Exhibit 10.4
ADMINISTRATION AGREEMENT
by and among
CAPITAL ONE AUTO FINANCE TRUST 2003-A
as Issuer
CAPITAL ONE AUTO FINANCE, INC.
as Administrator
and
JPMORGAN CHASE BANK
as Indenture Trustee
Dated as of June 3, 2003
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND USAGE.......................................... 2
SECTION 2. DUTIES OF THE ADMINISTRATOR.................................... 3
SECTION 3. RECORDS ....................................................... 11
SECTION 4. COMPENSATION................................................... 11
SECTION 5. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER........... 11
SECTION 6. INDEPENDENCE OF THE ADMINISTRATOR.............................. 11
SECTION 7. NO JOINT VENTURE............................................... 11
SECTION 8. OTHER ACTIVITIES OF ADMINISTRATOR.............................. 11
SECTION 9. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF
ADMINISTRATOR.................................................. 12
SECTION 10. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL................ 13
SECTION 11. NOTICES ....................................................... 13
SECTION 12. AMENDMENTS..................................................... 14
SECTION 13. SUCCESSORS AND ASSIGNS......................................... 15
SECTION 14. GOVERNING LAW.................................................. 15
SECTION 15. HEADINGS ...................................................... 15
SECTION 16. COUNTERPARTS................................................... 15
SECTION 17. SEVERABILITY................................................... 15
SECTION 18. NOT APPLICABLE TO CAPITAL ONE AUTO FINANCE, INC. IN
OTHER CAPACITIES................ .............................. 16
SECTION 19. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND
INDENTURE TRUSTEE.............. ............................... 16
SECTION 20. BENEFITS OF THE ADMINISTRATION AGREEMENT....................... 16
SECTION 21. NONPETITION COVENANTS.......................................... 16
SECTION 22. LIMITATION OF LIABILITY........................................ 17
-i-
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of June 3, 2003 (as from time to
time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among CAPITAL ONE AUTO FINANCE TRUST 2003-A, a Delaware
statutory trust (the "Issuer"), CAPITAL ONE AUTO FINANCE, INC., a Texas
corporation, as administrator (the "Administrator"), and JPMORGAN CHASE BANK, a
national banking association, not in its individual capacity but solely as
Indenture Trustee (the "Indenture Trustee").
WHEREAS, the Issuer is issuing the Notes pursuant to the Indenture and has
entered into certain agreements in connection therewith, including (i) the
Contribution Agreement, (ii) the Note Depository Agreement, (iii) the Indenture,
(iv) the Servicing Agreement, (v) the Insurance Agreement, (vi) the Trust
Agreement and (vii) the Interest Rate Swap Agreement (the Contribution
Agreement, the Note Depository Agreement, the Indenture, the Servicing
Agreement, the Insurance Agreement, the Administration Agreement, the Trust
Agreement and the Interest Rate Swap Agreement being referred to hereinafter
collectively as the "Related Agreements");
WHEREAS, the Issuer and Wilmington Trust Company, not in its individual
capacity, but as owner trustee of the Issuer (the "Owner Trustee") desire to
have the Administrator perform certain duties of the Issuer and the Owner
Trustee (in its capacity as Owner Trustee) under the Related Agreements and to
provide such additional services consistent with the terms of this Agreement and
the Related Agreements as the Issuer may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions and Usage.
(a) Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are
defined in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document delivered pursuant
hereto unless otherwise defined therein. For purposes of this Agreement and all
such certificates and other documents, unless the context otherwise requires:
(i) accounting terms not otherwise defined in this Agreement, and accounting
terms partly defined in this Agreement to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles; (ii) terms defined in Article 9 of the UCC as in effect in the State
of Delaware and not otherwise defined in this
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Agreement are used as defined in that Article; (iii) the words "hereof,"
"herein" and "hereunder" and words of similar import refer to this Agreement as
a whole and not to any particular provision of this Agreement; (iv) references
to any Article, Section, Schedule or Exhibit are references to Articles,
Sections, Schedules and Exhibits in or to this Agreement, and references to any
paragraph, subsection, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other subdivision of
such Section or definition; (v) the term "including" means "including without
limitation"; (vi) references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law or
regulation; (vii) references to any Person include that Person's successors and
assigns; and (viii) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
Section 2. Duties of the Administrator.
