Exhibit 10.4
EXECUTION COPY
ADMINISTRATION AGREEMENT
by and among
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee for
Capital One Auto Finance Trust 2002-A
as Issuer
CAPITAL ONE AUTO FINANCE, INC.
as Administrator
and
JPMORGAN CHASE BANK
as Indenture Trustee
Dated as of April 23, 2002
TABLE OF CONTENTS
Page
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Section 1. Definitions and Usage........................................................... 1
Section 2. Duties of the Administrator..................................................... 2
Section 3. Records......................................................................... 9
Section 4. Compensation.................................................................... 9
Section 5. Additional Information To Be Furnished to the Owner Trustee..................... 10
Section 6. Independence of the Administrator............................................... 10
Section 7. No Joint Venture................................................................ 10
Section 8. Other Activities of Administrator............................................... 10
Section 9. Term of Agreement; Resignation and Removal of Administrator..................... 10
Section 10. Action upon Termination, Resignation or Removal................................. 11
Section 11. Notices......................................................................... 12
Section 12. Amendments...................................................................... 13
Section 13. Successors and Assigns.......................................................... 13
Section 14. Governing Law................................................................... 13
Section 15. Headings........................................................................ 14
Section 16. Counterparts.................................................................... 14
Section 17. Severability.................................................................... 14
Section 18. Not Applicable to Capital One Auto Finance, Inc. in Other Capacities............ 14
Section 19. Limitation of Liability of Owner Trustee and Indenture Trustee.................. 14
Section 20. Third-Party Beneficiary......................................................... 14
Section 21. Nonpetition Covenants........................................................... 15
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ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of April 23, 2002 (as from time to
time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Owner Trustee for Capital One Auto Finance Trust 2002-A,
a Delaware common law trust (the "Owner Trustee"), CAPITAL ONE AUTO FINANCE,
INC., a Texas corporation, as administrator (the "Administrator"), and JPMORGAN
CHASE BANK, a national banking association, not in its individual capacity but
solely as Indenture Trustee (the "Indenture Trustee").
WHEREAS, the Owner Trustee 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 Contribution
Agreement, (ii) the Note Depository Agreement, (iii) the Indenture, (iv) the
Servicing Agreement and (v) the Insurance Agreement (the Contribution Agreement,
the Note Depository Agreement, the Indenture, the Servicing Agreement, the
Insurance Agreement and the Administration Agreement being referred to
hereinafter collectively as the "Related Agreements");
WHEREAS, the Owner Trustee desires to have the Administrator perform
certain duties of 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 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 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:
Section 1. Definitions and Usage.
(a) Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined in
the Indenture.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document delivered pursuant hereto unless
otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires: (i)
accounting terms not otherwise defined in this Agreement, and accounting terms
partly defined in this Agreement to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles; (ii) terms defined in Article 9 of the UCC as in effect in the State
of Delaware and not otherwise defined in this Agreement are used as defined in
that Article; (iii) the words "hereof," "herein" and "hereunder" and words of
similar import refer to this Agreement as a whole and not to any particular
provision of this Agreement; (iv) references to any Article, Section, Schedule
or Exhibit are
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references to Articles, Sections, Schedules and Exhibits in or to this
Agreement, and references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such paragraph,
subsection, clause or other subdivision of such Section or definition; (v) the
term "including" means "including without limitation"; (vi) references to any
law or regulation refer to that law or regulation as amended from time to time
and include any successor law or regulation; (vii) references to any Person
include that Person's successors and assigns; and (viii) headings are for
purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
Section 2. Duties of the Administrator.
(a) Duties with Respect to the Indenture and the Note Depository Agreement.
(i) The Administrator agrees to perform all of its duties as
Administrator and the duties of the Owner Trustee under the Note Depository
Agreement. In addition, the Administrator shall consult with the Owner Trustee
regarding the duties of the Owner Trustee under the Indenture and the Note
Depository Agreement.
(ii) The Administrator shall monitor the performance of the Owner
Trustee and shall advise the Owner Trustee when action is necessary to comply
with the Owner Trustee's duties under the Indenture and the Note Depository
Agreement.
(iii) The Administrator shall prepare for execution by the Owner
Trustee, or shall cause the preparation by appropriate persons of, all such
documents, reports, filings, instruments, certificates and opinions that shall
be the duty of the Owner Trustee to prepare, file or deliver pursuant to the
Indenture and the Note Depository Agreement.
(iv) In furtherance of the foregoing, the Administrator shall take all
appropriate action that is the duty of the Owner Trustee to take pursuant to the
Indenture including, without limitation, such of the foregoing as are required
with respect to the following matters under the Indenture (references are to
sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give
the Indenture Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Note Register (Section 2.07);
(B) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery of the
same to the Indenture Trustee (Section 2.05);
(C) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release of
property from the lien of the Indenture (Section 2.18);
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(D) the preparation of Definitive Notes in accordance with the
instructions of the Clearing Agency (Section 2.13);
(E) the duty to cause newly appointed Note Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.03);
(F) the direction to the Indenture Trustee to deposit monies with
Note Paying Agents, if any, other than the Indenture Trustee (Section
3.03);
(G) the obtaining and preservation of the Owner Trustee's
qualification to do business with respect to the Trust Property in each
jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Indenture, the Notes, the
Trust Property and each other instrument or agreement included in the Trust
Estate (Section 3.12(a));
(H) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the taking of
such other action as is necessary or advisable to protect the Trust Estate
(Section 3.05);
(I) the delivery of the Opinion of Counsel on the Closing Date
and the annual delivery of Opinions of Counsel as to the Trust Estate, and
the annual delivery of the Officer's Certificate and certain other
statements as to compliance with the Indenture (Sections 3.06 and 3.07);
(J) the identification to the Indenture Trustee in an Officer's
Certificate of any Person with whom the Owner Trustee has contracted to
perform its duties under the Indenture (Section 3.01(b));
(K) the notification of the Indenture Trustee and the Rating
Agencies of an Event of Servicing Default under the Servicing Agreement
and, if such Event of Servicing Termination arises from the failure of the
Servicer to perform any of its duties under the Servicing Agreement with
respect to the Receivables, the taking of all reasonable steps available to
remedy such failure (Section 4.01(c));
(L) the preparation and obtaining of documents and instruments
required for the transfer by the Owner Trustee of its properties or assets
(Section 3.10(b)(ii));
(M) the duty to cause the Servicer to comply with Sections 2.09,
2.10, 2.11, 2.21 and 3.02 of the Servicing Agreement (Section 3.01(g));
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(N) the delivery of written notice to the Indenture Trustee and
the Rating Agencies of each Event of Default under the Indenture and each
Event of Servicing Default by the Servicer or the Seller under the
Servicing Agreement (Section 7.02);
(O) the monitoring of the Owner Trustee's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinions of Counsel and the
Independent Certificate relating thereto (Section 3.01);
(P) the monitoring of the Owner Trustee's obligations as to the
satisfaction, discharge and defeasance of the Notes and the preparation of
an Officer's Certificate and the obtaining of an opinion of a nationally
recognized firm of independent certified public accountants, a written
confirmation thereof and the Opinions of Counsel relating thereto (Section
3.01);
(Q) the preparation and delivery of an Officer's Certificate to
the Indenture Trustee after the occurrence of any event which with the
giving of notice and the lapse of time would become an Event of Default
under Section 5.1(c) of the Indenture, its status and what action the Owner
Trustee is taking or proposes to take with respect thereto (Section 9.01);
(R) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate at one or more public
or private sales called and conducted in any manner permitted by law if an
Event of Default shall have occurred and be continuing (Section 9.04);
(S) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 7.10);
(T) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee and
any written instruments necessary in connection with the resignation or
removal of any co-trustee or separate trustee (Sections 7.10 and 7.13);
(U) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee is
not the Note Registrar (Section 12.01);
(V) the preparation and, after execution by the Owner Trustee,
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
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agencies and the transmission of such summaries, as necessary, to the
Noteholders (Section 12.03);
(W) the preparation and delivery of Owner Trustee Orders,
Officer's Certificates and Opinions of Counsel and all other actions
necessary with respect to investment and reinvestment, to the extent
permitted, of funds in such accounts (Sections 5.01, 5.04, 5.05, 5.06, 5.08
and 5.10);
(X) the preparation of an Owner Trustee Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Trust Estate (Section
5.14);
(Y) the preparation of Owner Trustee Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with respect to
such supplemental indentures (Sections 10.01, 10.02, 10.03 and 10.04);
(Z) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 10.06);
(AA) directing the Owner Trustee to redeem the Notes (Section
6.02);
(BB) the notification of Noteholders of redemption of the Notes
or duty to cause the Indenture Trustee to provide such notification
(Section 6.03);
(CC) the preparation and delivery of all Officer's Certificates
and the obtaining of Opinions of Counsel and Independent Certificates with
respect to any requests by the Owner Trustee to the Indenture Trustee to
take any action under the Indenture (Section 13.01(a));
(DD) the preparation and delivery of Officer's Certificates and
the obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 13.01(b));
(EE) the notification of the Rating Agencies, upon the failure of
the Indenture Trustee to give such notification, of the information
required pursuant to Section 13.04 of the Indenture (Section 13.04);
(FF) the recording of the Indenture, if applicable (Section
13.16); and
(GG) all other duties of the Owner Trustee under the Indenture.
