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EXHIBIT 99.1
EXECUTION COPY
AMENDMENT NUMBER 3
TO THE
POOLING AND SERVICING AGREEMENT
THIS AMENDMENT NUMBER 3 TO THE POOLING AND SERVICING
AGREEMENT, dated as of October 15, 1997, (this "Amendment") is among CAPITAL
ONE BANK, a Virginia banking corporation, as Seller and Servicer, and THE BANK
OF NEW YORK, as Trustee (the "Trustee") under the Pooling and Servicing
Agreement dated as of September 30, 1993, between the Seller, the Servicer and
the Trustee (as amended, supplemented and in effect on the date hereof, the
"Pooling and Servicing Agreement").
RECITALS
WHEREAS, Capital One Bank wishes to amend certain provisions
of the Pooling and Servicing Agreement as provided herein in accordance with
Section 13.01(a) of the Pooling and Servicing Agreement;
NOW THEREFORE, in consideration of the premises and the
agreements contained herein, the parties hereto agree as follows:
SECTION . Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings specified in the Pooling and
Servicing Agreement.
SECTION . Amendment of Section 1.01.
(a) The definition of "Recoveries" in Section 1.01 of the
Pooling and Servicing Agreement shall be deleted in its entirety and replaced
with the following:
"Recoveries" shall mean all amounts, excluding
Insurance Proceeds, received by the Servicer with respect to
Receivables which have previously become Defaulted Receivables
(including any related Finance Charge Receivables), net of any
out-of-pocket costs and expenses of collection (including
attorneys fees and expenses) deducted therefrom, plus the net
proceeds of any sale or securitization of such Defaulted
Receivables (plus any related Finance Charge Receivables),
plus any residual payments from any such securitization, but
excluding any interest, principal and servicing fees or other
fees payable with respect to the securitization of such
Defaulted Receivables and the related Finance Charge
Receivables.
(b) Section 1.01 of the Pooling and Servicing Agreement shall
be amended by inserting the following new definition in its correct
alphabetical location:
"Required Principal Balance" shall mean, as of any
date of determination, (a) the sum of the "Initial Invested
Amount" (as defined in the relevant Supplement) of the
Investor Certificates of each Series outstanding on such date
plus, as of such date of determination, the aggregate amounts
of any increases in the Invested Amounts of each prefunded
Series outstanding (in each case, other than any Series or
portion thereof which is designated in the relevant Supplement
as then being an Excluded Series) minus (b) the principal
amount on deposit in the Excess Funding Account on such date;
provided, however, if at any time the only Series outstanding
are Excluded
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Series and a Pay Out Event has occurred with respect to one or
more of such Series, the Required Principal Balance shall mean
(a) the sum of the "Invested Amount" (as defined in the
relevant Supplement) of each such Excluded Series as of the
earliest date on which any such Pay Out Event is deemed to
have occurred, minus (b) the principal amount on deposit in
the Excess Funding Account.
SECTION . Amendment of Section 2.09. Section 2.09 of the
Pooling and Servicing Agreement shall be amended by adding a new paragraph to
the end of Section 2.09 to read as follows:
In addition to the foregoing, on the date when any
Receivable in an Account becomes a Defaulted Receivable
(including any related Finance Charge Receivables), the Trust
shall automatically and without further action or
consideration be deemed to transfer, set over and otherwise
convey to the Seller with respect to such Account, without
recourse, representation or warranty, all right, title and
interest of the Trust in and to the Defaulted Receivables
(including any related Finance Charge Receivables) in such
Account, all monies due or to become due with respect thereto,
all proceeds thereof and any Insurance Proceeds relating
thereto; provided, that Recoveries of such Account shall be
applied as provided herein. The Trustee shall execute and
deliver such instruments of transfer and assignment (including
any UCC termination statements), in each case without
recourse, as shall be reasonably requested by the Seller to
vest in the Seller or its designee all right, title and
interest that the Trust had in such Defaulted Receivables
(including any related Finance Charge Receivables).
SECTION . Amendment of Section 3.04. Section 3.04 of the
Pooling and Servicing Agreement shall be amended by adding a new subsection (f)
to the end of said Section 3.04 to read as follows:
(e) Certain Recoveries. On or prior to each
Determination Date, the Servicer shall deliver to the Trustee
a certificate of a Servicing Officer setting forth (or shall
set forth in the Monthly Servicer's Certificate) (a) the
amount of Recoveries equal to the net proceeds of any sale or
initial securitization (excluding any residual payments from
such securitization) of Defaulted Receivables (including the
related Finance Charge Receivables) to be included as
Collections of Finance Charge Receivables with respect to the
preceding Monthly Period, which shall be equal to the amount
of any such Recoveries received during the preceding three
Monthly Periods divided by three and (b) the portion of any
such Recoveries ("unamortized Recoveries") which have not been
treated as Collections of Finance Charge Receivables with
respect to the preceding Monthly Period.
