SERIES 2001-4 SUPPLEMENT Dated as of June 27, 2001 to POOLING AND SERVICING AGREEMENT Dated as of September 30, 1993, As amended and restated on April 9, 2001 CAPITAL ONE MASTER TRUST SERIES 2001-4 among CAPITAL ONE BANK, Seller and Servicer and...
EXHIBIT 4.1
SERIES 2001-4 SUPPLEMENT
Dated as of June 27, 2001
to
POOLING AND SERVICING AGREEMENT
Dated as of September 30, 1993,
As amended and restated on April 9, 2001
$1,000,000,000
SERIES 2001-4
among
CAPITAL ONE BANK,
Seller and Servicer
and
CAPITAL ONE, F.S.B.,
Seller
and
THE BANK OF NEW YORK,
Trustee
on behalf of the Series 2001-4 Certificateholders
TABLE OF CONTENTS
| Page
|
||||
| ARTICLE VIII | FINAL DISTRIBUTIONS | 41
|
||
| Section 8.01. |
Sale of Receivables or Certificateholders’ Interest pursuant to
Section 2.06 or 10.01 of the Agreement |
41
|
||
| Section 8.02. |
Distribution of Proceeds of Sale, Disposition or Liquidation of the
Receivables pursuant to Section 9.02 of the Agreement |
43
|
||
| ARTICLE IX | NEW ISSUANCES | 44
|
||
| Section 9.01. | New Issuances | 44
|
||
| ARTICLE X | MISCELLANEOUS PROVISIONS | 44
|
||
| Section 10.01. | Ratification of Agreement | 44
|
||
| Section 10.02. | Counterparts | 44
|
||
| Section 10.03. | GOVERNING LAW | 44
|
||
| Section 10.04. | Determination of Material Adverse Effect | 45
|
||
| Section 10.05. | Book-Entry Certificates | 45
|
||
| Section 10.06. | Uncertificated Securities | 45
|
||
| Section 10.07. | Transfers of the Collateral Interest | 45
|
||
| SECTION 10.08. | CERTAIN ACCOUNTING RELATED AMENDMENTS | 46
|
||
SERIES 2001-4 SUPPLEMENT, dated as of June 27, 2001 (the "Supplement"), among CAPITAL ONE BANK, a Virginia banking corporation, as a Seller and the Servicer, CAPITAL ONE, F.S.B., a federal savings bank, as a Seller, and THE BANK OF NEW YORK, a New York banking corporation, as the Trustee.
Pursuant to the Pooling and Servicing Agreement, dated as of September 30, 1993, as amended and restated as of April 9, 2001 (as amended and restated and as amended and supplemented, the "Agreement"), among the Sellers, the Servicer and the Trustee, the Sellers have created Capital One Master Trust (the "Trust"). Section 6.03 of the Agreement provides that the Sellers may from time to time direct the Trustee to authenticate one or more new Series of Investor Certificates representing fractional undivided interests in the Trust. The Principal Terms of any new Series are to be set forth in a Supplement to the Agreement.
Pursuant to this Supplement, the Sellers and the Trustee shall create a new Series of Investor Certificates and specify the Principal Terms thereof.
ARTICLE I
Creation of the Series 2001-4 Certificates
(a) There is hereby created a Series of Investor Certificates to be issued pursuant to the Agreement and this Supplement to be known as "Capital One Master Trust, Series 2001-4." The Series 2001-4 Certificates shall be issued in two Classes, the first of which shall be known as the "Class A Floating Rate Asset Backed Certificates, Series 2001-4" and the second of which shall be known as the "Class B Floating Rate Asset Backed Certificates, Series 2001-4." In addition, there is hereby created a third Class of uncertificated interests in the Trust which, except as expressly provided herein, shall be deemed to be "Investor Certificates" (and the Collateral Interest Holder shall be deemed to be an "Investor Certificateholder") for all purposes under the Agreement and this Supplement and which shall be known as the "Collateral Interest, Series 2001-4."
(b) Series 2001-4 shall be included in Group One and shall be a Principal Sharing Series. Series 2001-4 shall not be subordinated to any other Series. Notwithstanding any provision in the Agreement or in this Supplement to the contrary, the first Distribution Date with respect to Series 2001-4 shall be the August 2001 Distribution Date.
(c) In the event that any term or provision contained herein shall conflict with or be inconsistent with any term or provision contained in the Agreement, the terms and provisions of this Supplement shall govern.
(d) The Collateral Interest Holder, as holder of an "Investor Certificate" shall be entitled to the benefits of the Agreement and this Supplement. Notwithstanding the foregoing, except as expressly provided herein, (i) the provisions of Article VI and Article XII of the Agreement relating to the registration, authentication, delivery, presentation, cancellation and surrender of Registered Certificates and clauses (a) and (c) of the definition of "Tax Opinion" in Section 1.01 of the Agreement shall not be applicable to the Collateral Interest, and (ii) the provisions of Section 3.07 of the Agreement shall not apply to cause the Collateral Interest to be treated as debt for federal, state and local income and franchise tax purposes, but rather the Sellers intend and, together with the Collateral Interest Holder, agree to treat the Collateral Interest for federal, state and local income and franchise tax purposes as representing an equity interest in the assets of the Trust.
(a) Whenever used in this Supplement, the following words and phrases shall have the following meanings, and the definitions of such terms are applicable to the singular as well as the plural forms of such terms and the masculine as well as the feminine and neuter genders of such terms.
"Accumulation Period" shall mean, unless a Pay Out Event shall have occurred prior thereto, the period commencing at the close of business on the last day of the May 2003 Monthly Period or such later date as is determined in accordance with Section 4.03(f) and ending on the first to occur of (a) the commencement of the Early Amortization Period, (b) the payment in full to Series 2001-4 Holders of the Invested Amount or (c) the Termination Date.
"Accumulation Period Amount" shall mean for each Monthly Period, an amount equal to the product of (i) Available Expected Principal for such Monthly Period and (ii) a fraction, the numerator of which is the Initial Invested Amount and the denominator of which is the sum of (a) the Initial Invested Amount and (b) the invested amounts of all other Variable Accumulation Series which are not scheduled to be in their revolving periods as of such Monthly Period; provided that, for purposes of this definition, the commencement date of the accumulation period of each such Variable Accumulation Series shall be deemed to have been postponed to the latest permissible date, determined as if the provisions of Section 4.03(f) applied to each such Series with such changes as may be specified with respect to such Series (applying such provisions first to the Variable Accumulation Series with the latest expected final payment date and next to each Series with the next preceding expected final payment date).
"Accumulation Period Length" shall have the meaning specified in Section 4.03(f).
"Additional Interest" shall mean, at any time of determination, the Class A Additional Interest, the Class B Additional Interest and the Collateral Additional Interest.
"Adjusted Invested Amount" shall mean, with respect to any date of determination, an amount equal to the Invested Amount less the Principal Funding Account Balance on such date of determination.
"Assignee" shall have the meaning specified in subsection 10.07(a).
"Available Expected Principal" for any date of determination with respect to each Monthly Period shall be equal to the excess of (a) the Expected Monthly Principal for such Monthly Period over (b) the sum of, without duplication, all scheduled amortizations or accumulations of principal, including past due shortfalls as of such date of determination, for all Nonvariable Accumulation Series which are not scheduled to be in their revolving periods as of such Monthly Period.
"Available Investor Principal Collections" shall mean, with respect to any Monthly Period, an amount equal to the sum of (a) (i) an amount equal to the Principal Allocation Percentage of all Collections of Principal Receivables received during such Monthly Period, minus (ii) the amount of Reallocated Principal Collections with respect to such Monthly Period which pursuant to Section 4.08(a) or 4.08 (b) are required to fund any deficiency in the amount to be distributed pursuant to Sections 4.05(a)(i), (ii), (iii) and (iv), 4.05(b)(i) and (ii) and 4.07(c)(II) for the related Distribution Date, plus (b) the amount of Miscellaneous Payments, if any, for such Monthly Period that are allocated to Series 2001-4 pursuant to Section 4.03 of the Agreement, plus (c) any Shared Principal Collections with respect to other Series that are allocated to Series 2001-4 in accordance with Section 4.04 of the Agreement and Section 4.10 hereof, plus (d) the amount of funds to be distributed pursuant to Section 4.05(a)(iv) with respect to the related Distribution Date, plus (e) any other amounts which pursuant to Section 4.07 hereof are to be treated as Available Investor Principal Collections with respect to the related Distribution Date.
"Available Reserve Account Amount" shall mean, with respect to any Distribution Date, the lesser of (a) the amount on deposit in the Reserve Account on such date (before giving effect to any deposit to be made to the Reserve Account on such Distribution Date) and (b) the Required Reserve Account Amount for such Distribution Date.
"Base Rate" shall mean, with respect to any Monthly Period, the annualized percentage equivalent of a fraction, the numerator of which is equal to the sum of the Class A Monthly Interest, the Class B Monthly Interest, the Collateral Minimum Monthly Interest, the Monthly Servicing Fee and the Net Swap Payment, if any, less the Net Swap Receipt, if any, deposited in the Collection Account, each with respect to the related Distribution Date, and the denominator of which is the Invested Amount as of the last day of the preceding Monthly Period; provided, however, that for the first Monthly Period, the denominator is the Initial Invested Amount.
"Basis Swap" shall mean the ISDA Master Agreement, together with the Schedule and Confirmation thereto, each dated as of the Closing Date, between the Trustee, on behalf of the Trust, and the Swap Counterparty, as such Basis Swap may be amended, modified or replaced.
"Class A Account Percentage" shall mean, with respect to any date of determination, the percentage equivalent of a fraction, the numerator of which is the aggregate amount with respect to Class A Monthly Principal on deposit in the Principal Funding Account on such date (before giving effect to any deposit to be made to the Principal Funding Account on such date) and the denominator of which is the Principal Funding Account Balance on such date (before giving effect to any deposit to be made to the Principal Funding Account on such date).
"Class A Additional Interest" shall have the meaning specified in Section 4.02(a).
"Class A Adjusted Invested Amount" shall mean, with respect to any date of determination, an amount not less than zero equal to the Class A Invested Amount less the Principal Funding Account Balance on such date.
"Class A Available Funds" shall mean, with respect to any Monthly Period, an amount equal to the sum of (a) an amount equal to the product of (i) the Class A Account Percentage and (ii) the amount of Principal Funding Investment Proceeds, if any, with respect to the related Distribution Date, (b) the Class A Floating Percentage of the Collections of Finance Charge Receivables (other than Finance Charge Receivables allocated to Servicer Interchange with respect to such Monthly Period) allocated to the Series 2001-4 Certificates (including any investment earnings that are to be treated as Collections of Finance Charge Receivables in accordance with the Agreement and this Supplement), (c) the amount of funds, if any, to be withdrawn from the Reserve Account which, pursuant to Section 4.11(d), are required to be included in Class A Available Funds with respect to the related Distribution Date and (d) the Net Swap Receipt, if any, deposited in the Collection Account on the related Distribution Date and previously due but not paid Net Swap Receipts, if any, deposited in the Collection Account on the related Distribution Date.
"Class A Certificate Rate" shall mean, for any Interest Period, a per annum rate equal to LIBOR for such Interest Period plus 0.08%.
"Class A Certificateholder" shall mean the Person in whose name a Class A Certificate is registered in the Certificate Register.
"Class A Certificates" shall mean any of Certificates executed by the Banks and authenticated by or on behalf of the Trustee, substantially in the form of Exhibit A-1.
"Class A Floating Percentage" shall mean, with respect to any Monthly Period, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, the numerator of which is equal to the Class A Adjusted Invested Amount as of the close of business on the last day of the preceding Monthly Period and the denominator of which is equal to the Adjusted Invested Amount as of such day; provided, however, that, with respect to the first Monthly Period, the Class A Floating Percentage shall mean the Class A Initial Percentage.
"Class A Initial Invested Amount" shall mean the aggregate initial principal amount of the Class A Certificates, which is $812,500,000.
"Class A Initial Percentage" shall mean the percentage equivalent of a fraction, the numerator of which is the Class A Initial Invested Amount and the denominator of which is the Initial Invested Amount.
"Class A Interest Shortfall" shall have the meaning specified in Section 4.02(a).
"Class A Invested Amount" shall mean, on any date of determination, an amount equal to (a) the Class A Initial Invested Amount, minus (b) the aggregate amount of principal payments made to the Class A Certificateholders on or prior to such date, minus (c) the excess, if any, of the aggregate amount of Class A Investor Charge-Offs for all prior Distribution Dates over the aggregate amount of Class A Investor Charge-Offs reimbursed pursuant to Section 4.06(a) prior to such date; provided, however, that the Class A Invested Amount may not be reduced below zero.
"Class A Investor Charge-Offs" shall have the meaning specified in Section 4.06(a).
"Class A Investor Default Amount" shall mean, with respect to each Distribution Date, an amount equal to the product of (i) the Investor Default Amount for the related Monthly Period and (ii) the Class A Floating Percentage for such Monthly Period.
