Exhibit 10.3
EXECUTION COPY
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SERVICING AGREEMENT
by and among
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee for
Capital One Auto Finance Trust 2001-B,
XX XXXXXX XXXXX BANK,
as Indenture Trustee,
and
CAPITAL ONE AUTO FINANCE, INC.,
as Servicer
Dated as of
December 20, 2001
$1,200,000,000
CAPITAL ONE AUTO FINANCE TRUST 2001-B
AUTOMOBILE RECEIVABLE-BACKED NOTES, SERIES 2001-B
CLASS A NOTES AND CLASS B NOTES
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2001-B Servicing Agreement
TABLE OF CONTENTS
Page
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 Repurchase of Receivables Upon Breach ....................................... 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 ..................................................... 10
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 Owner
Trustee Ownership ........................................................... 12
Section 2.16 Possession of Servicer Files ................................................ 13
Section 2.17 Processing of Information ................................................... 14
Section 2.18 Warranties and Representations 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 .................................................................. 15
Section 2.22 Enforcement ................................................................. 15
Section 2.23 Payment in Full on Receivable ............................................... 16
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TABLE OF CONTENTS
Page
Section 2.24 Release of Receivable ............................................................ 16
Section 2.25 Fidelity Bond .................................................................... 16
Section 2.26 Responsibilities of the Servicer ................................................. 17
Section 2.27 Re-Xxxxxxx ....................................................................... 17
ARTICLE III ACCOUNTS; COLLECTIONS; STATEMENT TO CERTIFICATEHOLDERS AND NOTEHOLDERS ...................... 18
Section 3.01 Accounts ......................................................................... 18
Section 3.02 Collections ...................................................................... 18
Section 3.03 Collection Account and Acknowledgment Letter ..................................... 18
ARTICLE IV REPRESENTATIONS AND WARRANTIES .............................................................. 20
Section 4.01 Representations and Warranties of the Servicer ................................... 20
Section 4.02 Representations and Warranties of the Owner Trustee .............................. 22
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 .................................................................. 22
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 ........................................................ 26
Section 5.04 Notification to Noteholders ...................................................... 27
Section 5.05 Waiver of Events of Servicing Default ............................................ 27
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 ............................................................ 28
ARTICLE VII MISCELLANEOUS PROVISIONS .................................................................... 28
Section 7.01 Amendment ........................................................................ 28
Section 7.02 Waivers .......................................................................... 29
Section 7.03 Notices .......................................................................... 29
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TABLE OF CONTENTS
Page
Section 7.04 Severability of Provisions. ............................................... 31
Section 7.05 Rights Cumulative ......................................................... 31
Section 7.06 No Offset ................................................................. 31
Section 7.07 Inspection and Audit Rights ............................................... 31
Section 7.08 Powers of Attorney ........................................................ 31
Section 7.09 Assignment and Binding Effect ............................................. 32
Section 7.10 Captions .................................................................. 32
Section 7.11 Legal Holidays ............................................................ 32
Section 7.12 Counterparts .............................................................. 32
Section 7.13 Governing Law ............................................................. 32
Section 7.14 Parties ................................................................... 32
Section 7.15 Relationship of the Parties ............................................... 32
Section 7.16 No Bankruptcy Petition Against the Owner Trustee or the Seller ............ 32
Section 7.17 Third Party Beneficiaries ................................................. 33
Section 7.18 Other Agreements .......................................................... 33
Section 7.19 Procedure for Indemnification ............................................. 33
Section 7.20 Reports to Holders ........................................................ 34
Section 7.21 Purchase and Subsequent Pledge ............................................ 34
Section 7.22 Limitation on Liability ................................................... 34
Section 7.23 Limitation of Liability ................................................... 34
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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 RECEIVABLE FILE
EXHIBIT D COAF'S CREDIT POLICY
EXHIBIT E COAF'S COLLECTION POLICY
EXHIBIT F FORM OF INVESTOR CERTIFICATION
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SERVICING AGREEMENT
This Servicing Agreement ("Servicing Agreement") is made as of December
20, 2001, by and among Wilmington Trust Company, not in its individual capacity
but solely as Owner Trustee for Capital One Auto Finance Trust 2001-B, a
Delaware common law trust (the "Owner Trustee"), XX Xxxxxx Xxxxx 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 Owner Trustee and the Indenture Trustee.
