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EXHIBIT 4.7
EXECUTION COPY
AMENDMENT NUMBER 5
TO THE
POOLING AND SERVICING AGREEMENT
THIS AMENDMENT NUMBER 5 TO THE POOLING AND SERVICING AGREEMENT, dated
as of January 25, 2000 (this "Amendment"), is between CAPITAL ONE BANK, a
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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
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September 30, 1993, between the Seller, the Servicer and the Trustee (as
amended, supplemented and in effect on the date hereof, the "Pooling and
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Servicing Agreement").
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RECITALS
WHEREAS, Capital One Bank wishes to amend certain provisions of the
Pooling and Servicing Agreement as provided herein in accordance with Section
13.01(a) of the Pooling and Servicing Agreement.
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used herein and not
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otherwise defined herein shall have the meanings specified in the Pooling and
Servicing Agreement.
SECTION 2. Amendment of Section 1.01.
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(a) The definition of "Required Seller's Percentage" in Section 1.01
of the Pooling and Servicing Agreement shall be deleted in its entirety and
replaced with the following:
"Required Seller's Percentage" shall mean 5%; provided, however, that
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the Seller may reduce the Required Seller's Percentage upon (w) 30
days prior notice to the Trustee, each Rating Agency and any Series
Enhancer entitled to receive such notice pursuant to the relevant
Supplement, (x) receipt of written notice by the Seller from each
Rating Agency that such reduction will not have a Ratings Effect, (y)
delivery by the Seller of copies of each such written notice to the
Servicer and the Trustee and (z) delivery to the Trustee and each such
Series Enhancer of an Officer's Certificate of the Seller stating that
the Seller reasonably believes that such reduction will not, based on
the facts known to such officer at the time of such certification,
then cause a Pay Out Event or any event that, after
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the giving of notice or the lapse of time, would constitute a Pay Out
Event to occur with respect to any Series; provided further that the
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Required Seller's Percentage shall not at any time be less than the
Specified Percentage.
(b) The definition of "Specified Percentage" in Section 1.01 of the
Pooling and Servicing Agreement shall be deleted in its entirety and replaced
with the following:
"Specified Percentage" shall mean 2%.
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(c) Each of the definitions of "Deposit Account," "Deposit Document,"
"Depository," "Funds," "Funds Collateral," "Secured Account," "Security
Agreement" and "Supplemental Deposit Agreement" shall be added, in their
appropriate alphabetical order, to Section 1.01 of the Pooling and Servicing
Agreement and they shall read as follows:
"Deposit Account" shall mean the deposit account or accounts at the
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Depository into which Funds are deposited by or on behalf of an
Obligor pursuant to the Deposit Documents, together with all money,
instruments, investment property, documents, certificates of deposit,
general intangibles and other properties on deposit therein or
credited to such account, and all interest, dividends, earnings,
income and other distributions from time to time received, receivable
or otherwise distributed to or in respect thereto.
"Deposit Documents" shall mean the Security Agreement, the
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Supplemental Deposit Agreement and other documents, books, credit
files, records and other information (including, without limitation,
computer programs, tapes, discs, punch cards, data processing software
and related property and rights) maintained with respect to the
Deposit Account and the Funds.
"Depository" shall mean Capital One, F.S.B. and/or any such other
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depositary institution selected by the Seller (which may be the
Seller) organized under the laws of the United States or any one of
the states thereof, including the District of Columbia (or any
domestic branch of a foreign bank), which at all times is a member of
the FDIC.
"Funds" shall mean the money, instruments and other properties
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provided by an Obligor from time to time under the Security Agreement.
"Funds Collateral" shall mean (a) the Deposit Account and the Funds,
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(b) each Deposit Document, including, without limitation, all monies
due and to become due to the Seller under or in connection with such
related Deposit Document, and all rights, remedies, powers,
privileges, benefits and claims of the Seller under or with respect to
such related Deposit Document (whether arising pursuant to the terms
of such related Deposit Document or otherwise available at law or in
equity); (c) all guarantees, indemnities, warranties, insurance
policies and proceeds and premium refunds and other arrangements of
whatever character
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from time to time under or with respect to the Funds, the Secured
Account, the Deposit Account or the Deposit Documents; (d) all other
security interests or liens from time to time purporting to secure an
Obligor's obligations under or with respect to the Secured Account;
and (e) all substitutions for and proceeds of any of the foregoing.