SECTION . Amendment of Section 4.02. Section 4.02 of the
Pooling and Servicing Agreement shall be amended by deleting the penultimate
sentence of the last paragraph of said Section 4.02 and replacing it with the
following:
Funds on deposit in the Excess Funding Account will be
withdrawn and paid to the Seller on any Business Day to the
extent that the Seller's Participation Amount exceeds the
Required Seller's Interest and the aggregate amount of
Principal Receivables exceeds the Required Principal Balance
on such date; provided, however, that, if an Accumulation
Period, Controlled Amortization Period or Early Amortization
Period has commenced and is continuing with respect to one or
more outstanding Series, any funds on deposit in the Excess
Funding Account shall be treated as Shared Principal
Collections and shall be allocated and distributed in
accordance with Section 4.04 and the terms of the Supplements
for the Principal Sharing Series.
SECTION . Amendment of Section 4.03(a). Section 4.03(a) of
the Pooling and Servicing Agreement shall be amended by inserting at the end of
clause (i) of the last sentence of said Section 4.03(a) the following:
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plus (z) the aggregate amount of the portion of Collections
representing Recoveries which will not have been amortized in
accordance with Section 3.04(e) with respect to the end of
such Monthly Period and
SECTION . Amendment of Section 4.03(c). Section 4.03(c) of
the Pooling and Servicing Agreement shall be amended by deleting the first
paragraph of said Section 4.03(c) in its entirety and replacing it with the
following:
(c) On the earlier of (A) the second Business Day
after the Date of Processing and (B) the day on which the
Servicer actually deposits any Collections into the Collection
Account or, in the case of any Collections consisting of
Interchange, not later than 12:00 noon, Richmond, Virginia
time, on each Distribution Date, the Servicer will pay to the
Seller (i) the Seller's allocable portion of Collections of
Finance Charge Receivables and (ii) the Seller's allocable
portion of Collections of Principal Receivables; provided,
however, that in the case of Collections of Principal
Receivables allocated to the Seller's Interest, such amount
shall only be paid to the Seller if the Seller's Participation
Amount exceeds the Required Seller's Interest and the
aggregate amount of Principal Receivables exceeds the Required
Principal Balance, but otherwise such amounts shall be
deposited into the Excess Funding Account. Collections
consisting of annual membership fees or Recoveries resulting
from the sale or securitization of Defaulted Receivables
(including the related Finance Charge Receivables) which have
not yet been amortized in accordance with Section 3.04(d) or
(e), as the case may be, and which are therefore not treated
as Collections of Finance Charge Receivables or Principal
Receivables, shall not be paid to the Seller or allocated to
the Certificateholders' Interest.
SECTION . Amendment of Section 4.04. Section 4.04 of the
Pooling and Servicing Agreement shall be amended by deleting the two provisos
in said Section 4.04 in their entirety and replacing them with the following:
provided, however, that such amounts shall be paid to the
Seller only if the Seller's Participation Amount for such
Distribution Date exceeds the Required Seller's Interest and
the aggregate amount of Principal Receivables exceeds the
Required Principal Balance, but otherwise such amounts shall
be deposited into the Excess Funding Account.
SECTION . Effectiveness. The amendments provided for by this
Amendment shall become effective on the date (the "Effective Date") that each
of the following events occur:
(a) The Seller shall have delivered to the Trustee and each
provider of Series Enhancement an Officer's Certificate of the Seller stating
that the Seller reasonably believes that the execution and delivery of this
Amendment will not, based on the facts known to such officer at such time, have
a material adverse effect on the interests of the Certificateholders.
(b) The Seller shall have received from each Rating Agency
written confirmation that the execution and delivery of this Amendment will not
have a Ratings Effect and shall have delivered copies of each such confirmation
to the Servicer and the Trustee.
(c) The Servicer shall have delivered to the Trustee and any Series
Enhancer entitled thereto pursuant to the relevant Supplement an Opinion of
Counsel as to the matters specified in Exhibit H-1 to the Pooling and Servicing
Agreement with respect to this Amendment.
(d) Each of the parties hereto shall have received counterparts of
this Amendment, duly executed by each of the parties hereto.
(e) Each requirement of any Series Enhancement agreement
applicable to amendment of the Pooling and Servicing Agreement shall have been
satisfied.
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SECTION . Pooling and Servicing Agreement in Full Force and
Effect as Amended. Except as specifically amended hereby, all of the terms and
conditions of the Pooling and Servicing Agreement shall remain in full force
and effect. All references to the Pooling and Servicing Agreement in any other
document or instrument shall be deemed to mean such Pooling and Servicing
Agreement as amended by this Amendment. This Amendment shall not constitute a
novation of the Pooling and Servicing Agreement, but shall constitute an
amendment thereof. The parties hereto agree to be bound by the terms and
obligations of the Pooling and Servicing Agreement, as amended by this
Amendment, as though the terms and obligations of the Pooling and Servicing
Agreement were set forth herein.
SECTION . Counterparts. This Amendment may be executed in
any number of counterparts and by separate parties hereto on separate
counterparts, each of which when executed shall be deemed an original, but all
such counterparts taken together shall constitute one and the same instrument.
SECTION . Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to the Pooling and Servicing Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
CAPITAL ONE BANK,
Seller and Servicer
By:
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Name:
Title:
THE BANK OF NEW YORK,
Trustee
By:
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Name:
Title:
[Signature Page to Amendment Number 3 to the Pooling and Servicing Agreement]