PRELIMINARY STATEMENT
WHEREAS, the Indenture provides for the issuance by the Owner Trustee
of the Owner Trustee's Automobile Receivable-Backed Notes, Series 2001-B,
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 motor vehicle receivables
evidenced by retail installment contracts and security agreements (the
"Receivables") secured by security interests in Financed Vehicles; and
WHEREAS, pursuant to that certain Transfer and Assignment Agreement
dated as of December 20, 2001 (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 December 20, 2001 (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 Owner Trustee on the Closing Date and on the Funding Dates,
respectively; and
WHEREAS, pursuant to the terms of the Indenture, on the Closing Date,
the Owner Trustee will Grant, inter alia, the Receivables and a first priority
security interest in the Financed Vehicles to the Indenture Trustee for the
benefit of the Noteholders and the Note Insurer; and
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WHEREAS, pursuant to the terms of the Indenture, the Owner Trustee
shall enter into an Interest Rate Swap Agreement (the "Interest Rate Swap
Agreement") with Credit Suisse First Boston International (the "Swap
Counterparty"); and
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 Owner Trustee, 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 Owner Trustee 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 Owner
Trustee.
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 insurance policies covering the Financed
Vehicles or the Obligors.
"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 Owner Trustee hereby appoints COAF as Servicer. The
Servicer shall perform the services required pursuant to the terms of this
Servicing Agreement. In performing
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its duties hereunder, the Servicer shall have full power and authority to do or
cause to be done any and all 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 from the Revenue Fund as defined in
the Indenture 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
Owner Trustee, the Note Insurer, the Indenture Trustee or the Noteholders will
have any liability to the Servicer with respect thereto; provided, however, that
the Owner Trustee shall remain liable for any fees, expenses and indemnities due
and payable to the Servicer which have not been paid from the Revenue Fund.
(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, 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 Owner Trustee 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 Owner Trustee; the Note Insurer and the Noteholders shall not
be deemed parties hereto and neither the Note Insurer, the Owner Trustee, 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 Owner Trustee has agreed that the Indenture
Trustee, in its name or (to the extent required by law) in the name of the Owner
Trustee, may (but is not required to) enforce all rights of the Owner Trustee
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 and the Note
Insurer, whether or not the Owner Trustee 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.
(e) The Owner Trustee shall, at its own expense, duly and
punctually perform and observe its obligations to the Servicer under this
Servicing Agreement in accordance with
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the terms hereof. In addition, promptly following a request from the Indenture
Trustee to do so and at the Owner Trustee's own expense, the Owner Trustee 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 Owner Trustee 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
Owner Trustee 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 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 Owner Trustee 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 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
3-month period; (iii) in any given 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 4.0% (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 Obligations due to the Note Insurer shall have been
paid in full, Noteholders constituting Class B Noteholder Approval); and
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(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 A-4 Maturity 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 Owner
Trustee under the Dealer's 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 or is reasonably
anticipated to become 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 connection with the repossession of the Financed Vehicles securing
such Receivables shall be reimbursed to the Servicer from the
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Revenue Fund 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(g), shall follow
practices consistent with the standard of care set forth in Section 2.19,
including the Collection Policy, in its servicing of automotive 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(g), 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 Owner Trustee hereby directs the Servicer to (i)
provide written notice to the Owner Trustee and the Indenture Trustee promptly
upon its discovery of the relocation of a Financed Vehicle, (ii) 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 (iii) within
three (3) Business Days of its receipt thereof forward to the Custodian (unless
the Servicer is the Custodian under the Indenture), on behalf of the Owner
Trustee, via reputable overnight courier,
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any Certificate of Title to a Financed Vehicle received by the Servicer with
respect to a Receivable serviced hereunder, whether such Certificate of Title
was not previously delivered to the Custodian 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 Owner
Trustee or the Note Insurer, take any action necessary to preserve and protect
the security interests of the Owner Trustee 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 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 Owner Trustee, the Noteholders, 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) immediately notify
the Owner Trustee, 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, (vi) defend the right, title, and
interest of the Owner Trustee, the Noteholders, 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, (vii) deposit into the Collection Account all payments received by the
Servicer with respect to the Receivables in accordance with this Servicing
Agreement, (viii) comply, in all respects with the terms and conditions of this
Servicing Agreement relating to the obligation of the Owner Trustee to remove
Receivables from the Trust Property pursuant to the Indenture, the obligation of
the Seller to reacquire the Receivables from the Owner Trustee pursuant to the
Contribution Agreement and the obligation of the Transferor to reacquire
Receivables from the Seller pursuant to the Transfer and Assignment Agreement,
(ix) promptly notify the Owner Trustee, the Note Insurer, 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, (x) promptly notify the Owner
Trustee, the Note Insurer, and the Indenture Trustee of the occurrence of any
event which, to the knowledge of the Servicer, would require that the Owner
Trustee make or cause to be made any filings, reports, notices, or applications
or 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, (xi) take all reasonable action necessary to
maximize the returns pursuant to the Insurance Policies, (xii) deliver or cause
to be delivered to the Owner Trustee 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 Owner Trustee on such Closing Date or
Funding Date, as
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the case may be, and (xiii) 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 Owner Trustee 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.
