Exhibit 4.1
________________________________________________________________________________
CAPITAL ONE AUTO FINANCE TRUST 2002-B
AMENDED AND RESTATED TRUST AGREEMENT
between
CAPITAL ONE AUTO RECEIVABLES, LLC
and
WILMINGTON TRUST COMPANY
as the Owner Trustee
Dated as of September 16, 2002
________________________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ...................................................... 1
SECTION 1.1. Capitalized Terms ........................................... 1
SECTION 1.2. Other Interpretive Provisions ............................... 1
ARTICLE II ORGANIZATION ..................................................... 2
SECTION 2.1. Name ........................................................ 2
SECTION 2.2. Office ...................................................... 2
SECTION 2.3. Purposes and Powers ......................................... 2
SECTION 2.4. Appointment of the Owner Trustee ............................ 3
SECTION 2.5. Initial Capital Contribution of Trust Estate ................ 3
SECTION 2.6. Declaration of Trust ........................................ 3
SECTION 2.7. Organizational Expenses; Liabilities of the Holders ......... 3
SECTION 2.8. Title to the Trust Property ................................. 3
SECTION 2.9. Situs of the Trust .......................................... 3
SECTION 2.10. Representations and Warranties of the Depositor ............. 4
SECTION 2.11. Federal Income Tax Allocations .............................. 4
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS ........................... 5
SECTION 3.1. Initial Ownership ........................................... 5
SECTION 3.2. The Certificates ............................................ 5
SECTION 3.3. Authentication of Certificates .............................. 5
SECTION 3.4. Registration of Transfer and Exchange of Certificates ....... 6
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates ........... 7
SECTION 3.6. Persons Deemed Certificateholders ........................... 7
SECTION 3.7. Access to List of Certificateholders' Names and Addresses ... 7
SECTION 3.8. Maintenance of Office or Agency ............................. 8
SECTION 3.9. Appointment of Paying Agent ................................. 8
SECTION 3.10. Form of the Certificates .................................... 8
SECTION 3.11. Transfer Restrictions ....................................... 9
SECTION 3.12. Legending of Certificates ................................... 10
ARTICLE IV ACTIONS BY OWNER TRUSTEE ......................................... 12
SECTION 4.1. Prior Notice to Owners with Respect to Certain Matters ...... 12
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SECTION 4.2. Action by Certificateholders with Respect to Certain Matters ......... 12
SECTION 4.3. Action with Respect to Bankruptcy .................................... 12
SECTION 4.4. Restrictions on Certificateholders' Power ............................ 13
SECTION 4.5. Certificateholder Control ............................................ 13
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES ................................ 15
SECTION 5.1. Establishment of Certificate Distribution Account .................... 15
SECTION 5.2. Application of Funds in Certificate Distribution Account ............. 16
SECTION 5.3. Method of Payment .................................................... 16
SECTION 5.4. No Segregation of Monies; No Interest ................................ 16
SECTION 5.5. Accounting and Reports to the Noteholders, Certificateholders, the
Internal Revenue Service and Others .................................. 16
SECTION 5.6. Signature on Returns; Tax Matters Partner ............................ 17
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE ..................................... 17
SECTION 6.1. General Authority .................................................... 17
SECTION 6.2. General Duties ....................................................... 18
SECTION 6.3. Action upon Instruction .............................................. 18
SECTION 6.4. No Duties Except as Specified in this Agreement or in Instructions ... 19
SECTION 6.5. No Action Except under Specified Documents or Instructions ........... 19
SECTION 6.6. Restrictions ......................................................... 19
ARTICLE VII CONCERNING OWNER TRUSTEE .................................................. 19
SECTION 7.1. Acceptance of Trusts and Duties ...................................... 19
SECTION 7.2. Furnishing of Documents .............................................. 21
SECTION 7.3. Representations and Warranties ....................................... 21
SECTION 7.4. Reliance; Advice of Counsel .......................................... 21
SECTION 7.5. Not Acting in Individual Capacity .................................... 22
SECTION 7.6. The Owner Trustee Not Liable for Certificates or Receivables ......... 22
SECTION 7.7. The Owner Trustee May Own Certificates and Notes ..................... 23
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TABLE OF CONTENTS
(continued)
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ARTICLE VIII COMPENSATION OF OWNER TRUSTEE ............................................. 23
SECTION 8.1. The Owner Trustee's Fees and Expenses ................................ 23
SECTION 8.2. Indemnification ...................................................... 23
SECTION 8.3. Payments to the Owner Trustee ........................................ 23
ARTICLE IX TERMINATION OF TRUST AGREEMENT ............................................ 23
SECTION 9.1. Termination of Trust Agreement ....................................... 23
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES .................... 24
SECTION 10.1. Eligibility Requirements for the Owner Trustee ....................... 24
SECTION 10.2. Resignation or Removal of the Owner Trustee .......................... 25
SECTION 10.3. Successor the Owner Trustee .......................................... 25
SECTION 10.4. Merger or Consolidation of the Owner Trustee ......................... 26
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee ........................ 26
ARTICLE XI MISCELLANEOUS ............................................................. 27
SECTION 11.1. Supplements and Amendments ........................................... 27
SECTION 11.2. No Legal Title to Owner Trust Estate in Certificateholders ........... 29
SECTION 11.3. Limitations on Rights of Others ...................................... 29
SECTION 11.4. Notices .............................................................. 29
SECTION 11.5. Severability ......................................................... 30
SECTION 11.6. Separate Counterparts ................................................ 30
SECTION 11.7. Successors and Assigns ............................................... 30
SECTION 11.8. No Petition .......................................................... 30
SECTION 11.9. No Recourse .......................................................... 30
SECTION 11.10. Headings ............................................................. 31
SECTION 11.11. GOVERNING LAW ........................................................ 31
SECTION 11.12. Ratification ......................................................... 31
SCHEDULES
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Schedules I Perfection Representations
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Transferor Certificate
Exhibit C Form of Transferee Certificate
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AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT is made as of September 16, 2002
(as from time to amended, supplemented or otherwise modified and in effect, this
"Agreement") between CAPITAL ONE AUTO RECEIVABLES, LLC, a Delaware limited
liability company, as the Depositor (the "Depositor"), and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as the Owner Trustee (the "Owner
Trustee").
PRELIMINARY STATEMENTS
WHEREAS, the Depositor and the Owner Trustee are parties to that certain
Trust Agreement dated as of June 12, 2002 (the "Original Trust Agreement"); and
WHEREAS, the Depositor and the Owner Trustee desire to amend and restate
the Original Trust Agreement in its entirety on the terms and conditions
provided for in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the Original Trust Agreement is amended and restated
to read in its entirety, and the parties hereto agree, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms. Capitalized terms are used in this
Agreement as defined in the Indenture between the trust established by this
Agreement and JPMorgan Chase Bank, dated as of September 16, 2002, as the same
may be amended and supplemented from time to time.
SECTION 1.2. Other Interpretive Provisions. 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: (a) 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; (b) 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; (c) 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; (d) 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; (e) the term "including" means "including without limitation"; (f)
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; (g) references to
any Person include that Person's
successors and assigns; and (h) headings are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
ARTICLE II
ORGANIZATION
SECTION 2.1. Name. The trust created hereby shall be known as "CAPITAL ONE
AUTO FINANCE TRUST 2002-B".
SECTION 2.2. Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address as the Owner
Trustee may designate by written notice to the Certificateholders and the
Depositor.
SECTION 2.3. Purposes and Powers. The purpose of the Trust is, and the
Owner Trustee shall have the power and authority, to engage in the following
activities:
(a) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Agreement, and to sell, transfer and exchange the Notes
and the Certificates and to pay interest on and principal of the Notes and
distributions on the Certificates;
(b) to acquire the property and assets set forth in the Contribution
Agreement from the Depositor pursuant to the terms thereof, to make
deposits to and withdrawals from the Reserve Fund and to pay the
organizational, start-up and transactional expenses of the Trust;
(c) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Contribution Agreement any
portion of the Trust Estate released from the Lien of, and remitted to the
Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Transaction
Documents to which it is a party;
(e) to engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or
are incidental thereto or connected therewith; and
(f) subject to compliance with the Transaction Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the
Certificateholders and the Noteholders.
The Owner Trustee is hereby authorized to engage in the foregoing activities;
provided, however, that neither the Owner Trustee nor officers of the Owner
Trustee on behalf of the Trust shall have or exercise any powers not permitted
of "Qualifying SPEs" (within the meaning of the Statement of Financial
Accounting Standard No. 140 ("FAS 140")) under FAS 140 or any successor
accounting standard thereto. The Owner Trustee shall not engage in any activity
other
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than in connection with the foregoing or other than as required or authorized by
the terms of this Agreement or the other Transaction Documents.
SECTION 2.4. Appointment of the Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The Owner
Trustee hereby acknowledges receipt in trust from the Depositor, as of the date
thereof, of the sum of $1 of the foregoing contribution, which shall constitute
the initial Owner Trust Estate and shall be deposited in the Certificate
Distribution Account.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares that
it will hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholders, subject to the
obligations of the Trust under the Transaction Documents. It is the intention of
the parties hereto that the Trust constitute a common law trust under the common
laws of the state of Delaware. It is the intention of the parties hereto that,
solely for income and franchise tax purposes, until the Certificates are held by
other than the Depositor, the Trust will be disregarded as an entity separate
from the Depositor and the Notes will be characterized as debt. At such time
that the Certificates are held by more than one Person, it is the intention of
the parties hereto that, solely for income and franchise tax purposes, the Trust
shall be treated as a partnership, with the assets of the partnership being the
Receivables and other assets held by the Trust, the partners of the partnership
being the Certificateholders, and the Notes being debt of the partnership. The
Depositor and the Certificateholders by acceptance of a Certificate agree to
such treatment and agree to take no action inconsistent with such treatment. The
parties agree that, unless otherwise required by appropriate tax authorities,
until the Certificates are held by more than one Person the Trust will not file
or cause to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as an entity separate from its
owner.
