Exhibit 10.3
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SERVICING AGREEMENT
by and among
CAPITAL ONE AUTO FINANCE TRUST 2003-A,
JPMORGAN CHASE BANK,
as Indenture Trustee,
and
CAPITAL ONE AUTO FINANCE, INC.,
as Servicer
Dated as of
June 3, 2003
CAPITAL ONE AUTO FINANCE TRUST 2003-A
ASSET BACKED NOTES, SERIES 2003-A
CLASS A NOTES AND CLASS B NOTES
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2003-A Servicing Agreement
ARTICLE I DEFINITIONS................................................. 2
Section 1.01 Defined Terms......................................... 2
ARTICLE II ADMINISTRATION AND SERVICING OF RECEIVABLES................. 2
Section 2.01 Appointment and Duties of the Servicer................ 2
Section 2.02 Collection of Receivable Payments; Defaulted
Receivables; Reporting Obligations.................... 4
Section 2.03 Realization Upon Receivables.......................... 5
Section 2.04 Physical Damage Insurance............................. 6
Section 2.05 Maintenance of Security Interests in Financed
Vehicles and Receivables.............................. 6
Section 2.06 Covenants of the Servicer; Notices.................... 7
Section 2.07 Notice of Repurchase Events........................... 8
Section 2.08 Servicing Fee......................................... 8
Section 2.09 Annual Statement as to Compliance..................... 9
Section 2.10 Monthly Servicer's Reports............................ 9
Section 2.11 Annual Servicing Review............................... 9
Section 2.12 Costs and Expenses.................................... 10
Section 2.13 Responsibility for Insurance Policies; Processing
of Claims Under Insurance Policies; Daily Records
and Reports........................................... 11
Section 2.14 Delivery of Documents to the Custodian................ 12
Section 2.15 Conveyance of Copies of Documents to the Servicer;
Indication of Issuer Ownership........................ 12
Section 2.16 Possession of Servicer Files.......................... 13
Section 2.17 Processing of Information............................. 13
Section 2.18 Representations and Warranties With Respect to
Compliance with Law and Enforcement................... 14
Section 2.19 Standard of Care...................................... 14
Section 2.20 Records............................................... 14
Section 2.21 Inspection............................................ 14
Section 2.22 Enforcement........................................... 15
Section 2.23 Payment in Full on Receivable......................... 16
Section 2.24 Release of Receivable................................. 16
Section 2.25 [Reserved]............................................ 16
Section 2.26 Responsibilities of the Servicer...................... 16
Section 2.27 Re-Xxxxxxx............................................ 16
ARTICLE III ACCOUNTS; COLLECTIONS; STATEMENT TO RESIDUAL
INTERESTHOLDER AND NOTEHOLDERS.............................. 17
Section 3.01 Accounts.............................................. 17
Section 3.02 Collections........................................... 17
Section 3.03 Collection Account and Acknowledgment Letter.......... 18
Section 3.04 Statements to Residual Interestholder and Noteholders. 18
Section 3.05 Trustee Internet Website.............................. 19
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............................. 20
Section 4.01 Representations and Warranties of the Servicer........ 20
Section 4.02 Representations and Warranties of the Issuer.......... 21
Section 4.03 Survival of Representations and Warranties............ 22
Section 4.04 Merger or Consolidation of, or Assumption of the
Obligations of, or Resignation of the Servicer........ 23
ARTICLE V DEFAULT, REMEDIES AND INDEMNITY............................. 23
Section 5.01 Events of Servicing Default........................... 23
Section 5.02 Remedies.............................................. 24
Section 5.03 Indemnity by the Servicer............................. 27
Section 5.04 Notification to Noteholders........................... 27
Section 5.05 Waiver of Events of Servicing Default................. 28
Section 5.06 Survival.............................................. 28
Section 5.07 Servicer Not to Resign................................ 28
ARTICLE VI TERMINATION OF AGREEMENT.................................... 28
Section 6.01 Term.................................................. 28
Section 6.02 Effect of Termination................................. 28
Section 6.03 Transfer of Servicing................................. 29
ARTICLE VII MISCELLANEOUS PROVISIONS.................................... 29
Section 7.01 Amendment............................................. 29
Section 7.02 Waivers............................................... 29
Section 7.03 Notices............................................... 29
Section 7.04 Severability of Provisions............................ 29
Section 7.05 Rights Cumulative..................................... 30
Section 7.06 No Offset............................................. 30
Section 7.07 Inspection and Audit Rights........................... 30
Section 7.08 Powers of Attorney.................................... 30
Section 7.09 Assignment and Binding Effect......................... 30
Section 7.10 Captions.............................................. 31
Section 7.11 Legal Holidays........................................ 31
Section 7.12 Counterparts.......................................... 31
Section 7.13 Governing Law......................................... 31
Section 7.14 Parties............................................... 31
Section 7.15 Relationship of the Parties........................... 31
Section 7.16 No Bankruptcy Petition Against the Issuer or
the Seller............................................ 31
Section 7.17 Third Party Beneficiaries............................. 31
Section 7.18 Other Agreements...................................... 32
Section 7.19 Procedure for Indemnification......................... 32
Section 7.20 Reports to Holders.................................... 32
Section 7.21 Purchase and Subsequent Pledge........................ 32
Section 7.22 Limitation on Liability............................... 33
Section 7.23 Limitation of Liability............................... 33
EXHIBIT A FORM OF MONTHLY SERVICER'S REPORT
EXHIBIT B FORMS OF LATE NOTICES SENT TO OBLIGORS RE: DELINQUENCIES
EXHIBIT C REQUEST FOR RELEASE OF CUSTODIAN FILE
EXHIBIT D [RESERVED].
EXHIBIT E COAF'S COLLECTION POLICY
EXHIBIT F FORM OF INVESTOR CERTIFICATION
SERVICING AGREEMENT
This Servicing Agreement ("Servicing Agreement") is made as of June 3,
2003, by and among Capital One Auto Finance Trust 2003-A, a Delaware statutory
trust (the "Issuer"), JPMorgan Chase Bank, as indenture trustee (the "Indenture
Trustee") and Capital One Auto Finance, Inc., a Texas corporation, as servicer
("COAF" or the "Servicer"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed thereto in that certain Indenture dated
as of even date herewith (the "Indenture") by and between the Issuer and the
Indenture Trustee.
PRELIMINARY STATEMENT
WHEREAS, the Indenture provides for the issuance by the Issuer of the
Issuer's Asset Backed Notes, Series 2003-A, designated Class A Notes (the "Class
A Notes") and Class B Notes (the "Class B Notes" and, together with the Class A
Notes, the "Notes"); and
WHEREAS, the Note Insurer will issue a note guaranty insurance policy dated
as of the Closing Date guaranteeing the payment of regularly scheduled interest
and certain amounts with respect to principal due on the Class A Notes on each
Payment Date; and
WHEREAS, Capital One Auto Finance, Inc., a Texas corporation (the
"Transferor"), has acquired and will acquire certain Receivables secured by
Financed Vehicles; and
WHEREAS, pursuant to that certain Transfer and Assignment Agreement, dated
as of June 3, 2003 (the "Transfer and Assignment Agreement") between the
Transferor and Capital One Auto Receivables, LLC, a Delaware limited liability
company (the "Seller"), the Transferor will transfer and absolutely assign the
Receivables identified in the Schedule of Receivables delivered to the Seller as
of June 3, 2003 (the "Closing Date"); and
WHEREAS, pursuant to the Transfer and Assignment Agreement, the Transferor
will absolutely assign the Subsequent Receivables identified on a schedule
substantially in the form of Schedule I to the Assignment attached as Exhibit A
thereto to the Seller on the Funding Dates; and
WHEREAS, pursuant to the Contribution Agreement, the Seller will contribute
and absolutely assign the Initial Receivables and the Subsequent Receivables to
the Issuer on the Closing Date and on the Funding Dates, respectively; and
WHEREAS, pursuant to the terms of the Indenture, on the Closing Date, the
Issuer will Grant, inter alia, the Receivables and a first priority security
interest in the Financed Vehicles and the Interest Rate Swap Agreement to the
Indenture Trustee for the benefit of the Noteholders, the Swap Counterparty and
the Note Insurer; and
WHEREAS, pursuant to the terms of the Indenture, the Issuer shall enter
into an Initial Interest Rate Swap Agreement (the "Initial Interest Rate Swap
Agreement") with Xxxxxx Brothers Special Financing Inc. (the "Swap
Counterparty"); and
2003-A Servicing Agreement
WHEREAS, pursuant to the terms of the Indenture, the Transferor is
obligated to deliver or cause to be delivered to the Custodian, the documents to
be included in the Custodian File, which are to be held by the Custodian
pursuant to the terms of the Indenture; and
WHEREAS, the Issuer, the Indenture Trustee, and the Servicer wish to enter
into this Servicing Agreement pursuant to which the Servicer will perform the
duties as described herein, including, making collections on all of the
Receivables assigned to the Seller pursuant to the terms of the Transfer and
Assignment Agreement and contributed and assigned to the Issuer pursuant to the
terms of the Contribution Agreement and Granted to the Indenture Trustee
pursuant to the terms of the Indenture, realizing upon such Receivables, and
administering claims made under the Insurance Policies; and
WHEREAS, the Servicer desires to provide such services to the Issuer.
NOW THEREFORE, in consideration of the covenants and conditions contained
in this Servicing Agreement, the parties, intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Capitalized and defined terms used but not
defined in this Servicing Agreement shall have the respective meanings assigned
to them in the Indenture, unless the context otherwise requires, and the
definitions of such terms are equally applicable both to the singular and plural
forms of such terms and to the masculine, feminine and neuter genders of such
terms.
"Extension" shall have the meaning set forth in Section 2.02(a) hereof.
"Insurance Policies" means (i) any theft and physical damage insurance
policy maintained by the Obligor under a Receivable, providing coverage against
loss or damage to or theft of the related Financed Vehicle, and (ii) any credit
life or credit disability insurance maintained by an Obligor in connection with
any Receivable.
"Subservicer" has the meaning set forth in Section 2.01(f) hereof.
"Subservicing Agreement" has the meaning set forth in Section 2.01(f)
hereof.
ARTICLE II
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 2.01 Appointment and Duties of the Servicer.
(a) The Issuer hereby appoints COAF as Servicer. The Servicer shall
perform the services required pursuant to the terms of this Servicing Agreement.
In performing its duties hereunder, the Servicer shall have full power and
authority to do or cause to be done any and all
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things in connection with such servicing and administration which it may deem
necessary or desirable, within the terms of this Servicing Agreement.
(b) As of the date of this Servicing Agreement, the Servicer is, and
shall remain, for so long as it is acting as Servicer, an Eligible Servicer.
Compensation and expense reimbursement payable to the Servicer under this
Servicing Agreement shall be payable pursuant to the priority of payment set
forth in Section 5.05(c) of the Indenture, and except as provided herein or in
the Indenture, none of the Issuer, the Note Insurer, the Owner Trustee, the
Indenture Trustee or the Noteholders will have any liability to the Servicer
with respect thereto; provided, however, that the Issuer shall remain liable for
any fees, expenses and indemnities due and payable to the Servicer which have
not been paid pursuant to the priority of payments set forth in Section 5.05(c)
of the Indenture.
(c) The Note Insurer, or if a Note Insurer Default has occurred and
is continuing, the Indenture Trustee with the consent of Class A Noteholders
constituting Class A Noteholder Approval, or, if the Aggregate Outstanding
Principal Balance of the Class A Notes has been reduced to zero and the Note
Insurer has been paid in full all amounts then owing to it, the Class B
Noteholders constituting Class B Noteholder Approval, shall be entitled to
terminate the services of the Servicer under this Servicing Agreement, upon the
occurrence of an Event of Servicing Default in accordance with the terms and
conditions hereof. In the event of termination of the Servicer, the Note Insurer
with prior written notice to the Rating Agencies 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), or if a Note Insurer
Default has occurred and is continuing, the Indenture Trustee with the consent
of the Class A Noteholders constituting Class A Noteholder Approval, or, if the
Aggregate Outstanding Principal Balance of the Class A Notes has been reduced to
zero and the Note Insurer has been paid in full all amounts then owing to it,
the Class B Noteholders constituting Class B Noteholder Approval, shall appoint
a Successor Servicer and shall direct the Issuer to enter into a servicing
agreement with a Successor Servicer (that shall be an Eligible Servicer), which
will be bound by the terms of such servicing agreement.
