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EXHIBIT 5
EXECUTION COPY
SERIES 1996-2 SUPPLEMENT, dated as of December
5, 1996 (the "Supplement"), between CAPITAL ONE BANK, a Virginia banking
corporation, as Seller and Servicer, and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee.
Pursuant to the Pooling and Servicing Agreement dated as of
September 30, 1993 (as amended and supplemented, the "Agreement"), among the
Seller, the Servicer and the Trustee, the Seller has created the Capital One
Master Trust (the "Trust"). Section 6.03 of the Agreement provides that the
Seller 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.
This term sheet, by and among the Seller, the Servicer and the
Trustee (the "Term Sheet"), together with the December 5, 1996 Standard
Definitions and Provisions Annex attached hereto (the "Annex") constitute the
Supplement. A copy of the Annex is maintained by the Trustee and the Servicer.
The definitions and provisions contained in the Annex are incorporated by
reference in this Supplement, except to the extent specifically modified in the
Term Sheet. In the event that any term or provision contained in the
Supplement shall conflict with or be inconsistent with any term or provision
contained in the Agreement, the terms and provisions of this Supplement shall
govern.
Pursuant to this Supplement, the Seller and the Trustee hereby
create a Series of Investor Certificates to be issued pursuant to the Agreement
and this Supplement to be known as "Capital One Master Trust, Series 1996-2".
The Series 1996-2 Certificates shall be issued in two Classes, the first of
which shall be known as the "Floating Rate Class A Asset Backed Certificates,
Series 1996-2" and the second of which shall be known as the "Floating Rate
Class B Asset Backed Certificates, Series 1996-2". In addition, there is
hereby created a third Class f uncertificated interests in the Trust which,
except as expressly provided herein, shall be deemed to be "Investor
Certificates" for all purposes under the Agreement and this Supplement and
which shall be known as the "Collateral Indebtedness Interest, Series 1996-2".
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ARTICLE I
Series Terms
Section 1.01. Series Terms. This Series shall be included in
Group One as a Variable Accumulation Series and as a Principal Sharing Series
that is not subordinated to any other Series; provided, however, that if this
Series is an Extendable Series, such Series shall also be a Subordinated Excess
Principal Series.
Title of Securities $600,000,000 Floating Rate Class A Asset Backed
Certificates, Series 1996-2 (the "Class A
Certificates") and $82,500,000 Floating Rate Class B
Asset Backed Certificates, Series 1996-2 (the
"Class B Certificates)
Extendable Series No
Prefunded Series No
Class A Initial Investor Amount $600,000,000
Class B Initial Investor Amount $82,500,000
Collateral Initial Investor Amount $67,500,000
Initial Prefunded Amount Not applicable
Required Funding Percentage Not applicable
Funding Dates Not applicable
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Initial Funding Date Not applicable
Final Funding Date Not applicable
Initial Principal Payment Date Not applicable
Class A Certificate Rate For each Interest Period, a per annum rate equal to
the Class A Floating Rate Index as of the Class A
Interest Determination Date plus the Class A
Certificate Rate Spread; provided, however, that
with respect to the initial Interest Period, the
Class A Certificate Rate shall equal the Class A
Certificate Rate Spread plus the greater of (i)
LIBOR for one-month United States dollar deposits
and (ii) the rate determined by reference to a
straight-line interpolation (based on the actual
number of days in the initial Interest Period)
between LIBOR for one-month United States dollar
deposits and LIBOR for two-month United States
dollar deposits
Class A Floating Rate Index LIBOR
Class A Floating Rate Index Maturity One month
Class A Certificate Rate Spread 0.10% per annum
Class A Maximum Interest Rate Not applicable
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Class A Interest Determination Date LIBOR Determination Date
Class A Expected Final Payment Date The December 2001 Distribution Date
Class A Accumulation Period Commencement The last day of the March 2000 Monthly Period
Date
Controlled Accumulation Amount $30,000,000