(a) Duties with Respect to the Indenture and the Note Depository
Agreement.
(i) The Administrator agrees to perform all of its duties as
Administrator and the duties of the Issuer and the Owner Trustee (in its
capacity as Owner Trustee) under the Note Depository Agreement. In addition, the
Administrator shall consult with the Issuer and the Owner Trustee regarding the
duties of the Issuer and the Owner Trustee under the Indenture and the Note
Depository Agreement.
(ii) The Administrator shall monitor the performance of the
Issuer and the Owner Trustee and shall advise the Issuer and the Owner Trustee
when action is necessary to comply with the Issuer and the Owner Trustee's
duties under the Indenture and the Note Depository Agreement.
(iii) The Administrator shall prepare for execution by the
Issuer, or shall cause the preparation by appropriate persons of, all such
documents, reports, filings, instruments, certificates and opinions that shall
be the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Indenture and the Note Depository Agreement.
(iv) In furtherance of the foregoing, the Administrator shall
take all appropriate action that is the duty of the Issuer or the Owner Trustee
to take pursuant to the Indenture including, without limitation, such of the
foregoing as are required with respect to the following matters under the
Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept
and to give the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note Register
(Section 2.07);
(B) the preparation of or obtaining of the documents
and instruments required for authentication of the Notes and delivery of
the same to the Indenture Trustee (Sections 2.02 and 2.05);
3 2003-A Administration Agreement
(C) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release of
property from the lien of the Indenture (Section 2.18);
(D) the preparation of Definitive Notes in accordance with
the instructions of the Clearing Agency (Section 2.13);
(E) the duty to cause newly appointed Note Paying
Agents, if any, to deliver to the Indenture Trustee the instrument
specified in the Indenture regarding funds held in trust (Section 3.03);
(F) the direction to the Indenture Trustee to deposit
monies with Note Paying Agents, if any, other than the Indenture Trustee
(Section 3.03);
(G) the obtaining and preservation of the Issuer's
qualification to do business with respect to the Trust Property in each
jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Indenture, the Notes, the
Trust Property and each other instrument or agreement included in the Trust
Estate (Section 3.12(a));
(H) the preparation of all supplements and amendments
to the Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the taking of
such other action as is necessary or advisable to protect the Trust Estate
(Section 3.05);
(I) the delivery of the Opinion of Counsel on the
Closing Date and the annual delivery of Opinions of Counsel as to the Trust
Estate, and the annual delivery of the Officer's Certificate and certain
other statements as to compliance with the Indenture (Sections 3.06 and
3.07);
(J) the identification to the Indenture Trustee in an
Officer's Certificate of any Person with whom the Issuer has contracted to
perform its duties under the Indenture (Section 3.01(b));
(K) the notification of the Indenture Trustee, the
Swap Counterparty (unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid in
full) and the Rating Agencies of an Event of Servicing Default under the
Servicing Agreement and, if such Event of Servicing Termination arises from
the failure of the Servicer to perform any of its duties under the
Servicing Agreement with respect to the Receivables, the taking of all
reasonable steps available to remedy such failure (Section 4.01(c));
(L) the preparation and obtaining of documents and
instruments required for the transfer by the Issuer of its properties or
assets (Section 3.10(b)(ii));
4 2003-A Administration Agreement
(M) the duty to cause the Servicer to comply with
Sections 2.09, 2.10, 2.11, 2.21 and 3.02 of the Servicing Agreement
(Section 3.01(f));
(N) the delivery of written notice to the Indenture
Trustee and the Rating Agencies of each Event of Default under the
Indenture and each Event of Servicing Default by the Servicer or the Seller