"Class A Monthly Interest" shall have the meaning specified in Section 4.02(a).
"Class A Monthly Principal" shall have the meaning specified in Section 4.03(a).
"Class A Outstanding Additional Interest" shall mean, with respect to any Distribution Date, the amount of Class A Additional Interest previously due but not paid to the Class A Certificateholders.
"Class A Outstanding Monthly Interest" shall mean, with respect to any Distribution Date, the amount of Class A Monthly Interest previously due but not paid to the Class A Certificateholders.
"Class A Penalty Rate" shall mean, for any Interest Period, the sum of the Class A Certificate Rate for such Interest Period and 2.00% per annum.
"Class A Principal Percentage" shall mean, with respect to any Monthly Period (i) during the Revolving Period, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, the numerator of which is the Class A Invested Amount as of the last day of the immediately preceding Monthly Period (or, in the case of the first Monthly Period, the Closing Date) and the denominator of which is the Invested Amount as of such day and (ii) during the Accumulation Period or the Early Amortization Period, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, the numerator of which is the Class A Invested Amount as of the last day of the Revolving Period, and the denominator of which is the Invested Amount as of such last day; provided, however, that, with respect to the first Monthly Period, the Class A Principal Percentage shall mean the Class A Initial Percentage.
"Class A Required Amount" shall have the meaning specified in Section 4.04(a).
"Class A Servicing Fee" shall have the meaning specified in Section 3.01.
"Class B Account Percentage" shall mean, with respect to any date of determination, the percentage equivalent of a fraction, the numerator of which is the aggregate amount with respect to Class B Monthly Principal on deposit in the Principal Funding Account on such date (before giving effect to any deposit to be made to the Principal Funding Account on such date) and the denominator of which is the Principal Funding Account Balance on such date (before giving effect to any deposit to be made to the Principal Funding Account on such date).
"Class B Additional Interest" shall have the meaning specified in Section 4.02(b).
"Class B Adjusted Invested Amount" shall mean, with respect to any date of determination, an amount not less than zero equal to the Class B Invested Amount less the excess, if any, of the Principal Funding Account Balance over the Class A Invested Amount on such date.
"Class B Available Funds" shall mean, with respect to any Monthly Period, an amount equal to the sum of (a) an amount equal to the product of (i) the Class B Account Percentage and (ii) the amount of Principal Funding Investment Proceeds, if any, with respect to the related Distribution Date, (b) the Class B Floating Percentage of the Collections of Finance Charge Receivables (other than Finance Charge Receivables allocated to Servicer Interchange with respect to such Monthly Period) allocated to the Series 2001-4 Certificates (including any investment earnings that are to be treated as Collections of Finance Receivables in accordance with the Agreement) and (c) the amount of funds, if any, to be withdrawn from the Reserve Account which, pursuant to Section 4.11(d), are required to be included in Class B Available Funds with respect to the related Distribution Date.
"Class B Certificate Rate" shall mean, for any Interest Period, a per annum rate equal to LIBOR for such Interest Period plus 0.37%.
"Class B Certificateholder" shall mean the Person in whose name a Class B Certificate is registered in the Certificate Register.
"Class B Certificates" shall mean any one of the Certificates executed by the Banks and authenticated by or on behalf of the Trustee, substantially in the form of Exhibit A-2.
"Class B Floating Percentage" shall mean, with respect to any Monthly Period, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, the numerator of which is equal to the Class B Adjusted Invested Amount as of the close of business on the last day of the preceding Monthly Period and the denominator of which is equal to the Adjusted Invested Amount as of the close of business on such day; provided, however, that, with respect to the first Monthly Period, the Class B Floating Percentage shall mean the Class B Initial Percentage.
"Class B Initial Invested Amount" shall mean the aggregate initial principal amount of the Class B Certificates, which is $100,000,000.
"Class B Initial Percentage" shall mean the percentage equivalent of a fraction, the numerator of which is the Class B Initial Invested Amount and the denominator of which is the Initial Invested Amount.
"Class B Interest Shortfall" shall have the meaning specified in Section 4.02(b).
"Class B Invested Amount" shall mean, on any date of determination, an amount equal to (a) the Class B Initial Invested Amount, minus (b) the aggregate amount of principal payments made to the Class B Certificateholders prior to such date, minus (c) the aggregate amount of Class B Investor Charge-Offs for all prior Distribution Dates, minus (d) the aggregate amount of Reallocated Principal Collections allocated on all prior Distribution Dates pursuant to Section 4.08(a) (excluding any Reallocated Principal Collections that have resulted in a reduction in the Collateral Invested Amount pursuant to Section 4.06(c)), minus (e) an amount equal to the amount by which the Class B Invested Amount has been reduced on all prior Distribution Dates pursuant to Section 4.06(a), plus (f) the amount of Excess Spread and Excess Finance Charges allocated and available on all prior Distribution Dates pursuant to Section 4.07(d) for the purpose of reimbursing amounts deducted pursuant to the foregoing clauses (c), (d) and (e); provided, however, that the Class B Invested Amount may not reduced below zero.
"Class B Investor Charge-Offs" shall have the meaning specified in Section 4.06(b).
"Class B Investor Default Amount" shall mean, with respect to each Distribution Date, an amount equal to the product of (i) the Investor Default Amount for the related Monthly Period and (ii) the Class B Floating Percentage for such Monthly Period.
"Class B Monthly Interest" shall have the meaning specified in Section 4.02(b).
"Class B Monthly Principal" shall have the meaning specified in Section 4.03(b).
"Class B Outstanding Additional Interest" shall mean, with respect to any Distribution Date, the amount of Class B Additional Interest previously due but not paid to the Class B Certificateholders.
"Class B Outstanding Monthly Interest" shall mean, with respect to any Distribution Date, the amount of Class B Monthly Interest previously due but not paid to the Class B Certificateholders.
"Class B Penalty Rate" shall mean, for any Interest Period, the sum of the Class B Certificate Rate for such Interest Period and 2.00% per annum.
"Class B Principal Percentage" shall mean, with respect to any Monthly Period (i) during the Revolving Period, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, the numerator of which is the Class B Invested Amount as of the last day of the immediately preceding Monthly Period (or, in the case of the first Monthly Period, the Closing Date) and the denominator of which is the Invested Amount as of such day and (ii) during the Accumulation Period or the Early Amortization Period, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, the numerator of which is the Class B Invested Amount as of the last day of the Revolving Period, and the denominator of which is the Invested Amount as of such last day; provided, however, that, with respect to the first Monthly Period, the Class B Principal Percentage shall mean the Class B Initial Percentage.
"Class B Required Amount" shall have the meaning specified in Section 4.04(b).
"Class B Servicing Fee" shall have the meaning specified in Section 3.01.
"Closing Date" shall mean June 27, 2001.
"Collateral Account Percentage" shall mean, with respect to any date of determination, the percentage equivalent of a fraction, the numerator of which is the aggregate amount with respect to Collateral Monthly Principal on deposit in the Principal Funding Account on such date (before giving effect to any deposit to be made to the Principal Funding Account on such date) and the denominator of which is the Principal Funding Account Balance on such date (before giving effect to any deposit to be made to the Principal Funding Account on such date).
"Collateral Additional Interest" shall have the meaning specified in Section 4.02(c).
"Collateral Adjusted Invested Amount" shall mean, with respect to any date of determination, an amount not less than zero equal to the Collateral Invested Amount less the excess, if any, of the Principal Funding Account Balance over the sum of the Class A Invested Amount and the Class B Invested Amount on such date.
"Collateral Available Funds" shall mean, with respect to any Monthly Period, an amount equal to the sum of (a) an amount equal to the product of (i) the Collateral Account Percentage and (ii) the amount of Principal Funding Investment Proceeds, if any, with respect to the related Distribution Date and (b) the Collateral Floating Percentage of the Collections of Finance Charge Receivables (other than Finance Charge Receivables allocated to Servicer Interchange with respect to such Monthly Period) allocated to the Series 2001-4 Certificates (including any investment earnings that are to be treated as Collections of Finance Charge Receivables in accordance with the Agreement).
"Collateral Floating Percentage" shall mean, with respect to any Monthly Period, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, the numerator of which is the Collateral Adjusted Invested Amount as of the close of business on the last day of the preceding Monthly Period and the denominator of which is equal to the Adjusted Invested Amount as of such day; provided, however, that with respect to the first Monthly Period, the Collateral Floating Percentage shall mean the percentage equivalent of a fraction, the numerator of which is the Collateral Initial Invested Amount and the denominator of which is the Initial Invested Amount.
"Collateral Initial Invested Amount" shall mean $87,500,000.
"Collateral Interest" shall mean a fractional undivided interest in the Trust which shall consist of the right to receive (i) to the extent necessary to make the required payments to a Collateral Interest Holder under this Supplement, the portion of Collections allocable thereto under the Agreement and this Supplement and funds on deposit in the Collection Account allocable thereto pursuant to the Agreement and this Supplement and (ii) amounts available for payment to the Collateral Interest Holder pursuant to, without duplication, Section 4.05 and subsections 4.07(j), 4.11(d)(iii), 4.11(e), 4.11(f), 4.12(c), 8.01(b), 8.02(a) and 8.02(b).
"Collateral Interest Holder" shall mean the entity so designated in the Transfer Agreement.
"Collateral Interest Minimum Rate" shall mean a rate per annum specified in the Transfer Agreement not to exceed LIBOR for one-month United States dollar deposits, determined as of the related LIBOR Determination Date, plus 1.30%.
"Collateral Interest Shortfall" shall have the meaning specified in subsection 4.02(c).
"Collateral Invested Amount" shall mean, when used with respect to any date, an amount equal to (a) the Collateral Initial Invested Amount, minus (b) the aggregate amount of principal payments made to the Collateral Interest Holder prior to such date, minus (c) an amount equal to the aggregate amount by which the Collateral Invested Amount has been reduced on all prior Distribution Dates pursuant to Section 4.06, plus (d) the aggregate amount of Excess Spread and Excess Finance Charges allocated and available on all prior Distribution Dates pursuant to Section 4.07(h) for the purpose of reimbursing amounts deducted pursuant to the foregoing clause (c); provided, however, that the Collateral Invested Amount may not be reduced below zero.
"Collateral Investor Default Amount" shall mean, with respect to each Distribution Date, an amount equal to the product of (i) the Investor Default Amount for the related Monthly Period and (ii) the Collateral Floating Percentage for such Monthly Period.
"Collateral Minimum Monthly Interest" shall have the meaning specified in Section 4.02(c).
"Collateral Monthly Principal" shall have the meaning specified in Section 4.03(c).
"Collateral Outstanding Additional Interest" shall mean, with respect to any Distribution Date, the amount of Collateral Additional Interest previously due but not paid to the Collateral Interest Holder.
"Collateral Outstanding Monthly Interest" shall mean, with respect to any Distribution Date, the amount of Collateral Minimum Monthly Interest previously due but not paid to the Collateral Interest Holder.
"Collateral Servicing Fee" shall have the meaning specified in Section 3.01.
"Controlled Accumulation Amount" shall mean for any Distribution Date with respect to the Accumulation Period, $83,333,333.34; provided, however, that, if the Accumulation Period is modified pursuant to Section 4.03(f), (i) the Controlled Accumulation Amount for each Distribution Date with respect to the Accumulation Period shall mean the amount specified in accordance with such Section on the date on which the Accumulation Period has most recently been modified, (ii) the Controlled Accumulation Amount for each related Monthly Period shall be no greater than the Accumulation Period Amount for such Monthly Period and (iii) the sum of the Controlled Accumulation Amounts for all Distribution Dates with respect to the modified Accumulation Period shall not be less than the Initial Invested Amount.
"Controlled Deposit Amount" shall mean, for any Distribution Date with respect to the Accumulation Period, an amount equal to the sum of the Controlled Accumulation Amount for such Distribution Date and any Deficit Controlled Accumulation Amount for the immediately preceding Distribution Date.
"Covered Amount" shall mean for any Distribution Date with respect to the Accumulation Period or the first Special Payment Date, an amount equal to the sum of (a) the product of (i) the Swap Prime Rate, or, in the event the Basis Swap has been terminated, the Class A Certificate Rate, in either case, in effect for the related Interest Period, (ii) a fraction, the numerator of which is the actual number of days from and including the preceding Distribution Date to but excluding such Distribution Date and the denominator of which is 360 and (iii) the aggregate amount on deposit in the Principal Funding Account with respect to Class A Monthly Principal, if any, as of the preceding Distribution Date, plus (b) the product of (i) the Class B Certificate Rate in effect for the related Interest Period, (ii) a fraction, the numerator of which is the actual number of days from and including the preceding Distribution Date to but excluding such Distribution Date and the denominator of which is 360 and (iii) the aggregate amount on deposit in the Principal Funding Account with respect to Class B Monthly Principal, if any, as of the preceding Distribution Date, plus (c) the product of (i) the Collateral Interest Minimum Rate in effect for the related Interest Period, (ii) a fraction, the numerator of which is the actual number of days from and including the preceding Distribution Date to but excluding such Distribution Date and the denominator of which is 360 and (iii) the aggregate amount on deposit in the Principal Funding Account with respect to Collateral Monthly Principal, if any, as of the preceding Distribution Date.