(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 Owner Trustee, the Indenture Trustee or the Note
Insurer might have with respect to the administration of the Receivables.
(c) The Servicer will promptly advise the Owner Trustee, the
Note Insurer, and the Indenture Trustee of any inquiry received from an Obligor
which requires the consent of the Owner Trustee or the Indenture Trustee.
Inquiries requiring consent of the Owner Trustee or the Indenture Trustee may
include, but are not limited to, inquiries about settlement of any unasserted
claim or defense, or compromise of any amount an Obligor owes.
(d) The Servicer will not make any material change to its
Collection Policy with respect to the Receivables without the prior written
consent of the Note Insurer, which consent shall not be unreasonably withheld.
Section 2.07 Repurchase of Receivables Upon Breach. The Servicer
shall inform the Owner Trustee, the Note Insurer, and the Indenture Trustee
promptly, in writing, upon the discovery of any breach pursuant to Section
3.02(b) of the Transfer and Assignment Agreement or the Contribution Agreement;
provided, however, that the Servicer shall have no duty to investigate or
determine the existence of any breach except as specified herein. Unless the
breach shall have been cured within the applicable cure period following such
discovery as set forth in Section 7.02 of the Transfer and Assignment Agreement
and Section 7.02 of the Contribution Agreement, or waived by the Note Insurer,
the Servicer shall deliver to the Owner Trustee a written demand to cause the
Seller to reacquire such Receivable from the Owner Trustee and the Transferor to
repurchase such Receivable from the Seller within five (5) Business Days
following the expiration of such cure period. The sole remedy of the Owner
Trustee, the Indenture Trustee, the Note Insurer or the Noteholders against the
Transferor and the Seller with respect to a breach pursuant to Section 3.02(b)
of the Transfer and Assignment Agreement or the Contribution Agreement shall be
as set forth in the Transfer and Assignment Agreement or the Contribution
Agreement. Promptly following a repurchase pursuant to Section 7.02 of the
Transfer and Assignment Agreement or the Contribution Agreement, the Servicer
shall give the Owner Trustee written notice thereof.
Section 2.08 Servicing Fee.
(a) Pursuant to the Indenture, the Owner Trustee has agreed
to cause the Indenture Trustee to pay out of monthly collections with respect to
the Receivables to the Servicer a monthly servicing fee (the "Servicing Fee")
with respect to each Receivable serviced under this Servicing Agreement;
provided, however, that the Owner Trustee hereby agrees not to amend or consent
to any amendment of any provision of the Indenture relating to compensation
8
of the Servicer without the prior written consent of the Servicer and the Note
Insurer. Pursuant to the terms of the Indenture, the Owner Trustee has assumed
liability for all liabilities associated with the Trust Property or created
under the Indenture; provided that the Owner Trustee 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 for receipt 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, provided that, with respect to the initial Collection
Period, the Servicing Fee shall be $3,698,666.66. 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.