Class B Certificate Rate For each Interest Period, a per annum rate equal to
the Class B Floating Rate Index as of the Class B
Interest Determination Date plus the Class B
Certificate Rate Spread; provided, however, that
with respect to the initial Interest Period, the
Class B Certificate Rate shall equal the Class B
Certificate Rate Spread plus the greater of (i)
LIBOR for one-month United States dollar deposits
and (ii) the rate determined by reference to a
straight-line interpolation (based on the actual
number of days in the initial Interest Period)
between LIBOR for one-month United States dollar
deposits and LIBOR for two-month United States
dollar deposits
Class B Floating Rate Index LIBOR
Class B Floating Rate Index Maturity One month
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Class B Certificate Rate Spread 0.33% per annum
Class B Maximum Interest Rate Not applicable
Class B Interest Determination Date LIBOR Determination Date
Class B Expected Final Payment Date The February 2002 Distribution Date
Interest Payment Dates The 15th day of each month (or, if such day is not a
Business Day, the next succeeding Business Day),
commencing on the January 1997 Distribution Date
Required Cash Base Percentage 1.00%
Required Collateral Base Percentage 3.00%
Required Invested Base Percentage 9.00%
Required Reserve Base Percentage 0.50%
Closing Date December 5, 1996
Initial Distribution Date The January 1997 Distribution Date
Rating Agency Xxxxx'x, Standard & Poor's and Fitch
Net Servicing Fee Rate For (i) so long as the Seller is the Servicer, 0.75%
per annum, (ii) if the Bank of New York is the
Servicer, 1.25% per
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annum and (iii) if the Seller or The Bank of
New York is no longer the Servicer, 2.00% per annum
Servicing Fee Rate 2.00%
Cut-Off Date December 1, 1996
Termination Date The February 2005 Distribution Date
ARTICLE II
Modifications Relating To The Issuance
of The Class B Certificates
Section 2.01. Additional and Amended Definitions:
"Agency Agreement" shall mean the Agency Agreement dated as of
December 5, 1996 between the Seller and Servicer, Xxxxxx Guaranty Trust Company
of New York, as Authenticating Agent, Co-Transfer Agent and Co-Registrar and
Co-Paying Agent thereunder, and the Trustee.
"Authenticating Agent" shall mean Xxxxxx Guaranty Trust
Company of New York, as Authenticating Agent with respect to the Class B
Certificates under the Agency Agreement.
"Cede" shall mean Cede & Co., as DTC's nominee.
"Class B Underwriter" shall mean the underwriter of the Class
B Certificates, named in the Class B Underwriting Agreement.
"Class B Underwriting Agreement" shall mean the underwriting
agreement dated as of November 26, 1996 between the Seller and the underwriter
of the Class B Certificates named therein.
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"Common Depositary" shall mean Xxxxxx Guaranty Trust Company,
London office, in its capacity as a common Depositary for the Foreign Clearing
Agencies with respect to the Regulation S Global Certificate as provided in the
Agency Agreement.
"Co-Paying Agent" shall mean Xxxxxx Guaranty Trust Company of
New York, as Co-Paying Agent with respect to the Class B Certificates under the
Agency Agreement.
"Co-Transfer Agent and Co-Registrar" shall mean Xxxxxx
Guaranty Trust Company of New York, as Co-Transfer Agent and Co-Registrar with
respect to the Class B Certificates under the Agency Agreement.
"DTC" shall mean The Depository Trust Company, a New York
corporation.
"FAST Custodian" shall mean Xxxxxx Guaranty Trust Company of
New York, London office, as FAST custodian for DTC.
"Global Certificate" shall have the meaning specified in
Section 2.03(a)(ii) of this Term Sheet.
"MGTB" shall have the meaning specified in Section 2.03(a)(i)
of this Term Sheet.
"Regulation S" shall mean Regulation S promulgated under the
Act.
"Regulation S Global Certificate" shall have the meaning
specified in Section 2.03(a)(i) of this Term Sheet.
"Restricted Global Certificate" shall have the meaning
specified in Section 2.03(a)(ii) of this Term Sheet.
Notwithstanding any provision of the Agreement or this
Supplement, the term "Distribution Date", when used in the Agreement or this
Supplement with respect to the Class B Certificates, shall mean a day that is
both (i) a Business Day (as such term is defined in the Agreement) and (ii) a
London Business Day (as defined herein).
