCOUNT WHICH 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.
ANY TRANSFER OF A DIRECT OR INDIRECT INTEREST IN THIS CLASS D NOTE IS
SUBJECT TO THE PROVISIONS OF THE INDENTURE, THE ASSET POOL SUPPLEMENT, THE
INDENTURE SUPPLEMENT AND THE TERMS DOCUMENT AND SUBJECT TO CERTAIN LIMITATIONS
THEREIN SET FORTH.
A-4-1
REGISTERED
No. R-1
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
CARD SERIES CLASS D VARIABLE FUNDING NOTE
Capital One Multi-asset Execution Trust (herein referred to as the "Issuer"
or the "Trust"), a Delaware statutory trust governed by an Amended and Restated
Trust Agreement dated as of October 9, 2002, for value received, hereby promises
to pay to CAPITAL ONE FUNDING, LLC, or registered assigns, subject to the
following provisions, the principal sum as determined in accordance with
Indenture dated as of October 9, 2002 (the "Indenture"), as supplemented by the
Asset Pool 1 Supplement dated as of October 9, 2002 (the "Asset Pool
Supplement"), as further supplemented by the Card Series Indenture Supplement
dated as of October 9, 2002 (the "Indenture Supplement"), as further
supplemented by the Class D Terms Document dated as of October 9, 2002 (the
"Terms Document"), each between the Issuer and The Bank of New York, as
Indenture Trustee (the "Indenture Trustee"). The Issuer will pay interest and
principal in accordance with the Terms Document.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture, the Asset Pool Supplement, the
Indenture Supplement or the Terms Document referred to on the reverse hereof, or
be valid for any purpose.
THIS CLASS D NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND PAYMENTS
ON THE CLASS A NOTES, THE CLASS B NOTES AND THE CLASS C NOTES TO THE EXTENT
SPECIFIED IN THE INDENTURE SUPPLEMENT.
A-4-2
IN WITNESS WHEREOF, the Issuer has caused this Class D Note to be duly
executed.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
as Issuer
By: DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By: ___________________________________
Name:
Title:
Dated: ___________ __, ____
A-4-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class D Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Indenture Trustee
By: ________________________
Authorized Signatory
A-4-4
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
CARD SERIES
CARD SERIES CLASS D VARIABLE FUNDING NOTE
Summary of Terms and Conditions
This Note is one of the Notes of a duly authorized issue of Notes of the
Issuer, designated as its [Floating Rate] Asset Backed Notes (herein called the
"Notes"), all issued under an Indenture dated as of October 9, 2002 (such
indenture, as supplemented or amended, is herein called the "Indenture"), as
supplemented by an Asset Pool 1 Supplement dated as of October 9, 2002 (the
"Asset Pool 1 Supplement"), as further supplemented by an Indenture Supplement
dated as of October 9, 2002 (the "Indenture Supplement"), between the Issuer and
The Bank of New York, as indenture trustee (the "Indenture Trustee", which term
includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Class A Notes, the Class B Notes and the Class C Notes will also be
issued under the Master Indenture, the Asset Pool Supplement and the Indenture
Supplement.
The Noteholder, by its acceptance of this Note, agrees that it will look
solely to the property of the Issuer allocated to the payment of this Note for
payment hereunder and that the Indenture Trustee is not liable to the
Noteholders for any amount payable under the Note or the Indenture or, except as
expressly provided in the Indenture, subject to any liability under the
Indenture.
This Note does not purport to summarize the Indenture and reference is made
to the Indenture for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Indenture Trustee.
The principal sum of this Note is described in the Terms Document.
Subject to the terms and conditions of the Indenture, the Beneficiary, on
behalf of the Trust, may from time to time issue, or direct the Owner Trustee,
on behalf of the Trust, to issue, one or more Series, Classes or Tranches of
Notes.
Interest and principal payments shall be made in accordance with the Terms
Document.
A-4-5
This Note does not represent an obligation of, or an interest in or the
assets of, the Transferor, the Servicer or any Affiliate thereof, other than the
Issuer.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that it will not at any time institute
against the Transferor, the Master Trust or the Issuer, or join in any
institution against the Transferor, the Master Trust or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or any Derivative Agreement.