(d) Other than as set forth in Section 7.17 below, this Servicing
Agreement shall be deemed to be among the Indenture Trustee, the Servicer and
the Issuer; the Note Insurer, the Swap Counterparty and the Noteholders shall
not be deemed parties hereto and neither the Note Insurer, the Swap
Counterparty, the Issuer, the Indenture Trustee nor the Noteholders shall have
any obligations, duties or liabilities with respect to the Servicer except as
set forth herein and in the Indenture. In the Indenture, the Issuer has agreed
that the Indenture Trustee, in its name or (to the extent required by law) in
the name of the Issuer, may (but is not required to) enforce all rights of the
Issuer and all obligations of the Servicer under, and shall be entitled to all
benefits of, this Servicing Agreement for and on behalf of the Noteholders, 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
Note Insurer, whether or not the Issuer is in default thereunder. The Servicer,
in making collections of Receivable payments pursuant to Section 2.02 hereof,
shall be acting as agent for the Indenture Trustee, and shall be deemed to be
holding such funds in trust on behalf of, and as agent for, the Indenture
Trustee.
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(e) The Issuer shall, at its own expense, duly and punctually perform
and observe its obligations to the Servicer under this Servicing Agreement in
accordance with the terms hereof. In addition, promptly following a request from
the Indenture Trustee to do so and at the Issuer's own expense, the Issuer shall
take all such lawful action as the Indenture Trustee may request to compel or
secure the performance and observance by the Servicer of each of its obligations
to the Issuer under or in connection with this Servicing Agreement, in
accordance with the terms hereof, and in effecting such request shall exercise
any and all rights, remedies, powers and privileges lawfully available to the
Issuer under or in connection with this Servicing Agreement to the extent and in
the manner directed by the Indenture Trustee, including, without limitation, the
transmission of notices of default on the part of the Servicer hereunder and the
institution of legal or administrative actions or proceedings to compel or
secure performance by the Servicer of its obligations under this Servicing
Agreement.
(f) The Servicer may enter into one or more subservicing agreements
(each, a "Subservicing Agreement") with one or more Subservicers (each, a
"Subservicer") for the servicing and administration of the Receivables.
References in this Servicing Agreement to actions taken or to be taken by the
Servicer in servicing the Receivables include actions taken or to be taken by a
Subservicer on behalf of the Servicer. Each Subservicing Agreement will be upon
such terms and conditions as are not inconsistent with this Servicing Agreement
and as the Servicer and the Subservicer have agreed. The Servicer and a
Subservicer may enter into amendments thereto; provided, however, that any such
amendments shall be consistent with and not violate the provisions of this
Servicing Agreement.
(g) The Servicer shall pay the Administrator the fee pursuant to
Section 4 of the Administration Agreement.
Section 2.02 Collection of Receivable Payments; Defaulted Receivables;
Reporting Obligations
(a) The Servicer shall be responsible for collection of payments
called for under the terms and provisions of the Receivables, as and when the
same shall become due. The Servicer, consistent with the standard of care set
forth in Section 2.19, shall service, manage, administer and make collections on
the Receivables on behalf of the Issuer and shall have full power and authority,
acting alone and/or through Subservicers as provided in Section 2.01(f), to do
any and all things which it may deem necessary or desirable in connection
therewith which are consistent with this Servicing Agreement. The Servicer may
extend the then-current maturity date of any Receivable by one month (an
"Extension"); provided, however, that (i) no more than three (3) Extensions may
be granted with respect to any Receivable during any twelve (12) month period,
and no more than six (6) Extensions may be granted with respect to any
Receivable during the term of that Receivable; (ii) no more than two (2)
Extensions may be granted with respect to any Receivable during any three (3)
month period; (iii) in any given three (3) month period, the average percentage
of Receivables that have been the subject of an Extension during each month (by
number of Receivables at the beginning of each month) shall not exceed 4.00% (or
such other percentage as may be agreed to by the Note Insurer or, if a Note
Insurer Default has occurred and is continuing, by the Indenture Trustee with
the consent of Noteholders constituting Class A Noteholder Approval, or if the
Aggregate Outstanding Principal Balance of the Class A Notes has been reduced to
zero and all Reimbursement
4 2003-A Contribution Agreement
Obligations and reimbursement for all Swap Termination Payments paid under the
Swap Policy due to the Note Insurer shall have been paid in full, Noteholders
constituting Class B Noteholder Approval); and (iv) no Extension may be given
if, as a result, the final Scheduled Payment due on such Receivable would be
extended past the date which is the month immediately preceding the Class B
Final Scheduled Payment Date. The Servicer may in its discretion waive any late
payment charge or any other fees that may be collected in the ordinary course of
servicing a Receivable. In no event shall the principal balance of a Receivable
be reduced, except in connection with a settlement in the event the Receivable
becomes a Defaulted Receivable or a Cram Down Loss occurs. The Servicer shall
also enforce all rights of the Issuer under the Dealer Agreements including, but
not limited to, the right to require Dealers to repurchase Receivables for
breaches of representations and warranties made by the respective Dealers.
(b) If the full amount of a Scheduled Payment due under a Receivable
is not received when due, the Servicer will make reasonable and customary
efforts (such as are appropriate for obligors of similar characteristics as the
applicable Obligor) to contact such Obligor by telephone. The Servicer shall
continue its efforts to obtain payment from an Obligor whose payment has not
been made until the payments have been received by the Servicer or the Financed
Vehicle with respect to such Receivable is repossessed and sold or the Servicer
has determined that all amounts collectable on the Receivable have been
collected. The Servicer shall use its best efforts, consistent with the standard
of care set forth in Section 2.19 hereof, to collect funds on a Defaulted
Receivable; such collections shall be deposited into the Collection Account by
the close of business on the Business Day following receipt thereof.
(c) The Servicer shall, upon request, promptly, but no later than two
(2) Business Days after receipt of such request, provide, or cause to be
provided, to the Note Insurer copies of all monthly bank statements, notices,
reports or other documents received from the Indenture Trustee and from the
Collection Account Depository regarding funds held in or transferred to or from
all applicable accounts.
(d) Upon request but in no event later than two (2) Business Days
after receipt of such request, the Servicer shall forward to the Note Insurer,
via reputable overnight courier or electronic transmission, a computer diskette
in a format mutually acceptable to the Servicer and the Note Insurer of its
computerized records reflecting (i) all collections received during such
Collection Period with respect to the Receivables, (ii) the principal balance of
the Receivables as of the last day of the Collection Period, (iii) information
as of the last day of such Collection Period regarding the number of Defaulted
Receivables, (iv) the number of repossessed Financed Vehicles and the number of
sales of repossessed Financed Vehicles as of the last day of such Collection
Period, and (v) any other information reasonably requested by the Note Insurer.
Section 2.03 Realization Upon Receivables
(a) In the event a Receivable becomes a Defaulted Receivable, the
Servicer, itself or through the use of independent contractors or agents, shall,
consistent with the standard of care set forth in Section 2.19, including the
Collection Policy, repossess or otherwise convert the ownership of the Financed
Vehicle securing any Receivable as to which the Servicer shall have determined
eventual payment in full is unlikely. In accordance with the priority of payment
set forth in Section 5.05(c) of the Indenture, all costs and expenses incurred
by the Servicer in
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connection with the repossession of the Financed Vehicles securing such
Receivables shall be reimbursed to the Servicer on the Payment Date relating to
the Collection Period in which the Servicer delivered to the Indenture Trustee
an itemized statement of such costs and expenses. Notwithstanding the foregoing
and consistent with the terms of this Servicing Agreement, the Servicer shall
not be obligated to repossess or take any action with respect to a Defaulted
Receivable if, in its reasonable judgment consistent with the servicing
standards specified in Section 2.19, the Liquidation Proceeds are expected to be
less than the costs and expenses of such repossession or action.
(b) The Servicer, itself or through the use of independent
contractors or agents to the extent allowed by Section 2.01(f), shall follow
practices consistent with the standard of care set forth in Section 2.19,
including the Collection Policy, in its servicing of the Receivables, which may
include selling the Financed Vehicle, or requesting a Subservicer to sell the
Financed Vehicle, at public or private sale; provided, however, that the
Servicer, itself or through the use of independent contractors or agents to the
extent allowed by Section 2.01(f), shall, in accordance with its Collection
Policy, maximize the sales proceeds for each repossessed Financed Vehicle. The
foregoing shall be subject to the provision that, in any case in which the
Financed Vehicle shall have suffered damage, the Servicer shall not expend funds
for the repair or the repossession of such Financed Vehicle unless the Servicer
shall determine in its discretion that such repair or repossession should
increase the Liquidation Proceeds by an amount greater than the amount of such
expenses.
Section 2.04 Physical Damage Insurance
(a) The Servicer, in accordance with the standard of care set forth
in Section 2.19, shall, upon receipt of notice that an Obligor's physical damage
insurance covering the Financed Vehicle has lapsed or is otherwise not in force,
send written notice to such Obligor stating that each Obligor is required to
maintain physical damage insurance covering the Financed Vehicle throughout the
term of the Receivable.
(b) In the event of any physical loss or damage to a Financed Vehicle
from any cause, whether through accidental means or otherwise, the Servicer
shall have no obligation to cause the affected Financed Vehicle to be restored
or repaired. However, the Servicer shall comply with the provisions of any
insurance policy or policies directly or indirectly related to any physical loss
or damage to a Financed Vehicle.
(c) The Servicer will administer the filings of claims under the
Insurance Policies as described under Section 2.13 hereof.
Section 2.05 Maintenance of Security Interests in Financed Vehicles and
Receivables
(a) The Servicer will (i) take or cause to be taken such steps as are
necessary, in accordance with the standard of care set forth in Section 2.19, to
maintain perfection of the security interest created by each Receivable in the
related Financed Vehicle and (ii) within three (3) Business Days of its receipt
thereof forward to the Custodian or its agent (unless the Servicer is the
Custodian under the Indenture), on behalf of the Issuer, via reputable overnight
courier, any Certificate of Title to a Financed Vehicle received by the Servicer
with respect to a
6 2003-A Contribution Agreement
Receivable serviced hereunder, whether such Certificate of Title was not
previously delivered to the Custodian or its agent in connection with the
Closing Date or Funding Date, as the case may be, or for any other reason.
(b) The Servicer shall, at the direction of the Indenture Trustee,
the Issuer or the Note Insurer, take any action necessary to preserve and
protect the security interests of the Issuer and the Indenture Trustee in the
Receivables, including any action specified in any Opinion of Counsel delivered
to the Servicer.
Section 2.06 Covenants of the Servicer; Notices
(a) The Servicer shall (i) not release any Financed Vehicle securing
any Receivable from the security interest granted therein by such Receivable in
whole or in part except in the event of payment in full by or on behalf of the
Obligor thereunder or upon transfer of the Financed Vehicle to a successor
purchaser following repossession by the Servicer or a Subservicer, (ii) not
impair the rights of the Issuer, the Noteholders, the Swap Counterparty, the
Note Insurer or the Indenture Trustee in the Receivables, (iii) not increase the
number of Scheduled Payments due under a Receivable except as permitted herein,
(iv) prior to the payment in full, not sell, pledge, assign, or transfer to any
other Person, or grant, create, incur, assume, or suffer to exist any Lien on
any Receivable pledged to the Indenture Trustee or any interest therein, (v)
defend the right, title, and interest of the Issuer, the Noteholders, 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), the Note
Insurer and the Indenture Trustee in, to and under the Receivables pledged to
the Indenture Trustee, against all claims of third parties claiming through or
under the Servicer, (vi) deposit into the Collection Account all payments
received by the Servicer with respect to the Receivables in accordance with this
Servicing Agreement, (vii) comply with the terms and conditions of this
Servicing Agreement, (viii) promptly notify the Indenture Trustee, the Issuer,
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), the Class B Noteholders and the Indenture Trustee of the occurrence of
any Event of Servicing Default and any breach by the Servicer of any of its
covenants or representations and warranties contained herein, (ix) take all
reasonable action necessary to maximize the returns pursuant to the Insurance
Policies, (x) deliver or cause to be delivered to the Issuer no later than two
(2) Business Days preceding the Closing Date or Funding Date, as the case may
be, the Schedule of Receivables to be transferred to the Issuer on such Closing
Date or Funding Date, as the case may be, (xii) deliver or cause to be delivered
to the Custodian (unless the Servicer is the Custodian under the Indenture) or
its designated bailee (which bailee shall not be the Issuer or any Affiliate
thereof) within two (2) Business Days preceding the Closing Date or Funding
Date, as the case may be, the documents to be included in the Custodian Files
with respect to the Receivables pledged on such Closing Date or Funding Date, as
the case may be (xiii) promptly notify the Issuer, the Note Insurer and the
Indenture Trustee of the existence of any Lien on any Receivable (other than the
Lien of the Indenture Trustee) if the Servicer has actual knowledge thereof and
(xiv) promptly notify the Issuer, 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), the Note Insurer, and the Indenture
Trustee of the occurrence of any event which, to the knowledge of the Servicer,
would require that the Issuer make or cause to be made any filings, reports,
notices, or applications or
7 2003-A Contribution Agreement
seek any consents or authorizations from any and all government agencies,
tribunals, or authorities in accordance with the UCC and any State vehicle
license or registration authority as may be necessary or advisable to create,
maintain, perfect and protect a first-priority security interest of the
Indenture Trustee in, to, and on the Financed Vehicles and a first-priority
security interest of the Indenture Trustee in, to, and on the Receivables
pledged to the Indenture Trustee.