under the Servicing Agreement (Section 7.02);
(O) the monitoring of the Issuer's obligations as to
the satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinions of Counsel and the
Independent Certificate relating thereto (Section 3.01);
(P) the monitoring of the Issuer's obligations as to
the satisfaction, discharge and defeasance of the Notes and the preparation
of an Officer's Certificate and the obtaining of an opinion of a nationally
recognized firm of independent certified public accountants, a written
confirmation thereof and the Opinions of Counsel relating thereto (Section
3.01);
(Q) the preparation and delivery of an Officer's
Certificate to the Indenture Trustee after the occurrence of any event
which with the giving of notice and the lapse of time would become an Event
of Default under Section 9.01(b) of the Indenture, its status and what
action the Issuer is taking or proposes to take with respect thereto
(Section 9.01);
(R) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Trust Estate at one or
more public or private sales called and conducted in any manner permitted
by law if an Event of Default shall have occurred and be continuing
(Section 9.04);
(S) the preparation and delivery of notice to
Noteholders and the Swap Counterparty (unless the Interest Rate Swap
Agreement has been terminated and all amounts owed to the Swap Counterparty
have been paid in full) of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 7.10);
(T) the preparation of any written instruments
required to confirm more fully the authority of any co-trustee or separate
trustee and any written instruments necessary in connection with the
resignation or removal of any co-trustee or separate trustee (Sections 7.10
and 7.13);
(U) the furnishing of the Indenture Trustee with the
names and addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section 12.01);
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(V) the preparation and, after execution by the
Issuer, the filing with the Commission, any applicable state agencies and
the Indenture Trustee of documents required to be filed on a periodic basis
with, and summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the Noteholders (Section
12.03);
(W) the preparation and delivery of Issuer Orders,
Officer's Certificates and Opinions of Counsel and all other actions
necessary with respect to investment and reinvestment, to the extent
permitted, of funds in such accounts (Sections 5.01, 5.04, 5.05, 5.06, 5.08
and 5.10);
(X) the preparation of an Issuer Request and
Officer's Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the Trust Estate
(Section 5.14);
(Y) the preparation of Issuer Orders and the
obtaining of Opinions of Counsel with respect to the execution of
supplemental indentures and the mailing to the Noteholders of notices with
respect to such supplemental indentures (Sections 10.01, 10.02, 10.03 and
10.04);
(Z) the execution and delivery of new Notes conforming
to any supplemental indenture (Section 10.06);
(AA) directing the Issuer to redeem the Notes (Section 6.02);
(BB) the notification of Noteholders of redemption of the
Notes or duty to cause the Indenture Trustee to provide such notification
(Section 6.03);
(CC) the preparation and delivery of all Officer's
Certificates and the obtaining of Opinions of Counsel and Independent
Certificates with respect to any requests by the Issuer to the Indenture
Trustee to take any action under the Indenture (Section 14.01(a));
(DD) the preparation and delivery of Officer's
Certificates and the obtaining of Independent Certificates, if necessary,
for the release of property from the lien of the Indenture (Section
14.01(b));
(EE) the notification of the Rating Agencies, upon
the failure of the Indenture Trustee to give such notification, of the
information required pursuant to Section 14.04 of the Indenture (Section
14.04);
(FF) the recording of the Indenture, if applicable (Section
14.16);
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(GG) the duties of the Issuer under Section 8.01 of the
Indenture related to its obligations under the Interest Rate Swap
Agreement; and
(HH) all other duties of the Issuer and the Owner
Trustee under the Indenture.