(v) With respect to the payment of Fees and Indemnification by the
Administrator, the Administrator will:
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(A) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture Trustee under the
Indenture (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) pursuant to
the terms of the Indenture Trustee Fee Letter dated April 23, 2002;
(B) pay to each agent of the Indenture Trustee from time to time
reasonable compensation for its services as agreed upon between such agent
and the Administrator;
(C) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture
Trustee in accordance with any provision of the Indenture (including the
reasonable compensation, expenses and disbursements of such agents and
counsel as the Indenture Trustee may employee in connection with the
exercise and performance of its rights and its duties under the Indenture),
except any such expense, disbursement or advance as may be attributable to
its gross negligence;
(D) indemnify the Indenture Trustee (individually and in its
capacity as such) and its successors, assigns, directors, officers,
employees and agents against any and all loss, liability or expense
(including attorneys' fees and expenses) incurred by it in connection with
the acceptance or the administration of the trust created under the
Indenture and the performance of its duties thereunder; provided, however,
that the Administrator shall not be liable for or required to indemnify the
Indenture Trustee from and against any of the foregoing expenses arising or
resulting from the Indenture Trustee's own gross negligence or to the
extent arising from the breach by the Indenture Trustee of any of its
representations and warranties and covenants set forth in the Indenture;
(E) pay to the Owner Trustee from time to time reasonable
compensation for all services rendered by the Owner Trustee under the Trust
Agreement (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) pursuant to
the terms of the Owner Trustee Fee Letter dated April 23, 2002;
(F) except as otherwise expressly provided for in the Trust
Agreement, reimburse the Owner Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Owner Trustee
in accordance with any provision of the Trust Agreement (including the
reasonable compensation, expenses and disbursements of such agents and
counsel as the Owner Trustee may employee in connection with the exercise
and performance of its rights and its duties under the Trust Agreement),
except any such expense may be attributable to its willful misconduct,
negligence or bad faith; and
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(G) indemnify the Owner Trustee (individually and in its capacity
as such) and its successors, assigns, directors, officers, employees and
agents from and against, any and all loss, liability, expense, tax, penalty
or claim (including reasonable legal fees and expenses) of any kind and
nature whatsoever which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any Indemnified Party in any way
relating to or arising out of the Trust Agreement, the Transaction
Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee under the Trust
Agreement, provided, however, that the Administrator shall not be liable
for or required to indemnify the Owner Trustee from and against any of the
foregoing expenses arising or resulting from any of the matters described
in the third sentence of Section 7.1 of the Trust Agreement.
Indemnification under this subsection shall survive the resignation or
removal of the Owner Trustee or the Indenture Trustee and the termination
of this Agreement or any other Transaction Document. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim
or demand shall be brought or asserted against any Person in respect of
which indemnity may be sought pursuant to this Section, such Person (the
"Indemnified Person") shall promptly notify the Administrator in writing,
and the Administrator, upon request of the Indemnified Person, shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Administrator designates in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. The Administrator shall not be liable for any
settlement of any claim or proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the
plaintiff, the Administrator agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such settlement or
judgment. The Administrator shall not, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been
a party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter
of such proceeding. If the Administrator shall have made any indemnity
payments pursuant to this subsection and the Person to or on behalf of whom
such payments are made thereafter shall collect any of such amounts from
others, such Person shall promptly repay such amounts to the Administrator,
without interest.
(b) Additional Duties. (i) 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 Owner Trustee or the Owner Trustee, all such
documents, reports, filings, instruments, certificates and opinions that it
shall be the duty of the Owner Trustee 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 Owner
Trustee or the Owner Trustee to take pursuant
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to the Related Agreements and shall monitor the performance of the Owner Trustee
and shall advise the Owner Trustee when action is necessary to comply with the
Owner Trustee duties under 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 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:
(i) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for promptly
notifying the Owner Trustee in the event that any withholding tax is imposed on
the Owner Trustee'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.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Trust or the Owner Trustee set forth in
Sections 5.5(a), (b), (c), (d) and (e), 5.6(a) and 9.1 of the Trust Agreement
and Sections 2.04(b), 2.07, 3.01(c) and 5.04 of the Servicing Agreement, with
respect to, among other things, accounting and reports to Certificateholders.
(iii) The Administrator will provide prior to April 15, 2003, a
certificate of an Authorized Officer in form and substance satisfactory to the
Owner Trustee as to whether any tax withholding is then required and, if
required, the procedures to be followed with respect thereto to comply with the
requirements of the Code. The Administrator shall be required to update the
letter in each instance that any additional tax withholding is subsequently
required or any previously required tax withholding shall no longer be required.
(iv) The Administrator shall perform the duties of the Administrator
specified in Section 10.2 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the Administrator pursuant to the
Trust Agreement.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
or otherwise deal with any of its Affiliates; provided, however, that the terms
of any such transactions or dealings shall be in accordance with any directions
received from the Owner Trustee and shall be, in the Administrator's opinion, no
less favorable to the Owner Trustee than would be available from unaffiliated
parties.
(d) 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
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or provided an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Owner Trustee
and the compromise of any action, claim or lawsuit brought by or against
the Owner Trustee (other than in connection with the collection of the
Receivables or Permitted Investments);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the Indenture or
the appointment of successor Administrators or Successor Servicers, or the
consent to the assignment by the Note Registrar, the Paying Agent or the
Indenture Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(i) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any payments to
the Noteholders under the Related Agreements, (y) sell the Trust Estate pursuant
to Section 9.04 of the Indenture or (z) take any other action that the Owner
Trustee directs the Administrator not to take on its behalf.
Section 3. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Owner Trustee and
the Seller at any time during normal business hours.
Section 4. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and, as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $2,500 annually
which shall be solely an obligation of the Servicer.
Section 5. Additional Information To Be Furnished to the Owner Trustee. The
Administrator shall furnish to the Owner Trustee from time to time such
additional information regarding the Collateral as the Owner Trustee shall
reasonably request.
Section 6. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Owner Trustee, the Owner Trustee or the
Indenture Trustee with respect to the manner in
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which it accomplishes the performance of its obligations hereunder. Unless
expressly authorized by the Owner Trustee, the Administrator shall have no
authority to act for or represent the Owner Trustee or the Owner Trustee (and,
regardless of whether authorized by the Owner Trustee, the Administrator shall
have no such authority at all with respect to the Indenture Trustee) in any way
and shall not otherwise be deemed an agent of the Owner Trustee, the Owner
Trustee or the Indenture Trustee.
Section 7. No Joint Venture. Nothing contained in this Agreement shall
constitute the Administrator and either of the Owner Trustee or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, shall be construed to impose
any liability as such on any of them or shall be deemed to confer on any of them
any express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
Section 8. Other Activities of Administrator. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Owner Trustee, the Owner Trustee or the
Indenture Trustee.
Section 9. Term of Agreement; Resignation and Removal of Administrator.
(b) This Agreement shall continue in force until the dissolution of the
Owner Trustee, upon which event this Agreement shall automatically terminate.
(c) Subject to Sections 9(e) and 9(f), the Administrator may resign its
duties hereunder by providing the Owner Trustee with at least sixty (60) days'
prior written notice.
(d) Subject to Sections 9(e) and 9(f), the Owner Trustee may remove the
Administrator without cause by providing the Administrator with at least sixty
(60) days' prior written notice.
(e) Subject to Sections 9(e) and 9(f), at the sole option of the Owner
Trustee, the Administrator may be removed immediately upon written notice of
termination from the Owner Trustee to the Administrator if any of the following
events shall occur:
(i) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice of such default, shall not cure
such default within ten (10) days (or, if such default cannot be cured in such
time, shall not give within ten (10) days such assurance of cure as shall be
reasonably satisfactory to the Owner Trustee);
(ii) a court having jurisdiction in the premises shall enter a decree
or order for relief, and such decree or order shall not have been vacated within
sixty (60) days, in respect of the Administrator in any involuntary case under
any applicable bankruptcy, insolvency or other
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similar law now or hereafter in effect or appoint a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official for the
Administrator or any substantial part of its property or order the winding-up or
liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, shall consent to the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official for the
Administrator or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 9(d) shall occur, it shall give written notice
thereof to the Owner Trustee within seven (7) days after the happening of such
event.
(f) 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 Owner Trustee 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.
(g) The appointment of any successor Administrator shall be effective only
after approval by the Rating Agencies with respect to the proposed appointment.
(h) Subject to Sections 9(e) and 9(f), the Administrator acknowledges that
upon the appointment of a successor Servicer pursuant to the Servicing
Agreement, the Administrator shall immediately resign and such successor
Servicer shall automatically become the Administrator under this Agreement.
Section 10. Action upon Termination, Resignation or Removal. Promptly upon
the effective date of termination of this Agreement pursuant to Section 9(a) or
the resignation or removal of the Administrator pursuant to Section 9(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 9(a) deliver to the Owner Trustee 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 Owner
Trustee and the Indenture Trustee and take all reasonable steps requested to
assist the Owner Trustee in making an orderly transfer of the duties of the
Administrator.
Section 11. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
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(a) if to the Owner Trustee or theTrust, to:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxx XxxXxxxxx
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
With a copy to:
Mayer,Brown, Xxxx & Maw
000 X. XxXxxxx Xxxxxx
Xxxxxxx,Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
(b) if to the Administrator, to:
Capital One Auto Finance,Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Director of Securitization
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
(c) If to the Indenture Trustee, to:
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services - Capital
Auto Finance 2002-A
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
Section 12. Amendments. This Agreement may be amended from time to time by
a written amendment duly executed and delivered by the Owner Trustee, the
Administrator and the Indenture Trustee, with the written consent of the Owner
Trustee, without the consent of the
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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, materially and adversely affect the
interest of any Noteholder or Certificateholder. This Agreement may also be
amended by the Owner Trustee, the Administrator and the Indenture Trustee 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 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 the
Certificateholders without the consent of the Noteholders of all the Notes
Outstanding and the 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.
Section 13. Successors and Assigns. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in writing
by the Owner Trustee, the Owner Trustee and the Indenture Trustee and subject to
the satisfaction of the Rating Agency Condition in respect thereof. An
assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of the Owner Trustee, the Owner Trustee
or the Indenture Trustee to a corporation or other organization that is a
successor (by merger, consolidation or purchase of assets) to the Administrator;
provided that such successor organization executes and delivers to the Owner
Trustee, 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.
Section 14. Governing Law. This agreement shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
Section 15. Headings. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
Section 16. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall be an original, but all of which together
shall constitute but one and the same agreement.
15
Section 17. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 18. Not Applicable to Capital One Auto Finance, Inc. in Other
Capacities. Nothing in this Agreement shall affect any right or obligation
Capital One Auto Finance, Inc. may have in any other capacity.
Section 19. Limitation of Liability of Owner Trustee and Indenture Trustee.
(h) Notwithstanding anything contained herein to the contrary, this instrument
has been countersigned by Wilmington Trust Company not in its individual
capacity but solely in the capacity as Owner Trustee of the Trust and in no
event shall Wilmington Trust Company in its individual capacity or any
beneficial owner of the Owner Trustee have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Owner Trustee hereunder, as to all of which recourse shall be had solely to the
assets of the Owner Trustee. For all purposes of this Agreement, in the
performance of any duties or obligations of the Owner Trustee 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.
(i) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by JPMorgan Chase Bank not in its individual
capacity but solely as Indenture Trustee and in no event shall the Indenture
Trustee have any liability for the representations, warranties, covenants,
agreements or other obligations of the Owner Trustee 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 Owner Trustee. For all
purposes of this Agreement, in the performance of any duties or obligations of
the Owner Trustee hereunder, the Indenture Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Article VI of the
Indenture.
Section 20. Third-Party Beneficiary. The Owner Trustee and the Indenture
Trustee are third-party beneficiaries to this Agreement and are entitled to the
rights and benefits hereunder and may enforce the provisions hereof as if they
were parties hereto.
Section 21. Nonpetition Covenants. (i) Notwithstanding any prior
termination of this Agreement, the Seller, the Administrator, the Owner Trustee
and the Indenture Trustee shall not, prior to the date which is one year and one
day after the termination of this Agreement with respect to the Owner Trustee,
acquiesce, petition join in, encourage or otherwise invoke or cause the Owner
Trustee to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Owner Trustee 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 Owner Trustee or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Owner Trustee.
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(ii) Notwithstanding any prior termination of this Agreement, the Owner
Trustee, 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 join in,
encourage or otherwise invoke or cause the Seller to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Seller under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or any substantial part of
their respective property, or ordering the winding up or liquidation of the
affairs of the Seller.
Section 22. Limitation of Liability. It is expressly understood and agreed
by and between the parties hereto (i) that this Agreement is executed and
delivered by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee under the Amended and Restated Trust Agreement dated as of
April 23, 2002 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 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.
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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.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee of
Capital One Auto Finance Trust 2002-A
By:
-----------------------------------------
Name:
Title:
S-1
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
-----------------------------------------
Name:
Title:
S-2
CAPITAL ONE AUTO FINANCE, INC., as
Administrator
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Manager of Securitization
S-3
Acknowledged and Agreed
CAPITAL ONE AUTO FINANCE, INC., as
Servicer
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Manager of Securitization
S-4
