Exhibit 10.4
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-B
as Issuer
CAPITAL ONE AUTO FINANCE, INC.
as Administrator
and
JPMORGAN CHASE BANK
as Indenture Trustee
Dated as of September 16, 2002
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND USAGE ...................................................................... 1
SECTION 2. DUTIES OF THE ADMINISTRATOR ................................................................ 2
SECTION 3. RECORDS .................................................................................... 10
SECTION 4. COMPENSATION ............................................................................... 10
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 ................................ 11
SECTION 10. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL ............................................ 12
SECTION 11. NOTICES .................................................................................... 12
SECTION 12. AMENDMENTS ................................................................................. 13
SECTION 13. SUCCESSORS AND ASSIGNS ..................................................................... 14
SECTION 14. GOVERNING LAW .............................................................................. 14
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. BENEFITS OF THE ADMINISTRATION AGREEMENT ................................................... 15
SECTION 21. NONPETITION COVENANTS ...................................................................... 15
SECTION 22. LIMITATION OF LIABILITY .................................................................... 16
-i-
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of September 16, 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-B,
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, (v) the Insurance Agreement, (vi) the Trust Agreement and
(vii) the Interest Rate Swap Agreement (the Contribution Agreement, the Note
Depository Agreement, the Indenture, the Servicing Agreement, the Insurance
Agreement, the Administration Agreement, the Trust Agreement and the Interest
Rate Swap Agreement being referred to hereinafter collectively as the "Related
Agreements");
WHEREAS, the 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
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Agreement are used as defined in that Article; (iii) the words "hereof,"
"herein" and "hereunder" and words of similar import refer to this Agreement as
a whole and not to any particular provision of this Agreement; (iv) references
to any Article, Section, Schedule or Exhibit are references to Articles,
Sections, Schedules and Exhibits in or to this Agreement, and references to any
paragraph, subsection, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other subdivision of
such Section or definition; (v) the term "including" means "including without
limitation"; (vi) references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law or
regulation; (vii) references to any Person include that Person's successors and
assigns; and (viii) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
Section 2. Duties of the Administrator.
(a) Duties with Respect to the Indenture and the Note Depository
Agreement.
(i) The Administrator agrees to perform all of its duties as
Administrator and the duties of the 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 (Sections 2.02 and 2.05);
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(C) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents required for
the release of property from the lien of the Indenture (Section 2.18);
(D) the preparation of Definitive Notes in accordance
with the instructions of the Clearing Agency (Section 2.13);
(E) the duty to cause newly appointed Note Paying Agents,
if any, to deliver to the Indenture Trustee the instrument specified in
the Indenture regarding funds held in trust (Section 3.03);
(F) the direction to the Indenture Trustee to deposit
monies with Note Paying Agents, if any, other than the Indenture
Trustee (Section 3.03);
(G) the obtaining and preservation of the 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, the Swap
Counterparty (unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid
in full) and the Rating Agencies of an Event of Servicing Default under
the Servicing Agreement and, if such Event of Servicing Termination
arises from the failure of the Servicer to perform any of its duties
under the Servicing Agreement with respect to the Receivables, the
taking of all reasonable steps available to remedy such failure
(Section 4.01(c));
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(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(f));
(N) the delivery of written notice to the Indenture
Trustee and the Rating Agencies of each Event of Default under the
Indenture and each Event of Servicing Default by the Servicer or the
Seller under the Servicing Agreement (Section 7.02);
(O) the monitoring of the 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 9.01(b) 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
and the Swap Counterparty (unless the Interest Rate Swap Agreement has
been terminated and all amounts owed to the Swap Counterparty have been
paid in full) of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 7.10);
(T) the preparation of any written instruments required
to confirm more fully the authority of any co-trustee or separate
trustee and any written instruments necessary in connection with the
resignation or removal of any co-trustee or separate trustee (Sections
7.10 and 7.13);
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(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
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
14.01(a));
(DD) the preparation and delivery of Officer's
Certificates and the obtaining of Independent Certificates, if
necessary, for the release of property from the lien of the Indenture
(Section 14.01(b));
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(EE) the notification of the Rating Agencies, upon the
failure of the Indenture Trustee to give such notification, of the
information required pursuant to Section 14.04 of the Indenture
(Section 14.04);
(FF) the recording of the Indenture, if applicable
(Section 14.16);
(GG) the duties of the Owner Trustee under Section 8.01 of
the Indenture related to its obligations under the Interest Rate Swap
Agreement; and
(HH) 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:
(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 September 16, 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;
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(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 September 16, 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
(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
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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) Duties with Respect to the Interest Rate Swap Agreement. The
Administrator agrees, unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid in full,
to cause the Owner Trustee to maintain in effect the Interest Rate Swap
Agreement with respect to the Class A-2-B Notes, the Class A-3-B Notes and the
Class A-4-B Notes.
(c) Duties with Respect to the Insurance Agreement. The Administrator
agrees to cause the Owner Trustee to maintain in effect the Insurance Agreement
with respect to the Class A Notes.
(d) Duties with Respect to the Servicing Agreement. The Administrator
agrees that it shall be responsible for performance of the duties and
obligations of the Trust or the Owner Trustee set forth in the Servicing
Agreement including, without limitation, the duties and obligations set forth in
Sections 2.01(e), 2.05(b), 2.06(c), 2.08(a), 2.22(b), 3.03(a), 4.03, 5.02(d),
5.07, 6.02, 7.07 and 7.08 therein.
(e) Additional Duties. In addition to the duties of the Administrator
set forth above, the Administrator shall perform such calculations and shall
prepare or shall cause the preparation by other appropriate persons of, and
shall execute on behalf of the Owner Trustee, all such documents, reports,
filings, instruments, certificates and opinions that it shall be the duty of the
Owner Trustee to prepare, file or deliver pursuant to the Related Agreements,
and the Owner Trustee shall take all appropriate action that it is the duty of
the Owner Trustee to take pursuant 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.
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(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 2.01(d), 5.01(a), 7.02(a) and 7.10 of the Contribution Agreement.
(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.
(e) Non-Ministerial Matters. With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the taking of
such action, the Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the 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
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Note Registrar, the Paying Agent or the Indenture Trustee of its
obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(f) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any payments to
the Noteholders under the 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 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
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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 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.
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(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:
(a) if to the Owner Trustee or the Trust, to:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Mayer, Brown, ▇▇▇▇ & Maw
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Administrator, to:
Capital One Auto Finance, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager of Securitization
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to the Indenture Trustee, to:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services - Capital Auto
Finance 2002-B
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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 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.
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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.
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
40
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. Benefits of the Administration Agreement. Nothing in this
Agreement, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Note Insurer, the Swap
Counterparty (unless the Interest Rate Swap Agreement has been terminated and
all amounts owed to the Swap Counterparty have been paid in full), any separate
trustee or co-trustee appointed under Section 7.13 of the Indenture and the
Noteholders, any benefit or any legal or equitable right, remedy or claim under
this Agreement.
Section 21. Nonpetition Covenants. (i) Notwithstanding any prior
termination of this Agreement, the Seller, the Administrator, the Owner Trustee
and the Indenture Trustee shall not, prior to the date which is one year and one
day after the termination of this Agreement with respect to the 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
September 16, 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-B
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
S-1
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
S-2
CAPITAL ONE AUTO FINANCE, INC., as
Administrator
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager of Securitization
S-3
Acknowledged and Agreed
CAPITAL ONE AUTO FINANCE, INC., as
Servicer
By: ________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager of Securitization
S-4