"Cut-Off Date" shall mean June 1, 2001.
"Deficit Controlled Accumulation Amount" shall mean (a) on the first Distribution Date with respect to the Accumulation Period, the excess, if any, of the Controlled Accumulation Amount for such Distribution Date over the amount distributed from the Collection Account as Class A Monthly Principal, Class B Monthly Principal and Collateral Monthly Principal for such Distribution Date and (b) on each subsequent Distribution Date with respect to the Accumulation Period, the excess, if any, of the Controlled Deposit Amount for such subsequent Distribution Date plus any Deficit Controlled Accumulation Amount for the prior Distribution Date over the amount distributed from the Collection Account as Class A Monthly Principal, Class B Monthly Principal and Collateral Monthly Principal for such subsequent Distribution Date.
"Early Amortization Period" shall mean the period commencing at the close of business on the Business Day immediately preceding the day on which a Pay Out Event with respect to Series 2001-4 is deemed to have occurred and ending on the first to occur of (i) the payment in full to the Class A Certificateholders and the Class B Certificateholders of the Class A Invested Amount and the Class B Invested Amount, respectively, and the payment in full to the Collateral Interest Holder of the Collateral Invested Amount, if any, or (ii) the Termination Date.
"Excess Shared Principal Collections" shall mean the excess of the Shared Principal Collections over the aggregate amount of Principal Shortfalls for all Series, as defined in each related Supplement, which are Principal Sharing Series for such Distribution Date.
"Excess Spread" shall mean, with respect to any Distribution Date, the sum of the amounts, if any, specified pursuant to Sections 4.05(a)(v), 4.05(b)(iii) and 4.05(c)(ii) with respect to such Distribution Date.
"Expected Final Payment Date" shall mean the June 2004 Distribution Date.
"Expected Monthly Principal" shall be equal to the product of (i) the lowest of the monthly principal payment rates (determined by dividing Collections of Principal Receivables during a calendar month by the amount of Principal Receivables in the Trust as of the last day of the preceding month, adjusted for additions and removals occurring after such last day), expressed as a decimal for the 12 calendar months preceding the date of such calculation (or such lower principal payment rate as the Servicer may select) and (ii) the sum of the Initial Invested Amounts (as defined in the related Supplement) of all outstanding Series, other than Variable Funding Series.
"Finance Charge Shortfall" shall have the meaning specified in Section 4.09.
"Floating Allocation Percentage" shall mean, with respect to any Monthly Period, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, the numerator of which is the Adjusted Invested Amount as of the last day of the preceding Monthly Period (or, with respect to the first Monthly Period, the Initial Invested Amount) and the denominator of which is the sum of (i) the total amount of Principal Receivables in the Trust as of such day (or, with respect to the first Monthly Period, the Cutoff Date) and (ii) the principal amount on deposit in the Excess Funding Account as of such last day; provided, however, that the amount calculated above pursuant to clause (i) of the denominator shall be increased by the aggregate amount of Principal Receivables in Additional Accounts added to the Trust during such Monthly Period as though such Receivables had been added to the Trust as of the first day of such Monthly Period and decreased by the aggregate amount of Principal Receivables removed from the Trust during such Monthly Period as though such Receivables had been removed from the Trust as of the first day of such Monthly Period.
"Group One" shall mean Series 2001-4 and each other series specified in the related Supplement to be included in Group One.
"Initial Invested Amount" shall mean the sum of the Class A Initial Invested Amount, the Class B Initial Invested Amount and the Collateral Initial Invested Amount.
"Initial Servicing Fee" shall have the meaning specified in Section 3.01.
"Interest Payment Date" shall mean, with respect to the Class A Certificates, the Class B Certificates and the Collateral Interest, the 15th day of each month (or, if such day is not a Business Day, the next succeeding Business Day), commencing on the August 2001 Distribution Date.
"Interest Period" shall mean with respect to any Payment Date, the period from and including the Payment Date immediately preceding such Payment Date (or, in the case of the first Payment Date, from and including the Closing Date) to but excluding such Payment Date.
"Invested Amount" shall mean, as of any date of determination, an amount equal to the sum of (a) the Class A Invested Amount as of such date, (b) the Class B Invested Amount as of such date and (c) the Collateral Invested Amount as of such date.
"Investment Letter" shall have the meaning specified in subsection 10.07(a).
"Investor Charge-Offs" shall mean Class A Investor Charge-Offs and Class B Investor Charge-Offs.
"Investor Default Amount" shall mean, with respect to any Distribution Date, an amount equal to the product of (a) the Defaulted Amount for the related Monthly Period and (b) the Floating Allocation Percentage for such Monthly Period.
"LIBOR" shall mean, as of any LIBOR Determination Date, the rate for deposits in United States dollars for a one-month period which appears on Telerate Page 3750 as of 11:00 a.m., London time, on such date. If such rate does not appear on Telerate Page 3750, the rate for that LIBOR Determination Date shall be determined on the basis of the rates at which deposits in United States dollars are offered by the Reference Banks at approximately 11:00 a.m., London time, on that day to prime banks in the London interbank market for a one-month period. The Servicer shall request the principal London office of each of the Reference Banks to provide a quotation of its rate. If at least two such quotations are provided, the rate for that LIBOR Determination Date shall be the arithmetic mean of the quotations. If fewer than two quotations are provided as requested, the rate for that LIBOR Determination Date shall be the arithmetic mean of the rates quoted by major banks in New York City, selected by the Servicer, at approximately 11:00 a.m., New York City time, on that day for loans in United States dollars to leading European banks for a one-month period; provided, however, that if the banks selected as aforesaid by the Servicer are not quoting as mentioned, the rate for that day shall be the rate then in effect on such LIBOR Determination Date.
"LIBOR Amount" shall mean, for any Distribution Date, an amount equal to the monthly amount payable by the Swap Counterparty to the Trust for such date pursuant to the Basis Swap.
"LIBOR Determination Date" shall mean, for any Interest Period, the second London Business Day prior to the commencement of such Interest Period (or, in the case of the initial Interest Period, the second London Business Day prior to the Closing Date).
"London Business Day" shall mean a day on which dealings in deposits in United States dollars are transacted in the London interbank market.
"Monthly Interest" means, with respect to any Distribution Date, the Class A Monthly Interest, the Class B Monthly Interest, Collateral Minimum Monthly Interest and the Net Swap Payment, if any, each for such Distribution Date.
"Monthly Servicing Fee" shall have the meaning specified in Section 3.01.
"Net Servicing Fee Rate" shall mean (i) so long as a Seller or The Bank of New York is the Servicer, 1.25% per annum and (ii) if a Seller or The Bank of New York is no longer the Servicer, 2.00% per annum.
"Net Swap Payment" shall mean, for any Distribution Date, (a) if the netting provisions of subsection 2(c)(ii) of the Basis Swap apply, the amount by which the Prime Amount for such date exceeds the LIBOR Amount for such date, and (b) otherwise, an amount equal to the Prime Amount for such date.
"Net Swap Receipt" shall mean, for any Distribution Date, (a) if the netting provisions of subsection 2(c)(ii) of the Basis Swap apply, the amount by which the LIBOR Amount for such date exceeds the Prime Amount for such date, and (b) otherwise, an amount equal to the LIBOR Amount for such date.
"Nonvariable Accumulation Series" shall mean each outstanding Series that is not a Variable Funding Series or a Variable Accumulation Series.
"Payment Date" shall mean any Interest Payment Date and any Special Payment Date.
"Permitted Assignee" shall mean any Person who, if it were the Collateral Interest Holder or holder of an interest in the Trust, as applicable, would not cause the Trust to be taxable as a publicly traded partnership for federal income tax purposes.
"Portfolio Adjusted Yield" shall mean, with respect to any Distribution Date, the average of the percentages obtained for each of the three preceding Monthly Periods by subtracting the Base Rate for each such Monthly Period from the Portfolio Yield for each such Monthly Period, and deducting 0.50% from the result for each such Monthly Period.
"Portfolio Yield" shall mean, with respect to any Monthly Period, the annualized percentage equivalent of a fraction, the numerator of which is equal to (a) an amount equal to the product obtained by multiplying the Floating Allocation Percentage with respect to such Monthly Period and the amount of Collections of Finance Charge Receivables with respect to such Monthly Period (including any investment earnings and certain other amounts that are to be treated as Collections of Finance Charge Receivables in accordance with the Agreement) calculated on a billed basis, or, in the case of any such Collections consisting of annual membership fees, on an amortized (rather than billed) basis, plus (b) the amount of any Principal Funding Investment Proceeds for the related Distribution Date, plus (c) any Excess Finance Charges that are allocated to Series 2001-4 with respect to such Monthly Period, plus (d) the amount of funds, if any, withdrawn from the Reserve Account which, pursuant to Section 4.11(d), are required to be included as Class A Available Funds or Class B Available Funds or paid to the Collateral Interest Holder for the Distribution Date with respect to such Monthly Period, minus (e) the Investor Default Amount for the Distribution Date with respect to such Monthly Period, and the denominator of which is the Invested Amount as of the last day of the preceding Monthly Period; provided, however, that for the first Monthly Period, the denominator is the Initial Invested Amount.
"Prime Amount" shall mean, for any Distribution Date, an amount equal to the monthly amount payable by the Trust to the Swap Counterparty for such date pursuant to the Basis Swap.
"Prime Rate" shall mean, as of any Prime Rate Determination Date, the rate set forth in H.15(519) for that day opposite the caption "Bank prime loan". If, by 5:00 p.m., New York City time, on the day that is one New York City banking day following the Prime Rate Determination Date, such rate for the Prime Rate Determination Date is not yet published in H.15(519), the rate for that Prime Rate Determination Date will be the rate set forth in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying such rate, for that day opposite the caption "Bank prime loan". If, by 5:00 p.m., New York City time, on the day that is one New York City banking day following the Prime Rate Determination Date, such rate for the Prime Rate Determination Date is not yet published in H.15(519), H.15 Daily Update, or such other recognized electronic source, the rate for that Prime Rate Determination Date will be the rate for the first preceding day for which such rate is set forth in H.15(519) opposite the caption "Bank prime loan". As used in this definition, "H.15(519)" shall mean the weekly statistical release designated as such, or any successor publication, published by the Federal Reserve Board of Governors and "H.15 Daily Update" shall mean the daily update of H.15(519), available through the world-wide-web site of the Board of Governors of the Federal Reserve System.
"Prime Rate Determination Date" shall mean, for each Interest Period, the related LIBOR Determination Date (or, if any such LIBOR Determination Date is not a Business Day, the preceding Business Day).
"Principal Allocation Percentage" shall mean, with respect to any day during a Monthly Period, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, the numerator of which is (a) during the Revolving Period, the Invested Amount as of the last day of the immediately preceding Monthly Period (or, in the case of the first Monthly Period, the Cutoff Date) and (b) after the end of the Revolving Period, the Invested Amount as of the last day of the Revolving Period and the denominator of which is the greater of (i) the sum of the total amount of Principal Receivables in the Trust as of the last day of the immediately preceding Monthly Period and the principal amount on deposit in the Excess Funding Account as of such last day (or, in the case of the first Monthly Period, the Cutoff Date) and (ii) the sum of the numerators used to calculate the principal allocation percentages for all Series outstanding as of the date as to which such determination is being made; provided, however, that the amount calculated above pursuant to clause (i) of the denominator shall be increased by the aggregate amount of Principal Receivables in Additional Accounts added to the Trust during such Monthly Period as though such Receivables had been added to the Trust as of the first day of such Monthly Period; provided further, however, that if after the commencement of the Accumulation Period or the Early Amortization Period a Pay Out Event occurs with respect to another Series that was designated in the Supplement therefor as a Series that is a "Paired Series" with respect to Series 2001-4, the Sellers may, by written notice delivered to the Trustee and the Servicer, designate a different numerator for the foregoing fraction, provided that (x) such numerator is not less than the Adjusted Invested Amount as of the last day of the revolving period for such Paired Series and (y) the Sellers shall have received written notice from each Rating Agency that such designation will not have a Ratings Effect and shall have delivered copies of each such written notice to the Servicer and the Trustee and the Sellers shall have delivered to the Trustee an Officer's Certificate to the effect that, based on the facts known to such officer at that time, in the reasonable belief of the Sellers, such designation will not cause a Pay Out Event or an event that, after the giving of notice or the lapse of time, would constitute a Pay Out Event, to occur with respect to Series 2001-4.
"Principal Funding Account" shall have the meaning set forth in Section 4.03(d)(i).
"Principal Funding Account Balance" shall mean, with respect to any date of determination during the Accumulation Period, the principal amount, if any, on deposit in the Principal Funding Account on such date of determination.
"Principal Funding Investment Proceeds" shall have the meaning specified in Section 4.03(d)(ii).
"Principal Shortfall" shall have the meaning specified in Section 4.10.
