EXHIBIT 4.6
EXECUTION COPY
AMENDMENT NUMBER 4
TO THE
POOLING AND SERVICING AGREEMENT
THIS AMENDMENT NUMBER 4 TO THE POOLING AND SERVICING AGREEMENT, dated
as of April 24, 1998, (this "Amendment") is among CAPITAL ONE BANK, a Virginia
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banking corporation, as Seller and Servicer, and THE BANK OF NEW YORK, as
Trustee (the "Trustee") under the Pooling and Servicing Agreement dated as of
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September 30, 1993, between the Seller, the Servicer and the Trustee (as
amended, supplemented and in effect on the date hereof, the "Pooling and
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Servicing Agreement").
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RECITALS
WHEREAS, Capital One Bank wishes to amend certain provisions of the
Pooling and Servicing Agreement as provided herein in accordance with Section
13.01(a) of the Pooling and Servicing Agreement;
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used herein and not
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otherwise defined herein shall have the meanings specified in the Pooling and
Servicing Agreement.
SECTION 2. Amendment of Section 1.01.
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(a) The definition of "Bank Certificate" in Section 1.01 of the
Pooling and Servicing Agreement shall be deleted in its entirety and replaced
with the following:
"Bank Certificate" shall mean, if the Bank or any Additional
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Seller elects to evidence its interest in the Seller's Interest in
certificated form pursuant to Section 6.01, a certificate executed by
the Bank or any Additional Seller, as the case may be, and
authenticated by or on behalf of the Trustee, substantially in the
form of Exhibit A, as the same may be modified in accordance with
Section 2.08(f).
(b) The definition of "Certificateholder" or "Holder" in Section 1.01
of the Pooling and Servicing Agreement shall be deleted in its entirety and
replaced with the following:
"Certificateholder" or "Holder" shall mean an Investor
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Certificateholder, a Person in whose name the Seller' Certificate is
registered in the Certificate Register, or any Person owning any part
of an uncertificated interest in the Seller's Interest.
SECTION 3. Amendment of Section 2.07(c). Section 2.07(c) of the
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Pooling and Servicing Agreement shall be deleted in its entirety and replaced
with the following:
(c) Seller's Interest. Except for the conveyances hereunder, in
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connection with any transaction permitted by Section 7.02 or 7.05 and
as provided in Sections 2.08(f) and 6.03, the Seller agrees not to
transfer, assign, exchange or otherwise convey or pledge, hypothecate
or otherwise grant a security interest in the Seller's Interest,
whether represented by the Bank Certificate or any Supplemental
Certificate or by any uncertificated interest in the Seller's
Interest, and any such attempted transfer, assignment, exchange,
conveyance, pledge, hypothecation or grant shall be void; provided,
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however, that nothing in this Section 2.07(c) shall prevent the owner
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of an interest in the Seller's Interest, whether uncertificated or
represented by a certificate, from granting to an Affiliate a
participation interest or other beneficial interest in the rights to
receive cash flows related to the Seller's Interest, if (i) such
interest does not grant such Affiliate any rights hereunder or
delegate to such Affiliate any obligations or duties hereunder and
(ii) the transferor of such interest obtains the prior written consent
of the Bank and (iii) after giving effect to such transfer, the
interest in the Seller's Interest owned directly by the Bank
represents an undivided ownership interest in two percent (2.0%) or
more of the Trust Assets.
SECTION 4. Amendment of Section 2.08(f). Section 2.08(f) of the
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Pooling and Servicing Agreement shall be deleted in its entirety and replaced
with the following:
(f) Additional Sellers. The Bank may designate Affiliates of
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the Bank to be included as Sellers ("Additional Sellers") under this
Agreement by an amendment hereto pursuant to Section 13.01(a). If the
Bank elects to have its interest in the Seller's Interest evidenced by
a certificate as provided in Section 6.01 hereof, then in connection
with such designation, the Bank shall surrender the Bank Certificate
to the Trustee in exchange for a newly issued Bank Certificate
modified to reflect such Additional Seller's interest. If the Bank
elects to have its interest in the Seller's Interest be uncertificated
as provided in Section 6.01, the Bank shall instruct the Trustee in
writing to register the Additional Seller as the owner of the
appropriate interest in the Seller's Interest on the books and records
of the Trust. Prior to any such designation of an Additional Seller
and, if applicable, exchange of certificates, the conditions set forth
in section 6.03(c) or (d) as applicable, shall have been satisfied.