(b) The Servicer shall, within two (2) Business Days of its receipt
thereof, respond to reasonable written directions or written requests for
information that the Issuer, the Indenture Trustee or the Note Insurer might
have with respect to the administration of the Receivables.
Section 2.07 Notice of Repurchase Events. The Servicer shall inform the
Issuer, the Seller, the Transferor (if the Transferor is not the Servicer), the
Note Insurer, the Indenture Trustee 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) promptly, in writing, upon (a) the
discovery of any event that, if it continues uncured will, with the lapse of
time and/or the giving of notice, constitute an Eligibility Repurchase Event or
a Custodian File Repurchase Event and (b) the occurrence of the day that is 10
days prior to the First Title Delivery Date of each Receivable for which no
Certificate of Title has been delivered to the Custodian or its agent.
Section 2.08 Servicing Fee
(a) Pursuant to the Indenture, the Issuer has agreed to cause the
Indenture Trustee to pay the Servicer pursuant to Section 5.05(c) of the
Indenture a monthly servicing fee (the "Servicing Fee") with respect to each
Receivable serviced under this Servicing Agreement; provided, however, that the
Issuer hereby agrees not to amend or consent to any amendment of any provision
of the Indenture relating to compensation of the Servicer without the prior
written consent of the Servicer and the Note Insurer. Pursuant to the terms of
the Indenture, the Issuer has assumed liability for all liabilities associated
with the Trust Property or created under the Indenture; provided that the Issuer
has and shall have no liability with respect to the payment of principal and
interest on the Notes, except as otherwise provided in the Indenture.
(b) The Servicing Fee shall be (i) 2.50% per annum, calculated and
payable monthly on the basis of a 360-day year consisting of twelve-30 day
months, based on the Aggregate Receivable Balance on the first day of the
applicable Collection Period, plus (ii) all amounts remitted by or on behalf of
the Obligors during the prior Collection Period under the terms of, or with
respect to, the Receivables, which amounts represent late fees, prepayment
charges, including administrative fees or similar charges allowed by applicable
law. Determination of which amounts received from an Obligor represent late
charges, prepayment charges, including administrative fees or similar charges
allowed by State law, shall be made as set forth in the definition of
"Liquidation Proceeds" in the Indenture. The Servicing Fee with respect to a
Collection Period shall be due on the succeeding Payment Date. In the event this
Servicing Agreement is terminated on a date other than the last day of a
Collection Period or a Receivable is designated to be no longer outstanding for
purposes of this Servicing Agreement, then the Servicing Fee for such period or
with respect to such Receivable, as the case may be, shall be determined on a
pro rata basis.
8 2003-A Servicing Agreement
Section 2.09 Annual Statement as to Compliance. The Servicer will deliver
to the Rating Agencies, the Issuer, the Indenture Trustee, the Note Insurer 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), on or before March 15 of each year, beginning on March 15, 2004, an
Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(a) a review of the activities of the Servicer during the prior
calendar year and of performance under this Servicing Agreement has been made
under such Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, the Servicer has performed in all material respects its obligations
under this Agreement throughout such year, or, if there has been a material
default in the performance of any such obligation, specifying each such default
known to such Authorized Officer and the nature and status thereof.
Section 2.10 Monthly Servicer's Reports. The Servicer shall provide
monthly reports substantially in the form of Exhibit A hereto to the Indenture
Trustee and the Owner Trustee, and the Indenture Trustee shall provide copies of
such reports and certificates to the Seller, the Note Insurer, the Noteholders,
the Rating Agencies, 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 any other Persons, as required under this Agreement,
regarding (i) payments received from or on behalf of the Obligors and deposited
to the Collection Account (identified in Section 3.03 hereof) representing
collections with respect to the Receivables, (ii) other amounts received with
respect to the Receivables, including Repurchase Prices, Defaulted Receivable
Recoveries and Insurance Proceeds and (iii) other matters relating to the
Receivables including delinquencies, repossessions and filing and payment of
claims under Insurance Policies. The Servicer shall include information
regarding Defaulted Receivables, Events of Default, Repurchased Receivables,
Events of Servicing Default, Re-Xxxxxxx Triggers and Accelerated Reserve Fund
Events in its monthly report. Such reports shall be delivered to the Indenture
Trustee by 11:00 a.m., New York time, on the earlier of ten (10) calendar days
following the Determination Date or three (3) Business Days prior to the
Transfer Date for such Payment Date.
Section 2.11 Annual Servicing Review
The Servicer shall cause a firm of independent certified public
accountants, who may also render other services to the Servicer or to its
Affiliates, to deliver to the Rating Agencies, the Issuer, the Indenture
Trustee, the Note Insurer 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) on or before March 15 of each year, beginning March 15,
2004, a report addressed to the board of directors of the Servicer, to the
effect that such firm has examined the accompanying annual statement of
compliance delivered by the Servicer pursuant to Section 2.09 of the Servicing
Agreement and that: (a) such examination was made in accordance with attestation
standards established by the American Institute of Certified Public Accountants
and, accordingly, included examining, on a test basis, evidence about the
Servicer's compliance with those requirements and performing such other
procedures as such accountants considered
9 2003-A Servicing Agreement
necessary in the circumstances and (b) except as described in such report, the
Servicer's annual statement of compliance for such year delivered pursuant to
Section 2.09 is fairly stated in all material respects.
Section 2.12 Costs and Expenses
(a) Except as set forth in Section 2.12(b) below, all costs and
expenses incurred by the Servicer in carrying out its duties hereunder, fees and
expenses of Independent Public Accountants with respect to preparation of the
financial statements and reports described in Section 2.11 and all other fees
and expenses (including all fees and expenses arising as a result of the
occurrence of a Re-Xxxxxxx Trigger) not expressly stated hereunder to be for the
account of the Issuer, shall be paid or caused to be paid by the Servicer out of
the compensation to be paid to the Servicer pursuant to Section 2.08.
(b) During the term of this Servicing Agreement, the Servicer shall be
reimbursed for actual out-of-pocket costs and expenses incurred in connection
with the sale or other disposal of a Financed Vehicle or collection of amounts
due with respect to a Receivable including, but not limited to, the following
(to the extent such cost or expense relates to the sale or other disposal or
collection of amounts due with respect to a Receivable or a Financed Vehicle):
(i) Any reasonable compensation paid to outside legal counsel
retained to protect the interests of the Issuer, the Indenture Trustee, the Note
Insurer, the Swap Counterparty or the Noteholders in the assets administered
under this Servicing Agreement as the Servicer deems necessary in accordance
with its normal procedures;
(ii) Any compensation paid to independent repossessors,
auctioneers or appraisers and any direct out of pocket expenses arising from or
related to realization of the Receivables administered under this Servicing
Agreement;
(iii) Any sales, franchise, income, excise, personal
property or other taxes arising from or related to any Receivables administered
under this Servicing Agreement;
(iv) Any parking or other fines, insurance, title or other such
fees arising from or related to any Receivables administered under this
Servicing Agreement;
(v) Any expenses for special forms and materials, freight,
tapes, communications, lock-box and other bank service charges, and other
expenses; and
(vi) Any expenses and fees paid to outside accountants in
connection with the procedures required to be performed pursuant to Section
2.11(b) hereof, provided that any such fees and expenses paid under this clause
(vi) shall not exceed $10,000 per annum.
Section 2.13 Responsibility for Insurance Policies; Processing of Claims
Under Insurance Policies; Daily Records and Reports.
(a) The Servicer, on behalf of the Issuer, will administer and
enforce all rights and responsibilities of the holder of the Receivables
provided for in the Insurance Policies
10 2003-A Servicing Agreement
relating to the Receivables in a manner consistent with the standard of care set
forth in Section 2.19 hereof.
(b) The Servicer will administer the filings of claims under the
Insurance Policies by filing the appropriate notices related to claims,
including initial notices of loss, as well as claims with the respective
carriers or their authorized agents all in accordance with the terms of the
Insurance Policies. The Servicer shall use reasonable efforts to file such
claims on a timely basis after obtaining knowledge of the events giving rise to
such claims, subject to the servicing standard set forth in Section 2.20 hereof.
The Servicer will utilize such notices, claim forms and claim procedures as are
required by the respective insurance carriers.
The Servicer shall not be required to pay any premiums or, other than
administering the filing of claims and performing reporting requirements
specified in the Insurance Policies in connection with filing such claims,
perform any obligations of the named insured under such Insurance Policies. The
Servicer shall not be responsible to the Issuer, the Note Insurer, the
Noteholders, 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) or the Indenture Trustee (i) for any act or omission to act done in order
to comply with the requirements or satisfy any provisions of the Insurance
Policies or (ii) for any act, absent willful misconduct or negligence, or
omission to act done in compliance with this Servicing Agreement. In the case of
any inconsistency between this Servicing Agreement and the terms of any
Insurance Policy, the Servicer shall comply with the latter.
(c) The Servicer shall provide to the Indenture Trustee, and the
Indenture Trustee shall copy to the Issuer, the Rating Agencies, 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 Note
Insurer, a written monthly report substantially in the form of Exhibit A hereto
and, upon the request of the Issuer, 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) or the Note
Insurer, the Servicer shall provide to the requesting party copies of notices
substantially in the form of Exhibit B hereto, verifying that such notices were
sent to Obligors, as appropriate indicating a delinquency by any Obligor of (i)
30 to 59 days and (ii) 60 days or more. This report will include:
(i) Obligor's name;
(ii) Date of last payment; and
(iii) Current unpaid balance.
Unless otherwise directed by the Issuer, the Servicer will file a claim for
loss with the insurer on a form furnished by such insurer within the time period
specified in the applicable Insurance Policy. A copy of such claim will be
provided to the Issuer upon the Issuer's request.
Section 2.14 Delivery of Documents to the Custodian. Unless the Servicer is
the Custodian under the Indenture, the Servicer shall deliver or cause to be
delivered the Custodian File with respect to the Receivables in its possession
to the Custodian via reputable overnight courier service for receipt by the
Custodian or its designated bailee (which bailee shall not be the
11 2003-A Servicing Agreement
Issuer or any Affiliate thereof) within two (2) Business Days preceding the
Closing Date or the applicable Funding Date, as the case may be while in its
possession (unless the Servicer is the Custodian under the Indenture), the
Servicer shall hold the Custodian Files in trust on behalf of the Custodian and
shall only check out the Custodian Files with a Request for Release of Custodian
File in the form of Exhibit C hereto (unless the Servicer is the Custodian under
the Indenture).
Section 2.15 Conveyance of Copies of Documents to the Servicer; Indication
of Issuer Ownership.