"Secured Account" shall mean an Account owned by the Seller under
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which the payment obligations of the Obligor are secured by the Funds
Collateral.
"Security Agreement" shall mean each security agreement between the
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Seller and an Obligor of a Secured Account pursuant to which such
Obligor pledges the Funds, the Deposit Account and any other Funds
Collateral to secure its obligations to the Seller under its Secured
Account, as amended, supplemented or otherwise modified from time to
time.
"Supplemental Deposit Agreement" shall mean an agreement with respect
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to the Deposit Account at the Depository, substantially in the form of
Exhibit A to any Assignment, or such other form as may be acceptable
to the Seller, as amended, supplemented or otherwise modified from
time to time.
SECTION 3. Amendment of Section 2.01. Section 2.01 of the Pooling
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and Servicing Agreement shall be deleted in its entirety and replaced with the
following:
Section 2.01. Transfer of Receivables. By execution of this
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Agreement, the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Trustee, on behalf of the Trust, for the
benefit of the Certificateholders, all of its right, title and
interest in, to and under the Receivables existing at the close of
business on the Trust Cut-Off Date, in the case of Receivables arising
in the Initial Accounts, and on each Additional Cut-Off Date, in the
case of Receivables arising in the Additional Accounts, and in each
case thereafter created from time to time until the termination of the
Trust, the Funds Collateral relating to any Account, all moneys due or
to become due and all amounts received or receivable with respect
thereto and all proceeds (including "proceeds" as defined in the UCC
and including Insurance Proceeds and Recoveries) thereof, and all its
right, title and interest in, to and under the Interchange payable
pursuant to Section 2.07(i). Such property, together with all moneys
and other property on deposit in the Collection Account, the Excess
Funding Account, the Series Accounts and any Series Enhancement shall
constitute the assets of the Trust (the "Trust Assets"). The
foregoing does not constitute and is not intended to result in the
creation or assumption by the Trust, the Trustee, any Investor
Certificateholder or any Series Enhancer of any obligation of the
Seller, the Servicer or any other Person in connection with the
Accounts, the Receivables or the Funds Collateral or under any
agreement or instrument relating thereto, including any obligation to
Obligors, merchant banks, merchants' clearance systems, VISA,
MasterCard or insurers.
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The Seller agrees to record and file, at its own expense,
financing statements (and continuation statements when applicable)
with respect to the Receivables and the Funds Collateral now existing
and hereafter created in the Accounts meeting the requirements of
applicable state law in such manner and in such jurisdictions as are
necessary to perfect, and maintain the perfection of, the sale and
assignment of such Receivables and Funds Collateral to the Trust, and
to deliver a file stamped copy of each such financing statement or
other evidence of such filing (which may, for purposes of this Section
2.01, consist of telephone confirmation of such filing) to the Trustee
on or prior to the first Closing Date, in the case of such Receivables
arising in the Initial Accounts, and (if any additional filing is so
necessary) the applicable Addition Date, in the case of such
Receivables and Funds Collateral arising in Additional Accounts. The
Trustee shall be under no obligation whatsoever to file such financing
or continuation statements or to make any other filing under the UCC
in connection with such sale and assignment.