SECTION 2.7. Organizational Expenses; Liabilities of the Holders.
(a) The Depositor shall pay organizational expenses of the Trust as
they may arise or shall, upon the request of the Owner Trustee, promptly
reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee.
(b) No Certificateholder shall have any personal liability for any
liability or obligation of the Trust.
SECTION 2.8. Title to the Trust Property. Legal title to all the Owner
Trust Estate shall be vested at all times in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.9. Situs of the Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware. Payments will be
received by the Owner Trustee only in Delaware, and payments will be made by the
Owner Trustee only from Delaware. The only office of the Trust will be at the
Corporate Trust Office.
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SECTION 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly organized and validly existing as a Delaware
limited liability company with power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is presently conducted.
(b) The Depositor is duly qualified to do business as a foreign
limited liability company in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications, licenses and approvals, except where the failure to have
such qualifications, licenses and approvals would not have a material
adverse effect on the Depositor.
(c) The Depositor has the power and authority to execute and deliver
this Agreement and to carry out its terms and the Depositor has full power
and authority to sell and assign the property to be sold and assigned to
and deposited with the Trust, and the Depositor has duly authorized such
sale and assignment and deposit to the Trust by all necessary action; and
the execution, delivery and performance of this Agreement have been duly
authorized by the Depositor.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the limited
liability company agreement of the Depositor, or any material indenture,
agreement or other instrument to which the Depositor is a party or by which
it is bound; nor result in the creation or imposition of any lien upon any
of its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Transaction Documents); nor
violate any law or, to the best of the Depositor's knowledge, any order,
rule or regulation applicable to the Depositor of any court or of any
Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties.
(e) There are no proceedings or investigations pending or, to the
Depositor's best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties: (i) asserting the
invalidity of this Agreement, the Indenture, any of the other Transaction
Documents, the Notes or the Certificates, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Indenture or any of the
other Transaction Documents, (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Depositor or
its obligations under, or the validity or enforceability of, this Agreement
or (iv) which might adversely affect the federal income tax attributes, or
applicable state tax franchise or income tax attributes, of the Notes or
the Certificates.
SECTION 2.11. Federal Income Tax Allocations. If Certificates are held by
more than one Person,
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(a) amounts paid to Certificateholders pursuant to Section 5.2(a)
shall be treated as "guaranteed payments" within the meaning of Section
707(c) of the Code; and
(b) to the extent that the characterization provided for in paragraph
(a) of this Section is not respected, gross ordinary income of the Trust
for such month as determined for federal income tax purposes (and each item
of income, gain, credit, loss or deduction entering into the computation
thereof), to the extent thereof, shall be allocated among the
Certificateholders as of the first Record Date following the end of such
month, in proportion to their Certificate Percentage Interests in the Trust
on such date.
Net losses of the Trust, if any, for any month as determined for federal income
tax purposes (and each item of income, gain, loss, credit and deduction entering
into the computation thereof) shall be allocated to the Depositor to the extent
the Depositor is reasonably expected as determined by the Servicer to bear the
economic burden of such net losses, then net losses shall be allocated among the
Certificateholders as of the first Record Date following the end of such month
in proportion to their Certificate Percentage Interests on such Record Date. The
Depositor is authorized to modify the allocations in this paragraph if necessary
or appropriate, in its sole discretion, for the allocations to fairly reflect
the economic income, gain or loss to the Depositor, the Certificateholders, or
as otherwise required by the Code. Notwithstanding anything provided in this
Section 2.11, if the Certificates are held solely by the Depositor, the
application of this Section 2.11 shall be disregarded.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5 and until the issuance of
the Certificates, the Depositor shall be the sole beneficiary of the Trust.
SECTION 3.2. The Certificates. The Certificates shall be executed by manual
or facsimile signature of an authorized officer of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Owner Trustee, shall be validly issued and entitled to the benefit
of this Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. If a transfer of the Certificates is permitted
pursuant to Section 3.11, a transferee of a Certificate shall become a
Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee's acceptance
of a Certificate duly registered in such transferee's name pursuant to Section
3.4.
SECTION 3.3. Authentication of Certificates. Concurrently with the initial
sale of the Receivables to the Trust pursuant to the Contribution Agreement, the
Owner Trustee shall cause the Certificates in an aggregate Certificate
Percentage Interest equal to 100% to be executed on behalf of the Trust,
authenticated and delivered to or upon the written order of the Depositor,
signed by its chairman of the board, its president, its chief financial officer,
its chief accounting
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officer, any vice president, its secretary, any assistant secretary, its
treasurer or any assistant treasurer, without further corporate action by the
Depositor. No Certificate shall entitle its Holder to any benefit under this
Agreement, or be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee by manual signature; such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
SECTION 3.4. Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.8, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Owner Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. Wilmington
Trust Company shall be the initial Certificate Registrar (the "Certificate
Registrar"). No certificate may be sold, transferred, assigned,
participated, pledged, or otherwise disposed of to any Person except in
accordance with the provisions of Section 3.11 and any attempted transfer
in violation of Section 3.11 shall be null and void.
(b) Upon surrender for registration of transfer of any Certificate at
the office or agency maintained pursuant to Section 3.8, and upon
compliance with the provisions of this Agreement relating to such transfer,
the Owner Trustee shall execute, authenticate and deliver in the name of
the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like class and Certificate Percentage
Interest dated the date of authentication by the Owner Trustee or any
authenticating agent. At the option of a Certificateholder, Certificates
may be exchanged for other Certificates of the same class in authorized
denominations of a like aggregate amount upon surrender of the Certificates
to be exchanged at the office or agency maintained pursuant to Section 3.8.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the Certificateholder or his attorney duly
authorized in writing, with such signature guaranteed by a member firm of
the New York Stock Exchange, a commercial bank or trust company or an
"eligible guarantor institution" with membership or participation in STAMP
or such other "signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or substitution for, STAMP, all in
accordance with the Exchange Act. Each Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently
disposed of by the Owner Trustee or the Certificate Registrar in accordance
with its customary practice.
(d) No service charge shall be made for any registration of transfer
or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
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(e) The preceding provisions of this Section 3.4 notwithstanding, the
Owner Trustee shall not make and the Certificate Registrar need not
register any transfer or exchange of Certificates for a period of fifteen
(15) days preceding any Payment Date for any payment with respect to the
Certificates.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate shall be surrendered to the Certificate Registrar, or if
the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a protected purchaser,
the Owner Trustee shall execute and shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of like class, tenor and Certificate Percentage Interest. In
connection with the issuance of any new Certificate under this Section, the
Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute conclusive evidence of a beneficial interest in the Trust, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 3.6. Persons Deemed Certificateholders. Every Person by virtue of
becoming a Certificateholder in accordance with this Agreement shall be deemed
to be bound by the terms of this Agreement. Prior to due presentation of a
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar or any agent of the Owner Trustee or the Certificate Registrar may
treat the Person in whose name any Certificate shall be registered in the
Certificate Register as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 5.2 and for all other purposes
whatsoever, and none of the Owner Trustee, the Certificate Registrar or any
agent of the Owner Trustee or the Certificate Registrar shall be bound by any
notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and Addresses. The
Owner Trustee shall furnish or cause to be furnished to the Servicer, the
Depositor or the Indenture Trustee, within 15 days after receipt by the Owner
Trustee of a request therefor from the Servicer, the Depositor or the Indenture
Trustee in writing, a list, in such form as the Servicer, the Depositor or the
Indenture Trustee may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If Holders of Certificates
evidencing not less than 25% of the Certificate Percentage Interests apply in
writing to the Owner Trustee, and such application states that the applicants
desire to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then the Owner Trustee shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each
Certificateholder, by receiving and holding a Certificate, shall be deemed to
have agreed not to hold the Depositor, the Certificate Registrar or the Owner
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
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SECTION 3.8. Maintenance of Office or Agency. The Owner Trustee shall
maintain in the City of Wilmington, Delaware, an office or offices or agency or
agencies where Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Owner Trustee in respect
of the Certificates and the Transaction Documents may be served (the
"Certificate Register"). The Owner Trustee initially designates its Corporate
Trust Office as its principal corporate trust office for such purposes. The
Owner Trustee shall give prompt written notice to the Depositor and to the
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
SECTION 3.9. Appointment of Paying Agent. Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.2 and shall report the amounts of such distributions to
the Owner Trustee; provided that this reporting shall not be required where the
Owner Trustee is serving as Paying Agent. Any Paying Agent shall have the
revocable power, upon direction from the Administrator, with written copy
provided to the Owner Trustee, to withdraw funds from the Certificate
Distribution Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove Paying Agent if the
Owner Trustee determines in its sole discretion that Paying Agent shall have
failed to perform its obligations under this Agreement in any material respect.
Paying Agent shall initially be the Owner Trustee. Paying Agent shall be
permitted to resign upon 30 days' written notice to the Owner Trustee and the
Servicer. In the event that the Owner Trustee shall no longer be Paying Agent,
the Owner Trustee shall appoint a successor to act as Paying Agent (which shall
be a bank or trust company). The Owner Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Owner Trustee to execute
and deliver to the Owner Trustee an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Owner Trustee that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholders in trust for
the benefit of the Certificateholders entitled thereto until such sums shall be
paid to such Certificateholders. Paying Agent shall return all unclaimed funds
to the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Owner Trustee. The provisions of
Sections 7.1, 7.3, 7.4 and 8.1 shall apply to the Owner Trustee also in its role
as Paying Agent, for so long as the Owner Trustee shall act as Paying Agent and,
to the extent applicable, to any other paying agent appointed hereunder. Any
reference in this Agreement to Paying Agent shall include any co-paying agent
unless the context requires otherwise.