"Prospectus" shall mean the prospectus and the prospectus supplement as filed with the Securities and Exchange Commission under Rule 424(b) of the Securities Act relating to the Series 2001-4 Certificates.
"Reallocated Principal Collections" shall mean, with respect to any Monthly Period, the product of (a) the Principal Allocation Percentage with respect to such Monthly Period, (b) the aggregate amount of Collections in respect of Principal Receivables deposited in the Collection Account for such Monthly Period and (c) the sum of the Class B Floating Percentage and the Collateral Floating Percentage with respect to such Monthly Period.
"Reassignment Amount" shall mean, with respect to any Distribution Date, after giving effect to any deposits and distributions otherwise to be made on such Distribution Date, the sum of (i) the Adjusted Invested Amount on such Distribution Date, plus (ii) Monthly Interest for such Distribution Date and any Monthly Interest previously due but not distributed to the Series 2001-4 Certificateholders and the Collateral Interest Holder on a prior Distribution Date, plus (iii) the amount of Additional Interest, if any, for such Distribution Date and any Additional Interest previously due but not distributed to the Series 2001-4 Certificateholders and the Collateral Interest Holder on a prior Distribution Date, plus (iv) any previously due but not paid Net Swap Payments.
"Reference Banks" shall mean four major banks in the London interbank market selected by the Servicer.
"Required Reserve Account Amount" shall mean, with respect to any Distribution Date prior to the Reserve Account Funding Date, $0, and on or after the Reserve Account Funding Date, an amount equal to (a) 0.50% of the Invested Amount as of the preceding Distribution Date (after giving effect to all changes therein on such date), or (b) any other amount designated by the Sellers, provided that, if such designation is of a lesser amount, the Sellers (i) shall have received written notice from each Rating Agency that such designation will not have a Ratings Effect and shall have delivered copies of each such written notice to the Servicer and the Trustee, and (ii) shall have delivered to the Trustee a certificate of an authorized officer to the effect that, based on the facts known to such officer at such time, in the reasonable belief of the Sellers, such designation will not cause a Pay Out Event or an event that, after the giving of notice or the lapse of time, would cause a Pay Out Event, to occur with respect to Series 2001-4.
"Reserve Account" shall have the meaning specified in Section 4.11(a).
"Reserve Account Funding Date" shall mean the Distribution Date with respect to the Monthly Period which commences 12 months prior to the Monthly Period which as of the related Determination Date is scheduled to commence the Accumulation Period in accordance with Section 4.03(f) provided that the Sellers may delay the Reserve Account Funding Date to the Distribution Date with respect to the Monthly Period which occurs not later than the number of months prior to the scheduled commencement date of the Accumulation Period determined in accordance with the following schedule:
|
Portfolio Adjusted Yield |
Number of Months
|
|
Less than 2% |
12 |
|
2% or more, but less than 3% |
6 |
|
3% or more, but less than 4% |
4 |
|
4% or more |
3 |
"Reserve Account Surplus" shall mean, as of any date of determination, the amount, if any, by which the amount on deposit in the Reserve Account exceeds the Required Reserve Account Amount.
"Reserve Draw Amount" shall have the meaning specified in Section 4.11(c).
"Revolving Period" shall mean the period beginning at the close of business on the Cutoff Date and ending on the earlier of (a) the close of business on the day the Accumulation Period commences and (b) the close of business on the day the Early Amortization Period commences.
"Series 2001-4" shall mean the Series of Investor Certificates, the terms of which are specified in this Supplement, and shall include the Class A Certificates, the Class B Certificates and the Collateral Interest.
"Series 2001-4 Certificateholder" shall mean a Class A Certificateholder or a Class B Certificateholder.
"Series 2001-4 Certificate" shall mean a Class A Certificate or a Class B Certificate.
"Series 2001-4 Holder" shall mean a Class A Certificateholder, a Class B Certificateholder or a Collateral Interest Holder.
"Series 2001-4 Interests" shall mean the Class A Certificates, the Class B Certificates and the Collateral Interest.
"Servicer Interchange" shall mean, for any Monthly Period, the product of (a) the Floating Allocation Percentage for such Monthly Period and (b) the portion of Collections of Finance Charge Receivables allocated to the Series 2001-4 Certificates and the Collateral Interest with respect to such Monthly Period that is attributable to Interchange; provided, however, that Servicer Interchange for a Monthly Period shall not exceed one-twelfth of the product of (i) the Servicing Base Amount as of the last day of such Monthly Period and (ii) 0.75%.
"Servicing Base Amount" shall have the meaning specified in Section 3.01.
"Servicing Fee Rate" shall mean 2.00%.
"Special Payment Date" shall mean each Distribution Date with respect to the Early Amortization Period.
"Swap Counterparty" shall mean Xxxxxx Guaranty Trust Company of New York, and any of its successors or transferees under the Basis Swap.
"Swap Prime Rate" shall mean, for any applicable Interest Period, the floating rate payable by the Trust to the Swap Counterparty specified in the Basis Swap.
"Telerate Page 3750" shall mean the display page currently so designated on the Bridge Telerate Market Report (or such other page as may replace that page on that service for the purpose of displaying comparable rates or prices).
"Termination Date" shall mean the April 2007 Distribution Date.
"Transfer" shall have the meaning specified in subsection 10.07(a).
"Transfer Agreement" shall mean the Transfer and Administration Agreement, dated as of June 27, 2001, among Capital One Bank, as transferor and administrator, Capital One, F.S.B., as transferor, and Capital One Secured Note Trust 2001-4, as amended or modified from time to time, relating to the transfer of the Collateral Interest.
"Variable Accumulation Series" shall mean each outstanding Series, other than any Variable Funding Series, for which, pursuant to the terms of the related Supplement, at the time a determination is made pursuant to Section 4.03(f), the commencement date of the Accumulation Period may be changed.
"Variable Funding Series" shall mean any Series designated in the related Supplement as a Variable Funding Series.
(a) Notwithstanding anything to the contrary in this Supplement or the Agreement, the term "Rating Agency" shall mean, whenever used in this Supplement or the Agreement with respect to Series 2001-4, Xxxxx'x and Standard & Poor's and Fitch. As used in this Supplement and in the Agreement with respect to Series 2001-4, "highest investment ratings category" shall mean (i) in the case of Standard & Poor's, A-1+, AAA, AAAm or AAAm-G, as applicable, (ii) in the case of Xxxxx'x, P-1 or Aaa, as applicable and (iii) in the case of Fitch, if rated by Fitch, F1+ or AAA, as applicable.
(b) Notwithstanding any provision of the Agreement or this Supplement, the term "Paying Agent" when used in the Agreement or this Supplement with respect to Series 2001-4, shall mean, the Paying Agent specified pursuant to the Agreement, and any successor paying agents with respect to the Class A Certificates, the Class B Certificates and the Collateral Interest as the Sellers may appoint from time to time in accordance with the provisions of the Pooling and Servicing Agreement.
(c) All capitalized terms used herein and not otherwise defined herein have the meanings ascribed to them in the Agreement.
(d) The words "hereof," "herein" and "hereunder" and words of similar import when used in this Supplement shall refer to this Supplement as a whole and not to any particular provision of this Supplement; references to any Article, Section or Exhibit are references to Articles, Sections and Exhibits in or to this Supplement unless otherwise specified; and the term "including" means "including without limitation."
Section 2.02. Amendment to Section 2.08 of the Agreement. Section 2.08(c)(i) of the Agreement is hereby amended and restated in its entirety to read as follows:
(a) Automatic Additional Accounts. (i) Each Seller may from time to time, at its sole discretion, subject to and in compliance with the limitations specified in clause (ii) below and the applicable conditions specified in paragraph (d) below, designate Eligible Accounts to be included as Accounts as of the applicable Additional Cutoff Date. For purposes of this paragraph, Eligible Accounts shall be deemed to include only consumer revolving credit card accounts or other consumer revolving credit accounts which (x) are originated by such Seller or any Affiliate of such Seller, (y) are of a type included as Initial Accounts or which have previously been included in any Addition which has been effected in accordance with all of the conditions specified in paragraph (d) below and (z) have a designation other than "Associate 20," "Associate 21," "Associate 42," "Associate 45," "Associate 46," "Associate 54," "Associate 55," "Associate 77," "Associate 79," "Associate 87," "Associate 91," "Associate 100," "Associate 101," "Associate 102," "Associate 103," "Associate 104," "Associate 105," "Associate 106," "Associate 107," "Associate 108," "Associate 109," "Associate 120" "Associate 121," "Associate 122," "Associate 123," "Associate 195," "Associate 196," "Associate 197," "Associate 198," "Associate 199," "Associate 289," "Associate 290," "Associate 291," "Associate 292," "Associate 293," "Associate 294," "Associate 295," "Associate 296," "Associate 297," "Associate 298," "Associate 299," "Associate 302," "Associate 303," "Associate 308," "Associate 309," "Associate 310," "Associate 311" "Associate 312," "Associate 313," "Associate 314," "Associate 332," "Associate 333," "Associate 336," "Associate 337," "Associate 407," "Associate 408," "Associate 409," "Associate 410," "Associate 411," "Associate 412," "Associate 413," "Associate 414," "Associate 415," "Associate 416," "Associate 417," "Associate 432,""Associate 433," "Associate 439," "Associate 440," "Associate 570," "Associate 571," "Associate 572," "Associate 573," "Associate 574," "Associate 575," "Associate 576," "Associate 577," "Associate 578," "Associate 579," "Associate 770," "Associate 771," "Associate 772," "Associate 773," "Associate 774," "Associate 775," "Associate 776," "Associate 777," "Associate 778" or "Associate 779" marketing programs in such Seller's credit card master file.
ARTICLE III
Servicer and Trustee
Section 3.01. Servicing Compensation. The share of the Servicing Fee allocable to the Series 2001-4 Certificateholders and the Collateral Interest Holder with respect to any Distribution Date (the "Monthly Servicing Fee") shall be equal to one-twelfth of the product of (a) the Servicing Fee Rate and (b) the Adjusted Invested Amount, if any, as of the last day of the Monthly Period preceding such Distribution Date (the amount calculated pursuant to this clause (b) is referred to as the "Servicing Base Amount"); provided, however, with respect to the first Distribution Date, the Monthly Servicing Fee (the "Initial Servicing Fee") shall be equal to $1,888,888.89. On each Distribution Date, but only if a Seller or The Bank of New York is the Servicer, Servicer Interchange with respect to the related Monthly Period that is on deposit in the Collection Account shall be withdrawn from the Collection Account and paid to the Servicer in payment of a portion of the Monthly Servicing Fee with respect to such Monthly Period. In the case of any insufficiency of Servicer Interchange on deposit in the Collection Account, a portion of the Monthly Servicing Fee with respect to such Monthly Period will not be paid to the extent of such insufficiency of Servicer Interchange. The share of the Monthly Servicing Fee allocable to the Class A Certificateholders (after giving effect to the distribution of Servicer Interchange, if any, to the Servicer) with respect to any Distribution Date (the "Class A Servicing Fee") shall be equal to one-twelfth of the product of (a) the Class A Floating Percentage, (b) the Net Servicing Fee Rate and (c) the Servicing Base Amount; provided, however, that with respect to the first Distribution Date, the Class A Servicing Fee shall be equal to $959,201.39. The share of the Monthly Servicing Fee allocable to the Class B Certificateholders (after giving effect to the distribution of Servicer Interchange, if any, to the Servicer) with respect to any Distribution Date (the "Class B Servicing Fee") shall be equal to one-twelfth of the product of (a) the Class B Floating Percentage, (b) the Net Servicing Fee Rate and (c) the Servicing Base Amount; provided, however, that with respect to the first Distribution Date, the Class B Servicing Fee shall be equal to $118,055.56. The share of the Monthly Servicing Fee allocable to the Collateral Interest Holder (after giving effect to the distribution of Servicer Interchange, if any, to the Servicer) with respect to such Distribution Date (the "Collateral Servicing Fee") shall be equal to one-twelfth of the product of (c) the Collateral Floating Percentage, (b) the Net Servicing Fee Rate and (c) the Servicing Base Amount; provided, however, that with respect to the first Distribution Date, the Collateral Servicing Fee shall be equal to $103,298.61. The remainder of the Servicing Fee shall be paid by the Sellers or the Certificateholders of other Series (as provided in the related Supplements) and in no event shall the Trust, the Trustee, the Series 2001-4 Certificateholders or the Collateral Interest Holder be liable for the share of the Servicing Fee to be paid by the Sellers or the Certificateholders of any other Series. The (i) Class A Servicing Fee shall be payable to the Servicer solely to the extent amounts are available for distribution in respect thereof pursuant to Section 4.05(a)(ii), 4.07(a) or 4.08(a); (ii) Class B Servicing Fee shall be payable solely to the extent amounts are available for distribution in respect thereof pursuant to Section 4.05(b)(iii), 4.07(c) or 4.08(b); and (iii) Collateral Servicing Fee shall be payable solely to the extent amounts are available for distribution in respect thereof pursuant to Section 4.05(c)(i) or 4.07(f).