(a) The Servicer shall maintain legible copies (in electronic or
hard-copy form, in the discretion of the Servicer) or originals of the following
documents in its files with respect to each Receivable and the Financed Vehicle
related thereto:
(i) application of the Obligor for credit or, with respect to
pre-approved Obligors, any such similar information obtained in accordance with
the applicable Originator's customary practices;
(ii) a copy (but not the original) of the Contract, provided,
however, that the Servicer shall deliver any original amendments to the Contract
to the Custodian promptly following execution thereof (unless the Servicer is
the Custodian under the Indenture);
(iii) a copy (but not the original) of the Certificate of Title
or, if not yet received, evidence that an application therefor has been
submitted with the appropriate authority, a guaranty of title from a Dealer or
such other document (electronic or otherwise, as used in the applicable
jurisdiction) that the Servicer keeps on file, in accordance with its customary
practices, evidencing the security interest of the applicable Originator in the
Financed Vehicle;
(iv) to the extent received and kept by the applicable
Originator in accordance with its customary practices, a certificate of
insurance or application therefor with respect to the Financed Vehicle securing
the Receivable;
(v) if applicable, a copy of the score sheet, proof of income
and references, credit report and AAP approval sheet utilized by COAF in the
underwriting of the Receivable;
(vi) except with respect to refinanced vehicles or to the extent
of the Servicer's customary practices, the invoice for the Financed Vehicle;
(vii) to the extent of the Servicer's customary practices, the
Obligor's order for the Financed Vehicle and the proof of down payment;
(viii) to the extent received and kept by the applicable
Originator, a copy of the service contract, if any, on the Financed Vehicle;
(ix) to the extent received and kept by the applicable
Originator, a copy of the credit life insurance policy, if any, and the credit
disability insurance policy, if any, on the Obligor relating to the Financed
Vehicle; and
12 2003-A Servicing Agreement
(x) such other documents as the Servicer keeps on file in
accordance with its customary practices in order to accomplish its duties under
this Servicing Agreement.
(b) The Servicer shall keep books and records, satisfactory to the
Note Insurer, pertaining to each Receivable and shall make periodic reports in
accordance with this Servicing Agreement. Such records may not be destroyed or
otherwise disposed of except as provided herein and as allowed by applicable
laws, regulations or decrees. All documents, whether developed or originated by
the Servicer or not, reasonably required to document or to properly administer
any loan shall remain at all times the property of the Issuer and shall be held
in trust by the Servicer. The Servicer shall not acquire any property rights
with respect to such records, and shall not have the right to possession of them
except as subject to the conditions stated in this Servicing Agreement. The
Servicer shall bear the entire cost of restoration in the event any Servicer
Files (as defined below) shall become damaged, lost or destroyed while in the
Servicer's possession or control.
Section 2.16 Possession of Servicer Files. Unless otherwise specified
herein, the Servicer shall maintain physical possession of the instruments and
documents listed in paragraph 2.15(a) above; such other instruments or documents
that modify or supplement the terms or conditions of any of the foregoing; and,
all other instruments, documents, correspondence and memoranda generated by or
coming into the possession of the Servicer (including, but not limited to,
insurance premium receipts, ledger sheets, payment records, insurance claim
files, correspondence and current and historical computerized data files) that
are required to document or service any Receivable. Collectively, all of the
documents described in this Section 2.16 with respect to a Receivable are
referred to as the "Servicer Files". The Servicer hereby agrees that the
computer files of the Receivables maintained by the Servicer will bear an
indication reflecting that the Receivables are owned by the Issuer and Granted
to the Indenture Trustee for the benefit of the Noteholders, 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 Note
Insurer and that all Servicer Files shall remain the property of the Issuer and
shall be held in trust by the Servicer. The Servicer shall respond to all third
party inquiries concerning ownership of the Receivables by indicating that the
Receivables have been assigned by the Transferor to the Seller, transferred by
the Seller to the Issuer and Granted to the Indenture Trustee for the benefit of
the Noteholders, 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 Note Insurer.
Section 2.17 Processing of Information. Information with respect to each
Receivable is to be recorded into the Servicer's loan management and accounting
system.
13 2003-A Servicing Agreement
Section 2.18 Representations and Warranties With Respect to Compliance
with Law and Enforcement.
(a) The Issuer hereby represents to the Servicer, based on certain
representations the Transferor has made to the Issuer concerning the Receivables
in the Transfer and Assignment Agreement and the Seller has made in the
Contribution Agreement, respectively, and on which representations the Issuer
has relied in acquiring the Receivables and with respect to the Grant of the
Receivables to the Indenture Trustee, that each Receivable and the sale of the
related Financed Vehicle complied at the time it was originated or made and on
the Closing Date or Funding Date, as the case may be, does comply in all
material respects with all requirements of applicable federal, state and local
laws, and regulations thereunder.
(b) The Servicer warrants, represents and covenants that in the event
that the Servicer realizes upon any Receivable, the methods utilized by the
Servicer to realize upon such Receivable or otherwise enforce any provisions of
the Receivable will not subject the Servicer, the Issuer, the Note Insurer, the
Swap Counterparty or the Indenture Trustee to liability under any federal, state
or local law, and that such enforcement by the Servicer will be conducted in
accordance with the provisions of this Servicing Agreement and the standard of
care set forth in Section 2.19 hereof, including the Collection Policy.
Section 2.19 Standard of Care. In performing its duties and obligations
hereunder and in administering and enforcing the Insurance Policies relating to
the Receivables pursuant to this Servicing Agreement, the Servicer will comply
with all applicable state and federal laws and shall service and administer the
Receivables by employing such procedures (including collection procedures) and
degree of care, in each case consistent with prudent industry standards, as are
customarily employed by the Servicer in servicing and administering motor
vehicle receivables owned or serviced by the Servicer comparable to the
Receivables. In performing such duties, so long as COAF is the Servicer COAF
shall comply with COAF's Collection Policy. In performing its duties and
obligations hereunder, the Servicer shall comply with all applicable federal and
state laws and regulations, shall maintain all state and federal licenses and
franchises necessary for it to perform its servicing responsibilities hereunder,
and shall not impair the rights of the Issuer, the Note Insurer or the Indenture
Trustee on behalf of the Noteholders and the Swap Counterparty in the Trust
Property.
Section 2.20 Records. The Servicer shall maintain or cause to be
maintained such books of account and other records as will enable the Issuer and
the Note Insurer to determine the status of each Receivable and any Insurance
Policy relating thereto.
Section 2.21 Inspection.
(a) At all times during the term hereof, the Servicer shall afford
the Issuer, the Note Insurer, and the Indenture Trustee and their authorized
agents, upon three (3) Business Days' prior written notice, reasonable access
during normal business hours to the Servicer's records and files relating to the
Receivables and the Trust Property and will cause its personnel to assist in any
examination of such records by the Issuer, the Note Insurer, or the Indenture
Trustee. The examination referred to in this Section 2.21 will be conducted in a
manner which does not unreasonably interfere with the Servicer's normal
operations or customer or employee
14 2003-A Servicing Agreement
relations. Without otherwise limiting the scope of the examination, the Issuer,
the Note Insurer, or the Indenture Trustee may, using generally accepted
auditing procedures, verify the status of each Receivable and review the
Servicer Files and records relating thereto for conformity to monthly reports
prepared pursuant to Section 2.02(c) and compliance with the standards
represented to exist as to each Receivable in this Servicing Agreement. Nothing
herein shall require the Issuer, the Note Insurer, or the Indenture Trustee to
conduct any inspection pursuant to this Section 2.21.
(b) At all times during the term hereof, the Servicer shall keep
available at its office located at 0000 Xxxxxx Xxxxxxx, Xxxxx, Xxxxx 00000 (or
such other location as to which it shall give written notice to the Indenture
Trustee), for inspection by the Issuer, the Note Insurer, the Indenture Trustee
and Noteholders, a copy of the Schedule of Receivables.
(c) All information obtained by the Issuer or the Indenture Trustee
regarding the Obligors and the Receivables, whether upon exercise of its rights
under this Section 2.21 or otherwise, shall be maintained by the Issuer or the
Indenture Trustee in confidence and shall not be disclosed to any other person,
except as otherwise required by applicable law or regulation.
(d) The Servicer will, at the Issuer's or the Note Insurer's request,
provide the Issuer, the Indenture Trustee or the Note Insurer with a data
extract disk of portfolio information. One disk per month will be provided
without charge, and the Issuer will pay the Servicer $125.00 each for any
subsequent disks; provided, however, that such additional fee for subsequent
disks shall not apply to any disks provided to the Issuer, the Indenture Trustee
or the Note Insurer to correct information previously provided by the Servicer
to the Issuer or the Note Insurer.
Section 2.22 Enforcement.
(a) The Servicer will, consistent with the standard of care required
by Section 2.19 hereof, act with respect to the Receivables and the Insurance
Policies in such manner as will, in the reasonable judgment of the Servicer,
maximize the amount to be received by the Indenture Trustee with respect
thereto.
(b) The Servicer shall to the extent consistent with the servicing
standards set forth in Section 2.19, including the Collection Policy, or at the
written direction of the Note Insurer, xxx to enforce or collect upon the
Receivables and the Insurance Policies (including unpaid claims), in its own
name, if possible, or as agent for the Issuer or the Indenture Trustee. If the
Servicer commences a legal proceeding to enforce a Receivable or an Insurance
Policy, the act of commencement shall be deemed to be an automatic assignment of
the Receivable and the related rights under the Insurance Policies by the Issuer
to the Servicer for purposes of collection only. If, however, in any enforcement
suit or legal proceeding it is held that the Servicer may not enforce a
Receivable or an Insurance Policy on the grounds that it is not a real party in
interest or a holder entitled to enforce the Receivable or the Insurance Policy,
the Issuer, shall, at the Servicer's request, assign the Receivable or the
Insurance Policy to the Servicer for the limited extent necessary to enforce the
Receivable or the Insurance Policy, or take such steps as the Issuer deems
necessary to enforce the Receivable or the Insurance Policy, including bringing
suit in its name.
15 2003-A Servicing Agreement
(c) The Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Receivable in accordance with the
standard of care required by Section 2.19 hereof. In exercising such recourse
rights, the Servicer is hereby authorized on the Issuer's behalf to reassign the
Receivable and to deliver the Certificate of Title to the Financed Vehicle to
the person against whom recourse exists at the price set forth in the document
creating the recourse.
Section 2.23 Payment in Full on Receivable. The Servicer may grant to the
Obligor on any Receivable that has been repaid in full any rebate, refund or
adjustment that the Servicer in good faith believes is required because of
prepayment in full of the Receivable, and may deduct the amount of any such
rebate, refund or adjustment from the amount otherwise payable by the Servicer
into the Revenue Fund or the Collection Account, as the case may be. The
Servicer may not permit any rescission or cancellation of any Receivable nor may
it take any action with respect to any Receivable or Insurance Policy which
would materially impair the rights of the Indenture Trustee, the Issuer, the
Note Insurer or the Noteholders therein or in the proceeds thereof.
Section 2.24 Release of Receivable. Upon payment in full on any
Receivable, the Servicer shall notify the Custodian (unless the Servicer is the
Custodian under the Indenture) prior to the next succeeding Payment Date by a
certificate and request for release of Receivable file substantially in the form
of Exhibit C hereto (which certificate shall include a statement of an officer
of the Servicer to the effect that all amounts received in connection with such
payment in full which are required to be deposited in the Revenue Fund or the
Collection Account, as the case may be pursuant to Sections 3.02 and 3.03 herein
have been so deposited).
Section 2.25 [Reserved].
Section 2.26 Responsibilities of the Servicer. The Servicer shall not have
any duties, obligations or responsibilities other than those specifically
expressed and set forth herein and no implied obligations of the Servicer shall
be read into this Servicing Agreement. Neither the Servicer nor any of its
respective directors, officers, agents or employees shall be liable to any
person, including, without limitation, the Issuer, the Note Insurer, the Swap
Counterparty, the Indenture Trustee or the Noteholders in connection with this
Servicing Agreement, except for the breach of any of its representations and
warranties or obligations under this Servicing Agreement or for the negligence,
bad faith or willful misconduct of the Servicer, or any of its respective
officers, directors, agents or employees.