SECTION 3.10. Form of the Certificates. The Certificates, upon original
issuance, will be issued in the form of a typewritten Certificate or
Certificates representing Definitive Certificates and shall be registered in the
name of Capital One Auto Receivables, LLC as the initial registered owner
thereof. The Owner Trustee shall execute and authenticate, or cause to be
authenticated, the Definitive Certificates in accordance with the instructions
of the Depositor. Neither the Certificate Registrar nor the Owner Trustee shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Certificates, the Owner Trustee and each Paying Agent shall
recognize the Holders of the Certificates as Certificateholders. The
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Owner Trustee, as evidenced
by its execution thereof.
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SECTION 3.11. Transfer Restrictions. (a) No Certificate may be resold,
assigned or transferred (including by pledge or hypothecation) unless such
resale, assignment or transfer is (i) pursuant to an effective registration
statement under the Securities Act and any applicable state securities or "Blue
Sky" laws, (ii) pursuant to Rule 144A promulgated under the Securities Act
("Rule 144A") or (iii) pursuant to another exemption from the registration
requirements of the Securities Act and subject to the receipt by the Owner
Trustee and the Depositor of (A) a certification by both the prospective
transferor and the prospective transferee of the facts surrounding such
transfer, which certification shall be in form and substance satisfactory to the
Owner Trustee and the Depositor and (B) an opinion of counsel (which will not be
at the expense of the Depositor or the Owner Trustee), satisfactory to the
Depositor and the Owner Trustee, to the effect that the transfer is in
compliance with the Securities Act, and, in each case, in compliance with any
applicable securities or "Blue Sky" laws of any state of the United States. In
addition, each transferee shall provide to the Owner Trustee its tax
identification number, address, nominee name (if applicable) and wire transfer
instructions. Prior to any resale, assignment or transfer of the Certificates
described in clause (ii) above, each prospective purchaser of the Certificates
shall have acknowledged, represented and agreed as follows:
(1) It is a "qualified institutional buyer" as defined in Rule 144A
("QIB") and is acquiring the Certificates for its own institutional account
(and not for the account of others) or as a fiduciary or agent for others
(which others also are QIBs).
(2) It acknowledges that the Certificates have not been and will not
be registered under the Securities Act or the securities laws of any
jurisdiction.
(3) It is familiar with Rule 144A and is aware that the sale is being
made in reliance on Rule 144A and it is not acquiring the Certificates with
a view to, or for resale in connection with, a distribution that would
constitute a public offering within the meaning of the Securities Act or a
violation of the Securities Act, and that, if in the future it decides to
resell, assign, pledge or otherwise transfer any Certificates, such
Certificates may be resold, assigned, pledged or transferred only (i) to
the Depositor or any Affiliate thereof, (ii) so long as such Certificate is
eligible for resale pursuant to Rule 144A, to a person whom it reasonably
believes after due inquiry is a QIB acting for its own account (and not for
the account of others) or as a fiduciary or agent for others (which others
also are QIBs) to whom notice is given that the resale, pledge, assignment
or transfer is being made in reliance on Rule 144A, (iii) pursuant to an
effective registration statement under the Securities Act or (iv) in a
sale, pledge or other transfer made in a transaction otherwise exempt from
the registration requirements of the Securities Act, in which case (A) the
Owner Trustee shall require that both the prospective transferor and the
prospective transferee certify to the Owner Trustee and the Depositor in
writing the facts surrounding such transfer, which certification shall be
in form and substance satisfactory to the Owner Trustee and the Depositor
and (B) the Owner Trustee shall require a written opinion of counsel (which
will not be at the expense of the Depositor or the Owner Trustee)
satisfactory to the Depositor and the Owner Trustee to the effect that such
transfer will not violate the Securities Act, in each case in accordance
with any applicable securities or "Blue Sky" laws of any state of the
United States.
9
(4) It is aware that it (or any account for which it is purchasing)
may be required to bear the economic risk of an investment in the
Certificates for an indefinite period, and it (or such account) is able to
bear such risk for an indefinite period.
(5) It understands that the Certificates will bear legends
substantially as set forth in Section 3.12.
(6) If it is acquiring any Certificates for the account of one or more
qualified institutional buyers, it represents that it has sole investment
discretion with respect to each such account and that it has full power to
make the foregoing acknowledgments, representations and agreements on
behalf of each such account.
(7) It acknowledges that the Owner Trustee, the Depositor, and their
Affiliates, and others will rely upon the truth and accuracy of the
foregoing acknowledgments, representations and agreements.
Each transferor of the Certificates shall be required to execute or to have
executed a representation letter substantially in the form of Exhibit B, and
each transferee shall be required to execute or to have executed a
representation letter substantially in the form of Exhibit C, or each may
deliver such other representations (or an opinion of counsel) as may be approved
by the Owner Trustee and the Depositor, to the effect that such transfer may be
made pursuant to an exemption from registration under the Securities Act and any
applicable state securities or "Blue Sky" laws.
In addition, such prospective purchaser shall be responsible for providing
additional information or certification, as shall be reasonably requested by the
Owner Trustee or the Depositor, to support the truth and accuracy of the
foregoing acknowledgments, representations and agreements, it being understood
that such additional information is not intended to create additional
restrictions on the transfer of the Certificates. Neither the Depositor, the
Trust nor the Owner Trustee shall be obligated to register the Certificates
under the Securities Act or any state securities or "Blue Sky" laws.
In determining compliance with the transfer restrictions contained in this
Section 3.11, the Owner Trustee may rely upon a written opinion of counsel
(which may include in-house counsel of the Transferor), the cost of obtaining
which shall be an expense of the Holder of the Certificate to be transferred.
(a) No Certificate may be acquired or held (i) by any "employee
benefit plan" whether or not subject to ERISA or a "plan" described by
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended, or by
any entity deemed to hold the assets of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity (each,
a "Benefit Plan"). Each Person who acquires any Certificate or interest
therein shall certify that the foregoing conditions are satisfied.
SECTION 3.12. Legending of Certificates. Each Certificate shall bear a
legend in substantially the following form, unless the Depositor determines
otherwise in accordance with applicable law:
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THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR
OTHER JURISDICTION, AND MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR ANY OTHER APPLICABLE SECURITIES
OR "BLUE SKY" LAWS, PURSUANT TO AN EXEMPTION THEREFROM OR IN A
TRANSACTION NOT SUBJECT THERETO. IT AGREES, ON ITS OWN BEHALF AND ON
BEHALF OF ANY ACCOUNTS FOR WHICH IT IS ACTING AS AGENT, THAT SUCH
CERTIFICATE MAY BE RESOLD, ASSIGNED, PLEDGED OR TRANSFERRED ONLY (A) SO
LONG AS THE CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, SUCH TO A PERSON WHOM THE TRANSFEROR
REASONABLY BELIEVES AFTER DUE INQUIRY IS A QIB ACTING FOR ITS OWN
ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT
FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO WHOM NOTICE IS GIVEN THAT
THE RESALE, ASSIGNMENT, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR (C) SUCH RESALE, ASSIGNMENT, PLEDGE OR OTHER
TRANSFER IS MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND OTHER SECURITIES OR "BLUE SKY"
LAWS, IN WHICH CASE THE OWNER TRUSTEE SHALL REQUIRE (I) THAT BOTH THE
PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE
OWNER TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING SUCH
TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE
SATISFACTORY TO THE OWNER TRUSTEE AND (II) A WRITTEN OPINION OF COUNSEL
(WHICH SHALL NOT BE AT THE EXPENSE OF THE OWNER TRUSTEE OR THE
DEPOSITOR) SATISFACTORY TO THE OWNER TRUSTEE AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT, IN EACH
CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF
ANY STATE OR JURISDICTION. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF
THE IMMEDIATELY PRECEDING RESTRICTIONS WILL BE VOID AB INITIO AND THE
PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF THE
CERTIFICATE FOR ALL PURPOSES.
NO CERTIFICATE OR INTEREST THEREIN MAY BE ACQUIRED OR HELD (IN THE
INITIAL ACQUISITION OR THROUGH A TRANSFER) WITH PLAN ASSETS OF ANY
"EMPLOYEE BENEFIT PLAN" WHETHER OR NOT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), ANY
"PLAN" DESCRIBED BY SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, OR ANY ENTITY DEEMED TO HOLD THE ASSETS OF ANY OF THE
FOREGOING BY REASON OF AN EMPLOYEE BENEFIT PLAN'S OR OTHER PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "BENEFIT PLAN").
11
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Owners with Respect to Certain Matters.
With respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders in writing of the proposed action and
the Certificateholders shall not have notified the Owner Trustee in writing
prior to the 30th day after such notice is given that such Certificateholders
have withheld consent or provided alternative direction:
(a) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and
such amendment materially adversely affects the interest of the
Certificateholders;
(c) the amendment, change or modification of the Contribution
Agreement, the Servicing Agreement or the Administration Agreement,
except to cure any ambiguity or defect or to amend or supplement any
provision in a manner that would not materially adversely affect the
interests of the Certificateholders; or
(d) the appointment pursuant to the Indenture of a successor
Indenture Trustee or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or the Certificate
Registrar of its obligations under the Indenture or this Agreement, as
applicable.
The Owner Trustee shall notify the Certificateholders in writing of any
appointment of a successor Paying Agent or the Certificate Registrar within five
Business Days thereof.
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders, to (a) except as expressly provided in the
Transactions Documents, remove the Servicer under the Servicing Agreement
pursuant to Section 5.01 thereof, (b) except as expressly provided in the
Transaction Documents, sell the Receivables after the termination of the
Indenture, (c) remove the Administrator under the Administration Agreement
pursuant to Section 9 thereof or (d) appoint a successor Administrator pursuant
to Section 9 of the Administration Agreement. The Owner Trustee shall take the
actions referred to in the preceding sentence only upon written instructions
signed by the Certificateholders.