ARTICLE IV
Rights of Series 2001-4 Certificateholders and
Collateral Interest Holder and
Allocation and Application of Collections
Section 4.01. Collections and Allocations. The Servicer will apply, or will instruct the Trustee to apply, all Collections and other funds on deposit in the Collection Account that are allocated to the Series 2001-4 Certificates and the Collateral Interest as described in this Article IV.
Section 4.02. Determination of Monthly Interest.
(a) The amount of monthly interest ("Class A Monthly Interest") distributable from the Collection Account with respect to the Class A Certificates on any Distribution Date shall be an amount equal to the product of (i) a fraction, the numerator of which is the actual number of days in the period from and including the preceding Distribution Date to but excluding such Distribution Date and the denominator of which is 360, (ii) the Class A Certificate Rate for the related Interest Period and (iii) the outstanding principal balance of the Class A Certificates as of the preceding Record Date; provided, however, that, with respect to the first Distribution Date, Class A Monthly Interest shall be $4,246,666.67.
On the Determination Date preceding each Payment Date, the Servicer shall determine the excess, if any (the "Class A Interest Shortfall"), of (x) the Class A Monthly Interest for the Interest Period applicable to such Payment Date over (y) the aggregate amount of funds allocated and available to pay such Class A Monthly Interest on such Payment Date. If the Class A Interest Shortfall with respect to any Payment Date is greater than zero, an additional amount ("Class A Additional Interest") equal to the product of (i) a fraction, the numerator of which is the actual number of days in the period from and including the preceding Distribution Date to but excluding such Distribution Date and the denominator of which is 360, (ii) the Class A Penalty Rate and (iii) such Class A Interest Shortfall (or the portion thereof which has not been paid to Class A Certificateholders) shall be payable as provided herein with respect to the Class A Certificates on each Distribution Date following such Payment Date to and including the Payment Date on which such Class A Interest Shortfall is paid to Class A Certificateholders. Notwithstanding anything to the contrary herein, Class A Additional Interest shall be payable or distributed to Class A Certificateholders only to the extent permitted by applicable law.
(b) The amount of monthly interest ("Class B Monthly Interest") distributable from the Collection Account with respect to the Class B Certificates on any Distribution Date shall be an amount equal to the product of (i) a fraction, the numerator of which is the actual number of days in the period from and including the preceding Distribution Date to but excluding such Distribution Date and the denominator of which is 360, (ii) the Class B Certificate Rate for the related Interest Period and (iii) the outstanding principal balance of the Class B Certificates as of the preceding Record Date; provided, however, that, with respect to the first Distribution Date, Class B Monthly Interest shall be $562,138.89.
On the Determination Date preceding each Payment Date, the Servicer shall determine the excess, if any (the "Class B Interest Shortfall"), of (x) the Class B Monthly Interest for the Interest Period applicable to such Payment Date over (y) the aggregate amount of funds allocated and available to pay such Class B Monthly Interest on such Payment Date. If the Class B Interest Shortfall with respect to any Payment Date is greater than zero, an additional amount ("Class B Additional Interest") equal to the product of (i) a fraction, the numerator of which is the actual number of days from and including the preceding Distribution Date to but excluding such Distribution Date and the denominator of which is 360, (ii) the Class B Penalty Rate and (iii) such Class B Interest Shortfall (or the portion thereof which has not been paid to Class B Certificateholders) shall be payable as provided herein with respect to the Class B Certificates on each Distribution Date following such Payment Date to and including the Payment Date on which such Class B Interest Shortfall is paid to Class B Certificateholders. Notwithstanding anything to
| Class A Invested Amount, shall be equal to the least of (x) the Available Investor Principal Collections on deposit in the Collection Account with respect to such Distribution Date (minus the portion of such Available Investor Principal Collections applied to Class A Monthly Principal with respect to such Distribution Date), (y) for each Distribution Date with respect to the Accumulation Period, the Controlled Deposit Amount for such Distribution Date (minus the Class A Monthly Principal with respect to such Distribution Date) and (z) the Class B Adjusted Invested Amount on such Distribution Date. | ||
| (c) The amount of monthly principal ("Collateral Monthly Principal") distributable from the Collection Account with respect to the Collateral Interest on each Distribution Date, beginning with the first to occur of (i) the first Special Payment Date, if any, on which the Class B Invested Amount is paid in full, and (ii) the first Distribution Date with respect to the Accumulation Period on which the Principal Funding Account Balance is at least equal to the sum of the Class A Invested Amount and the Class B Invested Amount, shall be equal to the least of (x) the Available Investor Principal Collections on deposit in the Collection Account with respect to such Distribution Date (minus the portion of such Available Investor Principal Collections applied to Class A Monthly Principal and Class B Monthly Principal with respect to such Distribution Date), (y) for each Distribution Date with respect to the Accumulation Period, the Controlled Deposit Amount for such Distribution Date (minus the Class A Monthly Principal and Class B Monthly Principal with respect to such Distribution Date) and (z) the Collateral Adjusted Invested Amount on such Distribution Date. | ||
| (d) (i) The Servicer, for the benefit of the Series 2001-4 Holders, shall establish and maintain in the name of the Trustee, on behalf of the Trust, an Eligible Deposit Account (the "Principal Funding Account"), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of Series 2001-4 Holders. The Principal Funding Account shall initially be established with The Bank of New York. | ||
| (ii) At the direction of the Servicer, funds on deposit in the Principal Funding Account shall be invested by the Trustee in Eligible Investments selected by the Servicer. All such Eligible Investments shall be held by the Trustee for the benefit of the Series 2001-4 Holders; provided that on each Distribution Date all interest and other investment income (net of losses and investment expenses) ("Principal Funding Investment Proceeds") on funds on deposit therein shall be applied as set forth in paragraph (iii) below. Funds on deposit in the Principal Funding Account shall be invested in Eligible Investments that will mature so that such funds will be available at the close of business on the Transfer Date preceding the following Distribution Date. The Trustee shall (i) hold each Eligible Investment that constitutes investment property through a securities intermediary, which securities intermediary shall agree with the Trustee that (A) such investment property shall at all times be credited to a securities account of the Trustee, (B) such securities intermediary shall treat the Trustee as entitled to exercise the rights that comprise each financial asset credited to such securities account, (C) all property credited to such securities account shall be treated as a financial asset, (D) such securities intermediary shall comply with entitlement | ||
| orders originated by the Trustee without the further consent of any other person or entity, (E) such securities intermediary shall not agree with any person or entity other than the Trustee to comply with entitlement orders originated by such other person or entity, (F) such securities intermediary waives any lien on, security interest in, or right of set-off with respect to any property credited to such securities account, and (G) such agreement shall be governed by the laws of the State of New York; and (ii) maintain possession of each other Eligible Investment not described in clause (i) above in the State of New York. Terms used in clause (i) above that are defined in the New York UCC and not otherwise defined herein shall have the meaning set forth in the New York UCC. No Eligible Investment shall be disposed of prior to its maturity. Unless the Servicer directs otherwise, funds deposited in the Principal Funding Account on a Transfer Date (which immediately precedes a Payment Date) upon the maturity of any Eligible Investments are not required to be invested overnight. | ||
| (iii) On each Distribution Date with respect to the Accumulation Period, the Servicer shall direct the Trustee to withdraw from the Principal Funding Account and deposit into the Collection Account all Principal Funding Investment Proceeds then on deposit in the Principal Funding Account and such Principal Funding Investment Proceeds shall be treated as a portion of Class A Available Funds, Class B Available Funds and Collateral Available Funds. | ||
| (iv) Reinvested interest and other investment income on funds deposited in the Principal Funding Account shall not be considered to be principal amounts on deposit therein for purposes of this Supplement. | ||
| (e) (i) The Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Principal Funding Account and in all proceeds thereof. The Principal Funding Account shall be under the sole dominion and control of the Trustee for the benefit of the Series 2001-4 Holders. If, at any time, the Principal Funding Account ceases to be an Eligible Deposit Account, the Trustee (or the Servicer on its behalf) shall within 10 Business Days (or such longer period, not to exceed 30 calendar days, as to which each Rating Agency may consent) establish a new Principal Funding Account meeting the conditions specified in paragraph (d)(i) above as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Principal Funding Account. | ||
| (ii) Pursuant to the authority granted to the Servicer in Section 3.01(b) of the Agreement, the Servicer shall have the power, revocable by the Trustee, to make withdrawals and payments or to instruct the Trustee to make withdrawals and payments from the Principal Funding Account for the purposes of carrying out the Servicer's or Trustee's duties hereunder. Pursuant to the authority granted to the Paying Agent in Section 5.01 of this Supplement and Section 6.07 of the Agreement, the Paying Agent shall have the power, revocable by the Trustee, to withdraw funds from the Principal Funding Account for the purpose of making distributions to the Series 2001-4 Holders. | ||
| (b) On each Distribution Date, an amount equal to the Class B Available Funds with respect to such Distribution Date will be distributed in the following priority: | |
|
(i) an amount equal to Class B Monthly Interest for such Distribution Date, plus the amount of any Class B Outstanding Monthly Interest, plus the amount of any Class B Additional Interest for such Distribution Date and any Class B Outstanding Additional Interest, shall be distributed to the Paying Agent with respect to the Class B Certificates for payment to the Class B Certificateholders; |
|
| (ii) an amount equal to the Class B Servicing Fee for such Distribution Date, plus the amount of any Class B Servicing Fee previously due but not distributed to the Servicer on a prior Distribution Date, shall be distributed to the Servicer (unless such amount has been netted against deposits to the Collection Account in accordance with Section 4.03 of the Agreement); and | |
| (iii) the balance, if any, shall constitute Excess Spread and shall be allocated and distributed as set forth in Section 4.07. | |
| (c) On each Distribution Date, an amount equal to the Collateral Available Funds with respect to such Distribution Date will be distributed in the following priority: | |
| (i) an amount equal to the Collateral Servicing Fee for such Distribution Date, plus the amount of any Collateral Servicing Fee previously due but not distributed to the Servicer on a prior Distribution Date, shall be distributed to the Servicer (unless such amount has been netted against deposits to the Collection Account in accordance with Section 4.03 of the Agreement); and | |
| (ii) the balance, if any, shall constitute Excess Spread and shall be allocated and distributed as set forth in Section 4.07. | |
| (d) On each Distribution Date with respect to the Revolving Period, an amount equal to the Available Investor Principal Collections deposited in the Collection Account for the related Monthly Period shall be treated as Shared Principal Collections and applied in accordance with Section 4.04 of the Agreement. | |
| (e) On each Distribution Date with respect to the Accumulation Period or the Early Amortization Period, an amount equal to the Available Investor Principal Collections deposited in the Collection Account for the related Monthly Period will be distributed in the following priority: | |
| (i) an amount equal to Class A Monthly Principal for such Distribution Date, up to the Class A Adjusted Invested Amount on such Distribution Date, shall be deposited in the Principal Funding Account or, if such Distribution Date is a Special Payment Date on which the Principal Funding Account Balance is zero, shall be distributed to the Paying Agent for payment to the Class A Certificateholders; | |
| Charges allocated to Series 2001-4 with respect to the related Monthly Period, to make the following distributions in the following priority: |
| (a) an amount equal to the Class A Required Amount, if any, with respect to such Distribution Date shall be distributed by the Trustee to fund any deficiency pursuant to Sections 4.05(a)(i), (ii), (iii) and (iv); provided that in the event the Class A Required Amount for such Distribution Date exceeds the amount of Excess Spread and Excess Finance Charges allocated to Series 2001-4, such Excess Spread and Excess Finance Charges shall be applied first to pay amounts due with respect to such Distribution Date pursuant to Section 4.05(a)(i), second to pay the Net Swap Payment, if any, pursuant to Section 4.05(a)(ii), third to pay the Class A Servicing Fee pursuant to Section 4.05(a)(iii) and fourth to pay the Class A Investor Default Amount for such Distribution Date pursuant to Section 4.05(a)(iv); |
| (b) an amount equal to the aggregate amount of Class A Investor Charge-Offs which have not been previously reimbursed as provided in Section 4.06(a) (after giving effect to the allocation on such Distribution Date of any amount for that purpose pursuant to Section 4.06(a)) shall be treated as a portion of Available Investor Principal Collections for such Distribution Date; |