The Seller further agrees, at its own expense, (a) on or prior to
(x) the first Closing Date, in the case of the Initial Accounts, (y)
the applicable Addition Date, in the case of Additional Accounts, and
(z) the applicable Removal Date, in the case of Removed Accounts, to
indicate clearly and unambiguously in its computer files and to cause
the Depository to indicate in its files that Receivables created in
connection with, and all Funds Collateral relating to, the Accounts
(other than Removed Accounts) have been conveyed to the Trust pursuant
to this Agreement for the benefit of the Certificateholders and (b) on
or prior to the applicable Document Delivery Date, to deliver to the
Trustee a computer file on media and in a file format reasonably
acceptable to the Trustee or microfiche list containing a true and
complete list of all such Accounts specifying for each such Account,
as of the Trust Cut-Off Date, in the case of the Initial Accounts, the
applicable Additional Cut-Off Date, in the case of Additional
Accounts, and the applicable Removal Date, in the case of Removed
Accounts, its account number, the collection status, the aggregate
amount outstanding in such Account, the aggregate amount of Principal
Receivables outstanding in such Account and any amount on deposit in
or credited to any Deposit Account. Such file or list, as supplemented
from time to time to reflect Additional Accounts and Removed Accounts,
shall be marked as Schedule 1 to this Agreement and is hereby
incorporated into and made a part of this Agreement.
The Seller hereby grants to the Trustee, on behalf of the Trust
and for the benefit of the Certificateholders, a security interest in
all of its right, title and interest, whether now owned or hereafter
acquired, in, to and under all of the Trust Assets, and this Agreement
constitutes a security agreement under the UCC.
SECTION 4 Amendment of Section 2.08.
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(a) Section 2.08(c)(ii) of the Pooling and Servicing Agreement shall
be deleted in its entirety and replaced with the following:
(ii) The Seller shall not be permitted to designate Automatic
Additional Accounts pursuant to clause (i) above with respect to any
of the three consecutive Monthly Periods commencing in January, April,
July and October of each calendar year unless on or before the first
Business Day of such three consecutive Monthly Periods, the Seller
shall have requested each Rating Agency to notify, and each Rating
Agency shall have notified, the Seller, the Servicer and the Trustee
of the limitations (other than the limitations described in this
Agreement), if any, to the right of the Seller to designate Automatic
Additional Accounts during such three consecutive Monthly Periods;
provided further that on or before twenty (20) days following the last
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Business Day of such three consecutive Monthly Periods, the Seller
shall have received written confirmation from each Rating Agency that
each such designation of Automatic Additional Accounts will not have a
Ratings Effect and shall have delivered copies of each such
confirmation to the Servicer and the Trustee. Unless Standard &
Poor's otherwise consents, the number of Automatic Additional Accounts
plus the number of Accounts added pursuant to Section 2.08(a), without
the prior notice of Standard & Poor's as described under Section
2.08(d)(v), shall not at any time exceed the Aggregate Addition Limit;
provided further, however, if the Aggregate Addition Limit is exceeded
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for purposes of Section 2.08(a), the Seller shall have delivered
written notice to Moody's of any such Addition. Unless Moody's
otherwise consents, the number of Automatic Additional Accounts added
pursuant to Section 2.08(c), without prior notice of Moody's as
described under Section 2.08(d)(v), shall not at any time exceed the
Aggregate Addition Limit.
(b) Section 2.08(d)(v) of the Pooling and Servicing Agreement shall
be deleted in its entirety and replaced with the following:
(v)(A) except in the case of an Addition pursuant to Section 2.08(a),
the Seller shall have received written notice from each Rating Agency
that such Addition will not have a Ratings Effect and shall have
delivered copies of each such written notice to the Servicer and the
Trustee, and (B) in the case of an Addition pursuant to Section
2.08(a) during any of the three consecutive Monthly Periods commencing
in January, April, July and October of each calendar year, if
applicable, the Seller shall have received, to the extent not
previously received, not later than twenty (20) days following the
last Business Day of the relevant three consecutive Monthly Periods,
written notice from each Rating Agency that such Addition will not
have a Ratings Effect and shall have delivered copies of each such
written notice to the Servicer and the Trustee; provided, however,
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that in the case of an Addition pursuant to Section 2.08(a) which
would exceed the Aggregate Addition Limit, the Seller shall have
provided each Rating Agency with at least fifteen (15) days prior
written notice of such Addition and at or prior to the end of such 15-
day period, each Rating Agency shall have notified the
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Seller in writing that such Addition will not have a Ratings Effect,
and the Seller shall have delivered copies of such written notice to
the Servicer and the Trustee;
(c) Section 2.08(d)(viii) of the Pooling and Servicing Agreement
shall be deleted in its entirety and replaced with the following:
(viii) the Seller shall have delivered to the Trustee and any Series
Enhancer entitled thereto pursuant to the relevant Supplement an
Officer's Certificate of the Seller, dated the Addition Date, to the
effect that (A) the Seller reasonably believes that such Addition will
not, based on the facts known to such officer at the time of such
certification, then cause a Pay Out Event or any event that, after the
giving of notice or the lapse of time, would constitute a Pay Out
Event to occur with respect to any Series and (B) in the case of
Additional Accounts, no selection procedure was utilized by the Seller
that would result in a selection of Additional Accounts (from the
available Eligible Accounts owned by the Seller) that would be
materially adverse to the interests of the Certificateholders of any
Series as of the date of the Addition.