(v) With respect to the payment of Fees and Indemnification by
the Administrator, the Administrator will:
(A) pay the Indenture Trustee from time to time
reasonable compensation for all services rendered by the Indenture Trustee
under the Indenture (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust) pursuant to the terms of the Indenture Trustee Fee Letter dated June
3, 2003;
(B) pay to each agent of the Indenture Trustee from
time to time reasonable compensation for its services as agreed upon
between such agent and the Administrator;
(C) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Indenture Trustee in accordance with any provision of the Indenture
(including the reasonable compensation, expenses and disbursements of such
agents and counsel as the Indenture Trustee may employee in connection with
the exercise and performance of its rights and its duties under the
Indenture), except any such expense, disbursement or advance as may be
attributable to its gross negligence;
(D) indemnify the Indenture Trustee (individually and
in its capacity as such) and its successors, assigns, directors, officers,
employees and agents against any and all loss, liability or expense
(including attorneys' fees and expenses) incurred by it in connection with
the acceptance or the administration of the trust created under the
Indenture and the performance of its duties thereunder; provided, however,
that the Administrator shall not be liable for or required to indemnify the
Indenture Trustee from and against any of the foregoing expenses arising or
resulting from the Indenture Trustee's own gross negligence or to the
extent arising from the breach by the Indenture Trustee of any of its
representations and warranties and covenants set forth in the Indenture;
(E) pay to the Owner Trustee from time to time
reasonable compensation for all services rendered by the Owner Trustee
under the Trust Agreement (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust) pursuant to the terms of the Owner Trustee Fee Letter dated June 3,
2003;
7 2003-A Administration Agreement
(F) except as otherwise expressly provided for in the
Trust Agreement, reimburse the Owner Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Owner Trustee in accordance with any provision of the Trust Agreement
(including the reasonable compensation, expenses and disbursements of such
agents and counsel as the Owner Trustee may employee in connection with the
exercise and performance of its rights and its duties under the Trust
Agreement), except any such expense that may be attributable to its willful
misconduct, negligence or bad faith; and
(G) indemnify the Owner Trustee (individually and in
its capacity as such) and its successors, assigns, directors, officers,
employees and agents from and against, any and all loss, liability,
expense, tax, penalty or claim (including reasonable legal fees and
expenses) of any kind and nature whatsoever which may at any time be
imposed on, incurred by, or asserted against the Owner Trustee or any
Indemnified Party in any way relating to or arising out of the Trust
Agreement, the Transaction Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or inaction of the
Owner Trustee under the Trust Agreement, provided, however, that the
Administrator shall not be liable for or required to indemnify the Owner
Trustee from and against any of the foregoing expenses arising or resulting
from any of the matters described in the third sentence of Section 7.1 of
the Trust Agreement.
Indemnification under this subsection shall survive the resignation
or removal of the Owner Trustee or the Indenture Trustee and the
termination of this Agreement or any other Transaction Document. If any
suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any
Person in respect of which indemnity may be sought pursuant to this
Section, such Person (the "Indemnified Person") shall promptly notify the
Administrator in writing, and the Administrator, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Administrator designates in such proceeding and shall pay the reasonable
fees and expenses of such counsel related to such proceeding. The
Administrator shall not be liable for any settlement of any claim or
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
Administrator agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. The
Administrator shall not, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been
a party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter
of such proceeding. If the Administrator shall have made any indemnity
payments pursuant to this subsection and the Person to or on behalf of whom
such payments are made thereafter shall collect any
8 2003-A Administration Agreement
of such amounts from others, such Person shall promptly repay such amounts
to the Administrator, without interest.
(b) Duties with Respect to the Interest Rate Swap Agreement. The
Administrator agrees, unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid in full,
to cause the Issuer to maintain in effect the Interest Rate Swap Agreement with
respect to the Class A-3-B Notes.
(c) Duties with Respect to the Insurance Agreement. The Administrator
agrees to cause the Issuer to maintain in effect the Insurance Agreement with
respect to the Class A Notes.
(d) Duties with Respect to the Servicing Agreement. The Administrator
agrees that it shall be responsible for performance of the duties and
obligations of the Issuer or the Owner Trustee set forth in the Servicing
Agreement including, without limitation, the duties and obligations set forth in
Sections 2.01(e), 2.05(b), 2.06(c), 2.08(a), 2.22(b), 3.03(a), 4.03, 5.02(d),
5.07, 6.02, 7.07 and 7.08 therein.