| (c) an amount equal to the Class B Required Amount, if any, with respect to such Distribution Date shall be distributed by the Trustee (I) to fund any deficiency pursuant to Sections 4.05(b)(i) and (ii) and (II) for application, up to the Class B Investor Default Amount, as a portion of Available Investor Principal Collections for such Distribution Date; provided that in the event the Class B Required Amount for such Distribution Date exceeds the amount of Excess Spread and Excess Finance Charges allocated to Series 2001-4 and available to pay such amount pursuant to this clause (c), such Excess Spread and Excess Finance Charges shall be applied first to pay amounts due with respect to such Distribution Date pursuant to Section 4.05(b)(i), second to pay the Class B Servicing Fee pursuant to Section 4.05(b)(ii) and third as a portion of Available Investor Principal Collections for such Distribution Date pursuant to clause (II) above; |
| (d) an amount equal to the aggregate amount by which the Class B Invested Amount has been reduced pursuant to clauses (c), (d) and (e) of the definition of "Class B Invested Amount" in Section 2.01 of this Supplement (but not in excess of the aggregate amount of such reductions which have not been previously reimbursed) shall be treated as a portion of Available Investor Principal Collections for such Distribution Date; |
| (e) an amount equal to the sum of Collateral Minimum Monthly Interest for such Distribution Date, plus the amount of any Collateral Outstanding Monthly Interest, plus the amount of any Collateral Additional Interest for such Distribution Date and any Collateral Outstanding Additional Interest shall be distributed to the Collateral Interest Holder; |
| (f) an amount equal to the Collateral Servicing Fee due but not paid to the Servicer either on such Distribution Date or a prior Distribution Date shall be paid to the Servicer; |
| Reserve Account for any reason under this Supplement, except as otherwise provided in the preceding sentence, investment earnings on such funds shall be deemed not to be available or on deposit. | |
| (c) On the Determination Date preceding each Distribution Date with respect to the Accumulation Period and the first Special Payment Date, the Servicer shall calculate the "Reserve Draw Amount" which shall be equal to the sum of the excesses, if any, identified in subsections 4.11(d)(i), (ii) and (iii); provided that such amount will be reduced to the extent that funds otherwise would be available for deposit in the Reserve Account under Section 4.07(i) with respect to such Distribution Date or Special Payment Date. | |
| (d) In the event that for any Distribution Date the Reserve Draw Amount is greater than zero, the Reserve Draw Amount, up to the Available Reserve Account Amount, shall be withdrawn from the Reserve Account on the related Distribution Date by the Trustee (acting in accordance with the instructions of the Servicer), deposited into the Collection Account and applied in the following priority: | |
| (i) an amount up to the excess, if any, of (x) an amount equal to that portion of the Covered Amount computed pursuant to clause (a) of the definition of Covered Amount over (y) an amount equal to that portion of the Class A Available Funds computed pursuant to clause (a) of the definition of Class A Available Funds shall be included as Class A Available Funds; and | |
| (ii) an amount up to the excess, if any, of (x) an amount equal to that portion of the Covered Amount computed pursuant to clause (b) of the definition of Covered Amount over (y) an amount equal to that portion of the Class B Available Funds computed pursuant to clause (a) of the definition of Class B Available Funds shall be treated as Class B Available Funds; and | |
| (iii) on and after the Distribution Date on which the Principal Funding Account Balance equals the sum of the Class A Invested Amount and the Class B Invested Amount, an amount up to the excess, if any, of (x) an amount equal to that portion of the Covered Amount computed pursuant to clause (c) of the definition of Covered Amount over (y) an amount equal to the aggregate amount of Excess Spread and Excess Finance Charge Collections allocated to Series 2001-4 with respect to such Distribution Date or Special Payment Date available after application in accordance with subsections 4.07(a) through (d) shall be distributed to the Collateral Interest Holder. | |
| (e) In the event that the Reserve Account Surplus on any Distribution Date, after giving effect to all deposits to and withdrawals from the Reserve Account with respect to such Distribution Date, is greater than zero, the Trustee, acting in accordance with the instructions of the Servicer, shall withdraw from the Reserve Account, and distribute to the Collateral Interest Holder, an amount equal to such Reserve Account Surplus. | |
| Date (other than as provided in Section 12.02 of the Agreement) such Class A Certificateholder's pro rata share of the amounts on deposit in the Principal Funding Account (in an amount not to exceed the Class A Invested Amount) or otherwise held by the Paying Agent and which are allocated and available on such date to pay principal of the Class A Certificates pursuant to this Supplement up to a maximum amount on any such date equal to the Class A Invested Amount on such date (unless there has been an optional repurchase of the Certificateholders' Interest with respect to Series 2001-4 pursuant to Section 10.01 of the Agreement, in which event the foregoing limitation will not apply). |
| (c) On each Payment Date, the Paying Agent shall distribute to each Class B Certificateholder of record on the related Record Date (other than as provided in Section 12.02 of the Agreement) such Class B Certificateholder's pro rata share of the amounts that are allocated and available on such Payment Date to pay interest on the Class B Certificates pursuant to this Supplement. |
| (d) On each Special Payment Date, if any, commencing on the first Special Payment Date on which the Class A Invested Amount is paid in full and on the Expected Final Payment Date, the Paying Agent shall distribute to each Class B Certificateholder of record on the related Record Date (other than as provided in Section 12.02 of the Agreement) such Class B Certificateholder's pro rata share of the amounts on deposit in the Principal Funding Account in excess of the Class A Invested Amount (in an amount not to exceed the Class B Invested Amount) or otherwise held by the Paying Agent and which are allocated and available on such date to pay principal of the Class B Certificates pursuant to this Supplement up to a maximum amount on any such date equal to the Class B Invested Amount on such date (unless there has been an optional repurchase of the Certificateholders' Interest with respect to Series 2001-4 pursuant to Section 10.01 of the Agreement, in which event the foregoing limitation will not apply). |
| (e) On each Payment Date, the Paying Agent shall distribute to each Collateral Interest Holder of record on the related Record Date (other than as provided in Section 12.02 of the Agreement) such Collateral Interest Holder's pro rata share of the amounts that are allocated and available on such Payment Date to pay interest on the Collateral Interest pursuant to this Supplement. |
| (f) On each Special Payment Date, if any, commencing on the first Special Payment Date on which the Class B Invested Amount is paid in full and on the Expected Final Payment Date, the Paying Agent shall distribute to each Collateral Interest Holder of record on the related Record Date such Collateral Interest Holder's pro rata share of the amounts on deposit in the Principal Funding Account in excess of the sum of the Class A Invested Amount and the Class B Invested Amount (in an amount not to exceed the Collateral Invested Amount), held by the Paying Agent or otherwise allocated and available on such date to pay principal of the Collateral Interest pursuant to this Supplement up to a maximum amount on any such date equal to the Collateral Invested Amount (unless there has been an optional repurchase of the Certificateholders' Interest with respect to Series 2001-4 pursuant to Section 10.01 of the Agreement, in which event the foregoing limitation will not apply). |
| the average of bids quoted on such Record Date or, if not a Business Day, on the next succeeding Business Day by at least two recognized dealers selected by the Trustee at the written direction of the Servicer, for the purchase by such dealers of a security which is similar to the Notes (as defined in the Transfer Agreement) with a remaining maturity approximately equal to the remaining maturity of the Notes and rated by each rating agency selected to rate the Notes in the rating category originally assigned to the Notes over (II) the portion of the Reassignment Amount attributable to the Collateral Interest. | |
| (b) Distributions Pursuant to Section 7.01 or 7.02 of this Supplement and Section 10.01 of the Agreement. With respect to the Reassignment Amount deposited into the Collection Account pursuant to Section 7.01 or 8.01(a)(ii) or any amounts allocable to the Series 2001-4 Certificateholders' Interest deposited into the Collection Account pursuant to Section 7.02, the Trustee shall, not later than 12:00 noon, Richmond time, on the related Distribution Date, make deposits or distributions of the following amounts (in the priority set forth below and, in each case, after giving effect to any deposits and distributions otherwise to be made on such date) in immediately available funds: (i) (x) the Class A Invested Amount on such Distribution Date will be distributed to the Paying Agent for payment to the Class A Certificateholders, (y) an amount equal to the sum of (A) Class A Monthly Interest for such Distribution Date, (B) any Class A Outstanding Monthly Interest and (C) the amount of Class A Additional Interest, if any, for such Distribution Date and any Class A Outstanding Additional Interest, will be distributed to the Paying Agent for payment to the Class A Certificateholders and (z) an amount equal to the Net Swap Payment, if any, for such Distribution Date and any previously due but not paid Net Swap Payments, (ii) (x) the Class B Invested Amount on such Distribution Date will be distributed to the Paying Agent for payment to the Class B Certificateholders and (y) an amount equal to the sum of (A) Class B Monthly Interest for such Distribution Date, (B) any Class B Outstanding Monthly Interest and (C) the amount of Class B Additional Interest, if any, for such Distribution Date and any Class B Outstanding Additional Interest, will be distributed to the Paying Agent for payment to the Class B Certificateholders and (iii) any remaining amounts will be distributed to the Paying Agent for payment to the Collateral Interest Holder. Notwithstanding anything to the contrary contained in this Supplement or the Agreement, the amount of any excess determined pursuant to paragraph (a)(ii)(y) shall be distributed to the Series 2001-4 Certificateholders. | |
| (c) Distributions Pursuant to Section 2.06 of the Agreement. With respect to any amounts deposited into the Collection Account pursuant to Section 8.01(a)(i), the Trustee shall, not later than 12:00 noon, Richmond time, on the related Distribution Date, deposit the principal portion of such amounts that are allocable to the Series 2001-4 Holders into the Principal Funding Account. | |
| (d) Notwithstanding anything to the contrary in this Supplement or the Agreement, all amounts distributed to the Paying Agent pursuant to Section 8.01(b) for payment to the Series 2001-4 Holders shall be deemed distributed in full to the Series 2001-4 Holders on the date on which such funds are distributed to the Paying Agent pursuant to this Section and shall be deemed to be a final distribution pursuant to Section 12.02 of the Agreement. | |
defined in Section 3(3) of ERISA), including governmental plans and church plans, (b) any "plan" (as defined in Section 4975(e)(1) of the Code) including individual retirement accounts and Xxxxx plans, or (c) any other entity whose underlying assets include "plan assets" (within the meaning of Department of Labor Regulation Section 2510.3-101, 29 C.F.R. § 2510.3-101 or otherwise under ERISA) by reason of a plan's investment in the entity, including, without limitation, an insurance company general account.
(d) This Section 10.07 shall not apply to the transfer and pledge of the Collateral Interest on the Closing Date by the Sellers pursuant to the Transfer Agreement or by the Capital One Secured Note Trust 2001-4 to the Indenture Trustee (as defined in the Transfer Agreement) pursuant to the Indenture (as defined in the Transfer Agreement).
Section 10.08. Certain Accounting Related Amendments. Notwithstanding any other provision of this Agreement to the contrary, the consent of the Servicer, the Trustee, the Swap Counterparty and any Investor Certificateholder is hereby deemed to be given in connection with the amendment of the Agreement or this Supplement to account for the transfer of assets as sales in accordance with FASB Statement No. 140, including providing for the transfer of receivables from the Sellers to a bankruptcy-remote special purpose entity and from that entity to the trust; provided that the Sellers shall have delivered a Tax Opinion on the date of such amendment. Promptly after the effectiveness of any amendment pursuant to this Section 10.08, the Sellers shall deliver a copy of such amendment to each of the Servicer, the Trustee, each Rating Agency and the Swap Counterparty.
IN WITNESS WHEREOF, the undersigned have caused this Supplement to be duly executed and delivered by their respective duly authorized officers on the day and year first above written.
| CAPITAL ONE BANK, | ||
| Seller and Servicer | ||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxx Title: Manager of Securitization |
||
| CAPITAL ONE, F.S.B., | ||
| Seller | ||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxx Title: Manager of Securitization |
||
| THE BANK OF NEW YORK, | ||
| Trustee | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx Title: Assistant Treasurer |
||
[Signature Page to Series 2001-4 Supplement]
| REGISTERED | EXHIBIT A-1
|
| REGISTERED | $812,500,000*
|
| No. R-__ | CUSIP No. 00000XXX0
|
Unless this Class A Certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
Series 2001-4
CLASS A FLOATING RATE ASSET BACKED CERTIFICATE
Expected Final Payment Date:
The June 2004 Distribution Date
Each $1,000 minimum denomination represents a
1/812,500 undivided interest
in certain assets of the
Evidencing an undivided interest in a trust, the corpus of which consists primarily of receivables generated from time to time in the ordinary course of business in a portfolio of consumer revolving credit card accounts by
CAPITAL ONE BANK
and
CAPITAL ONE, F.S.B.
and, in certain circumstances, certain Additional Sellers (as defined in the Pooling and Servicing Agreement referred to below).