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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 1996-2, shall mean, (i) with respect to the
Class A Certificates and the Collateral Indebtedness Interest, the Paying Agent
specified pursuant to the Agreement, and (ii) with respect to the Class B
Certificates, the Co-Paying Agent's London office specified in the Agency
Agreement or a Paying Agent or other co-paying agent chosen by the Seller and
acceptable to the Trustee acting through such Paying Agent or other co-paying
agent's office outside the United States, and any successor Paying Agents or
co-paying agents with respect to the Class A Certificates and Class B
Certificates appointed by the Seller, and acceptable to the Trustee, from time
to time.
Notwithstanding any provision of the Agreement or this
Supplement, the term "Transfer Agent and Registrar" when used in the Agreement
or this Supplement with respect to Series 1996-2, shall mean, (i) with respect
to the Class A Certificates and the Collateral Indebtedness Interest, the
Transfer Agent and Registrar specified pursuant to the Agreement, and (ii) with
respect to the Class B Certificates, the Co-Transfer Agent and Co-Registrar,
and any successor Transfer Agent and Registrar or other co-transfer agent and
co-registrar with respect to the Class A Certificates or the Class B
Certificates appointed by the Seller, and acceptable to the Trustee, from time
to time.
Section 2.02. Distributions and Reporting to Class B
Certificateholders. Notwithstanding anything to the contrary in Section 5.01
of the Annex or elsewhere in the Agreement or this Supplement, distributions
from the Collection Account with respect to the Regulation S Global Certificate
shall be payable only through the Co-Paying Agent's London office specified in
the Agency Agreement or through a Paying Agent or other co-paying agent chosen
by the Seller and acceptable to the Trustee through such Paying Agent or other
co-paying agent's office outside the United States. If such payment at the
office of the Co-Paying Agent, or such Paying Agent or other co-paying agent,
outside the United States becomes illegal or is
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effectively precluded because of the imposition of exchange controls or other
similar restrictions on the full payment or receipt of such amounts in United
States dollars, payments with respect to the Regulation S Global Certificate
will be made at the office of the Co-Paying Agent, or such Paying Agent or
other co-paying agent, in New York City. Except as provided in the preceding
sentence, no demand for payment or payment with respect to the Regulation S
Global Certificate may be made at any office of the Co-Paying Agent or a Paying
Agent or other co-paying agent in the United States nor will any payment be
made by transfer to an account in, or by mail to an address in, the United
States.
Notwithstanding anything to the contrary in Section 5.02 of
the Annex or elsewhere in the Agreement or this Supplement, so long as any
Class B Certificates are represented by the Regulation S Global Certificate,
the Servicer shall notify (i) each Foreign Clearing Agency and (ii) if and so
long as such Class B Certificates are listed on the Luxembourg Stock Exchange
and the rules of the Luxembourg Stock Exchange so require, the Luxembourg Stock
Exchange of each determination of the Class B Certificate Rate, the Class B
Monthly Interest for the related Interest Period and the beginning and ending
dates of such Interest Period not later than two Business Days after such
determination is made.
Notwithstanding anything to the contrary in Section 5.02 of
the Annex or elsewhere in the Agreement or this Supplement, if and so long as
the Class B Certificates are listed on the Luxembourg Stock Exchange and the
rules of the Luxembourg Stock Exchange so require, the Servicer shall cause the
Class B Certificate Rate for each Interest Period, the Class B Monthly Interest
in respect of each U.S. $100,000 principal amount of Class B Certificates and
the beginning and ending dates and Payment Date for each Interest Period (and,
with respect to the Class B Expected Final Payment Date and any Special Payment
Date, the amount of principal to be distributed in respect of each U.S.
$100,000 principal amount of the Class A Certificates) to be published in a
daily newspaper of general circulation in Luxembourg (which is expected to be,
but need not be, the Luxembourg Wort), as soon as possible after the
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determination of the Class B Certificate Rate, but in no event later than the
day required pursuant to the rules of the Luxembourg Stock Exchange. If
applicable, the Class B Monthly Interest, Interest Period and Payment Date so
published may subsequently be changed (or appropriate alternative arrangements
be made by way of adjustment) without notice in the event of an extension or
shortening of such Interest Period.