Section 2.09 Annual Statement as to Compliance. The Servicer will
deliver to the Rating Agencies, the Owner Trustee, the Indenture Trustee, the
Note Insurer and the Swap Counterparty (so long as the Class A-3 Notes are
Outstanding), within 120 days after the end of each fiscal year of the Servicer
(commencing 120 days after the fiscal year ended December 30, 2001) 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 such
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 complied with all conditions and
covenants under this Agreement throughout such year, or, if there has been a
default in the compliance of any such condition or covenant, 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 Indenture Trustee shall provide copies of such reports and
certificates to the Seller, the Note Insurer, the Noteholders, the Rating
Agencies, the Swap Counterparty (so long as the Class A-3 Notes are Outstanding)
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
9
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 will cause a firm of Independent Public Accountants to
deliver to the Rating Agencies, the Noteholders and the Note Insurer upon
receipt of covenants and representations from such Persons as the Independent
Public Accountants may require, and as soon as practicable, but in any event
within 120 days after the end of each fiscal year, an annual review of the
Servicer's procedures and operations in form and substance reasonably
satisfactory to the Note Insurer, prepared by such firm of Independent Public
Accountants, dated as of December 31 of each year beginning December 31, 2002
and substantially stating to the effect that (i) such accountants have examined
the accounts and records of the Servicer relating to the Trust Property (which
records shall be described in one or more schedules to such statement), (ii)
such firm has compared the information contained in certain Monthly Servicer
Reports (and similar reports for other securitization transactions sponsored by
the Owner Trustee or an affiliate thereof) delivered in the relevant period with
information contained in the accounts and records or other relevant source
documents for such period, and (iii) on the basis of the procedures performed,
whether the information examined and contained in such Monthly Servicer Reports
(and similar reports for such other securitization transactions) delivered on
the relevant period reconciles and agrees with the information contained in the
accounts and records or other relevant source documents except for such
exceptions as such Independent Public Accountants believe to be immaterial and
such other exceptions as shall be set forth in such statement.
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 Owner Trustee, 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 compensation paid to outside legal counsel
retained to protect the interests of the Owner Trustee, the Indenture Trustee,
the Note Insurer or the Noteholders in
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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 Owner Trustee, will administer
and enforce all rights and responsibilities of the holder of the Receivables
provided for in the Insurance Policies relating to the Receivables.
(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 Owner Trustee, the Note Insurer, the
Noteholders, the Swap Counterparty (so long as the Class A-3 Notes are
Outstanding) 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 Owner Trustee, the Rating Agencies, the Swap
Counterparty (so long as
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the Class A-3 Notes are Outstanding) and the Note Insurer, a written monthly
report substantially in the form of Exhibit A hereto and, upon the request of
the Owner Trustee, the Indenture Trustee, the Swap Counterparty (so long as the
Class A-3 Notes are Outstanding) 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 Owner Trustee, 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 Owner Trustee upon the Owner Trustee'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 Custodial 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 Owner Trustee
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 Receivable 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 Owner Trustee 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;
(ii) a copy (but not the original) of the retail installment
contract and security agreement and any amendments thereto, provided, however,
that the Servicer shall deliver any original amendments to the retail
installment contract and security agreement to the Custodian immediately
following execution thereof (unless the Servicer is the Custodian under the
Indenture);
(iii) a copy (but not the original) of a Certificate of Title
with a lien notation or an application therefor;
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(iv) a certificate of insurance or application therefor with
respect to the Financed Vehicle securing the Receivable;
(v) 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) the invoice for the Financed Vehicle;
(vii) Obligor's order for the Financed Vehicle and the proof
of down payment;
(viii) a copy of the service contract, if any, on the Financed
Vehicle;
(ix) 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
(x) such other documents as the Servicer may reasonably
request 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 Owner Trustee 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 and other physical records of the Receivables maintained by the
Servicer will bear an indication reflecting that the Receivables are owned by
the Owner Trustee and Granted to the Indenture Trustee for the benefit of the
Noteholders and the Note Insurer and that all Servicer Files shall remain the
property of the Owner Trustee 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 Owner Trustee and
Granted to the Indenture Trustee for the benefit of the Noteholders and the Note
Insurer.
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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.
Section 2.18 Warranties and Representations With Respect to Compliance with
Law and Enforcement.