The transfer of this Note shall be registered in the Note Register upon
surrender of this Note for registration of transfer at any office or agency
maintained by the Note Registrar accompanied by a written instrument of
transfer, in a form satisfactory to the Indenture Trustee or the Note Registrar,
duly executed by the Class D Noteholder or such Class D Noteholder's attorney,
and duly authorized in writing with such signature guaranteed, and thereupon one
or more new Class D Notes in any authorized denominations of like aggregate
principal amount will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set
forth, Class D Notes are exchangeable for new Class D Notes in any authorized
denominations and of like aggregate principal amount, upon surrender of such
Notes to be exchanged at the office or agency of the Note Registrar. No service
charge may be imposed for any such exchange but the Issuer or Note Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
The Issuer, the Transferor, the Indenture Trustee and any agent of the
Issuer, Transferor or the Indenture Trustee shall treat the person in whose name
this Note is registered as the owner hereof for all purposes, and neither the
Issuer, the Transferor, the Indenture Trustee nor any agent of the Issuer,
Transferor or the Indenture Trustee shall be affected by notice to the contrary.
THIS CLASS D NOTE 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-4-6
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: ____________ ______________________/1/
Signature Guaranteed:
______________________
- ------------
/1/ NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-4-7
EXHIBIT B
[FORM OF] CARD SERIES SCHEDULE TO PAYMENT INSTRUCTIONS
-----------------------------------------------
CAPITAL ONE MULTI-ASSET EXECUTION TRUST, CARD SERIES
MONTHLY PERIOD ENDING _________ __, ____
-----------------------------------------------
Capitalized terms used in this notice have their respective meanings set
forth in the Indenture and the Indenture Supplement. Unless otherwise qualified,
references herein to certain sections and subsections are references to the
respective sections and subsections of the Indenture Supplement. This
instruction is delivered pursuant to Section 5.3 of the Asset Pool 1 Supplement.
The Servicer does hereby instruct the Issuer to instruct the Indenture
Trustee, and the Issuer does hereby instruct the Indenture Trustee, to make the
following allocations and payments for the related Monthly Period on __________
__, ____, which date is a Transfer Date under the COMT Pooling and Servicing
Agreement, in aggregate amounts set forth below in respect of the following
amounts:
I. Allocations and Payments of Card series Finance Charge Amounts.
A. Allocation of Card series Finance Charge Amounts pursuant to Section 3.01,
to be applied on each Distribution Date by the Indenture Trustee in the
following priority:
1. Amount of targeted deposits paid to the Interest Funding
Account pursuant to Section 3.02 ............................ $_______
2. Amount paid in respect of the Card series Servicing Fee to
the Servicer ................................................ $_______
3. Amount paid in respect of any previously due and unpaid Card
series Servicing Fee to the Servicer ........................ $_______
4. Amount of targeted deposits with respect to the Class D
Notes to the Interest Funding Account pursuant to Section
3.02 ........................................................ $_______
5. Amount to be treated as Card series Principal Amounts
pursuant to Section 3.07 in an amount equal to the Card
series Defaulted Amount, if any ............................. $_______
B-1
6. Amount to be treated as Card series Principal Amounts
pursuant to Section 3.07 in an amount equal to the Nominal
Liquidation Amount Deficit, if any .......................... $_______
7. Amount to make the target deposit to the Accumulation
Reserve Account pursuant to Section 3.24 .................... $_______
8. Amount to make the target deposit to the Class C Reserve
Account pursuant to Section 3.22, if any .................... $_______
9. Amount to make the target deposit to the Class D Reserve
Account pursuant to Section 3.29, if any .................... $_______
10. Amount paid or deposited as required by the terms document
of any class or tranche of Card series Notes ................ $_______
11. Amount to be treated as Shared Excess Finance Charge Amounts
for application in accordance with Section 3.27 ............. $_______
12. Amount paid or deposited as required by the terms document
of any class or tranche of Card series Notes ................ $_______
13. Amount to paid to the holder of Asset Pool 1 Transferor
Interest or the designee of the holder of the Asset Pool 1
Transferor Interest ......................................... $_______
Total ................................................... $_______
B. Allocations of deposits to Interest Funding sub-Accounts pursuant to
Section 3.03:
1. Payments to Interest Funding sub-Accounts pursuant to Section 3.03:
a. [Class/Tranche] .......................................... $_______
b. [Class/Tranche] .......................................... $_______
Total .................. $_______
C. Payments and deposits pursuant to Section 3.04, to be received on the
following dates:
1. Withdrawals from the Class C Reserve Account deposited into
the applicable Interest Funding sub-Account on the related
Transfer Date pursuant to Section 3.23(a) ................... $_______
B-2
2. As of the date of receipt, Receivables Sales Proceeds
deposited in the applicable Interest Funding sub-Account as
of the date of receipt by the Issuer ........................ $_______
D. Withdrawals from the Interest Funding Account pursuant to Section 3.13, to
be made by the Indenture Trustee on the following dates:
1. Amount withdrawn from the applicable Interest Funding
sub-Accounts and remitted to the applicable Paying Agent on
each Interest Payment Date, with respect to each tranche of
Dollar Notes ................................................ $_______
2. Amount withdrawn from the applicable Interest Funding
sub-Accounts and converted to the applicable foreign
currency at the Spot Exchange Rate and remitted to the
applicable Paying Agent for Foreign Currency Notes with a
non-Performing Derivative Agreement ......................... $_______
3. Amount withdrawn from the applicable Interest Funding
sub-Accounts and invested in the Investor Interest of the
Collateral Certificate on each Principal Payment Date, with
respect to each tranche of Discount Notes ................... $_______
4. Amount withdrawn from the applicable Interest Funding
sub-Accounts and paid to the applicable Derivative Party as
specified in the applicable Derivative Agreement, with
respect to each tranche of Notes which has a Performing
Derivative Agreement for interest ........................... $_______
5. Amount paid to the Issuer ................................... $_______
II. Allocations and Payments of Card series.
A. Re-allocation of Card series Principal Amounts pursuant to Section 3.07(a)
to be applied on the next Distribution Date by the Indenture Trustee:
1. Reallocated Class C Principal Collections: .................. $_______
2. Reallocated Class B Principal Collections: .................. $_______
B-3
B. Targeted Deposits of Card series Principal Amounts to the Principal Funding
Account pursuant to Section 3.10, to be made by the Indenture Trustee on
the following dates:
1. On the applicable Principal Payment Date prior to any payment, the
Nominal Liquidation Amount for the related tranche of Notes:
a. [Class/Tranche] ........................................ $_______
b. [Class/Tranche] ........................................ $_______
Total .................. $_______
2. In the applicable Principal Funding sub-Account for the related
tranche of Notes, the Controlled Accumulation Amount or the amount
specified in Section 3.10(b)(ii):
a. [Class/Tranche] ........................................ $_______
b. [Class/Tranche] ........................................ $_______
Total .................. $_______
3. In the applicable Principal Funding sub-Account, the Prefunding Target
Amount for the Card Series on the related Distribution Date:
a. [Class/Tranche] ........................................ $_______
b. [Class/Tranche] ........................................ $_______
Total .................. $_______
4. In the case of an Event of Default, Early Redemption Event or other
optional or mandatory redemption, on the applicable Distribution Date,
the Nominal Liquidation Amount for the related Tranche of Notes:
a. [Class/Tranche] ........................................ $_______
b. [Class/Tranche] ........................................ $_______
Total .................. $_______
B-4
C. Payments and deposits pursuant to Section 3.12, to be received on the
following dates:
1. Withdrawals from the Class C Reserve Account deposited into
the applicable Principal Funding sub-Account on the related
Distribution Date pursuant to Section 3.23(b) ............... $_______
2. As of the date of receipt, Receivables Sales Proceeds
received pursuant to Section 3.20(c)(i) deposited in the
applicable Principal Funding sub-Account as of the date of
receipt by the Issuer ....................................... $_______
D. Reallocations of deposits to Principal Funding sub-Accounts pursuant to
Section 3.11:
1. Payments to Principal Funding sub-Accounts pursuant to
Section 3.11(b)(i) for the Class A Notes .................... $_______
2. Payments to Principal Funding sub-Accounts pursuant to
Section 3.11(b)(ii) for the Class B Notes ................... $_______
3. Payments to Principal Funding sub-Accounts pursuant to
Section 3.11(b)(iii) for the Class C Notes $_______
E. Withdrawals from the Principal Funding Account pursuant to Section 3.14, to
be made by the Indenture Trustee on the following dates:
1. Amount withdrawn from the applicable Principal Funding
sub-Accounts and remitted to the applicable Paying Agent on
each Principal Payment Date, with respect to each tranche of
Dollar Notes ................................................ $_______
2. Amount withdrawn from the applicable Principal Funding
sub-Accounts and paid to the applicable Derivative Party as
specified in the applicable Derivative Agreement, with
respect to each tranche of Notes which has a Performing
Derivative Agreement for Principal .......................... $_______
3. Dollar amount withdrawn from the applicable Principal
Funding sub-Accounts and converted to the applicable foreign
currency at the Spot Exchange Rate pursuant to the
applicable Derivative Agreement, with respect to each
tranche of Notes which has a non-Performing Derivative
Agreement for principal ..................................... $_______
4. Amount of Prefunding Excess Amount withdrawn from the
Principal Funding sub-Accounts and paid to the Master Trust
to increase the Invested Amount of the Collateral
Certificate ................................................. $_______
B-5
5. Amount withdrawn from the applicable Principal Funding
sub-Accounts on the Legal Maturity Date of any tranche and
applied to pay principal of that tranche or paid to the
applicable Derivative Party for that tranche as specified in
the applicable Derivative Agreement ......................... $_______
6. Amount paid to the Issuer ................................... $_______
F. Amount of principal accreted on all tranches of Discount Notes and paid to
the Master Trust pursuant to Section 3.17(a) ..................... $_______
G. Allocations of reductions from Investor Charge-Offs to the Nominal
Liquidation Amount of subordinated classes pursuant to Section 3.05:
1. Initial allocation of Investor Charge-Offs to each tranche
of Outstanding Notes ........................................ $_______
Class A ................................................ $_______
Class B ................................................ $_______
Class C ................................................ $_______
2. Amount reallocated to the Class D Notes, subject to the
restrictions set forth in Section 3.05(d) ................... $_______
3. Amount reallocated to the Class C Notes, subject to the
restrictions set forth in Section 3.05(c) ................... $_______
4. Amount reallocated to the Class B Notes, subject to the
restrictions set forth in Section 3.05(b) ................... $_______
H. Net proceeds from sales of Receivables for Accelerated Notes
pursuant to Section 3.20 ......................................... $_______
III. Targeted deposits to, and withdrawals of funds on deposit from, the
Class C Reserve Account.