Section 2.03. The Class B Certificates. (a) Form of Class B
Certificates. Notwithstanding anything to the contrary in Section 6.13 of the
Agreement, the Class B Certificates shall initially be represented by two or
more permanent global certificates in definitive, fully registered form,
without interest coupons, in respect of the entire aggregate principal amount
of the Class B Certificates.
(i) Regulation S Global Certificate. Class B Certificates
offered and sold in reliance on Regulation S shall be issued in the
form of one or more permanent global Class B Certificates in
definitive, fully registered form without interest coupons
(collectively, the "Regulation S Global Certificate"), substantially
in the form of Exhibit A-2 to this Supplement, duly executed by the
Seller and authenticated by the Trustee or the Authenticating Agent.
The Regulation S Global Certificate shall be registered in the name of
MGTB Nominees Limited ("MGTB") as nominee for, and shall be deposited
on or about the Closing Date with, the Common Depositary for credit on
the Closing Date to the accounts of the purchasers holding interests
therein through the Foreign Clearing Agencies.
(ii) Restricted Global Certificate. Class B Certificates
offered and sold in reliance on Rule 144A shall be issued in the form
of one or more permanent global Certificates in definitive, fully
registered form without interest coupons (collectively, the
"Restricted Global Certificate" and, together with the Regulation S
Global Certificate, the "Global Certificates"), substantially in the
form set forth in Exhibit A-3 to this Supplement, duly executed by the
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Seller and authenticated by the Trustee or the Authenticating Agent.
The Restricted Global Certificate will be registered in the name of
Cede as nominee for, and deposited on or about the Closing Date with
the FAST Custodian for, DTC for credit on the Closing Date to the
accounts of the purchasers holding interests therein through DTC.
(iii) Minimum Beneficial Interests. Beneficial interests in
Class B Certificates can be purchased and held only in a minimum
amount of $100,000 and in larger amounts that are integral multiples
of $1000.
(iv) Aggregate Class B Principal Amount. The sum of the
aggregate principal amounts of the Global Certificates shall never
exceed the Class B Initial Investor Amount. Any increase or decrease
in the principal amount of a Global Certificate in respect of any
exchange or transfer of a beneficial interest therein (other than any
issuance of definitive Class B Certificates in respect thereof) must
necessarily result in an opposite decrease or increase of equal amount
in the principal amount of the other Global Certificate in respect of
an exchange or transfer of a beneficial interest therein.
(b) Restrictions on Transfers and Exchanges.
(i) Global Certificates. Notwithstanding any provision to the
contrary herein, so long as a Global Certificate remains outstanding
and is (i) held by MGTB or otherwise held by or on behalf of the
Common Depositary or (ii) held by the FAST Custodian or otherwise held
by or on behalf of DTC or Cede or on behalf of DTC, transfers of a
Global Certificate or a beneficial interest therein, in whole or in
part, shall only be made in accordance with this Section 2.03(b)(i).
(A) Transfers of Global Certificates in Whole.
Subject to clauses (B) and (C) of this Section 2.03(b)(i), transfers
of the Regulation S Global Certificate shall be limited to transfers
of the
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Regulation S Global Certificate in whole, but not in part, to the
Common Depositary or to nominees of the Common Depositary or to a
successor of the Common Depositary or such successor's nominee and
transfers of the Restricted Global Certificate shall be limited to
transfers of the Restricted Global Certificate in whole, but not in
part, to DTC or to nominees of DTC or to a successor of DTC or such
successor's nominee.