SECTION 5. Amendment of Section 2.11(b). Section 2.11(b) of the
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Pooling and Servicing Agreement shall be amended by deleting the clause (ii) of
the first sentence thereof in its entirety and inserting in its place the
following:
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(ii) pay to the Holder of the Seller's Certificate, and if any owner
of an interest in the Seller's Interest elects to have such interest
be uncertificated as provided in Section 6.01 hereof, then to the
owner of such uncertificated interest in Seller's Interest, the
balance of such Discount Option Receivables Collections.
SECTION 6. Amendment of Section 4.01. Section 4.01 of the Pooling
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and Servicing Agreement shall be amended by deleting the second sentence thereof
in its entirety and inserting in its place the following:
The Seller's Certificate shall represent the ownership interest in the
remainder of the Trust Assets not allocated pursuant to this Agreement
or any Supplement to the Certificateholders' Interest, including the
right to receive Collections with respect to the Receivables and other
amounts at the times and in the amounts specified in this Agreement or
any Supplement to be paid to the Seller on behalf of all of the
holders of the Seller's Certificate (the "Seller's Interest");
provided, however, that if the Bank or any Additional Seller elects to
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have its interest in the Seller's Interest be uncertificated as
provided in Section 6.01 hereof, then such uncertificated interest,
together with any Seller's Certificate, shall represent the "Seller's
Interest"; provided further, that the Seller's Certificate, or any
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uncertificated interest in the Seller's Interest, shall not represent
any interest in the Collection Account, the Excess Funding Account,
any Series Account or any Series Enhancement, except as specifically
provided in this Agreement or any Supplement; provided further that
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the foregoing shall not be construed to limit the Trustee's
obligations to make payments to the Seller and the Servicer as and
when required under this Agreement and any Supplement.
SECTION 7. Amendment of Section 6.01. Section 6.01 of the Pooling
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and Servicing Agreement shall be amended by deleting the second sentence thereof
in its entirety and inserting in its place the following:
The Bank or any Additional Seller may elect at any time, by written
notice to the Trustee, to have its interest in the Seller's Interest
be (i) an uncertificated interest or (ii) evidenced by a certificate.
If the Bank or any Additional Seller elects to have its interest in
the Seller's Interest be uncertificated, it shall deliver to the
Trustee for cancellation any Bank Certificate previously issued. If
the Bank or any Additional Seller elects to have its interest in the
Seller's Interest be evidenced by a certificate, the Bank Certificate
will be issued in registered form, substantially in the form of
Exhibit A and shall upon issue be executed and delivered by the Bank
to the Trustee for authentication and redelivery as provided in
Section 6.02. The Trustee shall keep with the books and records of
the Trust a register, in book-entry form, of each Person owning any
uncertificated interest in the Seller's Interest.
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SECTION 8. Amendment of Section 6.03(c).
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(a) Section 6.03(c) of the Pooling and Servicing Agreement shall be
amended by deleting the first word "The" in the first sentence thereof and
inserting in its place the following:
If the Bank or any Additional Seller elects to have its interest in
the Seller's Interest evidenced by a certificate as provided in
Section 6.01 hereof, then the
(b) Section 6.03(c) of the pooling and Servicing Agreement shall be
further amendment by adding the following after the last sentence thereof:
If the Bank or any Additional Seller elects to have its interest in
the Seller's Certificate be uncertificated, then it may surrender such
interest in exchange for a Supplemental Certificate in accordance with
the requirements and subject to the satisfaction of the conditions in
this Section 6.03(c), and will instruct the Trustee in writing to
register such exchange on the books and records of the Trust.