(a) The Owner Trustee hereby represents to the Servicer, based on
certain representations the Transferor has made to the Owner Trustee concerning
the Receivables in the Transfer and Assignment Agreement and the Seller has made
in the Contribution Agreement, respectively, and on which representations the
Owner Trustee 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 Owner Trustee, the Note
Insurer 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 2.20 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 retail installment sales contracts and notes owned or serviced by the
Servicer comparable to the Receivables. In performing such duties, so long as
COAF is the Servicer (i) COAF shall comply with COAF's Collection Policy, and
(ii) COAF shall not make any material amendment to COAF's Collection Policy
without the prior written consent of the Note Insurer which consent shall not be
unreasonably withheld; provided, however, that notwithstanding the foregoing,
the Servicer shall not, except pursuant to a judicial order from a court of
competent jurisdiction, or as otherwise required by applicable law or
regulation, release or waive the right to collect the unpaid balance on any
Receivable. 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 Owner Trustee, the Note Insurer or the Indenture Trustee on behalf
of the Noteholders 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 Owner Trustee and the
Note Insurer to determine the status of each Receivable and any Insurance Policy
relating thereto.
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Section 2.21 Inspection.
(a) At all times during the term hereof, the Servicer shall afford
the Owner Trustee, 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 Owner Trustee, 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 relations. Without
otherwise limiting the scope of the examination, the Owner Trustee, the Note
Insurer, or the Indenture Trustee may, using generally accepted audit
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
Owner Trustee, the Note Insurer, or the Indenture Trustee to conduct any
inspection pursuant to this Section.
(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 Owner Trustee, the Note Insurer, the Indenture
Trustee and Noteholders, a copy of the Schedule of Receivables.
(c) All information obtained by the Owner Trustee 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 Owner
Trustee 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 Owner Trustee's or the Note
Insurer's request, provide the Owner Trustee, 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 Owner Trustee 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 Owner
Trustee, the Indenture Trustee or the Note Insurer to correct information
previously provided by the Servicer to the Owner Trustee 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 Owner Trustee or the Indenture
15
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 Owner Trustee 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 Owner Trustee, 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 Owner Trustee deems necessary to enforce the Receivable
or the Insurance Policy, including bringing suit in its name.
(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 Owner Trustee'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 Owner Trustee,
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 Fidelity Bond. The Servicer shall obtain within 30 days
of the Closing Date and shall maintain, at its own expense, a fidelity bond in
the amount of $50,000, naming the Indenture Trustee, in its capacity as trustee,
as an additional loss payee or beneficiary of each such fidelity bond, with
responsible companies on all officers, employees or other persons acting on
behalf of the Servicer in any capacity with regard to the Trust Property to
handle funds, money, documents and papers relating to the Trust Property. Any
such fidelity bond shall protect and insure the Servicer against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such persons and shall be maintained in a form and amount that
would meet the requirements of prudent institutional automobile receivables
servicers. No provision of this Section 2.25 requiring such fidelity bond shall
diminish or relieve the Servicer from its duties and obligations as set forth in
this Servicing Agreement. The
16
Servicer shall be deemed to have complied with this provision if one of its
respective Affiliates has such fidelity bond and, by the terms of such fidelity
bond, the coverage afforded thereunder extends to the Servicer. The Servicer
shall cause each and every subservicer for it to maintain a fidelity bond which
would meet such requirements. Annually and more frequently upon request of the
Owner Trustee, the Note Insurer, or the Indenture Trustee, the Servicer shall
cause to be delivered to the Indenture Trustee a certification evidencing
coverage under such fidelity bond. Any such fidelity bond shall not be canceled
or modified in a materially adverse manner without thirty (30) days' prior
written notice to the Owner Trustee, the Note Insurer, the Indenture Trustee and
the Rating Agencies.
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 Owner Trustee, the Note Insurer, 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
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.
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ARTICLE III
ACCOUNTS; COLLECTIONS; STATEMENT
TO CERTIFICATEHOLDERS 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 (so long as the Class A-3 Notes are
Outstanding) 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's 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's 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 draft on the day of receipt thereof and if made payable to the
Indenture Trustee, forward the original 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.
Section 3.03 Collection Account and Acknowledgment Letter.
(a) There is hereby appointed XX Xxxxxx Xxxxx Bank, as the
initial Collection Account Depository with respect to the Receivables serviced
under this Servicing Agreement. The Owner Trustee 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
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receipt thereof; provided, however, that the Servicer shall, pursuant to Section
2.08(c), 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 Certificateholders and Noteholders. On
each Payment Date, the Servicer shall provide to Indenture Trustee (with a copy
to each Rating Agency and the Swap Counterparty (so long as the Class A-3 Notes
are Outstanding)) written instructions for the Indenture Trustee to forward to
each Noteholder of record, to each Paying Agent, if any, and to the Owner
Trustee for the Owner Trustee to forward to each Certificateholder of record, 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 Certificates 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;
(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;
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(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 Certificateholders; and
(p) the Net Swap Receipts, if any.