(e) Additional Duties. In addition to the duties of the Administrator
set forth above, the Administrator shall perform such calculations and shall
prepare or shall cause the preparation by other appropriate persons of, and
shall execute on behalf of the Issuer or the Owner Trustee, all such documents,
reports, filings, instruments, certificates and opinions that it shall be the
duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to
the Related Agreements and any filings required pursuant to the Xxxxxxxx-Xxxxx
Act, and the Administrator shall take all appropriate action that it is the duty
of the Issuer or the Owner Trustee to take pursuant to the Related Agreements
and shall monitor the performance of the Issuer or the Owner Trustee and shall
advise the Issuer or the Owner Trustee when action is necessary to comply with
the Issuer or the Owner Trustee duties under the Related Agreements. Subject to
Section 5 of this Agreement, and in accordance with the directions of the
Issuer, the Administrator shall administer, perform or supervise the performance
of such other activities in connection with the Collateral as are not covered by
any of the foregoing provisions and as are expressly requested by the Issuer and
are reasonably within the capability of the Administrator:
(i) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for promptly
notifying the Owner Trustee in the event that any withholding tax is imposed on
the Issuer's payments (or allocations of income) to a Residual Interestholder as
contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall
specify the amount of any withholding tax required to be withheld by the Owner
Trustee pursuant to such provision.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Issuer or the Owner Trustee set forth in
Sections 5.5(a), (b), (c), (d) and (e), 5.6(a) and 9.1 of the Trust Agreement
and Sections 2.01(d), 5.01(a), 7.02(a) and 7.10 of the Contribution Agreement.
9 2003-A Administration Agreement
(iii) The Administrator will provide prior to April 15, 2004,
a certificate of an Authorized Officer in form and substance satisfactory to the
Owner Trustee as to whether any tax withholding is then required and, if
required, the procedures to be followed with respect thereto to comply with the
requirements of the Code. The Administrator shall be required to update the
letter in each instance that any additional tax withholding is subsequently
required or any previously required tax withholding shall no longer be required.
(iv) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement required to be
performed in connection with the resignation or removal of the Owner Trustee,
and any other duties expressly required to be performed by the Administrator
pursuant to the Trust Agreement.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
or otherwise deal with any of its Affiliates; provided, however, that the terms
of any such transactions or dealings shall be in accordance with any directions
received from the Issuer and shall be, in the Administrator's opinion, no less
favorable to the Issuer than would be available from unaffiliated parties.
(e) Non-Ministerial Matters. With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the taking of
such action, the Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Receivables or Permitted Investments);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or Successor
Servicers, or the consent to the assignment by the Note Registrar, the
Paying Agent or the Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of the Indenture Trustee.
(f) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any payments to
the Noteholders under the
10 2003-A Administration Agreement
Related Agreements, (y) sell the Trust Estate pursuant to Section 9.04 of the
Indenture or (z) take any other action that the Issuer directs the Administrator
not to take on its behalf.
Section 3. Records. The Administrator shall maintain appropriate books
of account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Seller at any time during normal business hours.
Section 4. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and, as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $2,500 annually
which shall be solely an obligation of the Servicer.
Section 5. Additional Information To Be Furnished to the Issuer . The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
Section 6. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer, the Owner Trustee or the Indenture
Trustee with respect to the manner in which it accomplishes the performance of
its obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee (and, regardless of whether authorized by the Issuer, the
Administrator shall have no such authority at all with respect to the Indenture
Trustee) in any way and shall not otherwise be deemed an agent of the Issuer,
the Owner Trustee or the Indenture Trustee.
Section 7. No Joint Venture. Nothing contained in this Agreement shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, shall be construed to impose
any liability as such on any of them or shall be deemed to confer on any of them
any express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
Section 8. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Owner
Trustee or the Indenture Trustee.