(d) Section 2.08(d)(ix) of the Pooling and Servicing Agreement shall
be amended by deleting the period at the end of such Section and inserting the
following in its place:
and, for any Funds Collateral relating to such Account, the account
number for, and the amount of Funds on deposit in, the applicable
Deposit Account.
(e) Section 2.08(f) of the Pooling and Servicing Agreement shall be
amended by deleting the last sentence in said Section 2.08(f) and replacing it
with the following:
Prior to any such designation of an Additional Seller and, if
applicable, exchange of certificates, the conditions set forth in
Section 6.03(c) shall have been satisfied.
SECTION 5. Amendment of Section 4.02.
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(a) Section 4.02 of the Pooling and Servicing Agreement shall be
amended by deleting the third sentence in the third paragraph of said Section
4.02 and replacing it with the following:
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
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intermediary shall not agree with any person other than the Trustee to
comply with entitlement orders originated by such other person, (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. 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.
(b) Section 4.02 of the Pooling and Servicing Agreement shall be
amended by inserting the following proviso after the proviso in the third
paragraph:
; provided further, however, that the primary purpose of such sale,
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liquidation or disposition is not recognizing gains or decreasing
losses resulting from market value changes.
(c) Section 4.02 of the Pooling and Servicing Agreement shall be
amended by deleting the fourth sentence in the fifth paragraph of said Section
4.02 and replacing it with the following:
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 other than the Trustee to comply with
entitlement orders originated by such other person, (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. 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.
(d) Section 4.02 of the Pooling and Servicing Agreement shall be
amended by inserting the following proviso after the first proviso in the fifth
paragraph:
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; provided further, however, that the primary purpose of such sale,
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liquidation or disposition is not recognizing gains or decreasing
losses resulting from market value changes.
SECTION 6. Effectiveness. The amendments provided for by this
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Amendment shall become effective on the date that each of the following events
occur:
(a) The Seller shall have delivered to 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 any such provider of Series Enhancement.
(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 an amendment of the Pooling and Servicing Agreement shall have been
satisfied.
SECTION 7. Pooling and Servicing Agreement in Full Force and Effect
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as Amended. Except as specifically amended hereby, all of the terms and
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conditions of the Pooling and Servicing Agreement shall remain in full force and
effect. All references to the Pooling and Servicing Agreement in any other
document or instrument shall be deemed to mean such Pooling and Servicing
Agreement as amended by this Amendment. This Amendment shall not constitute a
novation of the Pooling and Servicing Agreement, but shall constitute an
amendment thereof. The parties hereto agree to be bound by the terms and
obligations of the Pooling and Servicing Agreement, as amended by this
Amendment, as though the terms and obligations of the Pooling and Servicing
Agreement were set forth herein.
SECTION 8. Counterparts. This Amendment may be executed in any
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number of counterparts and by separate parties hereto on separate counterparts,
each of which when executed shall be deemed an original, but all such
counterparts taken together shall constitute one and the same instrument.
SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAW
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PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Pooling and Servicing Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
CAPITAL ONE BANK,
Seller and Servicer
By: /s/ Charles Y. Kim
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Name: Charles Y. Kim
Title: Director of Securitization
THE BANK OF NEW YORK,
Trustee
By: /s/ Eva Aryeetey
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Name: Eva Aryeetey
Title: Assistant Treasurer
[Signature Page to Amendment Number 5 to the Pooling and Servicing Agreement]
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