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
principal balance of the Notes (or Class thereof).
Section 3.05 Trustee Internet Website. The Indenture Trustee may make
available to any Paying Agent, Noteholders, the Note Insurer or Owner Trustee,
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
Owner Trustee, such other 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 Owner
Trustee 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 Owner Trustee, the
Note Insurer, 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:
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(a) The Servicer is a corporation duly organized, validly existing and
in good standing under the laws of the State of Texas;
(b) All necessary corporate, regulatory or other similar action has
been taken to authorize and empower the Servicer and the officers or
representatives acting on the Servicer's behalf, and the Servicer has full power
and authority to execute, deliver and perform this Servicing Agreement;
(c) This Servicing Agreement has been duly authorized, executed and
delivered by the Servicer and the performance and compliance with the terms of
this Servicing Agreement will not violate the Servicer's articles of
incorporation or bylaws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in the
breach of, any contract, indenture, loan, lease, credit agreement or any other
agreement or instrument to which the Servicer is a party or which may be
applicable to the Servicer or any of its assets;
(d) The Servicer is duly licensed and qualified to perform the
functions specified herein and this Servicing Agreement constitutes a valid,
legal and binding obligation of the Servicer, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' rights generally and to
general principles of equity;
(e) The Servicer is not in violation of, and the execution, delivery
and performance of this Servicing Agreement by the Servicer will not constitute
a violation with respect to, any order or decree of any court or any order,
regulation or demand of any federal, State, municipal or governmental agency,
which violation might have consequences that would materially and adversely
affect the condition (financial or other) or operations of the Servicer or its
properties or might have consequences that would affect the performance of its
duties hereunder;
(f) No proceeding of any kind, including but not limited to
litigation, arbitration, judicial or administrative, is pending or threatened
against or contemplated by the Servicer which would under any circumstance have
an adverse effect on the execution, delivery, performance or enforceability of
this Servicing Agreement;
(g) No information, Officer's Certificate or statement furnished in
writing or report delivered to the Indenture Trustee, the Owner Trustee, the
Note Insurer, 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;
(h) The Servicer has the knowledge, the experience and the systems,
financial and operational capacity available to timely perform each of its
obligations hereunder; and
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(i) 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 Owner Trustee. The Owner
Trustee hereby represents, warrants and covenants to the Servicer, the
Noteholders, 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) Capital One Auto Finance Trust 2001-B is a Delaware common law
trust and the Owner Trustee has full power and authority to execute and deliver
this Servicing Agreement and to perform the terms and provisions hereof;
(b) The execution, delivery and performance by the Owner Trustee
of this Servicing Agreement have been duly authorized by all necessary action by
the Owner Trustee, do not require any approval or consent of any Person, and do
not and will not conflict with or result in a breach which would constitute a
material default under any agreement binding upon or applicable to it or such of
its property which is material to it, or any law or governmental regulation or
court decree applicable to it or such material property, and this Servicing
Agreement is the legal, valid and binding obligation of the Owner Trustee
enforceable in accordance with its terms except as the same may be limited by
insolvency, bankruptcy, reorganization or other laws relating to or affecting
the enforcement of creditors' rights or by general equity principles; and
(c) No litigation or administrative proceeding of or before any
court, tribunal or governmental body is presently pending, or to the knowledge
of the Owner Trustee threatened, against the Owner Trustee or its properties or
with respect to this Servicing Agreement, which, if adversely determined would,
in the opinion of the Owner Trustee, have a material adverse effect on the
transactions contemplated by this Servicing Agreement.