(Not an interest in or obligation of Capital One Bank,
Capital One, F.S.B., any Additional Seller or any affiliate thereof)
_____________________
*
Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
This certifies that CEDE & CO. (the "Class A Certificateholder") is the registered owner of a fractional undivided interest in certain assets of a trust (the "Trust") created pursuant to the Pooling and Servicing Agreement, dated as of September 30, 1993, as amended and restated as of April 9, 2001 (as amended and restated and as amended and supplemented, the "Agreement"), as supplemented by the Series 2001-4 Supplement, dated as of June 27, 2001 (as amended and supplemented, the "Series Supplement"), among Capital One Bank, as Seller and Servicer, Capital One, F.S.B., as Seller, and The Bank of New York, a New York banking corporation, as trustee (the "Trustee"). The corpus of the Trust consists of (i) a portfolio of all receivables (the "Receivables") existing in the consumer revolving credit card accounts and other consumer revolving credit accounts identified under the Agreement from time to time (the "Accounts"), (ii) all Receivables generated under the Accounts from time to time thereafter, (iii) funds collected or to be collected from accountholders in respect of the Receivables, (iv) all funds which are from time to time on deposit in the Collection Account and in the Series Accounts, (v) an interest in any Funds Collateral (as defined in the Agreement) relating to secured accounts, (vi) the benefits of any Series Enhancement and (vii) all other assets and interests constituting the Trust. The Holder of this Class A Certificate is entitled to the benefit of any Series Enhancement to the extent provided in the Series Supplement. Although a summary of certain provisions of the Agreement and the Series Supplement is set forth below and on the Summary of Terms and Conditions attached hereto and made a part hereof, this Class A Certificate does not purport to summarize the Agreement and the Series Supplement and reference is made to the Agreement and the Series Supplement for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby and the rights, duties and obligations of the Trustee. In the event of any conflict between this Class A Certificate and the Series Supplement or the Agreement, the Series Supplement or the Agreement, as the case may be, shall control. A copy of the Agreement and the Series Supplement (without schedules) may be requested from the Trustee by writing to the Trustee at the Corporate Trust Office. To the extent not defined herein, the capitalized terms used herein have the meanings ascribed to them in the Agreement or the Series Supplement, as applicable.
This Class A Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement and the Series Supplement, to which Agreement and Series Supplement, each as amended and supplemented from time to time, the Class A Certificateholder by virtue of the acceptance hereof assents and is bound.
It is the intent of the Sellers and the Investor Certificateholders that, for federal, state and local income and franchise tax purposes only, the Investor Certificates will qualify as indebtedness of the Sellers secured by the Receivables. The Class A Certificateholder, by the acceptance of this Class A Certificate, agrees to treat this Class A Certificate for federal, state and local income and franchise tax purposes as indebtedness of the Sellers.
In general, payments of principal with respect to the Class A Certificates are limited to the Class A Invested Amount, which may be less than the unpaid principal balance of the Class A Certificates. The Expected Final Payment Date is the June 2004 Distribution Date, but principal with respect to the Class A Certificates may be paid earlier or later under certain circumstances described in the Agreement and the Series Supplement. If for one or more months during the Accumulation Period there are not sufficient funds to pay the Controlled Deposit Amount, then to the extent that excess funds are not available on subsequent Distribution Dates with respect to the Accumulation Period to make up for such shortfalls, the final payment of principal of the Class A Certificates will occur later than the Expected Final Payment Date.
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee, by manual signature, this Class A Certificate shall not be entitled to any benefit under the Agreement or the Series Supplement or be valid for any purpose.
IN WITNESS WHEREOF, the Sellers have caused this Class A Certificate to be duly executed.
| CAPITAL ONE BANK, | ||
| By: | ||
| Name: Title: |
||
| CAPITAL ONE, F.S.B., | ||
| By: | ||
| Name: Title: |
||
Dated: June 27, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates described in the within-mentioned Agreement and Series Supplement.
| THE BANK OF NEW YORK, | ||
| as Trustee | ||
| By: | ||
| Authorized Officer |
||
| or | ||
| By: | ||
| as Authenticating Agent for the Trustee |
||
| By: | ||
| Authorized Officer |
||
SERIES 2001-4
CLASS A FLOATING RATE ASSET BACKED CERTIFICATE
Summary of Terms and Conditions
The Receivables consist of Principal Receivables which arise generally from the purchase of goods and services and amounts advanced to accountholders as cash advances and Finance Charge Receivables. This Class A Certificate is one of a Series of Investor Certificates entitled "Capital One Master Trust, Series 2001-4." The Series 2001-4 Certificates are being issued in two Classes, the first of which is known as the "Class A Floating Rate Asset Backed Certificates, Series 2001-4" (the "Class A Certificates") and the second Class is known as the "Class B Floating Rate Asset Backed Certificates, Series 2001-4" (the "Class B Certificates"). In addition, as part of Series 2001-4, the Trust is creating a third Class of uncertificated interest in the Trust which uncertificated interest, except as expressly provided in the Series Supplement, is deemed to be an "Investor Certificate" and is known as the "Collateral Interest, Series 2001-4" (the "Collateral Interest"). This Class A Certificate represents a fractional undivided interest in certain assets of the Trust. The Trust Assets are allocated in part to the certificateholders of all outstanding Series (the "Certificateholders' Interest") with the remainder allocated to the Sellers' Interest. The aggregate interest represented by the Class A Certificates at any time in the Principal Receivables in the Trust shall not exceed an amount equal to the Class A Invested Amount at such time. The Class A Initial Invested Amount is $812,500,000. The Class A Invested Amount on any date of determination will be an amount equal to (a) the Class A Initial Invested Amount, minus (b) the aggregate amount of principal payments made to the Class A Certificateholders on or prior to such date, minus (c) the excess, if any, of the aggregate amount of Class A Investor Charge-Offs for all prior Distribution Dates over the aggregate amount of Class A Investor Charge-Offs reimbursed pursuant to subsection 4.06(a) of the Series Supplement prior to such date. Also, Capital One Bank and Capital One, F.S.B. have received an adjustment to the Sellers' Interest on the date hereof.
Subject to the terms and conditions of the Agreement, the Seller may from time to time direct the Trustee, on behalf of the Trust, to issue one or more new Series of Investor Certificates, which will represent fractional undivided interests in certain of the Trust Assets.
On each Payment Date, the Paying Agent shall distribute to each Class A Certificateholder of record on the last day of the preceding calendar month (each, a "Record Date") such Class A Certificateholder's pro rata share of such amounts (including amounts on deposit in the Collection Account and the Principal Funding Account) as are payable to the Class A Certificateholders pursuant to the Agreement and the Series Supplement. Distributions with respect to this Class A Certificate will be made by the Paying Agent by check mailed to the address of the Class A Certificateholder of record appearing in the Certificate Register without the presentation or surrender of this Class A Certificate or the making of any notation thereon (except for the final distribution in respect of this Class A Certificate), except that with respect to Class A Certificates registered in the name of Cede & Co., the nominee for The Depository Trust Company, distributions will be made in the form of immediately available funds. Final payment of this Class A Certificate will be made only upon presentation and surrender of this Class A Certificate at the office or agency specified in the notice of final distribution delivered by the Trustee to the Class A Certificateholders in accordance with the Agreement and the Series Supplement.
On any day occurring on or after the day on which the Invested Amount is reduced to 5% or less of the Initial Invested Amount, a Seller (so long as such Seller is the Servicer or an Affiliate thereof) has the option to repurchase the Certificateholders' Interest in the Trust. The repurchase price will be equal to (a) if such day is a Distribution Date, the Reassignment Amount for such Distribution Date or (b) if such day is not a Distribution Date, the Reassignment Amount for the Distribution Date following such day. Following the deposit of the Reassignment Amount in the Collection Account, Class A Certificateholders, the Class B Certificateholders and the Collateral Interest Holder will not have any interest in the Receivables and the Class A Certificates will represent only the right to receive such Reassignment Amount.
This Class A Certificate does not represent an obligation of, or an interest in, the Sellers, the Servicer or any affiliate of any of them and is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmental agency or instrumentality. This Class A Certificate is limited in right of payment to certain Collections with respect to the Receivables (and certain other amounts), all as more specifically set forth herein above and in the Agreement and the Series Supplement.
The Agreement or any Supplement may, subject to certain conditions, be amended by the Sellers, the Servicer and the Trustee without Certificateholder consent. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under the Agreement or otherwise.
The Agreement or any Supplement may also be amended from time to time by the Servicer, the Sellers and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Agreement or any Supplement or of modifying in any manner the rights of the Investor Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Investor Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under the Agreement or otherwise.
The Class A Certificates are issuable only in minimum denominations of $1,000 and integral multiples of $1,000. The transfer of this Class A Certificate shall be registered in the Certificate Register upon surrender of this Class A Certificate for registration of transfer at any office or agency maintained by the Transfer Agent and Registrar accompanied by a written instrument of transfer, in a form satisfactory to the Trustee or the Transfer Agent and Registrar, duly executed by the Class A Certificateholder or such Class A Certificateholder's attorney, and duly authorized in writing with such signature guaranteed, and thereupon one or more new Class A Certificates of authorized denominations and for the same aggregate fractional undivided interest will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations therein set forth, Class A Certificates are exchangeable for new Class A Certificates evidencing like aggregate fractional undivided interests as requested by the Class A Certificateholder surrendering such Class A Certificates. No service charge may be imposed for any such exchange but the Servicer or Transfer Agent and Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Servicer, the Trustee, the Paying Agent and the Transfer Agent and Registrar and any agent of any of them, may treat the person in whose name this Class A Certificate is registered as the owner hereof for all purposes, and neither the Servicer nor the Trustee, the Paying Agent, the Transfer Agent and Registrar, nor any agent of any of them, shall be affected by notice to the contrary except in certain circumstances described in the Agreement.
THIS CLASS A CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
ASSIGNMENT
Social Security or other identifying number of assignee _________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_________________________________________________________________________
(name and address of assignee)
the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints ______________________, attorney, to transfer said certificate on the books kept for registration thereof, with full power of substitution in the premises.
Dated: _____________________*
Signature Guaranteed:
____________________________
_____________________
*
NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Certificate in every particular, without alteration, enlargement or any change whatsoever.
| REGISTERED | EXHIBIT A-2
|
| REGISTERED | $100,000,000*
|
| No. R-__ | CUSIP No. 00000XXX0
|
THE HOLDER OF THIS CLASS B CERTIFICATE BY ITS ACCEPTANCE HEREOF REPRESENTS AND WARRANTS, FOR THE BENEFIT OF CAPITAL ONE BANK AND CAPITAL ONE, F.S.B., THAT SUCH HOLDER IS NOT (1) AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, (2) A PLAN OR OTHER ARRANGEMENT (INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT OR XXXXX PLAN) THAT IS SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR (3) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" UNDER THE PLAN ASSET REGULATION BY REASON OF ANY SUCH PLAN'S INVESTMENT IN THE ENTITY.
Unless this Class B Certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
Series 2001-4
CLASS B FLOATING RATE ASSET BACKED CERTIFICATE
Expected Final Payment Date:
The June 2004 Distribution Date
Each $1,000 denomination represents a
1/100,000 undivided interest
in certain assets of the
_____________________
*
Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Evidencing an undivided interest in a trust, the corpus of which consists primarily of receivables generated from time to time in the ordinary course of business in a portfolio of consumer revolving credit card accounts by CAPITAL ONE BANK and CAPITAL ONE, F.S.B. And, in certain circumstances, certain Additional Sellers (as defined in the Pooling and Servicing Agreement referred to below).
(Not an interest in or obligation of Capital One Bank,
Capital One, F.S.B., Any Additional Seller or any affiliate thereof)
This certifies that CEDE & CO. (the "Class B Certificateholder") is the registered owner of a fractional undivided interest in certain assets of a trust (the "Trust") created pursuant to the Pooling and Servicing Agreement, dated as of September 30, 1993, as amended and restated as of April 9, 2001 (as amended and supplemented, the "Agreement"), as supplemented by the Series 2001-4 Supplement, dated as of June 27, 2001 (as amended and supplemented, the "Series Supplement"), among Capital One Bank, as Seller and Servicer, Capital One, F.S.B., As Seller, and The Bank of New York, a New York banking corporation, as trustee (the "Trustee"). The corpus of the Trust consists of (i) a portfolio of all receivables (the "Receivables") existing in the consumer revolving credit card accounts and other consumer revolving credit accounts identified under the Agreement from time to time (the "Accounts"), (ii) all Receivables generated under the Accounts from time to time thereafter, (iii) funds collected or to be collected from accountholders in respect of the Receivables, (iv) all funds which are from time to time on deposit in the Collection Account and in the Series Accounts, (v) an interest in any Funds Collateral (as defined in the Agreement) relating to secured accounts, (vi) the benefits of any Series Enhancement and (vii) all other assets and interests constituting the Trust. The Holder of this Class B Certificate is entitled to the benefit of any Series Enhancement to the extent provided in the Series Supplement. Although a summary of certain provisions of the Agreement and the Series Supplement is set forth below and on the Summary of Terms and Conditions attached hereto and made a part hereof, this Class B Certificate does not purport to summarize the Agreement and the Series Supplement and reference is made to the Agreement and the Series Supplement for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby and the rights, duties and obligations of the Trustee. In the event of any conflict between this Class B Certificate and the Series Supplement or the Agreement, the Series Supplement or the Agreement, as the case may be, shall control. A copy of the Agreement and the Series Supplement (without schedules) may be requested from the Trustee by writing to the Trustee at the Corporate Trust Office. To the extent not defined herein, the capitalized terms used herein have the meanings ascribed to them in the Agreement or the Series Supplement, as applicable.
This Class B Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement and the Series Supplement, to which Agreement and Series Supplement, each as amended and supplemented from time to time, the Class B Certificateholder by virtue of the acceptance hereof assents and is bound.