(B) Transfer or Exchange from Restricted Global
Certificate to Regulation S Global Certificate. If a holder of a
beneficial interest in the Restricted Global Certificate wishes at any
time to exchange its interest in such Restricted Global Certificate
for an interest in the Regulation S Global Certificate, or to transfer
its interest in such Restricted Global Certificate to a person who
wishes to take delivery thereof in the form of an interest in the
Regulation S Global Certificate, such holder may, subject to the rules
and procedures of DTC, Euroclear and Cedel, exchange or cause the
exchange or transfer or cause the transfer of such interest for an
equivalent beneficial interest in the Regulation S Global Certificate
in accordance with this paragraph (B). Upon receipt by the
Co-Transfer Agent and Co-Registrar of (1) instructions given in
accordance with DTC's procedures from an agent member directing the
Co-Transfer Agent and Co-Registrar to credit or cause to be credited a
beneficial interest in the Regulation S Global Certificate in an
amount equal to the beneficial interest in the Restricted Global
Certificate to be exchanged or transferred, (2) a written order given
by the holder of such beneficial interest in accordance with DTC's
procedures containing information regarding the Euroclear or Cedel
account to be credited with such increase, and (3) a certificate in
the form of Exhibit A-4 attached hereto given by the holder of such
beneficial interest stating that the exchange or transfer of such
interest has been made in compliance with the transfer restrictions
applicable to the Class B Certificates represented by the Restricted
Global Certificate and that such transfer or exchange has been made
pursuant to and in accordance with
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Regulation S, the FAST Custodian shall instruct the Co-Transfer Agent
and Co-Registrar to reduce the Restricted Global Certificate by the
aggregate principal amount of the beneficial interest in the
Restricted Global Certificate to be so exchanged or transferred and to
increase the principal amount of the Regulation S Global Certificate
by the aggregate principal amount of the beneficial interest in the
Restricted Global Certificate to be so exchanged or transferred, and
to credit or cause to be credited to the account of the person
specified in such instructions a beneficial interest in the Regulation
S Global Certificate equal to the reduction in the principal amount of
the Restricted Global Certificate, and the Co-Transfer Agent and
Co-Registrar shall effect such increase and corresponding reduction.
(C) Transfer or Exchange from Regulation S Global
Certificate to Restricted Global Certificate. If a holder of a
beneficial interest in the Regulation S Global Certificate wishes at
any time to exchange its interest in such Regulation S Global
Certificate for an interest in the Restricted Global Certificate, or
to transfer its interest in such Regulation S Global Certificate to a
person who wishes to take delivery thereof in the form of an interest
in the Restricted Global Certificate, such holder may, subject to the
rules and procedures of DTC, Euroclear and Cedel, exchange or cause
the exchange or transfer or cause the transfer of such interest for an
equivalent beneficial interest in the Restricted Global Certificate in
accordance with this paragraph (C). Pursuant to the rules of the
Foreign Clearing Agencies, the participant of the relevant Foreign
Clearing Agency must send to such Foreign Clearing Agency delivery
free of payment instructions one business day prior to the settlement
date. Such Foreign Clearing Agency will transmit appropriate
instructions to the Common Depositary. The Common Depositary shall
transmit instructions to the FAST Custodian. Upon receipt by the
Co-Transfer Agent and Co-Registrar of (1) instructions from the FAST
Custodian directing the Co-Transfer Agent and Co-Registrar to credit
or cause to be
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credited a beneficial interest in the Restricted Global Certificate in
an amount equal to the beneficial interest in the Regulation S Global
Certificate to be exchanged or transferred and (2) if such transfer or
exchange is to occur on or before the 40th day following the later of
the commencement of any offering of the Class B Certificates pursuant
to Regulation S and the Closing Date, a certificate in the form of
Exhibit A-5 attached hereto given by the holder of such beneficial
interest stating that the exchange or transfer of such interest has
been made in compliance with Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
other jurisdiction, the FAST Custodian shall instruct the Co-Transfer
Agent and Co-Registrar to reduce the Regulation S Global Certificate
by the aggregate principal amount of the beneficial interest in the
Regulation S Global Certificate to be so exchanged or transferred and
to increase the principal amount of the Restricted Global Certificate
by the aggregate principal amount of the beneficial interest in the
Regulation S Global Certificate to be so exchanged or transferred, and
to credit or cause to be credited to the account of the person
specified in such instructions a beneficial interest in the Restricted
Global Certificate equal to the reduction in the principal amount of
the Regulation S Global Certificate, and the Co-Transfer Agent and
Co-Registrar shall effect such increase and corresponding reduction.