Section 9. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution of the
Issuer, upon which event this Agreement shall automatically terminate.
11 2003-A Administration Agreement
(b) Subject to Sections 9(e) and 9(f), the Administrator may resign its
duties hereunder by providing the Issuer with at least sixty (60) days' prior
written notice.
(c) Subject to Sections 9(e) and 9(f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least sixty
(60) days' prior written notice.
(d) Subject to Sections 9(e) and 9(f), at the sole option of the
Issuer, the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following events
shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default, shall not
cure such default within ten (10) days (or, if such default cannot be cured in
such time, shall not give within ten (10) days such assurance of cure as shall
be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been vacated
within sixty (60) days, in respect of the Administrator in any involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of its
affairs; or
(iii) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, shall consent to the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official for the
Administrator or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 9(d) shall occur, it shall give written notice
thereof to the Issuer within seven (7) days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section 9 shall be effective until (1) a successor Administrator shall have been
appointed by the Issuer and (2) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be effective
only after approval by the Rating Agencies with respect to the proposed
appointment.
(g) Subject to Sections 9(e) and 9(f), the Administrator acknowledges
that upon the appointment of a successor Servicer pursuant to the Servicing
Agreement, the Administrator
12 2003-A Administration Agreement
shall immediately resign and such successor Servicer shall automatically become
the Administrator under this Agreement.
Section 10. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to Section
9(a) or the resignation or removal of the Administrator pursuant to Section 9(b)
or (c), respectively, the Administrator shall be entitled to be paid all fees
and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 9(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
9(b) or (c), respectively, the Administrator shall cooperate with the Issuer and
the Indenture Trustee and take all reasonable steps requested to assist the
Issuer in making an orderly transfer of the duties of the Administrator.
Section 11. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to the Trust, to:
Capital One Auto Finance Trust 2003-A
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxx XxxXxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Mayer, Brown, Xxxx & Maw
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Owner Trustee, to:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxx
13 2003-A Administration Agreement
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) if to the Administrator, to:
Capital One Auto Finance, Inc.
0000 Xxxxxxx Xxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Manager of Securitization
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Mayer, Brown, Xxxx & Maw
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(d) If to the Indenture Trustee, to:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Structured Finance Administration - Capital One
Auto Finance 2003-A
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
Section 12. Amendments. This Agreement may be amended from time to time
by a written amendment duly executed and delivered by the Issuer, the
Administrator and the Indenture Trustee, without the consent of the Noteholders
and the Residual Interestholders, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders or Residual
Interestholders; provided that, unless the Rating Agency Condition shall have
been satisfied, such amendment will not, materially and adversely affect the
interest of any Noteholder or Residual Interestholder. This Agreement may also
be amended by the Issuer, the Administrator and the Indenture Trustee for the
purpose of adding any provisions to or changing
14 2003-A Administration Agreement
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the Residual
Interestholders; provided, however, that no such amendment may increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to be
made for the benefit of the Noteholders or the Residual Interestholders without
the consent of the Noteholders of all the Notes Outstanding and the Residual
Interestholders of the Residual Interest evidencing all the Residual Interest
Balance. Notwithstanding the foregoing, the Administrator may not amend this
Agreement without the consent of the Seller, which permission shall not be
unreasonably withheld.
Section 13. Successors and Assigns. This Agreement may not be assigned
by the Administrator unless such assignment is previously consented to in
writing by the Issuer and the Indenture Trustee and subject to the satisfaction
of the Rating Agency Condition in respect thereof. An assignment with such
consent and satisfaction, if accepted by the assignee, shall bind the assignee
hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of the Issuer or the Indenture Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator; provided that such successor
organization executes and delivers to the Issuer and the Indenture Trustee an
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
Section 14. Governing Law. This agreement shall be construed in
accordance with the laws of the State of New York, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 15. Headings. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
Section 16. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall be an original, but all of
which together shall constitute but one and the same agreement.
