Exhibit 4.1
CAPITAL ONE MASTER TRUST
FIRST AMENDMENT TO AMENDED AND
RESTATED POOLING AND SERVICING AGREEMENT
FIRST AMENDMENT, dated as of
March 23, 2007 (this “ Amendment ”), to the
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT, dated as of
September 30, 1993, as amended and restated as of
August 1, 2002 and January 13, 2006 (as so amended and
restated, the “ Agreement ”), among Capital One
Bank, a Virginia banking corporation, as Servicer (the “
Servicer ”), Capital One Funding, LLC, a Virginia
limited liability company, as Transferor (the “
Transferor ”), and The Bank of New York, a New York
banking corporation, as the Trustee (the “ Trustee
”).
W I T N E S S E T H :
WHEREAS, the parties hereto agree to
and do hereby amend the Agreement as follows:
SECTION 1. Amendments . (a)
Section 1.01 of the Agreement is amended by deleting the
definitions of “Servicing Participant” and
“Subservicer” in their entirety and substituting the
following language in lieu thereof:
“ Servicing Participant
” shall mean any Person, other than the Trustee, that is a
“party participating in the servicing function” as
defined in Instruction 2 to Item 1122 of Regulation
AB.
“ Subservicer ”
shall mean any Person, other than the Servicer or the Trustee, that
is a “servicer” as defined in 1101(j) of Regulation
AB.
(b) Section 1.01 of the
Agreement is amended by adding the following new definitions in
correct alphabetical order:
“ Eligible to Purge
Account ” shall mean any Account that (i) has a
Receivables balance equal to $0.00, (ii) contains no Defaulted
Receivables, (iii) has been irrevocably closed in a manner
consistent with the Account Owner’s customary and usual
procedures for closing consumer revolving credit accounts, and
(iv) has remained inactive after being irrevocably closed for
the period then provided for in the Account Owner’s customary
and usual procedures for purging closed consumer revolving credit
accounts.
“ Eligible to Purge Removal
Date ” shall have the meaning specified in Subsection
2.09(d).
(c) Section 2.01 of the
Agreement is amended by deleting the third introductory paragraph
in its entirety and substituting the following language in lieu
thereof:
The Transferor further agrees, at
its own expense, (i) on or prior to (A) the Substitution
Date, in the case of the Initial Accounts, and (B) the
applicable Addition Date, in the case of the Additional Accounts
and the Participation Interests, to indicate in
its books and records (including the
appropriate computer files) that Receivables created in connection
with the Accounts (other than Removed Accounts and Eligible to
Purge Accounts that have been purged from the Transferor’s
books and records pursuant to Subsection 2.09(d)), the
Participation Interests and the related Trust Assets have been
conveyed to the Trustee pursuant to this Agreement and (ii) on
or prior to each such date referred to in clause (i), to deliver to
the Trustee an Account Schedule (provided that such Account
Schedule shall be provided in respect of Automatic Additional
Accounts on or prior to the Determination Date immediately
succeeding the related Monthly Period during which their respective
Addition Dates occur). Each Account Schedule, as supplemented from
time to time, shall be marked as Schedule 1 to this
Agreement and is hereby incorporated into and made a part of this
Agreement. Once the books and records (including the appropriate
computer files) referenced in clause (i) of this paragraph
have been indicated with respect to any Account or Participation
Interest, the Transferor further agrees not to alter such
indication during the remaining term of this Agreement, other than
pursuant to Section 2.09 with respect to Removed Accounts and
Eligible to Purge Accounts, unless and until the Transferor shall
have delivered to the Trustee at least thirty (30) days prior
written notice of its intention to do so and has taken such action
as is necessary or advisable to cause the interest of the Trustee
in the Trust Assets to continue to be perfected with the priority
required by this Agreement, and has delivered to the Trustee an
Opinion of Counsel to such effect.
(d) Section 2.09 of the
Agreement is amended by adding the following as subsection
2.09(d):
The Transferor may purge Eligible to
Purge Accounts from its books and records, including appropriate
computer files, without any prior notice to any Person. On or
before the tenth Business Day immediately following the date of any
such purge (each an “ Eligible to Purge Removal Date
”), the Transferor shall (i) remove the related Eligible
to Purge Accounts from Schedule 1 by delivering to the
Trustee a computer file or microfiche list containing a true and
complete list of all of those Eligible to Purge Accounts,
specifying for each such Eligible to Purge Account its account
number as of the related Eligible to Purge Removal Date and
(ii) deliver to the Trustee and any Series Enhancer entitled
thereto pursuant to the relevant Supplement an Officer’s
Certificate of the Transferor certifying that the computer file or
microfiche list delivered pursuant to clause (i) above, as of
the related Eligible to Purge Removal Date, is true and complete in
all material respects. Each Eligible to Purge Account will not be
an Account from and after the related Eligible to Purge Removal
Date.
(e) Article III of the Agreement is
amended by deleting Section 3.06 in its entirety and
substituting the following language in lieu thereof:
Section 3.06. [Reserved]
.
(f) Article XIV of the Agreement is
amended by deleting Section 14.01 in its entirety and
substituting the following language in lieu thereof:
Section 14.01. Intent of the
Parties; Reasonableness . The Transferor, the Servicer and the
Trustee acknowledge and agree that the purpose of this Article XIV
is to facilitate compliance by the Transferor with the provisions
of Regulation AB and related
2
rules and regulations of the
Commission. The Transferor shall not exercise its right to request
delivery of information or other performance under these provisions
other than in good faith, or for purposes other than the
Transferor’s compliance with the Securities Act, the Exchange
Act and the rules and regulations of the Commission thereunder (or
the provision in a private offering of disclosure comparable to
that required under the Securities