A. Targeted deposit to the Class C Reserve Account pursuant to Section 3.22(a):
B. Deposits to the Class C Reserve sub-Accounts pursuant to Section 3.22:
1. Sum of the Class C Reserve sub-Account deposits for each
applicable tranche of Outstanding Notes:
a. [Tranche] ............................................... $_______
B-6
b. [Tranche] ............................................... $_______
Total .................... $_______
C. Withdrawals from the Class C Reserve Account pursuant to Section 3.23:
1. Amount withdrawn from the applicable Class C Reserve
sub-Account and deposited in the applicable Interest Funding
sub-Account pursuant to Section 3.23(a):
a. Interest Funding sub-Account for [Tranche] .............. $_______
b. Interest Funding sub-Account for [Tranche] .............. $_______
Total .................... $_______
2. Amount withdrawn from the Class C Reserve sub-Account and
deposited in the applicable Principal Funding sub-Account
pursuant to Section 3.23(b):
a. Principal Funding sub-Account for [Tranche] .............. $_______
b. Principal Funding sub-Account for [Tranche] .............. $_______
Total .................... $_______
3. Amounts paid to the Issuer pursuant to Section 3.23(c) ...... $_______
IV. Targeted deposits to, and withdrawals of funds on deposit from, the Class D
Reserve Account.
A. Targeted deposit to the Class D Reserve Account pursuant to Section 3.29(a):
B. Deposits to the Class D Reserve sub-Accounts pursuant to Section 3.29:
1. Sum of the Class D Reserve sub-Account deposits for each
applicable tranche of Outstanding Notes:
a. [Tranche] ............................................... $_______
b. [Tranche] ............................................... $_______
Total .................... $_______
C. Withdrawals from the Class D Reserve Account pursuant to Section 3.30:
B-7
1. Amount withdrawn from the applicable Class D Reserve
sub-Account and deposited in the applicable Interest Funding
sub-Account pursuant to Section 3.30(a):
a. Interest Funding sub-Account for [Tranche] .............. $_______
b. Interest Funding sub-Account for [Tranche] .............. $_______
Total .................... $_______
2. Amount withdrawn from the Class D Reserve sub-Account and
deposited in the applicable Principal Funding sub-Account
pursuant to Section 3.30(b):
a. Principal Funding sub-Account for [Tranche] ............. $_______
b. Principal Funding sub-Account for [Tranche] ............. $_______
Total .................... $_______
3. Amounts paid to the Issuer pursuant to Section 3.30(c) ...... $_______
B-8
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate this __ day of __________, _____.
CAPITAL ONE BANK,
as Administrator
By: _______________________________
Name:
Title:
B-9
EXHIBIT C
[FORM OF] CARD SERIES SCHEDULE TO
MONTHLY NOTEHOLDERS' STATEMENT
Date: ______ __, ____
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
MONTHLY PERIOD ENDING _______ __, ____
Reference is made to the Series 2002-CC Supplement (the "Series 2002-CC
Supplement"), dated as of October 9, 2002, between Capital One Funding, LLC, a
Virginia limited liability company ("Funding"), as Transferor, Capital One Bank,
a Virginia banking corporation (the "Bank"), as Servicer, and The Bank of New
York, as Trustee, and the Indenture (the "Indenture"), dated as of October 9,
2002, between Capital One Multi-asset Execution Trust, as Issuer, and The Bank
of New York, as Indenture Trustee. Terms used herein and not defined herein have
the meanings ascribed to them in the Series 2002-CC Supplement, the Indenture
and the related Indenture Supplements, as applicable.
The following computations are prepared with respect to the Transfer Date
of _______ __, ____ and with respect to the performance of the Trust during the
related Monthly Period.
[TO BE PROVIDED]
C-1