After such 40th day, the certification requirement in the form of
Exhibit A-5 will no longer apply to such transfers and exchanges, but
such transfers and exchanges will continue to be subject to the
transfer restrictions contained in the legend appearing on the
Regulation S Global Certificate, as set out in Exhibit A-3.
(D) Transfers or Exchanges of Definitive
Certificates. In the event that a Global Certificate is exchanged for
certificated Class B Certificates in definitive registered form
without interest coupons pursuant to Section 2.03(c), such definitive
Class B Certificates may be exchanged or transferred for one
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another only in accordance with such procedures as are substantially
consistent with the provisions of paragraphs (B) and (C) above
(including the certification requirements intended to ensure that such
exchanges or transfers comply with Rule 144A or Regulation S under the
Act, as the case may be) and as may be from time to time adopted or
required by the Seller, the Trustee and/or the Co-Transfer Agent and
Co-Registrar. Subject to the foregoing restrictions and the minimum
denominations specified in Section 2.03(a)(iii), the Holder of any
definitive Class B Certificate may transfer or exchange the same in
whole or in part by surrendering such definitive Class B Certificate
at the office of the Co-Transfer Agent and Co-Registrar (or at the
office of any other transfer agent that may be appointed by the Seller
in accordance with the Agreement and the Supplement) and complying
with the requirements for registration of transfer or exchange set
forth in Section 6.04 of the Agreement.
(c) Definitive Certificates.
(i) Conditions for Issuance. Notwithstanding anything to the
contrary in Section 6.12 if the Agreement, interests in the Regulation
S Global Certificate shall be transferred to the beneficial owners
thereof in the form of definitive Class B Certificates only if (A)
both of the Foreign Clearing Agencies is closed for business for a
continuous period of 14 days (other than by reason of legal holidays)
or announces an intention permanently to cease business or (B)
following a failure to pay principal when due on any Class B
Certificate, the Co-Transfer Agent and Co-Registrar or the Trustee has
received a notice from the Holder of the Regulation S Global
Certificate requesting exchange of the Regulation S Global Certificate
for definitive Class B Certificates. Notwithstanding anything to the
contrary in Section 6.12 if the Agreement, interests in the Restricted
Global Certificate shall be transferred to the beneficial owners
thereof in the form of definitive Class B Certificates only if (A) the
Seller advises the
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Trustee and the Co-Transfer Agent and Co-Registrar that the Clearing
Agency is no longer willing or able to discharge properly its
responsibilities under the Depositary Agreement with respect to the
Class B Certificates, (B) the Seller, at its option, advises the
Trustee that it elects to terminate the book-entry system with respect
to the Class B Certificates through the Clearing Agency or (C) after
the occurrence of a Servicer Default, Certificate Owners of Class B
Certificates held through the Clearing Agency evidencing not less than
50% of the aggregate unpaid principal amount of Class B Certificates
held through the Clearing Agency advise the Trustee and the Clearing
Agency through the Clearing Agency Participants that the continuation
of a book-entry system with respect to the Class B Certificates
through the Clearing Agency is no longer in the best interests of the
Certificate Owners with respect to such Class B Certificates.
(ii) Issuance. If interests in any Global Certificate are to
be transferred to the Certificate Owners thereof in the form of
definitive Class B Certificates, such Global Certificate shall be
surrendered by the Common Depositary or DTC, as applicable, and such
definitive Class B Certificates shall be issued pursuant to Section
6.12 of the Agreement. The definitive Class B Certificates
transferred shall be executed, authenticated and delivered only in the
denominations specified in Section 2.03(a)(iii) of this Term Sheet and
registered in such names as the Foreign Clearing Agencies or the
Clearing Agency, as applicable, shall direct in writing. In no event
will any Agent be liable for the costs and expenses of printing,
preparing or delivering any definitive Class B Certificate.
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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/ XXX X. XXXXXXXX
-------------------------
Name:
Title:
THE BANK OF NEW YORK,
Trustee
by /s/ XXXXXX X. XXXXX
-------------------------
Name:
Title:
