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Exhibit 10.3
FORM OF ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of __________ ___, 2001 (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among CAPITAL ONE AUTO FINANCE [Trust] [LLC] 200__-__, a
_________ [common law trust] [limited liability company] (the "Issuer"), CAPITAL
ONE AUTO FINANCE, INC., a specialty finance company organized under the laws of
the State of Delaware, as administrator (the "Administrator"), and
___-_________, a ___________ banking corporation, not in its individual capacity
but solely as Indenture Trustee (the "Indenture Trustee").
WHEREAS, the Issuer is issuing the Notes pursuant to the Indenture and the
Certificates pursuant to the Trust Agreement and has entered into certain
agreements in connection therewith, including (i) the Sale and Servicing
Agreement, (ii) the Depository Agreements, and (iii) the Indenture (the Sale and
Servicing Agreement, the Depository Agreements and the Indenture being referred
to hereinafter collectively as the "Related Agreements");
WHEREAS, the Issuer and the Owner Trustee desire to have the Administrator
perform certain duties of the Issuer and the Owner Trustee under the Related
Agreements and to provide such additional services consistent with the terms of
this Agreement and the Related Agreements as the Issuer and the Owner Trustee
may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto, intending to be legally bound, agree
as follows:
1. Definitions and Usage. Except as otherwise specified herein or as the context
may otherwise require, capitalized terms used but not otherwise defined herein
are defined in Appendix X to the Sale and Servicing Agreement, which also
contains rules as to usage that shall be applicable herein.
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2. Duties of the Administrator. Duties with Respect to the Indenture and the
Depository Agreements.
a. The Administrator agrees to perform all its duties as Administrator
and the duties of the Issuer under the Depository Agreements. In
addition, the Administrator shall consult with the Owner Trustee
regarding the duties of the Issuer under the Indenture and the
Depository Agreements.
b. The Administrator shall monitor the performance of the Issuer and
shall advise the Owner Trustee when action is necessary to comply with
the Issuer's duties under the Indenture and the Depository Agreements.
c. The Administrator shall prepare for execution by the Issuer, or shall
cause the preparation by appropriate persons of, all such documents,
reports, filings, instruments, certificates and opinions that it shall
be the duty of the Issuer to prepare, file or deliver pursuant to the
Indenture and the Depository Agreements.
d. In furtherance of the foregoing, the Administrator shall take all
appropriate action that is the duty of the Issuer to take pursuant to
the Indenture including, without limitation, such of the foregoing as
are required with respect to the following matters under the Indenture
(references are to sections of the Indenture):
(1) the duty to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note
Register (Section 2.4);
(2) the preparation of or obtaining of the documents and instruments
required for authentication of the Notes and delivery of the same
to the Indenture Trustee (Section 2.2);
(3) the preparation, obtaining or filing of the instruments, opinions
and certificates and other documents required for the release of
property from the lien of the Indenture (Section 2.9);
(4) the preparation of Definitive Notes in accordance with the
instructions of the Clearing Agency (Section 2.12);
(5) the maintenance of an office in the Borough of Manhattan, City of
New York, for registration of transfer or exchange of Notes
(Section 3.2);
(6) the duty to cause newly appointed Note Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.3);
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(7) the direction to the Indenture Trustee to deposit monies with
Note Paying Agents, if any, other than the Indenture Trustee
(Section 3.3);
(8) the obtaining and preservation of the Issuer's qualification to
do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability
of the Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate (Section
3.4);
(9) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the
taking of such other action as is necessary or advisable to
protect the Trust Estate (Section 3.5);
(10) the delivery of the Opinion of Counsel on the Closing Date and
the annual delivery of Opinions of Counsel as to the Trust
Estate, and the annual delivery of the Officer's Certificate and
certain other statements as to compliance with the Indenture
(Sections 3.6 and 3.9);
(11) the identification to the Indenture Trustee in an Officer's
Certificate of any Person with whom the Issuer has contracted to
perform its duties under the Indenture (Section 3.7(b));
(12) the notification of the Indenture Trustee and the Rating Agencies
of an Event of Servicing Termination under the Sale and Servicing
Agreement and, if such Event of Servicing Termination arises from
the failure of the Servicer to perform any of its duties under
the Sale and Servicing Agreement with respect to the Receivables,
the taking of all reasonable steps available to remedy such
failure (Section 3.7(d));
(13) the preparation and obtaining of documents and instruments
required for the transfer by the Issuer of its properties or
assets (Section 3.10(b));
(14) the duty to cause the Servicer to comply with Sections 4.9, 4.10,
4.11, 4.12 and 5.5 of the Sale and Servicing Agreement (Section
3.14);
(15) the delivery of written notice to the Indenture Trustee and the
Rating Agencies of each Event of Default under the Indenture and
each default by the Servicer or the Seller under the Sale and
Servicing Agreement (Section 3.18);
(16) the monitoring of the Issuer's obligations as to the satisfaction
and discharge of the Indenture and the preparation of an
Officer's Certificate
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and the obtaining of the Opinions of Counsel and the Independent
Certificate relating thereto (Section 4.1);
(17) the monitoring of the Issuer's obligations as to the
satisfaction, discharge and defeasance of the Notes and the
preparation of an Officer's Certificate and the obtaining of an
opinion of a nationally recognized firm of independent certified
public accountants, a written confirmation thereof and the
Opinions of Counsel relating thereto (Section 4.1);
(18) the preparation and delivery of an Officer's Certificate to the
Indenture Trustee after the occurrence of any event which with
the giving of notice and the lapse of time would become an Event
of Default under Section 5.1(c) of the Indenture, its status and
what action the Issuer is taking or proposes to take with respect
thereto (Section 5.1);
(19) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate at one or
more public or private sales called and conducted in any manner
permitted by law if an Event of Default shall have occurred and
be continuing (Section 5.4);
(20) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee (Section 6.8);
(21) the preparation of any written instruments required to confirm
more fully the authority of any co-trustee or separate trustee
and any written instruments necessary in connection with the
resignation or removal of any co-trustee or separate trustee
(Sections 6.8 and 6.10);
(22) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section 7.1);
(23) the preparation and, after execution by the Issuer, the filing
with the Commission, any applicable state agencies and the
Indenture Trustee of documents required to be filed on a periodic
basis with, and summaries thereof as may be required by rules and
regulations prescribed by, the Commission and any applicable
state agencies and the transmission of such summaries, as
necessary, to the Noteholders (Section 7.3);
(24) the preparation and delivery of Issuer Orders, Officer's
Certificates and Opinions of Counsel and all other actions
necessary with respect to investment and reinvestment, to the
extent permitted, of funds in such accounts (Sections 8.2 and
8.3);
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(25) the preparation of an Issuer Request and Officer's Certificate
and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Trust Estate
(Sections 8.4 and 8.5);
(26) the preparation of Issuer Orders and the obtaining of Opinions of
Counsel with respect to the execution of supplemental indentures
and the mailing to the Noteholders of notices with respect to
such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(27) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.6);
(28) the notification of Noteholders of redemption of the Notes or
duty to cause the Indenture Trustee to provide such notification
(Section 10.2);
(29) the preparation and delivery of all Officer's Certificates and
the obtaining of Opinions of Counsel and Independent Certificates
with respect to any requests by the Issuer to the Indenture
Trustee to take any action under the Indenture (Section 11.1(a));
(30) the preparation and delivery of Officer's Certificates and the
obtaining of Independent Certificates, if necessary, for the
release of property from the lien of the Indenture (Section
11.1(b));
(31) the notification of the Rating Agencies, upon the failure of the
Indenture Trustee to give such notification, of the information
required pursuant to Section 11.4 of the Indenture (Section
11.4);
(32) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and
notice provisions (Section 11.6); and
(33) the recording of the Indenture, if applicable (Section 11.15).
e. Payment of Fees by the Administrator:
(1) [the Administrator will pay the Indenture Trustee from time to
time reasonable compensation for all services rendered by the
Indenture Trustee under the Indenture (which compensation shall
not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);] and
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(2) [except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Indenture Trustee in accordance with any provision of the
Indenture (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith.]
f. Additional Duties. In addition to the duties of the Administrator set
forth above, the Administrator shall perform such calculations and
shall prepare or shall cause the preparation by other appropriate
persons of, and shall execute on behalf of the Issuer or the Owner
Trustee, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or
the Owner Trustee to prepare, file or deliver pursuant to the Related
Agreements, and at the request of the Owner Trustee shall take all
appropriate action that it is the duty of the Issuer or the Owner
Trustee to take pursuant to the Related Agreements. Subject to Section
5 of this Agreement, and in accordance with the directions of the
Owner Trustee, the Administrator shall administer, perform or
supervise the performance of such other activities in connection with
the Collateral (including the Related Agreements) as are not covered
by any of the foregoing provisions and as are expressly requested by
the Owner Trustee and are reasonably within the capability of the
Administrator:
(1) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be
responsible for promptly notifying the Owner Trustee in the event
that any withholding tax is imposed on the Issuer's payments (or
allocations of income) to a Certificateholder as contemplated in
Section 5.2(c) of the Trust Agreement. Any such notice shall
specify the amount of any withholding tax required to be withheld
by the Owner Trustee pursuant to such provision.
(2) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be
responsible for performance of the duties of the Trust or the
Owner Trustee set forth in Section 5.5(a), (b), (c), (d) and (e)
and Section 5.6(a) of the Trust Agreement with respect to, among
other things, accounting and reports to Certificateholders.
(3) The Administrator will provide prior to __________ ___, 2001, a
certificate of an Authorized Officer in form and substance
satisfactory promptly notify the Owner Trustee as to whether any
tax withholding is then required and, if required, the procedures
to be followed with respect thereto to comply with the
requirements of the Code. The Administrator shall be required to
update the letter in each instance that any additional
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tax withholding is subsequently required or any previously
required tax withholding shall no longer be required.
(4) The Administrator shall perform the duties of the Administrator
specified in Section 10.2 of the Trust Agreement required to be
performed in connection with the resignation or removal of the
Owner Trustee, and any other duties expressly required to be
performed by the Administrator pursuant to the Trust Agreement.
(5) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter
into transactions or otherwise deal with any of its Affiliates;
provided, however, that the terms of any such transactions or
dealings shall be in accordance with any directions received from
the Issuer and shall be, in the Administrator's opinion, no less
favorable to the Issuer than would be available from unaffiliated
parties.
g. Non-Ministerial Matters. With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable
time before the taking of such action, the Administrator shall have
notified the Owner Trustee of the proposed action and the Owner
Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial
matters" shall include, without limitation:
(1) the amendment of or any supplement to the Indenture;
(2) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Receivables or Permitted Investments);
(3) the amendment, change or modification of the Related Agreements;
(4) the appointment of successor Note Registrars, successor Note
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or
Successor Servicers, or the consent to the assignment by the Note
Registrar, Note Paying Agent or Indenture Trustee of its
obligations under the Indenture; and
(5) the removal of the Indenture Trustee.
h. Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any
payments to the Noteholders
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under the Related Agreements, (y) sell the Trust Estate pursuant to
Section 5.4 of the Indenture or (z) take any other action that the
Issuer directs the Administrator not to take on its behalf.
3. Records. The Administrator shall maintain appropriate books of account and
records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Issuer and the Seller at any
time during normal business hours.
4. Compensation. As compensation for the performance of the Administrator's
obligations under this Agreement and, as reimbursement for its expenses related
thereto, the Administrator shall be entitled to $_____ annually which shall be
solely an obligation of the Seller.
5. Additional Information To Be Furnished to the Issuer. The Administrator shall
furnish to the Issuer from time to time such additional information regarding
the Collateral as the Issuer shall reasonably request.
6. Independence of the Administrator. For all purposes of this Agreement, the
Administrator shall be an independent contractor and shall not be subject to the
supervision of the Issuer or the Owner Trustee with respect to the manner in
which it accomplishes the performance of its obligations hereunder. Unless
expressly authorized by the Issuer, the Administrator shall have no authority to
act for or represent the Issuer or the Owner Trustee in any way and shall not
otherwise be deemed an agent of the Issuer or the Owner Trustee.
7. No Joint Venture. Nothing contained in this Agreement shall constitute the
Administrator and either of the Issuer or the Owner Trustee as members of any
partnership, joint venture, association, syndicate, unincorporated business or
other separate entity, shall be construed to impose any liability as such on any
of them or shall be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
8. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
9. Term of Agreement; Resignation and Removal of Administrator. This Agreement
shall continue in force until the dissolution of the Issuer, upon which event
this Agreement shall automatically terminate.
a. Subject to Sections 9(e) and 9(f), the Administrator may resign its
duties hereunder by providing the Issuer with at least sixty (60)
days' prior written notice.
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b. Subject to Sections 9(e) and 9(f), the Issuer may remove the
Administrator without cause by providing the Administrator with at
least sixty (60) days' prior written notice.
c. Subject to Sections 9(e) and 9(f), at the sole option of the Issuer,
the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the
following events shall occur:
(1) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice of such default,
shall not cure such default within ten (10) days (or, if such
default cannot be cured in such time, shall not give within ten
(10) days such assurance of cure as shall be reasonably
satisfactory to the Issuer);
(2) a court having jurisdiction in the premises shall enter a decree
or order for relief, and such decree or order shall not have been
vacated within sixty (60) days, in respect of the Administrator
in any involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect or
appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or
liquidation of its affairs; or
(3) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for
relief in an involuntary case under any such law, shall consent
to the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official for the Administrator
or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part
of its property, shall make any general assignment for the
benefit of creditors or shall fail generally to pay its debts as
they become due.
The Administrator agrees that if any of the events specified in
clauses (2) or (3) of this Section 9(c) shall occur, it shall give
written notice thereof to the Issuer and the Trustee within seven (7)
days after the happening of such event.
d. No resignation or removal of the Administrator pursuant to this
Section 9 shall be effective until (1) a successor Administrator shall
have been appointed by the Issuer and (2) such successor Administrator
shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Administrator is bound hereunder.
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e. The appointment of any successor Administrator shall be effective only
after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
f. Subject to Sections 9(e) and 9(f), the Administrator acknowledges that
upon the appointment of a successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign and
such successor Servicer shall automatically become the Administrator
under this Agreement.
10. Action upon Termination, Resignation or Removal. Promptly upon the effective
date of termination of this Agreement pursuant to Section 9(a) or the
resignation or removal of the Administrator pursuant to Section 9(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 9(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
9(b) or (c), respectively, the Administrator shall cooperate with the Issuer and
take all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
11. Notices. Any notice, report or other communication given hereunder shall be
in writing and addressed as follows:
a. if to the Issuer or the Owner Trustee, to:
Capital One Auto Finance [Trust][LLC] 200__-__
c/o ______________________________
Attention: _______________________
Telephone: ______________________
Telecopy: _______________________
b. if to the Administrator, to:
Capital One Auto Finance, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxx, Xxxxx 00000
Attention: _______________________
Telephone: ______________________
Telecopy: _______________________
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c. If to the Indenture Trustee, to:
Attention: _______________________
Telephone: ______________________
Telecopy: _______________________
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
12. Amendments. This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Issuer, the Administrator and the
Indenture Trustee, with the written consent of the Owner Trustee, without the
consent of the Noteholders and the Certificateholders, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders or
Certificateholders; provided that, unless the Rating Agency Condition shall have
been satisfied, such amendment will not, as set forth in an Opinion of Counsel
satisfactory to the Indenture Trustee and the Owner Trustee, materially and
adversely affect the interest of any Noteholder or Certificateholder. This
Agreement may also be amended by the Issuer, the Administrator and the Indenture
Trustee with the written consent of the Owner Trustee and the Noteholders of
Notes evidencing not less than a majority of the Notes Outstanding and the
Certificateholders of Certificates evidencing not less than a majority of the
Certificate Balance for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of Noteholders or the Certificateholders;
provided, however, that no such amendment may increase or reduce in any manner
the amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that are required to be made for the benefit of the
Noteholders or Certificateholders or reduce the aforesaid percentage of the
Noteholders and Certificateholders which are required to consent to any such
amendment, without the consent of the Noteholders of all the Notes Outstanding
and Certificateholders of Certificates evidencing all the Certificate Balance.
Notwithstanding the foregoing, the Administrator may not amend this Agreement
without the consent of the Seller, which permission shall not be unreasonably
withheld.
13. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator; provided that such successor
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organization executes and delivers to the Issuer, the Owner Trustee and the
Indenture Trustee an agreement in which such corporation or other organization
agrees to be bound hereunder by the terms of said assignment in the same manner
as the Administrator is bound hereunder. Subject to the foregoing, this
Agreement shall bind any successors or assigns of the parties hereto.
14. Governing Law. This agreement shall be construed in accordance with the laws
of the State of New York, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
15. Headings. The Section headings hereof have been inserted for convenience of
reference only and shall not be construed to affect the meaning, construction or
effect of this Agreement.
16. Counterparts. This Agreement may be executed in counterparts, each of which
when so executed shall be an original, but all of which together shall
constitute but one and the same agreement.
17. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
18. Not Applicable to Capital One Auto Finance, Inc. in Other Capacities.
Nothing in this Agreement shall affect any right or obligation Capital One Auto
Finance, Inc. may have in any other capacity.
19. Limitation of Liability of Owner Trustee and Indenture Trustee. (a)
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by [Name of Owner Trustee] not in its individual capacity but
solely in the capacity as Owner Trustee of the Issuer and in no event shall
[Name of Owner Trustee] in its individual capacity or any beneficial owner of
the Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder, as to all of which
recourse shall be had solely to the assets of the Issuer. For all purposes of
this Agreement, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by [Name of Indenture Trustee] not in its
individual capacity but solely as [Name of Indenture Trustee] and in no event
shall Indenture Trustee have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
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20. Third-Party Beneficiary. The Owner Trustee is a third-party beneficiary to
this Agreement and is entitled to the rights and benefits hereunder and may
enforce the provisions hereof as if it were a party hereto.
21. Nonpetition Covenants. (a) Notwithstanding any prior termination of this
Agreement, the Seller, the Administrator, the Owner Trustee and the Indenture
Trustee shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Issuer, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, the Issuer,
the Administrator, the Owner Trustee and the Indenture Trustee shall not, prior
to the date which is one year and one day after the termination of this
Agreement with respect to the Seller, acquiesce, petition or otherwise invoke or
cause the Seller to invoke the process of any court or government authority for
the purpose of commencing or sustaining a case against the Seller under any
federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Seller or any substantial part of their respective property, or ordering
the winding up or liquidation of the affairs of the Seller.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
Capital One Auto Finance [Trust] [LLC] 200__-__
By: _____________, not in its individual capacity but
solely as Owner Trustee
By:
-------------------------------------------------
Name:
Title:
_________________, not in its individual capacity but
solely as Indenture Trustee
By:
-------------------------------------------------
Name:
Title:
Capital One Auto Finance, Inc., as Administrator
By:
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Name:
Title:
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