Section 2.27 Re-Xxxxxxx. Upon the occurrence of a Re-Xxxxxxx Trigger, the
Note Insurer may instruct the Indenture Trustee and the Servicer to take or
cause to be taken such actions as may, in the judgment of the Note Insurer or
its counsel, be necessary to perfect or re-perfect the security interests in the
Financed Vehicles in the name of the Indenture Trustee by amending the title
documents relating to such Financed Vehicles or by such other reasonable means
as may, in the judgment of the Note Insurer or its counsel, be necessary or
prudent. The Indenture Trustee and the Servicer shall take or cause to be taken
such actions. COAF hereby agrees to reimburse the Indenture Trustee for all
Re-Xxxxxxx Expenses related to such perfection or re-perfection and to take all
action necessary therefor, including the preparation, execution and delivery of
all such documents as may be requested by the Indenture Trustee or the Servicer
16 2003-A Servicing Agreement
in connection therewith. In addition, as provided in Section 5.05(c) of the
Indenture, the Indenture Trustee shall be entitled to be reimbursed for
Re-Xxxxxxx Expenses incurred in connection with taking or causing to be taken
such actions, to the extent not paid by the Servicer. On the Closing Date, the
Servicer shall grant to the Indenture Trustee an irrevocable power of attorney,
pursuant to which the Servicer shall appoint the Indenture Trustee as its
attorney-in-fact, such appointment being coupled with an interest, to take any
and all steps required to be performed by it pursuant to this Section 2.27
including execution of certificates of title or any other documents in the name
and stead of the Servicer. If at any time a Person other than COAF becomes the
Servicer, COAF shall grant to such Successor Servicer, promptly after its
appointment as such, a power of attorney as described in the preceding sentence.
ARTICLE III
ACCOUNTS; COLLECTIONS; STATEMENT
TO RESIDUAL INTERESTHOLDER AND NOTEHOLDERS
Section 3.01 Accounts. There have been established pursuant to the
Indenture certain accounts in the name of the Indenture Trustee for the benefit
of the Noteholders, 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 Note Insurer to the extent described herein,
including, without limitation, the Collection Account, the Issuance Fund, the
Pre-Funding Account, the Reserve Fund and the Revenue Fund.
Section 3.02 Collections.
(a) The Servicer shall remit or cause a Subservicer to remit to the
Collection Account described in Section 3.03 hereof, and to no other account, as
soon as practicable, but in no event later than the Collection Account
Depository's close of business two (2) Business Days after receipt thereof, all
payments received by or on behalf of the Obligors, including all Actual
Payments, Insurance Proceeds, Defaulted Receivable Recoveries, Principal
Collections, Liquidation Proceeds, Repurchase Prices and all proceeds relating
to the repossession or disposition of the Financed Vehicles (including recourse
payments received from Dealers with respect to a breach of a representation or
warranty of such Dealers under the Dealer Agreements), all as collected during
the Collection Period, in respect of a Receivable being serviced by the Servicer
or a Receivable subject to a Repurchase Event, and all payments or other
amounts, if any, made by or on behalf of an Obligor or received by the Servicer
with respect to any Receivable.
(b) With respect to checks or drafts (i) issued by an insurer for
payment of loss on Receivables, (ii) made payable to the named insured, the
Indenture Trustee or any other Person, and (iii) received by the Servicer, the
Servicer shall take all necessary action to document the receipt of each such
check or draft on the day of receipt thereof and if made payable to the
Indenture Trustee, forward the original check or draft by reputable overnight
courier to the Indenture Trustee at the address set forth in Section 7.03 hereof
for receipt by the Indenture Trustee two (2) Business Days for immediate
endorsement and return to the Servicer via overnight courier.
17 2003-A Servicing Agreement
Section 3.03 Collection Account and Acknowledgment Letter.
(a) JPMorgan Chase Bank is hereby appointed as the initial Collection
Account Depository with respect to the Receivables serviced under this Servicing
Agreement. The Issuer shall provide thirty (30) days' written notice to the
Servicer, the Indenture Trustee, and the Note Insurer of its appointment of a
successor Collection Account Depository which shall be acceptable to the Rating
Agencies, the Note Insurer and the Indenture Trustee and which shall hold the
Collection Account under the terms and conditions outlined herein and in the
Indenture.
(b) Except as otherwise provided herein, the Servicer shall deposit
or cause to be deposited into the Collection Account all amounts (including late
payments) remitted by Obligors to the Servicer under the terms of the
Receivables within two (2) Business Days after receipt thereof; provided,
however, that the Servicer shall, pursuant to Section 2.08(b), be entitled to
reimbursement of all amounts remitted by or on behalf of the Obligors to the
Servicer under the terms of, or with respect to, the Receivables, which amounts
represent late fees, prepayment charges, including administrative fees or
similar charges allowed by applicable law.
Section 3.04 Statements to Residual Interestholder and Noteholders. On
each Payment Date, the Servicer shall provide to Indenture Trustee written
instructions for the Indenture Trustee to forward to each Noteholder of record,
to each Paying Agent, if any, (with a copy to each Rating Agency 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)) and to the
Issuer for the Issuer to forward to the Residual Interestholder, a statement
setting forth at least the following information (based on the information
contained in the Monthly Servicer's Report delivered on the related Payment Date
pursuant to Section 2.10) as to the Notes and the Residual Interest to the
extent applicable:
(a) the amount of such distribution allocable to principal of each
Class of Notes;
(b) the amount of such distribution allocable to interest on or with
respect to each Class of Notes;
(c) the Reserve Fund transfer amount, if any, for such Payment Date,
the Reserve Account Minimum for such Payment Date, the amount deposited into the
Reserve Fund on such Payment Date, and the balance of the Reserve Fund (if any)
on such Distribution Date, after giving effect to changes therein on such
Payment Date;
(d) the overcollateralization amount as of such Payment Date;
(e) the amount of the Servicing Fee paid to the Servicer with respect
to the related Collection Period and with respect to previously accrued and
unpaid Servicing Fees;
(f) the amount of any previously due and unpaid payment of principal
on the Notes, and the change in such amount from that of the prior Payment Date;
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(g) the Aggregate Outstanding Principal Balance of each Class of the
Notes for each such Class after giving effect to payments allocated to principal
reported under clause (a) above;
(h) the aggregate amounts paid by the Seller or the Servicer with
respect to the related Collection Period;
(i) the Pool Balance as of the close of business on the last day of
the preceding Collection Period;
(j) the number, and Aggregate Receivable Balance outstanding, of
Receivables past due 30-59 days, 60-89 days and 90 days and over;
(k) the weighted average Contract Rates of the Receivables, weighted
based on the Receivable Balance of each such Receivable as of the last day of
the related Collection Period;
(l) the weighed average remaining term to maturity of the
Receivables, weighted based on the Receivable Balance of each such Receivables
as of the last day of the related Collection Period;
(m) the amount of the Aggregate Receivable Balance of any Receivables
that became Defaulted Receivables, if any, during such Collection Period;
(n) the aggregate net losses on the Receivables incurred during the
period from the Cutoff Date to and including the last day of the related
Collection Period;
(o) the amount distributed to the Residual Interestholder;
(p) the Net Swap Receipts, if any;
(q) the Pool Factor as of the close of business as of the last day of
the preceding Collection Period; and
(r) the Note Factor for each class of the Notes as of the close of
business on the last day of the preceding Collection Period.
Each amount set forth pursuant to paragraph (a), (b), or (e) above relating to
the Notes shall be expressed as a dollar amount per $1,000 of the initial
Aggregate Outstanding Principal Balance of the Notes (or Class thereof).
Section 3.05 Trustee Internet Website. The Indenture Trustee may make
available to any Paying Agent, any Swap Counterparty (unless the Interest Rate
Swap Agreement has been terminated and all amounts owed to the Swap Counterparty
have been paid in full), the Noteholders, the Note Insurer or the Issuer, via
the Indenture Trustee's Internet Website all reports or notices required to be
provided by the Indenture Trustee under the terms of this Servicing Agreement
(including, but not limited to Sections 2.10 and 3.04) and any Supplement
available and, with the consent or at the direction of the Servicer and the
Issuer, such other
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information regarding the Notes and/or the Receivables as the Indenture Trustee
may have in its possession. Any information that is disseminated in accordance
with the provisions of this Section 3.05 shall not be required to be
disseminated in any other form or manner. The Indenture Trustee will make no
representation or warranties as to the accuracy or completeness of such
documents and will assume no responsibility therefor.
The Indenture Trustee's Internet Website shall be initially located at
"xxx.xxxxxxxx.xxx/xxxxxx" or at such other address as shall be specified by the
Indenture Trustee from time to time writing to the Noteholders, the Issuer or
any Paying Agent. In connection with providing access to the Indenture Trustee's
Internet Website, the Indenture Trustee may require registration and the
acceptance of a disclaimer. The Indenture Trustee shall not be liable for the
dissemination of information in accordance with this Servicing Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Servicer. The Servicer
hereby represents, warrants and covenants to the Issuer, the Note Insurer, the
Swap Counterparty, the Noteholders and the Indenture Trustee that as of the date
of this Servicing Agreement and for so long as the Servicer shall continue to
act as Servicer hereunder:
(a) The Servicer is a Texas corporation validly existing and in good
standing under the laws of its state of organization and has, in all material
respects, full power and authority to own its assets and operate its business as
presently owned or operated, and to execute, deliver and perform its obligations
under the Transaction Documents to which it is a party or affect the
enforceability or collectibility of the Receivables or any other part of the
Trust Property. The Servicer has obtained all necessary qualifications, licenses
and approvals in each jurisdiction where the failure to do so would materially
and adversely affect the ability of the Servicer to perform its obligations
under the Transaction Documents or affect the enforceability or collectibility
of the Receivables or any other part of the Trust Property;
(b) The execution, delivery and performance by the Servicer of the
Transaction Documents to which it is a party have been duly authorized by all
necessary action on the part of the Servicer and do not contravene or constitute
a default under (i) any applicable law, rule or regulation, (ii) its
organizational documents or (iii) any material indenture or material agreement
or instrument to which the Servicer is a party or by which its properties are
bound (other than violations of such laws, rules, regulations, indentures or
agreements which do not affect the legality, validity or enforceability of any
of such agreements and which, individually or in the aggregate, would not
materially and adversely affect the transactions contemplated by, or the
Servicer's ability to perform its obligations under, the Transaction Documents);
(c) No approval or authorization by, or filing with, any governmental
authority is required in connection with the execution, delivery and performance
by the Servicer of any Transaction Document other than (i) UCC filings, (ii)
approvals and authorizations that have previously been obtained and filings that
have previously been made and (iii) approval,
20 2003-A Servicing Agreement
authorizations or filings which, if not obtained or made, would not have a
material adverse affect on the enforceability or collectibility of the
Receivables or would materially and adversely affect the ability of the Servicer
to perform its obligations under the Transaction Documents;
(d) Each Transaction Document to which the Servicer is a party
constitutes the legal, valid and binding obligation of the Servicer enforceable
against the Servicer in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
receivership, conservatorship or other similar laws affecting creditors' rights
generally and, if applicable, the rights of creditors of limited liability
companies from time to time in effect or by general principles of equity;
(e) There are no actions, suits or proceedings pending or, to the
knowledge of the Servicer, threatened against the Servicer before or by any
governmental authority that (i) assert the invalidity or unenforceability of
this Agreement or any of the other Transaction Documents, (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the other Transaction Documents, (iii)
seeking any determination or ruling that would materially and adversely affect
the performance by the Servicer of its obligations under this Agreement or any
of the other Transaction Documents, or (iv) relating to the Servicer that would
materially and adversely affect the federal or Applicable Tax State income,
excise, franchise or similar tax attributes of the Notes;
(f) No information, Officer's Certificate or statement furnished in
writing or report delivered to the Indenture Trustee, the Issuer, the Note
Insurer, the Swap Counterparty or any Noteholder by the Servicer required under
this Servicing Agreement contains any untrue statement of a material fact or
omits a material fact necessary to make the information, certificate, statement
or report in light of the circumstances under which it was made, not misleading;
provided that the Servicer makes no representation or warranty with respect to
any information incorporated into or forming the basis of any Officer's
Certificate, information, statement or report provided by the Servicer that is
provided to the Servicer by any other Person;
(g) The Servicer has the knowledge, the experience and the systems,
financial and operational capacity available to timely perform each of its
obligations hereunder; and
(h) The Servicer has, with respect to the Receivables, complied in
all material respects with the Collection Policy.