Section 4.03 Survival of Representations and Warranties. The
representations and warranties set forth in this Article IV are continuous and
shall survive the date of this Servicing Agreement. Upon discovery by any of the
Owner Trustee, 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 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
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such merger, consolidation or assumption of liabilities shall be delivered by
the Servicer to the Note Insurer 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 Owner Trustee, the Note Insurer, 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 Owner
Trustee, 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 Owner Trustee, the Noteholders, 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;
(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 Owner
Trustee; 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 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
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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) 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) an Event of Default (other than an Insurance Agreement Event
of Default set forth in clause (m) of such definition) occurs (i) which has not
been waived by 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 for the Class A Notes (and all interest
accrued thereon) is reduced to zero and all Reimbursement Obligations due to the
Note Insurer shall have been paid in full, Noteholders constituting Class B
Noteholder Approval or (ii) which has not been otherwise cured within the
applicable grace period pursuant to the terms of the Indenture.
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 Owner Trustee, or
Noteholders constituting Class A 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 due to the Note
Insurer shall have been paid in full, Noteholders constituting Class B
Noteholder Approval) by notice given in writing to the Servicer ("Termination
Notice") (with copies to the Indenture Trustee and the Owner Trustee if given by
the Note Insurer or Noteholders constituting the Class A 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
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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 Owner Trustee
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 Owner
Trustee, 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 Owner Trustee, the Indenture Trustee,
COAF, any Noteholders or any other Person if it does so. If a Successor 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
Owner Trustee 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.
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(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 Owner Trustee 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 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 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 Owner Trustee, the Note Insurer, the Indenture Trustee, 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.
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(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 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 Rating Agencies, the Owner
Trustee 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 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 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
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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 Owner Trustee, 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 Owner Trustee,
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 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
by mutual written consent of the parties hereto and with the prior written
consent of the Note Insurer. 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. The Rating Agencies
shall be given by the Administrator, on behalf of the Owner Trustee, prior
notice of any proposed amendment to the Servicing Agreement, the Transfer and
Assignment Agreement, the Contribution Agreement or the Indenture and, upon any
such amendment, shall promptly be provided by the Administrator, on behalf of
the Owner Trustee, a copy of any such amendment.
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
28
Reimbursement Obligations due to the Note Insurer shall have been paid in full,
Noteholders constituting Class B Noteholder Approval, 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 follows:
To the Servicer: Capital One Auto Finance Inc.
0000 Xxxxxx Xxxxxxx
Xxxxx, Xxxxx 00000
Attention: Director of Securitization
Phone: (000) 000-0000
Fax: (000) 000-0000
Capital One Auto Receivables, LLC
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Director of Securitization
Phone: (000) 000-0000
Fax: (000) 000-0000
Copy to: Legal
To the Indenture Trustee: XX Xxxxxx Xxxxx Bank
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services--
Capital One Auto Finance 2001-B
Phone: (000) 000-0000
Fax: (000) 000-0000
To the Owner Trustee: Wilmington Trust Company, as owner trustee for
Capital One Auto Finance Trust 0000-X
Xxxxxx Xxxxxx North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
With a Copy to:
29
Capital One Auto Receivables, LLC
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Director of Securitization - Copy to:
Legal Department
Phone: (000) 000-0000
Fax: (000) 000-0000
Xxxxx, Xxxxx & Xxxxx
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
To the Rating Agencies: Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Monitoring Department
Phone: (000) 000-0000
Fax: (000) 000-0000
Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Surveillance
Phone: (000) 000-0000
Fax: (000) 000-0000
To the Underwriter: Credit Suisse First Boston Corporation
Eleven Madison Avenue, 5/th/ Floor
New York, New York 10010-3629
Attention:
Phone:
Fax:
To the Note Insurer: MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management
Structured Finance (IPM-SF)
Phone: (000) 000-0000
Fax: (000) 000-0000
To the Swap Counterparty: Credit Suisse First Boston International
One Xxxxx Xxxxxx
Xxxxxx X00 0XX
30
Attention: Collateral Management Unit
Telex No.: 0207/888-2000
Telecopy Nos.: 0207/888-4125
0207/888-3862
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 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 Owner Trustee, the Seller, Capital One F.S.B., the
Transferor, the Note Insurer, 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 Owner Trustee, 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 Owner Trustee, 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 Owner Trustee, 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 Owner Trustee 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 Owner Trustee shall not be required to provide such
31
powers with respect to any matter for which the Owner Trustee 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 Owner Trustee 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 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.
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 Owner Trustee.