Notwithstanding anything in this Agreement to the contrary and
subject to the related Supplement, any Holder of a Supplemental
Certificate that is an Affiliate of the Bank may elect at any time, by
written notice to the Trustee, to have its interest in the Seller's
Interest be (i) an uncertificated interest or (ii) evidenced by a
certificate. If the Holder of a Supplemental Certificate elects to
have its interest in the Seller's Interest be uncertificated, it shall
deliver to the Trustee for cancellation any Supplemental Certificate
previously issued and the Trustee make the appropriate entry in the
books and records of the Trust registering such uncertificated
interest in the Seller's Interest. If the owner of any such
uncertificated interest elects to have its interest in the Seller's
Interest be evidenced by a certificate, a Supplemental Certificate
will be issued in registered form and in the form provided in the
related Supplement.
SECTION 9. Amendment of Section 12.03. Section 12.03 of the Pooling
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and Servicing Agreement shall be amended by deleting the first sentence thereof
in its entirety and inserting in its place the following:
Upon the termination of the Trust pursuant to Section 12.01 and, if
any part of the Seller's Interest is then evidenced by a certificate,
the surrender of such part the Seller's Certificate, the Trustee shall
sell, assign and convey to the Seller or its designee, without
recourse, representation or warranty, all right, title and interest of
the Trust in the Receivables, whether then existing or thereafter
created, all moneys due or to become due and all amounts received with
respect thereto and all proceeds thereof, except for amounts held by
the Trustee pursuant to Section 12.02(b).
SECTION 10. Effectiveness. The amendments provided for by this
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Amendment shall become effective on the date that each of the following events
occur:
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(a) The Seller shall have delivered to the Trustee and each provider
of Series Enhancement an Officer's Certificate of the Seller stating that the
Seller reasonably believes that the execution and delivery of this Amendment
will not, based on the facts known to such officer at such time, have a material
adverse effect on the interests of the Certificateholders.
(b) The Seller shall have received from each Rating Agency written
confirmation that the execution and delivery of this Amendment will not have a
Ratings Effect and shall have delivered copies of each such confirmation to the
Servicer and the Trustee.
(c) The Servicer shall have delivered to the Trustee and any Series
Enhancer entitled thereto pursuant to the relevant Supplement an Opinion of
Counsel as to the matters specified in Exhibit H-1 to the Pooling and Servicing
Agreement with respect to this Amendment.
(d) Each of the parties hereto shall have received counterparts of
this Amendment, duly executed by each of the parties hereto.
(e) Each requirement of any Series Enhancement agreement applicable
to amendment of the Pooling and Servicing Agreement shall have been satisfied.
SECTION 11. Pooling and Servicing Agreement in Full Force and Effect
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as Amended. Except as specifically amended hereby, all of the terms and
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conditions of the Pooling and Servicing Agreement shall remain in full force and
effect. All references to the Pooling and Servicing Agreement in any other
document or instrument shall be deemed to mean such Pooling and Servicing
Agreement as amended by this Amendment. This Amendment shall not constitute a
novation of the Pooling and Servicing Agreement, but shall constitute an
amendment thereof. The parties hereto agree to be bound by the terms and
obligations of the Pooling and Servicing Agreement, as amended by this
Amendment, as though the terms and obligations of the Pooling and Servicing
Agreement were set forth herein.
SECTION 12. Counterparts. This Amendment may be executed in any
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number of counterparts and by separate parties hereto on separate counterparts,
each of which when executed shall be deemed an original, but all such
counterparts taken together shall constitute one and the same instrument.
SECTION 13. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
the Pooling and Servicing Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
CAPITAL ONE BANK,
Seller and Servicer
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK,
Trustee
By: /s/ Xxxxxx Laser
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Name: Xxxxxx Laser
Title: Assistant Vice President
[Signature Page to Amendment Number 4 to the Pooling and Servicing Agreement]