Section 4.02 Representations and Warranties of the Issuer. The Issuer
hereby represents, warrants and covenants to the Servicer, the Noteholders, the
Swap Counterparty, the Note Insurer and the Indenture Trustee that as of the
date of this Servicing Agreement or as of such date specifically provided
herein:
(a) The Issuer is a statutory trust validly existing and in good
standing under the laws of the State of Delaware and has, in all material
respects, full power and authority to own its assets and operate as presently
owned or operated, and to execute, deliver and perform its obligations under the
Transaction Documents to which it is a party or affect the enforceability or
collectibility of the Receivables or any other part of the Trust Property. The
Issuer has obtained all necessary licenses and approvals in each jurisdiction
where the failure to do so would
21 2003-A Servicing Agreement
materially and adversely affect the ability of the Issuer to perform its
obligations under the Transaction Documents or affect the enforceability or
collectibility of the Receivables or any other part of the Trust Property;
(b) The execution, delivery and performance by the Issuer of the
Transaction Documents to which it is a party have been duly authorized by all
necessary action on the part of the Issuer and do not contravene or constitute a
default under (i) any applicable law, rule or regulation, (ii) its
organizational documents or (iii) any indenture or agreement or instrument to
which the Issuer is a party or by which its properties are bound (other than
violations of such laws, rules, regulations, indentures or agreements which do
not affect the legality, validity or enforceability of any of such agreements
and which, individually or in the aggregate, would not materially and adversely
affect the transactions contemplated by, or the Issuer's ability to perform its
obligations under, the Transaction Documents);
(c) No approval or authorization by, or filing with, any governmental
authority is required in connection with the execution, delivery and performance
by the Issuer of any Transaction Document other than (i) UCC filings, (ii)
approvals and authorizations that have previously been obtained and filings that
have previously been made and (iii) approval, authorizations or filings which,
if not obtained or made, would not have a material adverse effect on the
enforceability or collectibility of the Receivables or any other part of the
Trust Property or would materially and adversely affect the ability of the
Issuer to perform its obligations under the Transaction Documents;
(d) Each Transaction Document to which the Issuer is a party
constitutes the legal, valid and binding obligation of the Issuer enforceable
against the Issuer in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
receivership, conservatorship or other similar laws affecting creditors' rights
generally and, if applicable, the rights of creditors of limited liability
companies from time to time in effect or by general principles of equity; and
(e) There are no actions, suits or proceedings pending or, to the
knowledge of the Issuer, threatened against the Issuer before or by any
governmental authority that (i) assert the invalidity or unenforceability of
this Agreement or any of the other Transaction Documents, (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the other Transaction Documents, (iii)
seeking any determination or ruling that would materially and adversely affect
the performance by the Issuer of its obligations under this Agreement or any of
the other Transaction Documents or the collectibility or enforceability of the
Receivables, or (iv) relating to the Issuer that would materially and adversely
affect the federal or Applicable Tax State income, excise, franchise or similar
tax attributes of the Notes.
Section 4.03 Survival of Representations and Warranties. The
representations and warranties set forth in this Article IV shall survive the
date of this Servicing Agreement. Upon discovery by any of the Issuer, the
Indenture Trustee, or the Servicer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties hereto, including the Note Insurer,
the Swap Counterparty
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(unless the Interest Rate Swap Agreement has been terminated and all amounts
owed to the Swap Counterparty have been paid in full) and the Indenture Trustee.
Section 4.04 Merger or Consolidation of, or Assumption of the Obligations
of, or Resignation of the Servicer. Any Person (a) into which the Servicer may
be merged or consolidated, (b) which may result from any merger or consolidation
to which the Servicer shall be a party, (c) which may succeed to the properties
and assets of the Servicer substantially as a whole, or (d) which may succeed to
the duties and obligations of the Servicer under this Servicing Agreement
following the resignation of the Servicer subject to Sections 2.01 and 5.07
hereof, which Person executes an agreement of assumption to perform every
obligation of the Servicer hereunder, shall, with the prior written consent of
the Note Insurer (unless such merger or consolidation is with or into Capital
One Financial Corporation or one of its Affiliates), be the successor to the
Servicer or under this Servicing Agreement without further act on the part of
any of the parties to this Servicing Agreement; provided, however, that (i)
prior written notice of such merger, consolidation or assumption of liabilities
shall be delivered by the Servicer to 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) and the Rating Agencies
and (ii) immediately after giving effect to such transaction, no Event of
Servicing Default (as defined in Section 5.01), and no event which, after notice
or lapse of time, or both, would become an Event of Servicing Default shall have
occurred or be continuing, (iii) no Event of Default or Re-Xxxxxxx Trigger would
occur as a result of such merger, consolidation or assumption of liability, (iv)
the Servicer shall have delivered to the Issuer, 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) and the
Indenture Trustee an Officer's Certificate and an opinion of counsel each
stating that such consolidation, merger, succession or resignation and such
agreement of assumption comply with this Section 4.04 and that all conditions
precedent provided for in this Servicing Agreement relating to such transaction
have been complied with and (v) the Servicer shall have delivered to the Issuer,
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), the Note Insurer, and the Indenture Trustee an opinion of counsel either
(A) stating that, in the opinion of such counsel, all financing statements,
continuation statements and amendments and notations on certificates of title
thereto have been executed and filed that are necessary fully to preserve and
protect the interest of the Issuer, the Noteholders, the Swap Counterparty, the
Note Insurer and the Indenture Trustee in the Receivables and the Financed
Vehicles, and reciting the details of such filings, or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve and
protect such interest.
ARTICLE V
DEFAULT, REMEDIES AND INDEMNITY
Section 5.01 Events of Servicing Default. Any of the following acts or
occurrences shall constitute an "Event of Servicing Default" under this
Servicing Agreement:
(a) any failure by the Servicer to make any payment, transfer or
deposit to the Indenture Trustee on the date such payment, transfer or deposit
is required to be made;
23 2003-A Servicing Agreement
(b) any failure by the Servicer to provide any notices to the
Indenture Trustee and the Note Insurer pursuant to this Servicing Agreement
relating to the transfer or calculation of funds;
(c) failure on the part of the Servicer to either duly observe or
perform in any material respect any other covenants or agreements of the
Servicer set forth in this Servicing Agreement which continues unremedied for a
period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer, as the
case may be, by the Indenture Trustee, the Note Insurer, the Seller or the
Issuer; or the Servicer shall assign its duties hereunder (except as expressly
permitted herein);
(d) any representation, warranty or certification made by the
Servicer in this Servicing Agreement, or any certificate delivered pursuant to
this Servicing Agreement, shall prove to have been incorrect when made, which
has a material adverse effect on the Noteholders, the Swap Counterparty or the
Note Insurer;
(e) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the Servicer or
of or relating to all or substantially all of its properties; or a decree or
order of a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or the
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file or have filed against it a petition or commence an action to
take advantage of any applicable insolvency or reorganization statute, make any
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations;
(f) the Servicer shall fail to be an Eligible Servicer as determined
by the Note Insurer;
(g) so long as no Note Insurer Default has occurred and is
continuing, the Servicer makes any material adverse changes to its Collection
Policy with respect to the Receivables without the consent of the Note Insurer,
which consent shall not be unreasonably withheld; or
(h) a Triggering Event has occurred and is continuing.
Section 5.02 Remedies.
(a) If an Event of Servicing Default shall occur and be continuing,
the Note Insurer (or, if a Note Insurer Default shall have occurred and be
continuing, either the Indenture Trustee (to the extent an officer of the
Indenture Trustee has actual knowledge thereof), the Issuer or Noteholders
constituting Noteholder Approval, or if the Aggregate Outstanding Principal
Balance for the Class A Notes (and all interest accrued thereon) is reduced to
zero and all Reimbursement Obligations and reimbursement for all Swap
Termination Payments paid under the Swap Policy due to the Note Insurer shall
have been paid in full, Noteholders
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constituting Class B Noteholder Approval, by notice given in writing to the
Servicer ("Termination Notice") (with copies to the Indenture Trustee and the
Issuer if given by the Note Insurer or Noteholders constituting the Noteholder
Approval or Class B Noteholder Approval, as applicable), may terminate all of
the rights and obligations of the Servicer under this Servicing Agreement
(except as set forth in Section 5.03). On or after the receipt by the Servicer
of such Termination Notice, all authority, power, obligations and
responsibilities of the Servicer under this Servicing Agreement, whether with
respect to the Receivables, or otherwise, automatically shall pass to, be vested
in and become obligations and responsibilities of the Successor Servicer
appointed in accordance with Section 5.02(c); provided, however, that the
Successor Servicer shall have no liability with respect to any obligation which
was required to be performed by the terminated Servicer prior to the date that
the Successor Servicer becomes the Servicer or any claim based on any alleged
action or inaction of the terminated Servicer. The Successor Servicer is
authorized and empowered by this Agreement to execute and deliver, on behalf of
the terminated Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Receivables and related documents
to show the Issuer or the Indenture Trustee as lienholder or secured party on
the related title documents, or otherwise. The terminated Servicer agrees to
cooperate with the Successor Servicer in effecting the termination of the
responsibilities and rights of the terminated Servicer under this Servicing
Agreement, including, without limitation, the transfer to the Successor Servicer
for administration by it of all cash amounts that shall at the time be held by
the terminated Servicer for deposit, or have been deposited by the terminated
Servicer, in the Collection Account or thereafter received with respect to the
Receivables and the delivery to the Successor Servicer of all Servicer Files,
collection records and a computer tape in readable form as of the most recent
Business Day containing all information necessary to enable the Successor
Servicer to service the Receivables. If requested by the Note Insurer, the
Successor Servicer shall direct the Obligors then making payments directly to
the Servicer to make all payments under the Receivables directly to the
Successor Servicer (in which event the Successor Servicer shall process all such
payments in accordance with Section 3.03(b), or to a lockbox established by the
Successor Servicer at the direction of the Note Insurer). The terminated
Servicer shall grant the Issuer, the Indenture Trustee, the Successor Servicer
and the Note Insurer reasonable access to the terminated Servicer's premises at
the terminated Servicer's expense. As provided in Section 5.05(c) of the
Indenture, the Successor Servicer shall be entitled to be reimbursed for
Transition Costs incurred by it in connection with a transfer of servicing from
the Servicer to such Successor Servicer. The Servicer shall reimburse the
Successor Servicer and the Indenture Trustee for Transition Costs incurred by
them in connection with a transfer of servicing from the Servicer to such
Successor Servicer (to the extent not paid pursuant to the preceding sentence,
if applicable).
(b) On and after the receipt by the terminated Servicer of a
Termination Notice pursuant to this Section 5.02, the terminated Servicer shall
continue to perform all servicing functions under this Servicing Agreement until
the date specified in the Termination Notice. The Note Insurer with prior
written notice to the Rating Agencies may exercise at any time its right to
appoint as Successor Servicer a Person other than the Person serving as
Indenture Trustee at the time, and (without limiting the Note Insurer's
obligations under the Note Guaranty Insurance Policy with respect to the Class A
Notes) shall have no liability to the Issuer, the Indenture Trustee, COAF, any
Noteholders or any other Person if it does so. If a Successor
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Servicer is not chosen within 90 calendar days after the receipt by the Servicer
of the Termination Notice, the outgoing Servicer shall continue to act as
Servicer until a successor has been appointed and accepted such appointment;
provided that if a Note Insurer Default shall have occurred and be continuing,
the Indenture Trustee, or Noteholders constituting Class A Noteholder Approval,
or if the Aggregate Outstanding Principal Balance of the Class A Notes has been
reduced to zero, Noteholders constituting Class B Noteholder Approval, or the
Issuer may petition a court of competent jurisdiction to appoint an Eligible
Servicer as the Successor Servicer. Within 30 days of termination of the
Servicer, if such termination causes a change in the address to which Obligor
payments are to be sent, the Successor Servicer shall send, or cause to be sent,
to each Obligor, a written notice of the name and mailing address of the
Successor Servicer to which payments on the Receivables are to be made.
(c) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the terminated Servicer with respect to servicing
functions under this Servicing Agreement and shall be subject to all the
responsibilities, duties and liabilities (arising on and after the time of such
appointment except for liability arising from the condition of the Servicer's
records at the time the servicing duties are transferred to the Successor
Servicer or for actions or omissions of other Persons) relating thereto placed
on the Servicer by the terms and provisions hereof, and all references in this
Servicing Agreement to the Servicer shall be deemed to refer to the Successor
Servicer unless the context otherwise requires.