Section 17. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 18. Not Applicable to Capital One Auto Finance, Inc. in Other
Capacities. Nothing in this Agreement shall affect any right or obligation
Capital One Auto Finance, Inc. may have in any other capacity.
15 2003-A Administration Agreement
Section 19. Limitation of Liability of Owner Trustee and Indenture
Trustee. (a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Wilmington Trust Company not in its
individual capacity but solely in the capacity as Owner Trustee of the Issuer
and in no event shall Wilmington Trust Company in its individual capacity or any
beneficial owner of the Owner Trustee have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder, as to all of which recourse shall be had solely to the assets
of the Issuer. For all purposes of this Agreement, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by JPMorgan Chase Bank not in its individual
capacity but solely as Indenture Trustee and in no event shall the Indenture
Trustee have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all purposes
of this Agreement, in the performance of any duties or obligations of the Issuer
hereunder, the Indenture Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Article VI of the Indenture.
Section 20. Benefits of the Administration Agreement. Nothing in this
Agreement, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Note Insurer, the Swap
Counterparty (unless the Interest Rate Swap Agreement has been terminated and
all amounts owed to the Swap Counterparty have been paid in full), any separate
trustee or co-trustee appointed under Section 7.13 of the Indenture and the
Noteholders, any benefit or any legal or equitable right, remedy or claim under
this Agreement.
Section 21. Nonpetition Covenants. (i) Notwithstanding any prior
termination of this Agreement, the Seller, the Administrator, the Owner Trustee
and the Indenture Trustee shall not, prior to the date which is one year and one
day after the termination of this Agreement with respect to the Issuer,
acquiesce, petition join in, encourage or otherwise invoke or cause the Issuer
to invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Issuer under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Issuer or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Issuer.
(ii) Notwithstanding any prior termination of this Agreement, the
parties hereto shall not, prior to the date which is one year and one day after
the termination of this Agreement with respect to the Seller, acquiesce,
petition join in, encourage or otherwise invoke or cause the Seller to invoke
the process of any court or government authority for the purpose of commencing
or sustaining a case against the Seller under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other
16 2003-A Administration Agreement
similar official of the Seller or any substantial part of their respective
property, or ordering the winding up or liquidation of the affairs of the
Seller.
Section 22. Limitation of Liability. It is expressly understood and
agreed by and between the parties hereto (i) that this Agreement is executed and
delivered by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee under the Amended and Restated Trust Agreement dated as of June
3, 2003 with Capital One Auto Receivables, LLC (the "Trust Agreement") in the
exercise of the power and authority conferred and vested in it as such Owner
Trustee, (ii) each of the representations, undertakings and agreements made
herein by the Issuer are not personal representations, undertakings and
agreements of Wilmington Trust Company, but are binding only the Issuer, (iii)
nothing contained herein shall be construed as creating any liability on
Wilmington Trust Company, individually or personally, to perform any covenant of
the Issuer either expressed or implied contained herein, all such liability, if
any, being expressly waived by the parties hereto and by any person claiming by,
through or under any such party, and (iv) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any
indebtedness or expense of the Issuer or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Agreement.
17 2003-A Administration Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CAPITAL ONE AUTO FINANCE
RECEIVABLES 2003-A
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
--------------------------------------
Xxxxxx X. XxxXxxxxx
Vice President
S-1 2003-A Administration Agreement
JPMORGAN CHASE BANK, not in its
individual capacity but
solely as Indenture Trustee
By: /s/ Xxxxxxxx X.X. Xxxxx
--------------------------------------
Xxxxxxxx X.X. Xxxxx
Vice President
S-2 2003-A Administration Agreement
CAPITAL ONE AUTO FINANCE, INC., as
Administrator
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Manager of Securitization
S-3 2003-A Administration Agreement
Acknowledged and Agreed
CAPITAL ONE AUTO FINANCE, INC., as
Servicer
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
Manager of Securitization
S-4 2003-A Administration Agreement