It is the intent of the Sellers and the Investor Certificateholders that, for federal, state and local income and franchise tax purposes only, the Investor Certificates will qualify as indebtedness of the Seller secured by the Receivables. The Class B Certificateholder, by the acceptance of this Class B Certificate, agrees to treat this Class B Certificate for federal, state and local income and franchise tax purposes as indebtedness of the Sellers.
In general, payments of principal with respect to the Class B Certificates are limited to the Class B Invested Amount, which may be less than the unpaid principal balance of the Class B Certificates. The Expected Final Payment Date is the June 2004 Distribution Date, but principal with respect to the Class B Certificates may be paid earlier or later under certain circumstances described in the Agreement and the Series Supplement. Principal payments with respect to the Class B Certificates will not commence until the Class A Invested Amount is paid in full. In addition, if for one or more months during the Accumulation Period there are not sufficient funds to pay the Controlled Deposit Amount, then to the extent that excess funds are not available on subsequent Distribution Dates with respect to the Accumulation Period to make up for such shortfalls, the final payment of principal of the Class B Certificates will occur later than the Expected Final Payment Date.
No Class B Certificate (or any interest therein) may be acquired or held by any employee benefit or other plan (including an individual retirement account) that is subject to the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended (each, a "Plan"), any trustee or other person acting on behalf of any Plan, or any other person using "Plan Assets" to effect such acquisition or holding.
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee, by manual signature, this Class B Certificate shall not be entitled to any benefit under the Agreement or the Series Supplement or be valid for any purpose.
IN WITNESS WHEREOF, the Sellers have caused this Class B Certificate to be duly executed.
| CAPITAL ONE BANK, | ||
| By: | ||
| Name: Title: |
||
| CAPITAL ONE, F.S.B., | ||
| By: | ||
| Name: Title: |
||
Dated: June 27, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates described in the within-mentioned Agreement and Series Supplement.
| THE BANK OF NEW YORK, | ||
| as Trustee | ||
| By: | ||
| Authorized Officer |
||
| or | ||
| By: | ||
| as Authenticating Agent for the Trustee |
||
| By: | ||
| Authorized Officer |
||
SERIES 2001-4
CLASS B FLOATING RATE ASSET BACKED CERTIFICATE
Summary of Terms and Conditions
The Receivables consist of Principal Receivables which arise generally from the purchase of goods and services and amounts advanced to accountholders as cash advances and Finance Charge Receivables. This Class B Certificate is one of a Series of Certificates entitled "Capital One Master Trust, Series 2001-4." The Series 2001-4 Certificates are being issued in two Classes, the first of which is known as the "Class A Floating Rate Asset Backed Certificates, Series 2001-4" (the "Class A Certificates") and the second Class is known as the "Class B Floating Rate Asset Backed Certificates, Series 2001-4" (the "Class B Certificates"). In addition, as part of Series 2001-4, the Trust is creating a third Class of uncertificated interest in the Trust which uncertificated interest, except as expressly provided in the Series Supplement, is deemed to be an "Investor Certificate" and is known as the "Collateral Interest, Series 2001-4" (the "Collateral Interest"). This Class B Certificate represents a fractional undivided interest in certain assets of the Trust. The Trust Assets are allocated in part to the certificateholders of all outstanding Series (the "Certificateholders' Interest") with the remainder allocated to the Sellers' Interest. The aggregate interest represented by the Class B Certificates at any time in the Principal Receivables in the Trust shall not exceed an amount equal to the Class B Invested Amount at such time. The Class B Initial Invested Amount is $100,000,000. The Class B Invested Amount on any date of determination will be an amount equal to (a) the Class B Initial Invested Amount, minus (b) the aggregate amount of principal payments made to the Class B Certificateholders on or prior to such date, minus (c) the aggregate amount of Class B Investor Charge-Offs for all prior Distribution Dates, minus (d) the aggregate amount of Reallocated Principal Collections allocated on all prior Distribution Dates pursuant to subsection 4.08(a) of the Series Supplement (excluding any Reallocated Principal Collections that have resulted in a reduction in the Collateral Invested Amount pursuant to subsection 4.06(c) of the Series Supplement), minus (e) an amount equal to the amount by which the Class B Invested Amount has been reduced on all prior Distribution Dates pursuant to subsection 4.06(a) of the Series Supplement and plus (f) the amount of Excess Spread and Excess Finance Charges allocated and available on all prior Distribution Dates pursuant to Section 4.07(d) of the Series Supplement for the purpose of reimbursing amounts deducted pursuant to the foregoing clauses (c), (d) and (e). Also, Capital One Bank and Capital One, F.S.B. Have received an adjustment to the Sellers' Interest on the date hereof.
Subject to the terms and conditions of the Agreement, the Sellers may from time to time direct the Trustee, on behalf of the Trust, to issue one or more new Series of Investor Certificates, which will represent fractional undivided interests in certain of the Trust Assets.
On each Payment Date, the Paying Agent shall distribute to each Class B Certificateholder of record on the last day of the preceding calendar month (each, a "Record Date") such Class B Certificateholder's pro rata share of such amounts (including amounts on deposit in the Collection Account and the Principal Funding Account) as are payable to the Class B Certificateholders pursuant to the Agreement and the Series Supplement. Distributions with respect to this Class B Certificate will be made by check mailed to the address of the Class B Certificateholder of record appearing in the Certificate Register without the presentation or surrender of this Class B Certificate or the making of any notation thereon (except for the final distribution in respect of this Class B Certificate) except that with respect to Class B Certificates registered in the name of Cede & Co., the nominee for The Depository Trust Company, distributions will be made in the form of immediately available funds. Final payment of this Class B Certificate will be made only upon presentation and surrender of this Class B Certificate at the office or agency specified in the notice of final distribution delivered by the Trustee to the Class B Certificateholders in accordance with the Agreement and the Series Supplement.
On any day occurring on or after the day on which the Invested Amount is reduced to 5% or less of the Initial Invested Amount, a Seller (so long as such Seller is the Servicer or an Affiliate thereof) has the option to repurchase the Certificateholders' Interest in the Trust. The repurchase price will be equal to (a) if such day is a Distribution Date, the Reassignment Amount for such Distribution Date or (b) if such day is not a Distribution Date, the Reassignment Amount for the Distribution Date following such day. Following the deposit of the Reassignment Amount in the Collection Account, the Class A Certificateholders, the Class B Certificateholders and the Collateral Interest Holder will not have any interest in the Receivables and the Class B Certificates will represent only the right to receive such Reassignment Amount.
This Class B Certificate does not represent an obligation of, or an interest in, the Sellers, the Servicer or any affiliate of any of them and is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmental agency or instrumentality. This Class B Certificate is limited in right of payment to certain Collections with respect to the Receivables (and certain other amounts), all as more specifically set forth hereinabove and in the Agreement and the Series Supplement.
The Agreement or any Supplement may, subject to certain conditions, be amended by the Sellers, the Servicer and the Trustee without Certificateholder consent. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under the Agreement or otherwise.
The Agreement or any Supplement may also be amended from time to time by the Servicer, the Sellers and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less than 66-2 /3% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Agreement or any Supplement or of modifying in any manner the rights of the Investor Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Investor Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2 /3% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under the Agreement or otherwise.
The Class B Certificates are issuable in minimum denominations of $1,000 and integral multiples of $1,000. The transfer of this Class B Certificate shall be registered in the Certificate Register upon surrender of this Class B Certificate for registration of transfer at any office or agency maintained by the Transfer Agent and Registrar accompanied by a written instrument of transfer, in a form satisfactory to the Trustee or the Transfer Agent and Registrar, duly executed by the Class B Certificateholder or such Class B Certificateholder's attorney, and duly authorized in writing with such signature guaranteed, and thereupon one or more new Class B Certificates of authorized denominations and for the same aggregate fractional undivided interest will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations therein set forth, Class B Certificates are exchangeable for new Class B Certificates evidencing like aggregate fractional undivided interests as requested by the Class B Certificateholder surrendering such Class B Certificates. No service charge may be imposed for any such exchange but the Servicer or Transfer Agent and Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Servicer, the Trustee, the Paying Agent and the Transfer Agent and Registrar and any agent of any of them, may treat the person in whose name this Class B Certificate is registered as the owner hereof for all purposes, and neither the Servicer nor the Trustee, the Paying Agent, the Transfer Agent and Registrar, nor any agent of any of them, shall be affected by notice to the contrary except in certain circumstances described in the Agreement.
THIS CLASS B CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
| ASSIGNMENT | |
| Social Security or other identifying number of assignee ________________________________ | |
| FOR VALUE RECEIVED, the undersigned
hereby sells, assigns and transfers
unto ______________________________________________________________ |
|
| (name and address of assignee) | |
| the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints ______________________, attorney, to transfer said certificate on the books kept for registration thereof, with full power of substitution in the premises. | |
| Dated: _____________________ | |
| Signature Guaranteed: | |
| _____________________* | |
| _____________________ | |
| _____________________
(* ) NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Certificate in every particular, without alteration, enlargement or any change whatsoever. |
|
| EXHIBIT C | |
|
FORM OF MONTHLY SERVICING OFFICER'S CERTIFICATE |
|
| CAPITAL ONE BANK | |
| CAPITAL ONE MASTER TRUST
SERIES 2001-4 |
|
| The undersigned, a duly authorized representative of Capital One Bank, as Servicer, pursuant to the Pooling and Servicing Agreement, dated as of September 30, 1993, as amended and restated as of April 9, 2001 (as amended and supplemented, the "Agreement"), as supplemented by the Series 2001-4 Supplement (as amended and supplemented, the "Series Supplement"), dated as of June 27, 2001, each among Capital One Bank, Capital One, F.S.B., as a Seller, and The Bank of New York, as Trustee, does hereby certify as follows: | |
| 1. Capitalized terms used in this Certificate have their respective meanings as set forth in the Agreement or Series Supplement, as applicable. | |
|
2. Capital One Bank is, as of the date hereof, the Servicer under the Agreement. |
|
| 3. The undersigned is a Servicing Officer. | |
|
4. This Certificate relates to the Distribution Date occurring on ________. |
|
|
5. As of the date hereof, to the best knowledge of the undersigned, the Servicer has performed in all material respects all its obligations under the Agreement through the Monthly Period preceding such Distribution Date [or, if there has been a default in the performance of any such obligation, set forth in detail the (i) nature of such default, (ii) the action taken by the Sellers and Servicer, if any, to remedy such default and (iii) the current status of each such default; if applicable, insert "None"]. |
|
| 6. As of the date hereof, to the best knowledge of the undersigned, no Pay Out Event occurred on or prior to such Distribution Date. | |
| 7. As of the date hereof, to the best knowledge of the undersigned, no Lien has been placed on any of the Receivables other than pursuant to the Agreement [or, if there is a Lien, such Lien consists of _________]. | |
| IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate this ______ day of __________, 20__. | ||
| CAPITAL ONE BANK,
as Servicer |
||
| By: _________________________
Name: Title: |
||
| EXHIBIT D | |||
| FORM OF INVESTMENT LETTER | |||
| [Date] | |||
| Re: | Capital One Master Trust;
Purchases of Series 2001-4 Collateral Interest |
||
| Ladies and Gentlemen: | |||
| This letter (the "Investment Letter") is delivered by the undersigned (the "Purchaser") pursuant to Section 10.07 of the Series 2001-4 Supplement, dated as of June 27, 2001 (the "Series Supplement") to the Pooling and Servicing Agreement, dated as of September 30, 1993, as amended and restated as of April 9, 2001 (as amended and supplemented, the "Agreement"), each among The Bank of New York, as Trustee, Capital One, F.S.B., As Seller, and Capital One Bank, as Seller and Servicer. Capitalized terms used herein without definition shall have the meanings set forth in the Agreement. The Purchaser represents to and agrees with the Seller as follows: | |||
| (a) | The Purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Collateral Interest and is able to bear the economic risk of such investment. | ||
| (b) | The Purchaser is an "accredited investor," as defined in Rule 501, promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), or is a sophisticated institutional investor. The Purchaser understands that the offering and sale of the Collateral Interest has not been and will not be registered under the Securities Act and has not and will not be registered or qualified under any applicable "Blue Sky" law, and that the offering and sale of the Collateral Interest has not been reviewed by, passed on or submitted to any federal or state agency or commission, securities exchange or other regulatory body. | ||
| (c) | The Purchaser is acquiring an interest in the Collateral Interest without a view to any distribution, resale or other transfer thereof except, with respect to any
Collateral Interest or any interest or participation therein, as contemplated in the following sentence. The Purchaser will not resell or otherwise transfer any interest or participation in the Collateral Interest, except in accordance with Section
10.07 of the Series Supplement and (i) in a transaction exempt from the registration requirements of the Securities Act and applicable state securities or "blue sky" laws; (ii) to a Seller or any affiliate of a Seller; or (iii) to a person
who the Purchaser reasonably
Very truly yours,
[NAME OF PURCHASER] By: ___________________________
|
||
|
AGREED TO AS OF THE DATE FIRST
CAPITAL ONE BANK By: _______________________
|
|||
|
CAPITAL ONE, F.S.B. By: _______________________
|