(d) In connection with such appointment and assumption, the Successor
Servicer may make such arrangements for the compensation of itself out of
collections of Receivable payments, as it and the Issuer shall agree; provided,
however, that no such compensation shall be in excess of the Servicing Fees
permitted to the Servicer pursuant to this Servicing Agreement without the
approval of the Note Insurer or, if a Note Insurer Default has occurred and is
continuing, the Noteholders constituting Class A Noteholder Approval, or if the
Aggregate Outstanding Principal Balance of the Class A Notes has been reduced to
zero and all Reimbursement Obligations and reimbursement for all Swap
Termination Payments paid under the Swap Policy due to the Note Insurer shall
have been paid in full, Noteholders constituting Class B Noteholder Approval.
(e) All authority and power granted to the Servicer or the Successor
Servicer under the Servicing Agreement shall automatically cease and terminate
upon termination of the Indenture, and shall pass to and be vested in the Seller
and, without limitation, the Seller is hereby authorized and empowered to
execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, all documents and other instruments, and to do and accomplish all
other acts or things necessary or appropriate to effect the purposes of such
transfer of servicing rights. The Servicer agrees to cooperate with the Seller
and the Indenture Trustee in effecting the termination of the responsibilities
and rights of the Servicer to conduct servicing on the Receivables. The Servicer
shall transfer its electronic records relating to the Receivables to the Seller
in such electronic form as the Seller may reasonably request and shall transfer
all other records, correspondence and documents to the Seller in the manner and
at such times as the Seller shall reasonably request, provided that all fees and
expenses owed to the Servicer (or its successor) have been paid. To the extent
that compliance with this Section 5.02 shall require the Servicer to disclose to
the Seller information of any kind which the Servicer deems to be confidential,
the Seller shall be required to enter into such reasonable and customary
licensing
26 2003-A Servicing Agreement
and confidentiality agreements as the Servicer reasonably shall deem necessary
to protect its interests.
Section 5.03 Indemnity by the Servicer. The Servicer shall be liable to
the Seller, the Issuer, the Note Insurer, the Owner Trustee, 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 each Noteholder (collectively, the "Indemnified Parties") to the extent of
the following:
(a) The Servicer shall indemnify, defend and hold harmless the
Indemnified Parties and any of the officers, directors, employees and agents of
the Indemnified Parties from and against any and all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel and expenses of litigation, arising out of or resulting from the use,
ownership or operation by the Servicer or any affiliate thereof of a Financed
Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless the
Indemnified Parties and any of the officers, directors, employees and agents of
the Indemnified Parties from and against any and all costs, expenses, losses,
claims, damages and liabilities to the extent that such cost, expense, loss,
claim, damage or liability arose out of, or was imposed upon any such Person
through the breach of this Servicing Agreement by the Servicer, the negligence,
misfeasance or bad faith of the Servicer in the performance of its duties under
this Servicing Agreement or by reason of reckless disregard of its obligations
and duties under this Servicing Agreement.
(c) The Servicer shall be strictly accountable for all payments
actually received on the Receivables.
Section 5.04 Notification to Noteholders. Upon discovery of the occurrence
of any Event of Servicing Default, after the applicable grace period set forth
in the applicable subparagraphs of Section 5.01, the Servicer shall give written
notice of the occurrence of an Event of Servicing Default to the Note Insurer
or, if a Note Insurer Default has occurred and is continuing, to the Class A
Noteholders. Unless the Note Insurer or, if a Note Insurer Default has occurred
and is continuing, Noteholders constituting Class A Noteholder Approval, or if
the Aggregate Outstanding Principal Balance of the Class A Notes has been
reduced to zero and all Reimbursement Obligations and reimbursement for all Swap
Termination Payments paid under the Swap Policy due to the Note Insurer shall
have been paid in full, Noteholders constituting Class B Noteholder Approval,
gives written notice to the Servicer or within seven (7) Business Days of
receipt of such notice from the Servicer that the Note Insurer or Noteholders
constituting Noteholder Approval, as the case may be, have waived such Event of
Servicing Default, the Servicer shall then give notice in writing to the
Indenture Trustee, 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), the Rating Agencies, the Issuer and any
other Persons identified on a list provided to the Servicer as such list may be
amended from time to time, and the Indenture Trustee shall give notice to the
Noteholders at their respective addresses appearing in the Note Register. Upon
any termination or appointment of a Successor Servicer pursuant to this Article
V, the Indenture Trustee shall give prompt written notice thereof
27 2003-A Servicing Agreement
to 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 to the Noteholders at their respective addresses appearing in the Note
Register.
Section 5.05 Waiver of Events of Servicing Default. The Note Insurer or,
if a Note Insurer Default has occurred and is continuing, the Noteholders
constituting Class A Noteholder Approval, or if the Aggregate Outstanding
Principal Balance of the Class A Notes has been reduced to zero and all
Reimbursement Obligations and reimbursement for all Swap Termination Payments
paid under the Swap Policy due to the Note Insurer shall have been paid in full,
Noteholders constituting Class B Noteholder Approval may, on behalf of the
Noteholders of all Notes Outstanding, waive any Event of Servicing Default. Upon
any such waiver of an Event of Servicing Default, such default shall cease to
exist, and any default arising therefrom shall be deemed to have been remedied
for every purpose of this Servicing Agreement. No such waiver shall extend to
any subsequent or other default or impair any right consequent thereon except to
the extent expressly so waived.
Section 5.06 Survival. The agreements in Section 5.03 shall survive the
termination of the Indenture and the payment in full of the Class A Notes and
the Class B Notes.
Section 5.07 Servicer Not to Resign. Subject to the provisions of Section
5.02, the Servicer shall not resign from the obligations and duties imposed on
it by this Servicing Agreement as Servicer except upon a determination that by
reason of a change in legal requirements the performance of its duties under
this Servicing Agreement would cause it to be in violation of such legal
requirements in a manner which would have a material adverse effect on the
Servicer and the Note Insurer does not elect to waive the obligations of the
Servicer to perform the duties which render it legally unable to act or to
delegate those duties to another Person. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered and acceptable to the Issuer, the Indenture Trustee, and the
Note Insurer. Unless a Note Insurer Default has occurred and is continuing, no
resignation of the Servicer shall become effective until an entity acceptable to
the Note Insurer shall have assumed the responsibilities and obligations of the
Servicer.
ARTICLE VI
TERMINATION OF AGREEMENT
Section 6.01 Term. This Servicing Agreement shall remain in effect until
termination of the Indenture.
Section 6.02 Effect of Termination. Upon termination of this Servicing
Agreement, the Servicer shall, at the direction of the Issuer, promptly return
all Servicer Files and any related files and correspondence in its possession as
are related to the management of the Receivables and the services provided
hereunder.
Section 6.03 Transfer of Servicing. Upon termination of this Servicing
Agreement, the Servicer shall cooperate in the transfer of the Servicer Files.
Any matters pending at the effective termination date will continue to be
processed in an orderly and timely fashion; it being
28 2003-A Servicing Agreement
intended, however, that responsibility for the Receivables shall transfer as
quickly as practicable and in any event within thirty (30) days after the
termination date.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment. This Servicing Agreement may only be amended (i)
by mutual written consent of the parties hereto, (ii) with the prior written
consent of the Note Insurer, (iii) to the extent such amendment adversely
affects the Swap Counterparty, 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 (iv) upon the satisfaction of the Rating Agency
Condition. No amendment made to the Transfer and Assignment Agreement, the
Contribution Agreement or the Indenture, without the Servicer's written consent,
shall be effective as to the Servicer, to the extent such amendment is
disadvantageous in any respect to the Servicer.
Section 7.02 Waivers. The provisions of this Servicing Agreement may only
be waived by written consent of the Note Insurer or, if a Note Insurer Default
has occurred and is continuing, the Noteholders constituting Class A Noteholder
Approval, or if the Aggregate Outstanding Principal Balance of the Class A Notes
has been reduced to zero and all Reimbursement Obligations and reimbursement for
all Swap Termination Payments paid under the Swap Policy due to the Note Insurer
shall have been paid in full, Noteholders constituting Class B Noteholder
Approval, and if adversely affected thereby, the Swap Counterparty and the
parties hereto. The failure of any party at any time to require performance by
the other of any provision of this Servicing Agreement shall in no way affect
that party's right to enforce such provision, nor shall the waiver by any party
of any breach of any provision of this Servicing Agreement be taken or held to
be a waiver of any further breach of the same provision or any other provision.
Section 7.03 Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered personally
or mailed by first-class registered or certified mail, postage prepaid, or by
telephonic facsimile transmission and overnight delivery service, postage
prepaid, in any case addressed as set forth in Section 14.04(b) of the
Indenture.
Such notice request consent or other communication shall be deemed given when so
delivered, or if mailed, two days after deposit with the U.S. Postal Service.
Section 7.04 Severability of Provisions. If one or more of the provisions
of this Servicing Agreement shall be held invalid for any reason, such
provisions shall be deemed severable from the remaining provisions of this
Servicing Agreement and shall in no way affect the validity or enforceability of
such remaining provisions. To the extent permitted by law, the parties hereto
hereby waive any law which renders any provision of this Servicing Agreement
prohibited or unenforceable.
Section 7.05 Rights Cumulative. All rights and remedies under this
Servicing Agreement are cumulative, and none is intended to be exclusive of
another. No delay or
29 2003-A Servicing Agreement
omission in insisting upon the strict observance or performance of any provision
of this Servicing Agreement, or in exercising any right or remedy, shall be
construed as a waiver or relinquishment of such provision, nor shall it impair
such right or remedy. Every right and remedy may be exercised from time to time
and as often as deemed expedient.
Section 7.06 No Offset. Prior to the termination of this Servicing
Agreement, the obligations of the Servicer under this Servicing Agreement shall
not be subject to any defense, counterclaim or right of offset which the
Servicer may have against the Issuer, the Seller, PeopleFirst Finance, LLC,
Capital One, F.S.B., the Transferor, the Note Insurer, the Swap Counterparty,
any Noteholder or the Indenture Trustee, whether in respect of this Servicing
Agreement, any Receivable or otherwise.
Section 7.07 Inspection and Audit Rights. The Servicer agrees that, upon
prior written notice, it will permit the Issuer, the Note Insurer or the
Indenture Trustee and their respective representatives, during the Servicer's
normal business hours, to examine the Servicer Files, all the books of account,
records, reports and other papers of the Servicer relating to the Receivables,
to make copies and extracts therefrom, to cause such books to be audited by
Independent Public Accountants selected by the Issuer, and to discuss its
affairs, finances and accounts relating to the Receivables with its officers,
employees and independent certified public accountants, all at such reasonable
times and as often as may be reasonably requested. Any expense incident to the
exercise by the Issuer, the Note Insurer or the Indenture Trustee of any right
under this paragraph 7.07 shall be borne by the Servicer. The Servicer shall
allow such examination within two Business Days of receipt of the required
notice if so requested by the requesting party.
Section 7.08 Powers of Attorney. The Issuer shall, from time to time,
provide to the employees of the Servicer and the Indenture Trustee limited,
revocable powers of attorney or other such written authorizations as may be
appropriate to enable the Servicer and the Indenture Trustee to perform its
respective obligations under this Servicing Agreement and the Indenture;
provided, however, that the Issuer shall not be required to provide such powers
with respect to any matter for which the Issuer does not have authority to
perform itself.
Section 7.09 Assignment and Binding Effect. Except with respect to the
Grant of this Servicing Agreement by the Issuer to the Indenture Trustee under
the Indenture and as expressly provided herein, this Servicing Agreement may be
assigned only with the written consent of the parties hereto and the Note
Insurer or, if a Note Insurer Default has occurred and is continuing, the
Noteholders constituting Class A Noteholder Approval, or if the Aggregate
Outstanding Principal Balance of the Class A Notes has been reduced to zero and
all Reimbursement Obligations and reimbursement for all Swap Termination
Payments paid under the Swap Policy due to the Note Insurer shall have been paid
in full, Noteholders constituting Class B Noteholder Approval; however, in the
event of an assignment, all provisions of this Servicing Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of the parties hereto.
Section 7.10 Captions. The article, paragraph and other headings contained
in this Servicing Agreement are for reference purposes only, and shall not limit
or otherwise affect the meaning hereof.
30 2003-A Servicing Agreement
Section 7.11 Legal Holidays. In the case where the date on which any
action required to be taken, document required to be delivered or payment
required to be made is not a Business Day in Plano, Texas, New York, New York or
Falls Church, Virginia such action, delivery or payment need not be made on that
date, but may be made on the next succeeding Business Day.
Section 7.12 Counterparts. This Servicing Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 7.13 Governing Law. This Servicing Agreement shall be deemed
entered into with and shall be governed by and interpreted in accordance with
the laws of the State of Texas, except to the extent that it is mandatory that
the laws of some other jurisdiction apply.
Section 7.14 Parties. Except as set forth in Section 7.17 hereof, this
Servicing Agreement shall inure solely to the benefit of and shall be binding
upon the parties hereto, and their respective successors, legal representatives
and assigns, and no other person shall have or be construed to have any
equitable right, remedy or claim under or in respect of or by virtue of this
Servicing Agreement or any provision contained herein.
Section 7.15 Relationship of the Parties. The relationship of the parties
to this Servicing Agreement is that of independent contractors. Neither this
Servicing Agreement nor any of the activities contemplated hereby shall be
deemed to create any partnership, joint venture, agency or employer/employee
relationship among the Servicer and the Issuer.
Section 7.16 No Bankruptcy Petition Against the Issuer or the Seller. The
Servicer and the Indenture Trustee agree that, prior to the date that is one
year and one day after the payment in full of all outstanding Class A Notes and
Class B Notes, none of them will institute against the Issuer or the Seller, or
join any other Person in instituting against the Issuer or the Seller any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under the laws of the United States or any State of the
United States. This Section 7.16 shall survive the termination of this Servicing
Agreement.
Section 7.17 Third Party Beneficiaries. This Servicing Agreement shall
inure to the benefit of each Noteholder, 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), the Indenture Trustee and
their respective successors and assigns. Without limiting the generality of the
foregoing, all covenants and agreements in this Servicing Agreement which
expressly confer rights upon the Issuer, the Note Insurer, the Noteholders, 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) or the
Indenture Trustee shall be for the benefit of and run directly to each
Noteholder, 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) and the Indenture Trustee, and each Noteholder, 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)
and the Indenture Trustee shall be entitled to rely on and enforce such
covenants to the same extent as if it were a party hereto. If a Note Insurer
Default has occurred and is continuing, all rights conferred on the Note
31 2003-A Servicing Agreement
Insurer by this Servicing Agreement shall be suspended until such time as the
Note Insurer Default has been fully cured; provided, however, that upon such
cure, the Note Insurer's rights shall be immediately reinstated in full.
Notwithstanding anything contained in this Servicing Agreement to the contrary,
the Noteholders shall have no rights to enforce the provisions of this Servicing
Agreement so long as there is no Note Insurer Default that is continuing.
Section 7.18 Other Agreements. The Servicer will not be obligated or bound
by any provision or term of any other agreement, including the Indenture, the
Contribution Agreement and the Transfer and Assignment Agreement, except to the
extent, and only to the extent, expressly stated herein or therein.
Section 7.19 Procedure for Indemnification. Notwithstanding anything to
the contrary in this Servicing Agreement, in the event that a Person is entitled
to indemnification pursuant to the terms of this Servicing Agreement, such
Person (hereinafter called the "Indemnified Party") shall promptly notify the
person against whom such indemnity may be sought (hereinafter called the
"Indemnifying Party") in writing and the Indemnifying Party, upon request of the
Indemnified Party, shall retain counsel reasonably satisfactory to the
Indemnified Party or, at the Indemnified Party's option, such Indemnified Party
may select its own counsel with the consent of the Indemnifying Party, which
consent shall not be unreasonably withheld or delayed, to represent the
Indemnified Party and any others the Indemnifying Party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. It is understood that the Indemnifying Party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm at any one time (in addition to any local counsel) for all such
Indemnified Parties (unless necessary because of conflicts of interest), and all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by the Indemnified Party. The Indemnifying Party shall
not be liable for any settlement of any proceeding effected without its written
consent, which consent shall not be unreasonably withheld or delayed, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify the Indemnified Party from and against
any loss or liability by reason of such settlement or judgment.
Section 7.20 Reports to Holders. Any report, notice or financial statement
delivered pursuant to this Servicing Agreement by the Servicer to the
Noteholders shall be provided by such Persons to each Noteholder at the address
last provided to the Servicer by the Indenture Trustee or such Noteholder.
Section 7.21 Purchase and Subsequent Pledge. The Servicer hereby
acknowledges that the Issuer, concurrently with the execution of this Servicing
Agreement, will acquire the Receivables and the other items included in the
Trust Property pursuant to the Contribution Agreement and will Grant the
Receivables and the other items included in the Trust Property along with
certain of the Issuer's rights under the Contribution Agreement, this Servicing
Agreement and the Transfer and Assignment Agreement to the Indenture Trustee
pursuant to the terms of the Indenture, and that the representations and
warranties contained in the Contribution Agreement, this Servicing Agreement and
the Transfer and Assignment Agreement and the rights of the Issuer under Section
7.02 of the Contribution Agreement, this Servicing Agreement and the Transfer
and Assignment Agreement are intended to benefit the Noteholders, the Swap
32 2003-A Servicing Agreement
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 Note
Insurer.
Section 7.22 Limitation on Liability. Notwithstanding anything to the
contrary contained in this Agreement, the obligations of the Issuer under this
Agreement are solely the corporate obligations of the Issuer and shall be
payable by the Issuer solely (y) from funds available pursuant to and in
accordance with the payment priorities set forth in Section 5.05(c) of the
Indenture or (z) to the extent that it receives additional funds designated for
such purposes or to the extent that it has additional funds available (other
than funds described in the preceding clause (y)) that would be in excess of
amounts that would be necessary to pay the debt and other obligations of such
entity incurred in accordance with its limited liability company agreement and
all financing documents to which it is a party as they come due. In addition, no
amount owing by the Issuer hereunder in excess of the liabilities that it is
required to pay in accordance with the preceding sentence shall constitute a
"claim" (as defined in Section 101(5) of the Bankruptcy Code) against it. No
recourse shall be had for the payment of any amount owing hereunder or any other
obligation of, or claim against, the Issuer arising out of or based upon this
Agreement against any member, employee, officer, agent, director or authorized
person of the Issuer; provided, however, that the foregoing shall not relieve
any such person or entity of any liability they might otherwise have as a result
of fraudulent actions or omissions taken by them nor shall the foregoing relieve
any person of any liability expressly undertaken by such person under the
Transaction Documents.
Section 7.23 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 on 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 Owner Trustee or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Issuer under this Agreement.
33 2003-A Servicing Agreement
IN WITNESS WHEREOF, the Issuer, the Servicer and the Indenture Trustee have
caused this Servicing Agreement to be duly executed by their respective
authorized officers as of the date and year first above written.
CAPITAL ONE AUTO FINANCE TRUST 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 Servicing Agreement
CAPITAL ONE AUTO FINANCE, INC., as
Servicer
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Manager of Securitization
S-2 2003-A Servicing Agreement
JPMORGAN CHASE BANK,
as Indenture Trustee
By: /s/ Xxxxxxxx X. X. Xxxxx
--------------------------------------
Xxxxxxxx X. X. Xxxxx
Vice President
S-3 2003-A Servicing Agreement
EXHIBIT A
MONTHLY SERVICER'S REPORT
A-1 2003-A Servicing Agreement
EXHIBIT B
FORMS OF LATE NOTICES SENT
TO OBLIGORS RE: DELINQUENCIES
[Date]
[Name]
[Address]
[Address]
Dear [Name]:
Our records indicate we have not received your payment in the amount of
$_________ which was due [due date].
If you have not already done so, please forward your check for $_________
by return mail to bring your account current. If payment is not received by
[date], your account will be assessed a late charge of $___________
If payment has been sent, please disregard this notice.
Sincerely,
CAPITAL ONE AUTO FINANCE, INC.
By: /s/
--------------------------------------
B-1 2003-A Servicing Agreement
EXHIBIT C
REQUEST FOR RELEASE OF CUSTODIAN FILE
To: *[_________________] DATE PREPARED
In connection with the administration of the pool of receivables
("Receivables") held by you as custodian ("Custodian"), pursuant to the
Indenture dated as of June 3, 2003 (the "Indenture") by and between Capital One
Auto Finance Trust 2003-A (the "Issuer"), and you, as Indenture Trustee and
Custodian, the undersigned, as servicer ("Servicer") of the Receivables pursuant
to the Servicing Agreement dated as of June 3, 2003 by and among the Issuer,
JPMorgan Chase Bank, as Indenture Trustee, and the Servicer (the "Servicing
Agreement"), requests the release of the Custodian File identified below for the
reason indicated. Capitalized terms used herein without definition shall have
the meanings assigned to such terms in the Indenture. The undersigned shall hold
such documents in trust on behalf of the Custodian and shall return the
documents to the Custodian when the undersigned's need therefor no longer
exists, except where the Receivable is paid in full, repossessed, liquidated or
repurchased (as indicated below).
The undersigned hereby certifies that if this release is requested due to
payment in full of a Receivable, or repurchase upon a Repurchase Event, all
amounts received in connection therewith which are required to be deposited in
the Collection Account pursuant to Section 3.02 of the Servicing Agreement have
been so deposited.
REASON FOR REQUESTING DOCUMENTS:
RECEIVABLE PAID IN FULL
REPOSSESSION
LIQUIDATION
REPURCHASE UPON REPURCHASE EVENT
OTHER
Capital One Auto Finance, Inc.
0000 Xxxxxx Xxxxxxx Authorized Signature of Servicer
Xxxxx, Xxxxx 00000
By:
--------------------------------------
C-1 2003-A Servicing Agreement
COMMITMENT/POOL NUMBER
LOAN NUMBER
CUSTOMER
TO CUSTODIAN: Please acknowledge below by your signature the execution of the
above request. You must retain this form for your file, and a copy of this form,
signed and dated by you, shall be returned to the Servicer.
Authorized Signature of Custodian Release Date
SERVICER RECEIPT
The undersigned, on behalf of the Servicer, hereby acknowledges that the
Servicer is holding the documents described below relating to the Receivables on
behalf of the Indenture Trustee, the Noteholders and the Note Insurer, as their
interests may appear.
Documents:
Authorized Signature of Servicer
By:
--------------------------------------
RETURN OF RELEASED DOCUMENT(S)/FILE
All Documents Identified above as Previously Released Have Been Returned:
Authorized Signature of Custodian Date of Return
C-2 2003-A Servicing Agreement
EXHIBIT D
[RESERVED]
D-1 2003-A Servicing Agreement
EXHIBIT E
COAF'S COLLECTION POLICY
E-1 2003-A Servicing Agreement
EXHIBIT F
FORM OF INVESTOR CERTIFICATION
JPMorgan Chase Bank
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services -- Asset-Backed Administration
In accordance with Section 3.05 of the Servicing Agreement (the
"Agreement"), with respect to Series 2003-A Notes (the "Notes"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of $________________ in
principal balance of the Notes.
2. The undersigned is requesting a password pursuant to Section 3.05 of
the Agreement for access to certain information (the "Information") on
the Indenture Trustee's website.
3. In consideration of the Indenture Trustee's disclosure to the
undersigned of the Information, or the password in connection
therewith, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in connection
with the related Notes, from its accountants and attorneys, and
otherwise from such governmental or banking authorities or agencies to
which the undersigned is subject), and such Information will not,
without the prior written consent of the Indenture Trustee, be
otherwise disclosed by the undersigned or by its officers, directors,
partners, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange
Act of 1934, as amended, or would require registration of the Residual
Interest pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement
by itself or any of its Representatives and shall indemnify the
Issuer, the Servicer and the Indenture Trustee for any loss, liability
or expense incurred thereby with respect to any such breach by the
undersigned or any of its Representatives.
6. Capitalized terms used by not defined herein shall have the respective
meanings assigned thereto in the Agreement.
F-1 2003-A Servicing Agreement
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereby
by its duly authorized officer, as of the day and year written above.
-----------------------------------------
Beneficial Owner
By:
---------------------------------
Title:
---------------------------------
Company:
---------------------------------
Phone
---------------------------------
F-2 2003-A Servicing Agreement
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