Section 7.16 No Bankruptcy Petition Against the Owner Trustee 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 Owner Trustee
or the Seller, or join any other Person in instituting against the Owner Trustee
or the Seller any bankruptcy, reorganization, arrangement, insolvency or
32
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 (so long as the Class A-3 Notes are Outstanding), 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 Owner Trustee, the Note
Insurer, the Noteholders, the Swap Counterparty (so long as the Class A-3 Notes
are Outstanding) or the Indenture Trustee shall be for the benefit of and run
directly to each Noteholder, the Note Insurer, the Swap Counterparty (so long as
the Class A-3 Notes are Outstanding) and the Indenture Trustee, and each
Noteholder, the Note Insurer, the Swap Counterparty (so long as the Class A-3
Notes are Outstanding) 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 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.
33
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 Owner Trustee, 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 Owner Trustee'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 Owner Trustee under
Section 7.02 of the Contribution Agreement, this Servicing Agreement and the
Transfer and Assignment Agreement are intended to benefit the Noteholders and
the Note Insurer.
Section 7.22 Limitation on Liability. Notwithstanding anything to the
contrary contained in this Agreement, the obligations of the Owner Trustee under
this Agreement are solely the corporate obligations of the Owner Trustee and
shall be payable by the Owner Trustee solely (y) from funds available pursuant
to and in accordance with the payment priorities set forth in Section 5.03 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 Owner Trustee 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 Owner Trustee arising out of or based upon
this Agreement against any member, employee, officer, agent, director or
authorized person of the Owner Trustee; 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
December 20, 2001 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 Owner Trustee are not personal representations, undertakings
and agreements of Wilmington Trust Company, but are binding only on the trust
estate created pursuant to the Trust Agreement, (iii) nothing contained herein
shall be construed as creating any liability on Wilmington Trust Company,
individually or personally, to perform any covenant of the Owner Trustee either
expressed or implied contained herein, all such liability, if any, being
expressly
34
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 Owner Trustee
under this Agreement.
35
IN WITNESS WHEREOF, the Owner Trustee, 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.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee for Capital One Auto Finance
Trust 2001-B
By: /s/ Xxxxxxxx X. Xxxxx
____________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Senior Financial Services
Officer
S-1
CAPITAL ONE AUTO FINANCE, INC., as
Servicer
By: /s/ Xxxxxxx Xxxxxxx
_______________________________
Name: Xxxxxxx Xxxxxxx
Title: Manager of Securitization
S-2
JPMORGAN CHASE BANK,
as Indenture Trustee
By: /s/ Xxxxx Xxxxxxx
______________________________
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
S-3
EXHIBIT A
MONTHLY SERVICER'S REPORT
[On file with the Registrant]
A-1
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:_________________________________
Name:_______________________________
Title:______________________________
B-1
EXHIBIT C
REQUEST FOR RELEASE OF RECEIVABLE 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 December 20, 2001 (the "Indenture") by and between
Wilmington Trust Company, not in its individual capacity but solely as Owner
Trustee for Capital One Auto Finance Trust 2001-B, as owner trustee (the "Owner
Trustee"), and you, as Indenture Trustee and Custodian, the undersigned, as
servicer ("Servicer") of the Receivables pursuant to the Servicing Agreement
dated as of December 20, 2001 by and among the Owner Trustee, XX Xxxxxx Xxxxx
Bank, as Indenture Trustee, and the Servicer (the "Servicing Agreement"),
requests the release of the Receivable file described below for the reason
indicated. 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 breach, 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 BREACH
OTHER
Capital One Auto Finance, Inc.
0000 Xxxxxx Xxxxxxx Authorized Signature of Servicer
Xxxxx, Xxxxx 00000
By:____________________________________
Name:__________________________________
Title:_________________________________
C-1
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:_______________________________________
Name:_____________________________________
Title:____________________________________
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
EXHIBIT D
COAF'S CREDIT POLICY
[On file with the Registrant]
D-1
EXHIBIT E
COAF'S COLLECTION POLICY
[On file with the Registrant]
E-1
EXHIBIT F
FORM OF INVESTOR CERTIFICATION
XX Xxxxxx Chase Bank
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services -- Asset-Backed Administration Xxxxxx
Notes
In accordance with Section 3.05 of the Servicing Agreement (the
"Agreement"), with respect to Series 2001-B 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 any Certificate 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.
7. 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.
F-1
_________________________________________
Beneficial Owner
By:______________________________________
Title:___________________________________
Company:_________________________________
Phone:___________________________________
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