SECTION 4.3. Action with Respect to Bankruptcy. (a) The Trust shall not
without the prior written consent of the Owner Trustee (a) institute any
proceedings to adjudicate the Trust a bankrupt or insolvent, (b) consent to the
institution of bankruptcy or insolvency proceedings against the Trust, (c) file
a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to bankruptcy with respect to the
Trust, (d) consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Trust or a substantial
part of its property, (e) make any assignment for the benefit of the
12
Trust's creditors, (f) cause the Trust to admit in writing its inability to pay
its debts generally as they become due, or (g) take any action in furtherance of
any of the foregoing (any of the above foregoing actions, a "Bankruptcy
Action"). In considering whether to give or withhold written consent to any
Bankruptcy Action, the Owner Trustee, with the consent of the Certificateholder
(hereby given, and by accepting a Certificate any transferee is deemed to give,
which consent the Certificateholder believes to be in the best interest of
Certificateholder and the Trust), shall, for so long as any Note is outstanding
or remains unsatisfied, consider the interest of the Noteholders and the Note
Insurer and for as long as the Insurance Agreement is in effect consider the
interest of the Note Insurer in addition to the interests of the Trust and
whether the Trust is insolvent. The Owner Trustee shall have no duty to give
such written consent to Bankruptcy Action by the Trust if the Owner Trustee
shall not have been furnished (at the expense of the Trust or the Person that
requested that such letter be furnished to the Owner Trustee) a letter from an
independent accounting firm of national reputation stating that in the opinion
of such firm the Trust is then insolvent. The Owner Trustee (as such and in its
individual capacity) shall not be personally liable to any Person on account of
the Owner Trustee's good faith reliance on the provisions of this Section or in
connection with the Owner Trustee's giving prior written consent to Bankruptcy
Action by the Owner Trustee in accordance herewith, or withholding such consent,
in good faith, and neither the Trust nor the Certificateholder shall have any
claim for breach of fiduciary duty or otherwise against the Owner Trustee (as
such and in its individual capacity) for giving or withholding its consent to
any such Bankruptcy Action.
(b) For so long as any Note is outstanding and the Note Guaranty
Insurance Policy is in effect, the parties hereto stipulate and agree (and by
acceptance of a Certificate, each Certificateholder agrees) that no
Certificateholder has power to commence any Bankruptcy Action on the part of the
Trust or to direct the Owner Trustee to take any Bankruptcy Action on the party
of the Trust. For so long as any Note is outstanding and the Note Guaranty
Insurance Policy is in effect, to the extent permitted by applicable law, the
consent of the Note Insurer and the Indenture Trustee shall be obtained prior to
taking any Bankruptcy Action by the Trust.
(c) The provisions of this Section do not constitute an
acknowledgement or admission by the Owner Trustee, the Certificateholder or any
creditor of the Trust that the Trust is eligible to be a debtor, under the
United States Bankruptcy Code, 11 U.S.C.ss.ss.101 et seq., as amended.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Owner Trustee under this Agreement or any of the Transaction Documents or
would be contrary to Section 2.3 nor shall the Owner Trustee be obligated to
follow any such direction, if given.
SECTION 4.5. Certificateholder Control. Except as expressly provided
herein, any action that may be taken by the Certificateholders under this
Agreement may be taken by the Holders of Certificates evidencing not less than a
majority of the Certificate Percentage Interests. Except as expressly provided
herein, any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Certificateholders of Certificates
13
evidencing not less than a majority of the Certificate Percentage Interests at
the time of the delivery of such notice.
SECTION 4.6. Note Insurer's Rights Regarding Actions, Proceedings or
Investigations. Following the occurrence and during a continuation of an Event
of Default under the Indenture and until the Class A Notes have been paid in
full, all amounts owed to the Note Insurer have been paid in full, the Insurance
Agreement has terminated and the Note Guaranty Insurance Policy has been
returned to the Note Insurer for cancellation, unless a Note Insurer Default has
occurred and is continuing, the following provisions shall apply:
(a) notwithstanding anything contained herein or in the other
Transaction Documents to the contrary, the Note Insurer shall have the
right to participate in, to direct the enforcement or defense of, and,
at the Note Insurer's sole option, to institute or assume the defense
of, any action, proceeding or investigation that could adversely affect
the Trust, the Trust Property, the Trust Estate or the rights or
obligations of the Note Insurer hereunder or under the Policy or the
Transaction Documents, including (without limitation) any insolvency or
bankruptcy proceeding in respect of the Servicer, the Transferor, the
Seller or the Trust, it being understood that the Owner Trustee shall
have the right to employ separate counsel in such action, proceeding or
investigation. Following notice to the Owner Trustee, the Note Insurer
shall have exclusive rights to determine, in its sole discretion, the
actions necessary to preserve and protect the Trust, the Trust Property
and the Trust Estate. All costs and expenses of the Note Insurer in
connection with such action, proceeding or investigation, including
(without limitation) any judgment or settlement entered into affecting
the Note Insurer or the Note Insurer's interests, shall be included in
Reimbursement Obligations;
(b) in connection with any action, proceeding or investigation
that could adversely affect the Trust, the Trust Property, the Trust
Estate or the rights or obligations of the Note Insurer hereunder or
under either the Note Guaranty Insurance Policy or the Transaction
Documents, including (without limitation) any insolvency or bankruptcy
proceeding in respect of the Servicer, the Transferor, the Seller or
the Trust, the Owner Trustee hereby agrees to cooperate with, and to
take such action as directed by, the Note Insurer, including (without
limitation) entering into such agreement and settlement as the Note
Insurer shall direct, in its sole discretion. The Owner Trustee's
reasonable out-of-pocket costs and expenses (including attorneys' fees
and expenses) with respect to any such action, proceeding or
investigation shall be reimbursed pursuant to Section 8.1 of this
Agreement;
(c) any judgment or settlement entered against or affecting the
Trust, the Trust Property or the Trust Estate, on behalf of the
Noteholders, in connection with any action, proceeding or investigation
shall be paid from the Trust Estate pursuant to Section 5.05(c) of the
Indenture;
(d) the Owner Trustee hereby agrees to provide the Note Insurer
prompt written notice of any action, proceeding or investigation that
names the Trust or the Owner Trustee as a party or that could adversely
affect the Trust, the Trust Property, the Trust Estate or the rights or
obligations of the Note Insurer hereunder or under the Note
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Guaranty Insurance Policy or the Transaction Documents including
(without limitation) any insolvency or bankruptcy proceeding in respect
of the Servicer, Transferor, the Seller or the Trust to the extent the
Owner Trustee has actual knowledge of any such action, proceeding or
investigation;
(e) notwithstanding anything contained herein or in any of the
other Transaction Documents to the contrary, the Owner Trustee shall
not, without the Note Insurer's prior written consent or unless
directed by the Note Insurer, undertake or join any litigation or agree
to any settlement of any action, proceeding or investigation affecting
the Trust, the Trust Property, the Trust Estate or the Rights or
obligations of the Note Insurer hereunder or under the Note Guaranty
Insurance Policy or the Transaction Documents; provided that the Note
Insurer shall respond promptly to any such request and the Owner
Trustee shall not be liable for any actions if such response is not
received within ten (10) days of notice to the Note Insurer;
(f) each Certificateholder, by acceptance of its Certificate, and
the Owner Trustee agree that the Note Insurer shall have such rights as
set forth in this Section, which are in addition to any rights of the
Note Insurer pursuant to the other provisions of the Transaction
Documents, that the rights set forth in this Section may be exercised
by the Note Insurer, in its sole discretion, without the need for the
consent or approval of any Noteholder, the Holder of the Certificate,
the Indenture Trustee or the Owner Trustee, notwithstanding any other
provision contained herein or in any of the other Transaction
Documents, and that nothing contained in this Section shall be deemed
to be an obligation of the Note Insurer to exercise any of the rights
provided for herein; and
(g) notwithstanding any provision in herein or in any of the
other Transaction Documents to the contrary, in the event that a Note
Insurer Default shall have occurred and be continuing or the Class A
Notes have been paid in full, and amounts owed to the Note Insurer have
been paid in full, the Insurance Agreement has terminated and the Note
Guaranty Insurance Policy has been returned to the Note Insurer for
cancellation, the Note Insurer shall not have the right to take any
action under this Agreement or to control or direct the actions of the
Trust, the Seller, the Indenture Trustee or the Owner Trustee pursuant
to the terms of this Agreement, nor shall the consent of the Note
Insurer be required with respect to any action (or waiver of a right to
take action) to be taken by the Trust, the Seller, the Indenture
Trustee, the Owner Trustee or the Noteholders or the
Certificateholders.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution Account. The
Owner Trustee, for the benefit of the Certificateholders, shall establish and
maintain in the name of the Trust an Eligible Account (the "Certificate
Distribution Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders. Except as
otherwise provided herein, the Certificate Distribution Account shall be under
the sole dominion and control of the Owner Trustee for the benefit of the
Certificateholders.
15
SECTION 5.2. Application of Funds in Certificate Distribution Account. (a)
On each Payment Date, the Owner Trustee will, or will cause the Paying Agent to,
based on the information contained in the Monthly Servicer's Report delivered on
the related Determination Date pursuant to Section 2.10 of the Servicing
Agreement and Section 5.05(c) of the Indenture, distribute to
Certificateholders, as of the related Record Date all amounts deposited in the
Certificate Distribution Account pursuant to the Servicing Agreement on such
Payment Date based upon each Certificateholder's Certificate Percentage
Interest.
(b) In the event that any withholding tax is imposed on the Owner
Trustee's payment (or allocations of income) to a Certificateholder, such
tax shall reduce the amount otherwise distributable to the
Certificateholder in accordance with this Section. The Owner Trustee is
hereby authorized and directed to retain from amounts otherwise
distributable to the Certificateholders sufficient funds for the payment of
any tax that is legally owed by the Owner Trustee (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in
appropriate proceedings, and withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be
treated as cash distributed to such Certificateholder at the time it is
withheld by the Owner Trustee and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-United States
Certificateholder), the Owner Trustee may in its sole discretion withhold
such amounts in accordance with this clause (b). In the event that a
Certificateholder wishes to apply for a refund of any such withholding tax,
the Owner Trustee shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse the
Owner Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 9.1(c), distributions
required to be made to Certificateholders on any Payment Date shall be made to
each Certificateholder of record on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if (a) such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior to
such Payment Date (b) such Certificateholder is the Depositor, or an Affiliate
thereof, or, if not, by check mailed to such Certificateholder at the address of
such Certificateholder appearing in the Certificate Register. Notwithstanding
the foregoing, the final distribution in respect of any Certificate will be
payable only upon presentation and surrender of such Certificate at the office
or agency maintained for that purpose by the Owner Trustee pursuant to Section
3.8.
SECTION 5.4. No Segregation of Monies; No Interest. Subject to Sections 5.1
and 5.2, monies received by the Owner Trustee or any Paying Agent hereunder need
not be segregated in any manner except to the extent required by law or the
Indenture or the Servicing Agreement and may be deposited under such general
conditions as may be prescribed by law, and neither the Owner Trustee nor any
Paying Agent shall be liable for any interest thereon.
SECTION 5.5. Accounting and Reports to the Noteholders, Certificateholders,
the Internal Revenue Service and Others. Subject to Section 2.6, the
Administrator shall (a)
16
maintain (or cause to be maintained) the books of the Trust on a calendar year
basis on the accrual method of accounting, (b) deliver (or cause to be
delivered) to each Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required (including
Schedule K-1) to enable each Certificateholder to prepare its federal and state
income tax returns, (c) prepare and file such tax returns relating to the Trust
(including a partnership information return, Form 1065, if applicable), and make
such elections as may from time to time be required or appropriate under any
applicable state or federal statute or rule or regulation thereunder so as to
maintain the Trust's characterization as a partnership for federal income tax
purposes, (d) cause such tax returns to be signed in the manner required by law
and (e) collect or cause to be collected any withholding tax as described in and
in accordance with Section 5.2(c) with respect to income or distributions to
Certificateholders. The Owner Trustee shall cooperate with the Administrator in
making all elections pursuant to this Section as directed in writing by the
Administrator. The Trust shall elect under Section 1278 of the Code to include
in income currently any market discount that accrues with respect to the
Receivables and shall elect under Section 171 of the Code to amortize any bond
premium with respect to the Receivables. The Trust shall not make the election
provided under Section 754 of the Code.
SECTION 5.6. Signature on Returns; Tax Matters Partner. (a) Notwithstanding
the provisions of Section 5.5 and subject to Section 2.6, the Depositor shall
sign on behalf of the Trust the tax returns of the Trust, unless applicable law
requires the Owner Trustee to sign such documents, in which case such documents
shall be signed by the Owner Trustee at the written direction of the Depositor.
(b) Subject to Section 2.6, the Depositor shall be the "tax
matter partner" of the Trust pursuant to Section 6231(a)(7)(A) of the Code
and applicable Treasury Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Transaction Documents to which the Owner
Trustee is named as a party and each certificate or other document attached as
an exhibit to or contemplated by the Transaction Documents to which the Owner
Trustee is named as a party and any amendment thereto, in each case, in such
form as the Depositor shall approve, as evidenced conclusively by the Owner
Trustee's execution thereof, and at the written direction of the Depositor, to
direct the Indenture Trustee to authenticate and deliver Class A-1 Notes in the
aggregate principal amount of $204,000,000, Class A-2-A Notes in the aggregate
principal amount of $187,000,000, Class A-2-B Notes in the aggregate principal
amount of $120,000,000, Class A-3-A Notes in the aggregate principal amount of
$190,000,000, Class A-3-B Notes in the aggregate principal amount of
$105,000,000, Class A-4-A Notes in the aggregate principal amount of
$132,500,000, Class A-4-B Notes in the aggregate principal amount of
$161,500,000 and Class B Notes in the aggregate principal amount of $54,030,000.
In addition to the foregoing, the Owner Trustee is authorized, but shall not be
obligated, to take all actions required of the Owner Trustee pursuant to the
Transaction Documents. The Owner Trustee is further authorized from time to time
to take such action as the Servicer or the Administrator recommends or directs
in writing with
17
respect to the Transaction Documents, except to the extent that this Agreement
expressly requires the consent of Certificateholders for such action.
SECTION 6.2. General Duties. It shall be the duty of the Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Transaction Documents and to
administer the Trust in the interest of Certificateholders, subject to the
Transaction Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Transaction
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Transaction Document, and the Owner Trustee shall not be
liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement. The Owner Trustee shall have no
obligation to administer, service or collect the Receivables or to maintain,
monitor or otherwise supervise the administration, servicing or collection of
the Receivables.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, and in
accordance with the Transaction Documents, the Certificateholders may, by
written instruction, direct the Owner Trustee in the management of the Trust.
Such direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(a) The Owner Trustee shall not be required to take any action
hereunder or under any Transaction Document if the Owner Trustee shall have
reasonably determined or been advised by counsel that such action is likely
to result in liability on the part of the Owner Trustee or is contrary to
the terms hereof or of any Transaction Document or is otherwise contrary to
law and a copy of such opinion has been provided to the Seller and the
Servicer.
(b) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or
any Transaction Document or is unsure as to the application of any
provision of this Agreement or any Transaction Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction as to the
course of action to be adopted or application of such provision, and to the
extent the Owner Trustee acts or refrains from acting in good faith in
accordance with any written instruction of the Certificateholders received,
the Owner Trustee shall not be liable on account of such action or inaction
to any Person. If the Owner Trustee receives two or more sets of
conflicting instructions, the Owner Trustee shall act on the instructions
from the group of Certificateholders holding the largest Certificate
Percentage Interest. If the Owner Trustee shall not have received
appropriate instruction within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent with this
18
Agreement or the Transaction Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any
Person for such action or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with, the Owner Trust Estate, or to otherwise take or refrain
from taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly provided by
the terms of this Agreement or in any document or written instruction received
by the Owner Trustee pursuant to Section 6.3; and no implied duties or
obligations shall be read into this Agreement or any Transaction Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to prepare or file any SEC filing for the Trust
or to record this Agreement or any Transaction Document. Wilmington Trust
Company nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Owner Trust Estate that result from actions by, or claims against, Wilmington
Trust Company that are not related to the ownership or the administration of the
Owner Trust Estate.
SECTION 6.5. No Action Except under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Owner Trust Estate except (i) in accordance with the
powers granted to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Transaction Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3.
SECTION 6.6. Restrictions. The Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of the Trust set forth in Section 2.3 or
(b) that, to the actual knowledge of the Owner Trustee, would (i) affect the
treatment of the Notes as indebtedness for federal income, state and local
income and franchise tax purposes, (ii) be deemed to cause a taxable exchange of
the Notes for federal income or state income or franchise tax purposes or (iii)
cause the Trust or any portion thereof to be treated as an association or
publicly traded partnership taxable as a corporation for federal income, state
and local income or franchise tax purposes. The Certificateholders shall not
direct the Owner Trustee to take action that would violate the provisions of
this Section.
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties. The Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. The Owner Trustee also
agrees to disburse all moneys actually received by it constituting part of the
Owner Trust Estate upon the terms of the Transaction Documents and this
Agreement. The Owner Trustee shall not be personally liable or accountable
hereunder or under any Transaction Document under any circumstances, except (i)
for its own
19
willful misconduct, bad faith or gross negligence, (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.3 expressly
made by Wilmington Trust Company in its individual capacity, (iii) for
liabilities arising from the failure of Wilmington Trust Company to perform
obligations expressly undertaken by it in the last sentence of Section 6.4 or
(iv) for taxes, fees or other charges on, based on or measured by, any fees,
commissions or compensation received by the Owner Trustee. In particular, but
not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) The Owner Trustee shall not be personally liable for any error
of judgment made by a Responsible Officer of the Owner Trustee;
(b) The Owner Trustee shall not be personally liable with respect to
any action taken or omitted to be taken by it in accordance with the
instructions of the Depositor, the Servicer, the Administrator or any
Certificateholder;
(c) No provision of this Agreement or any Transaction Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
personal liability in the performance of any of its rights or powers
hereunder or under any Transaction Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) Under no circumstances shall the Owner Trustee be personally
liable for indebtedness evidenced by or arising under any of the
Transaction Documents, including the principal of and interest on the Notes
or amounts distributable on the Certificates;
(e) The Owner Trustee shall not be personally liable for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for or
in respect of the validity or sufficiency of the Transaction Documents,
other than the certificate of authentication on the Certificates, and the
Owner Trustee shall in no event assume or incur any personal liability,
duty or obligation to any Noteholder or to any Certificateholder, other
than as expressly provided for herein and in the Transaction Documents;
(f) The Owner Trustee shall not be personally liable for the default
or misconduct of the Indenture Trustee, the Servicer, the Custodian, or
the Administrator under any of the Transaction Documents or otherwise and
the Owner Trustee shall have no duty or personal liability to perform
obligations under this Agreement or the Transaction Documents that are
required to be performed by the Indenture Trustee under the Indenture, the
Servicer, the Custodian under the Servicing Agreement or the Administrator
under the Administration Agreement; and
(g) The Owner Trustee shall be under no duty to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation under this Agreement or otherwise or in relation
to this Agreement or any Transaction Document, at the request, order or
written direction of any of the Certificateholders,
20
unless such Certificateholders have offered to the Owner Trustee security
or indemnity satisfactory to it against the costs, expenses and liabilities
that may be incurred by the Owner Trustee therein or thereby. The right of
the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any Transaction Document shall not be construed as a duty,
and the Owner Trustee shall not be answerable for other than its gross
negligence, bad faith or willful misconduct in the performance of any such
act.
SECTION 7.2. Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Transaction Documents.
SECTION 7.3. Representations and Warranties. Wilmington Trust Company
hereby represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a Delaware banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and
having an office within the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) This Agreement constitutes a legal, valid and binding obligation
of the Owner Trustee, enforceable against the Owner Trustee in accordance
with its terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation and
other similar laws affecting enforcement of the rights of creditors of
banks generally and to equitable limitations on the availability of
specific remedies.
(d) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or New York law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
by-laws or any indenture, mortgage, contract, agreement or instrument to
which it is a party or by which any of its properties may be bound.
SECTION 7.4. Reliance; Advice of Counsel. (a) The Owner Trustee shall incur
no personal liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond
or other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of the
21
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer, secretary or other authorized officers
of the relevant party, as to such fact or matter, and such certificate shall
constitute full protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Transaction Documents, the Owner Trustee (i) may act directly or through
its agents or attorneys pursuant to agreements entered into with any of
them, but the Owner Trustee shall not be personally liable for the conduct
or misconduct of such agents, custodians, nominees (including persons
acting under a power of attorney) or attorneys selected with reasonable
care and (ii) may consult with counsel, accountants and other skilled
persons knowledgeable in the relevant area to be selected with reasonable
care and employed by it at the expense of the Trust. The Owner Trustee
shall not be personally liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any
such counsel, accountants or other such persons.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in this
Article VII, in accepting the trusts hereby created, Wilmington Trust Company
acts solely as the Owner Trustee hereunder and not in its individual capacity
and all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Transaction Document shall
look only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 7.6. The Owner Trustee Not Liable for Certificates or Receivables.
The recitals contained herein and in the Certificates (other than the signature
and countersignature of the Owner Trustee on the Certificates) shall be taken as
the statements of the Depositor, and the Owner Trustee assumes no responsibility
for the correctness thereof. The Owner Trustee makes no personal representations
as to the validity or sufficiency of this Agreement, of any Transaction Document
or of the Certificates (other than the signature and countersignature of the
Owner Trustee on the Certificates) or the Notes, or of any Receivable or related
documents. The Owner Trustee shall at no time have any responsibility or
personal liability for or with respect to the legality, validity and
enforceability of any Receivable, or the perfection and priority of any security
interest created by any Receivable in any Financed Vehicle or the maintenance of
any such perfection and priority, or for or with respect to the sufficiency of
the Owner Trust Estate or its ability to generate the payments to be distributed
to Certificateholders under this Agreement or the Noteholders under the
Indenture, including: the existence, condition and ownership of any Financed
Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or of any
intervening assignment; the completeness of any Receivable; the performance or
enforcement of any Receivable; the compliance by the Depositor or the Servicer
with any warranty or representation made under any Transaction Document or in
any related document or the accuracy of any such warranty or representation or
any action of Indenture Trustee, the Administrator, or the Servicer or any
subservicer taken in the name of the Owner Trustee.
22
SECTION 7.7. The Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositor, the Indenture Trustee
and the Administrator in banking transactions with the same rights as it would
have if it were not the Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. The Owner Trustee's Fees and Expenses. The Depositor shall
cause the Administrator to pay to the Owner Trustee pursuant to the Indenture
from time to time reasonable compensation for all services rendered by the Owner
Trustee under this Agreement (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). Except as otherwise expressly provided for in this Agreement or the
Indenture, to the extent not paid pursuant to Section 5.05(c) of the Indenture,
the Depositor shall cause the Administrator to 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 this Agreement
(including the reasonable compensation, expenses and disbursements of such
agents and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder), except any
such expense may be attributable to its willful misconduct, gross negligence or
bad faith.
SECTION 8.2. Indemnification. The Depositor shall cause the Administrator
to indemnify the Owner Trustee in its individual capacity and as trustee and its
successors, assigns, directors, officers, employees and agents from and against,
any and all loss, liability and 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 in
its individual capacity and as trustee or any Indemnified Party in any way
relating to or arising out of this Agreement, the Transaction Documents, the
Owner Trust Estate, the administration of the Owner Trust Estate or the action
or inaction of the Owner Trustee hereunder, 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.
SECTION 8.3. Payments to the Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VIII and the Administration Agreement shall be
deemed not to be a part of the Owner Trust Estate immediately after such
payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement (other than
Article VIII) and the Trust shall terminate and be of no further force or
effect, upon the final distribution by the Owner Trustee of all moneys or other
property or proceeds of the Owner Trust Estate in accordance with the terms of
the Indenture, the Contribution Agreement, the Servicing Agreement and Article
V; provided, however, that in no event shall the Trust created by this
23
Agreement continue beyond the expiration of 110 years from the date of this
Agreement. The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Owner Trust Estate
nor (z) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Except as provided in clause (a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which the Certificateholders shall surrender their Certificates
to the Paying Agent for payment of the final distribution and cancellation,
shall be given by the Owner Trustee by letter to Certificateholders mailed
within five Business Days of receipt of notice of such termination from the
Servicer given pursuant to Section 6.02 of the Indenture, stating (i) the
Payment Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Paying Agent therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Payment Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office of the
Paying Agent therein specified. The Owner Trustee shall give such notice to
the Certificate Registrar (if other than the Owner Trustee), the Paying
Agent, the Note Insurer and the Swap Counterparty (unless the Interest Rate
Swap Agreement has been terminated and all amounts owed to the Swap
Counterparty have been paid in full) at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates,
the Paying Agent shall cause to be distributed to Certificateholders
amounts distributable on such Payment Date pursuant to Section 5.2.
If all of the Certificateholders shall not surrender their Certificates for
cancellation within sixty (60) days after the date specified in the above
mentioned written notice, the Owner Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
sixty (60) days after the second notice all the Certificates shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining after exhaustion of such remedies
shall be distributed, subject to applicable escheat laws, by the Owner Trustee
to the Depositor.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for the Owner Trustee. The Owner
Trustee shall at all times be a bank (i) authorized to exercise corporate trust
powers, (ii) having a combined capital and surplus of at least $50,000,000 and
(iii) subject to supervision or
24
examination by Federal or state authorities. If such bank shall publish reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
10.2.
SECTION 10.2. Resignation or Removal of the Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Administrator and the Note Insurer. Upon
receiving such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee reasonably acceptable to the Note Insurer by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee (with a copy
to the Note Insurer). If no successor Owner Trustee shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee reasonably
acceptable to the Note Insurer; provided, however, that such right to appoint or
to petition for the appointment of any such successor shall in no event relieve
the resigning Owner Trustee from any obligations otherwise imposed on it under
the Transaction Documents until such successor has in fact assumed such
appointment.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 and shall fail to resign after written
request therefor by the Administrator, or if at any time the Owner Trustee shall
be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator with notice to the Note Insurer may remove
the Owner Trustee. If the Administrator shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Administrator shall
promptly appoint a successor Owner Trustee reasonably acceptable to the Note
Insurer by written instrument, in duplicate, one copy of which instrument shall
be delivered to the outgoing Owner Trustee so removed and one copy to the
successor Owner Trustee (with a copy to the Note Insurer) and payment of all
fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee reasonably acceptable to the Note Insurer pursuant to Section 10.3 and
payment of all fees and expenses owed to the outgoing Owner Trustee. The
Administrator shall provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies and the Note Insurer.
SECTION 10.3. Successor the Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Administrator, the Note Insurer and to its predecessor Owner Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall
25
become effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as the Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
Administrator and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of such successor Owner
Trustee to all Certificateholders, Indenture Trustee, the Noteholders and each
of the Rating Agencies. If the Administrator shall fail to mail such notice
within 10 days after acceptance of appointment by the successor Owner Trustee,
the successor Owner Trustee shall cause such notice to be mailed at the expense
of the Administrator.
SECTION 10.4. Merger or Consolidation of the Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, be the successor of the Owner Trustee
hereunder; provided that such corporation shall be eligible pursuant to Section
10.1; and provided further that the Owner Trustee shall mail notice of such
merger or consolidation to the Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.1 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.3.
26
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised
or performed by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely
at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee
or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to the Owner
Trustee. Each such instrument shall be filed with the Owner Trustee and a copy
thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Supplements and Amendments. (a) This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice to the
Note Insurer, the Swap Counterparty (unless the Interest Rate Swap Agreement has
been terminated and all amounts
27
owed to the Swap Counterparty have been paid in full) and the Rating Agencies,
without the consent of any of the Noteholders or the Certificateholders:
(i) to cure any ambiguity or defect, to correct or supplement
any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions in this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholders; provided that such
action shall not adversely affect in any material respect the
interests of any Noteholder, the Swap Counterparty or
Certificateholder; provided further, however, that such amendment
will not significantly change the permitted activities of the Trust
as set forth herein.
(ii) in connection with any such election, to modify or
eliminate existing provisions set forth in this Agreement relating to
the intended federal income tax treatment of the Notes or
Certificates and the Trust in the absence of the election; it being a
condition to any such amendment that the Rating Agency Condition
shall be satisfied; and
(iii) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to the
Trust of all or any portion of the Receivables to be recognized as a
sale under GAAP by the Depositor to the Trust, (b) the Trust to avoid
becoming a member of the Depositor's consolidated group under GAAP or
(c) the Depositor or any of its Affiliates to otherwise comply with
or obtain more favorable treatment under any law or regulation or any
accounting rule or principle.
(b) This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee, with prior written notice to the Note
Insurer, the Rating Agencies and the Swap Counterparty (unless the Interest
Rate Swap Agreement has been terminated and all amounts owed to the Swap
Counterparty have been paid in full), with the consent of the Holders of
Notes evidencing not less than a majority of the Outstanding Amount of the
Notes and, to the extent affected thereby, the consent of the Holders of
Certificates evidencing not less than a majority of the Certificate
Percentage Interests 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 that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing
of, collections of payments on Receivables or distributions that shall be
required to be made for the benefit of the Noteholders or the
Certificateholders or (b) reduce the aforesaid percentage of the
Outstanding Amount of the Notes and the Certificate Percentage Interests
required to consent to any such amendment, without the consent of the
Holders of all the outstanding Notes and Holders of all outstanding
Certificates; provided, further that the consent of the Note Insurer shall
be obtained with respect to any amendment adversely affecting the Note
Insurer or the bankruptcy-remote status of the Trust.
(c) Promptly after the execution of any such amendment or consent,
the Administrator shall furnish written notification of the substance of
such amendment or
28
consent to each Certificateholder, the Indenture Trustee, the Note Insurer,
the Swap Counterparty (unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid in
full) and each of the Rating Agencies.
(d) It shall not be necessary for the consent of the
Certificateholders, the Noteholders, the Swap Counterparty or the Indenture
Trustee pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent,
where required, shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Transaction Document) and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Owner Trustee may
prescribe.
(e) Prior to the execution of any amendment to this Agreement the
Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Owner Trustee's own rights, duties or immunities under
this Agreement or otherwise.
(f) Notwithstanding the language set forth in this Section 11.1, the
consent of the Note Insurer shall be required at all times with respect to
any amendment of Section 4.6 of this Agreement.
SECTION 11.2. No Legal Title to Owner Trust Estate in Certificateholders.
The Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided beneficial interest therein only in accordance with
Articles V and IX. No transfer, by operation of law or otherwise, of any right,
title or interest of the Certificateholders to and in their ownership interest
in the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
SECTION 11.3. Limitations on Rights of Others. Except for Section 2.7, the
provisions of this Agreement are solely for the benefit of the Owner Trustee,
the Depositor, the Administrator, the Certificateholders, the Servicer and, to
the extent expressly provided herein, the Indenture Trustee, the Swap
Counterparty and the Noteholders, and nothing in this Agreement, whether express
or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given by telecopy with receipt acknowledged by the recipient thereof or
upon receipt personally delivered, delivered by overnight courier or mailed
certified mail, return receipt requested, if to the Owner Trustee,
29
addressed to the Corporate Trust Office; if to the Depositor, addressed to ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager of Securitization;
Copy to: Legal Department; Copy to: Mayer, Brown, ▇▇▇▇ & Maw; if to the Swap
Counterparty, addressed to Wachovia Bank, National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇,
Senior Vice President, Risk Management; if to the Note Insurer, addressed to
MBIA Insurance Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Insured Portfolio Management - Structured Finance (IPM-SF) or, as to each party,
at such other address as shall be designated by such party in a written notice
to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Certificateholder as shown in the Certificate Register.
Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
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 11.6. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee and its successors and each Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.8. No Petition. The Owner Trustee (not in its individual
capacity but solely as the Owner Trustee), by entering into this Agreement, each
Certificateholder, by accepting a Certificate, and the Indenture Trustee and
each Noteholder or Note Owner, by accepting the benefits of this Agreement,
hereby covenants and agrees that they will not at any time institute against the
Depositor, or solicit or join in or cooperate with or encourage any institution
against the Depositor of any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Certificates, the Notes, this Agreement or any of the Transaction
Documents.
SECTION 11.9. No Recourse. (a) Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Seller, the Administrator, the Depositor, the Owner Trustee,
the Indenture Trustee or any Affiliate thereof and no recourse may be had
against such parties or their assets, except as expressly set forth or
contemplated in this Agreement, the Certificates or the Transaction Documents.
30
(b) In furtherance of and not in derogation of the foregoing, to the
extent the Depositor enters into other securitization transactions, each
Certificateholder, by accepting a Certificate, acknowledges and agrees that
it shall have no right, title or interest in or to any assets or interests
therein of the Depositor (other than the Trust Estate conveyed or purported
to be conveyed by the Depositor to another securitization trust or other
Person or Persons in connection therewith (whether by way of a sale,
capital contribution or by virtue of the granting of a lien) ("Other
Assets"). To the extent that, notwithstanding the agreements and provisions
contained in the preceding sentences of this Section, a Certificateholder
either (i) asserts an interest or claim to, or benefit from, Other Assets,
whether asserted against or through the Depositor or any other Person owned
by the Depositor, or (ii) is deemed to have any such interest, claim or
benefit in or from Other Assets, whether by operation of law, legal
process, pursuant to applicable provisions of insolvency laws or otherwise
(including by virtue of Section 1111(b) of the Federal Bankruptcy Code or
any successor provision having similar effect under the Bankruptcy Code),
and whether deemed asserted against or through the Depositor or any other
Person owned by the Depositor, then each Certificateholder, by accepting a
Certificate, further acknowledges and agrees that any such interest, claim
or benefit in or from Other Assets is and shall be expressly subordinated
to the indefeasible payment in full of all obligations and liabilities of
the Depositor which, under the terms of the relevant documents relating to
the securitization of such Other Assets, are entitled to be paid from,
entitled to the benefits of, or otherwise secured by such Other Assets
(whether or not any such entitlement or security interest is legally
perfected or otherwise entitled to priority of distribution or application
under applicable law, including insolvency laws, and whether asserted
against the Depositor or any other Person owned by the Depositor),
including the payment of post-petition interest on such other obligations
and liabilities. This subordination agreement shall be deemed a
subordination agreement within the meaning of Section 510(a) of the
Bankruptcy Code. Each Certificateholder, by acceptance of a Certificate,
further acknowledges and agrees that no adequate remedy at law exists for a
breach of this Section 11.9(b) and the terms of this Section 11.9(b) may be
enforced by an action for specific performance. The provisions of this
Section 11.9(b) shall be for the third party benefit of those entitled to
rely thereon and shall survive the termination of this Agreement.
SECTION 11.10. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12. Ratification. The parties hereto and the Trust created
hereby ratify action taken by the Owner Trustee in connection with the execution
and delivery of the application for licensure as a Pennsylvania Sales Finance
Company and all action taken in connection therewith.
31
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32
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed by their respective officers
hereunto duly authorized as of the day and year first above written.
WILMINGTON TRUST COMPANY,
as the Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
33
CAPITAL ONE AUTO RECEIVABLES, LLC,
as the Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
34
EXHIBIT A
FORM OF CERTIFICATE
100% CERTIFICATE PERCENTAGE INTEREST
NUMBER
R-1
CAPITAL ONE AUTO FINANCE TRUST 2002-B
CERTIFICATE
Evidencing a beneficial interest in certain distributions of the Trust,
as defined below, the property of which includes a pool of Receivables sold to
the Trust by the Seller.
(This Certificate does not represent an interest in or obligation of
Capital One Auto Receivables, LLC or any of its Affiliates, except to the extent
described below.)
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY OTHER
APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR OTHER JURISDICTION, AND
MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY OTHER
APPLICABLE SECURITIES OR "BLUE SKY" LAWS, PURSUANT TO AN EXEMPTION THEREFROM OR
IN A TRANSACTION NOT SUBJECT THERETO. IT AGREES, ON ITS OWN BEHALF AND ON BEHALF
OF ANY ACCOUNTS FOR WHICH IT IS ACTING AS AGENT, THAT SUCH CERTIFICATE MAY BE
RESOLD, ASSIGNED, PLEDGED OR TRANSFERRED ONLY (A) SO LONG AS THE CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, SUCH TO A
PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QIB ACTING
FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR
AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO WHOM NOTICE IS GIVEN THAT THE
RESALE, ASSIGNMENT, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
(C) SUCH RESALE, ASSIGNMENT, PLEDGE OR OTHER TRANSFER IS MADE IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND OTHER
SECURITIES OR "BLUE SKY" LAWS, IN WHICH CASE THE OWNER TRUSTEE SHALL REQUIRE (I)
THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO
THE OWNER TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING SUCH
TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE
OWNER TRUSTEE AND (II) A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE
EXPENSE OF THE OWNER TRUSTEE OR THE DEPOSITOR) SATISFACTORY TO THE OWNER TRUSTEE
AND THE DEPOSITOR, TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES OR
"BLUE SKY" LAWS OF
A-1
ANY STATE OR JURISDICTION. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF THE
IMMEDIATELY PRECEDING RESTRICTIONS WILL BE VOID AB INITIO AND THE PURPORTED
TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF THE CERTIFICATE FOR ALL
PURPOSES.
NO CERTIFICATE OR INTEREST THEREIN MAY BE ACQUIRED OR HELD (IN THE INITIAL
ACQUISITION OR THROUGH A TRANSFER) WITH PLAN ASSETS OF ANY "EMPLOYEE BENEFIT
PLAN" WHETHER OR NOT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), ANY "PLAN" DESCRIBED BY SECTION 4975(E)(1) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY ENTITY DEEMED TO HOLD THE
ASSETS OF ANY OF THE FOREGOING BY REASON OF AN EMPLOYEE BENEFIT PLAN'S OR OTHER
PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "BENEFIT PLAN").
A-2
THIS CERTIFIES THAT CAPITAL ONE AUTO RECEIVABLES, LLC is the registered
owner of a 100% Certificate Percentage Interest that is nonassessable,
fully-paid, beneficial interest in certain distributions of CAPITAL ONE AUTO
FINANCE TRUST 2002-B (the "Trust") formed by Capital One Auto Receivables, LLC,
a Delaware limited liability company (the "Depositor").
The Trust was created pursuant to an Amended and Restated Trust
Agreement dated as of September 16, 2002 (the "Trust Agreement"), between the
Depositor and Wilmington Trust Company, as owner trustee (the "Owner Trustee"),
a summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Indenture among the Trust, and JPMorgan
Chase Bank, as the Indenture Trustee (the "Indenture Trustee"), dated as of
September 16, 2002, as the same may be amended or supplemented from time to
time.
This Certificate is one of the duly authorized Certificates designated
as Capital One Auto Finance Trust 2002-B Certificates (herein called the
"Certificates"). Also issued under the Indenture dated as of September 16, 2002,
between the Trust and the Indenture Trustee, are eight classes of Notes
designated as 1.76% Class A-1 Notes (the "Class A-1 Notes"), 2.06% Class A-2-A
Notes (the "Class A-2-A Notes"), LIBOR + 0.15% Class A-2-B Notes (the "Class
A-2-B Notes"), 2.71% Class A-3-A Notes (the "Class A-3-A Notes"), LIBOR + 0.25%
Class A-3-B Notes (the "Class A-3-B Notes"), 3.32% Class A-4-A Notes (the "Class
A-4-A Notes"), LIBOR + 0.33% Class A-4-B Notes (the "Class A-4-B Notes" and,
together with the Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes,
the Class A-3-A Notes, the Class A-3-B Notes, and the Class A-4-A Notes, the
"Class A Notes") and 8.09% Class B Notes (the "Class B Notes" and together with
the Class A Notes, the "Notes"). This Certificate is issued under and is subject
to the terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound.
Under the Trust Agreement, there will be distributed on the 15th day of
each month (or, if such 15th day is not a Business Day, the next Business Day),
commencing on October 15, 2002, to the Person in whose name this Certificate is
registered at the close of business on the last day of the preceding month, such
Certificateholder's Certificate Percentage Interest in the amount to be
distributed to Certificateholders on such date.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders, the Swap Counterparty and the Note Insurer as
described in the Contribution Agreement, the Indenture, the Servicing Agreement
and the Trust Agreement, as applicable.
It is the intent of the Depositor, the Servicer, the Administrator and
the Certificateholders that, for purposes of federal income, state and local
income and franchise tax, until the Trust Certificates are held by other than
the Depositor, the Trust will be disregarded as an entity separate from its
owner. At such time that the Certificates are held by more than one person, it
is the intent of the Seller, the Servicer, the Administrator and the
Certificateholders that, for purposes of federal income, state and local income
and franchise tax, the Trust will be treated as a partnership, the assets of
which are the assets held by the Trust, and the Certificateholders will
A-3
be treated as partners in that partnership. The Seller and the other
Certificateholders, by acceptance of a Certificate, agree to treat, and to take
no action inconsistent with the treatment of, the Certificates as such for tax
purposes.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in or encourage any institution against the Depositor of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Trust Agreement or any of the Transaction
Documents.
Each Certificateholder by accepting a Certificate acknowledges that
such Certificateholder's Certificates represent beneficial interests in the
Trust only and do not represent interests in or obligations of the Depositor,
the Servicer, the Administrator, the Seller, the Owner Trustee, the Indenture
Trustee or any Affiliate thereof and no recourse may be had against such parties
or their assets, except as expressly set forth or contemplated in the Trust
Agreement, the Certificates or the Transaction Documents.
Each Certificateholder by accepting a Certificate consents to the
written consent of the Owner Trustee with respect to the Bankruptcy Action of
the Trust.
In furtherance of and not in derogation of the foregoing, to the extent
the Depositor enters into other securitization transactions, each
Certificateholder, by accepting a Certificate, acknowledges and agrees that it
shall have no right, title or interest in or to any assets or interests therein
of the Depositor conveyed or purported to be conveyed by the Depositor to
another securitization trust or other Person or Persons in connection therewith
(whether by way of a sale, capital contribution or by virtue of the granting of
a lien) ("Other Assets"). To the extent that, notwithstanding the agreements and
provisions contained herein, a Certificateholder either (i) asserts an interest
or claim to, or benefit from, Other Assets, whether asserted against or through
the Depositor or any other Person owned by the Depositor, or (ii) is deemed to
have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of Section 1111(b) of the Federal
Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), and whether deemed asserted against or through the Depositor
or any other Person owned by the Depositor, then each Certificateholder, by
accepting a Certificate, further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and shall be expressly subordinated
to the indefeasible payment in full of all obligations and liabilities of the
Depositor which, under the terms of the relevant documents relating to the
securitization of such Other Assets, are entitled to be paid from, entitled to
the benefits of, or otherwise secured by such Other Assets (whether or not any
such entitlement or security interest is legally perfected or otherwise entitled
to priority of distribution or application under applicable law, including
insolvency laws, and whether asserted against the Depositor or any other Person
owned by the Depositor), including the payment of post-petition interest on such
other obligations and liabilities. This subordination agreement shall be deemed
a subordination agreement within the meaning of Section 510(a) of the Bankruptcy
Code. Each Certificateholder, by acceptance of a Certificate, further
acknowledges and agrees that no adequate remedy at law exists for a breach of
this paragraph and the terms of this paragraph may
A-4
be enforced by an action for specific performance. The provisions of this
paragraph shall be for the third party benefit of those entitled to rely thereon
and shall survive the termination of the Trust Agreement.
The Certificates may not be acquired by or for the account of or with
the assets of (a) an employee benefit plan (as defined in Section 3(3) of ERISA)
that is subject to the provisions of Title 1 of ERISA, (b) a plan described in
Section 4975(e)(1) of the Code or (c) any entity whose underlying assets include
plan assets by reason of a plan's investment in the entity (each, a "Benefit
Plan"). By accepting and holding this Certificate, the Holder hereof shall be
deemed to have represented and warranted that it is not a Benefit Plan and is
not purchasing on behalf of a Benefit Plan.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement, the Servicing Agreement or the Contribution Agreement or be
valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-5
IN WITNESS WHEREOF, the Owner Trustee has caused this Certificate to be
duly executed.
WILMINGTON TRUST COMPANY, not in its individual
capacity, but solely as the Owner Trustee
Dated:__________________ By:____________________________________________
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY, as the Owner Trustee
By:____________________________________________
Authenticating Agent
By:____________________________________________
Authorized Signatory
A-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ____________________________________________________
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:__________________________ ______________________________*
Signature Guaranteed:*
_______________________________
______________________________
* NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Certificate in
every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
A-7
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
[Date]
Wilmington Trust Company,
c/o Capital One Auto Finance Trust 2002-B,
as the Owner Trustee and
as the Certificate Registrar
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with our proposed sale of the 100% Certificates (the
"Certificate") of Capital One Auto Finance Trust 2002-B (the "Trust"), a trust
formed by Capital One Auto Receivables, LLC (the "Depositor" or the "Seller"),
we confirm that:
a. The Seller is the lawful owner of the Certificate with the full right
to transfer the Certificate free from any and all claims and
encumbrances whatsoever.
b. Neither the Seller nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of the Certificate,
any interest in the Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificate, any interest
in the Certificate or any other similar security from any person in
any manner, (c) otherwise approached or negotiated with respect to the
Certificate, any interest in the Certificate or any other similar
security with any person in any manner, (d) made any general
solicitation with respect to the Certificate, any interest in the
Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with
respect to the Certificate, any interest in the Certificate or any
other similar security, which (in the case of any of the acts
described in clauses (a) through (e) hereof) would constitute a
distribution under the Securities Act of 1933 (the "Securities Act"),
or would render the disposition of the Certificate a violation of
Section 5 of the Securities Act or any state securities laws, or would
require registration or qualification of the Certificate pursuant to
the Securities Act or any state securities laws.
c. The Seller and any person acting on behalf of the Seller in this
matter reasonably believe that the Transferee is either (a) a
"qualified institutional buyer" (as that term is defined in Rule 144A
("Rule 144A") under the Securities Act) purchasing for its own account
or (b) either (i) an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act
or (ii) an entity in which all the equity owners are "accredited
investors" within the meaning of paragraph (1), (2), (3) or (7) of
Rule 501(a) under the Securities Act,
B-1
and has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the Certificate.
d. Unless the Transferee is either (a) an "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities
Act or (b) an entity in which all the equity owners are "accredited
investors" within the meaning of paragraph (1), (2), (3) or (7) of
Rule 501(a) under the Securities Act that is furnishing a Transferee
Certificate in the form of Exhibit C to the Trust Agreement, the
Seller or a person acting on its behalf has taken reasonable steps to
ensure that the Transferee is aware that the Seller is relying on the
exemption from the provisions of Section 5 of the Securities Act
provided by Rule 144A.
e. The Seller or a person acting on its behalf has furnished, or caused
to be furnished, to the Transferee all information regarding (a) the
Certificates and distributions thereon, (b) the nature, performance
and servicing of the Receivables, (c) the Indenture and the Servicing
Agreement, and (d) any credit enhancement mechanism associated with
the Certificates, that the Transferee has requested.
Very truly yours,
Print Name of Transferor
By: ________________________________
Name: __________________________
Title: _________________________
B-2
EXHIBIT C
FORM OF TRANSFEREE CERTIFICATE
[Date]
Wilmington Trust Company,
c/o Capital One Auto Finance Trust 2002-B,
as the Owner Trustee and
as the Certificate Registrar
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with our proposed purchase of the 100% Certificates (the
"Certificates") of Capital One Auto Finance Trust 2002-B (the "Trust"), a trust
formed by Capital One Auto Receivables, LLC (the "Depositor" or the "Seller"),
we confirm that:
a. We are a "qualified institutional buyer" as defined in Rule 144A
("QIB") and are acquiring the Certificate for our own institutional
account (and not for the account of others) or as a fiduciary or agent
for others (which others also are QIBs);
b. We acknowledge that the Certificates have not been and will not be
registered under the Securities Act or the securities laws of any
jurisdiction;
c. We are familiar with Rule 144A and are aware that the sale is being
made in reliance on Rule 144A and we are not acquiring the
Certificates with a view to, or for resale in connection with, a
distribution that would constitute a public offering within the
meaning of the Securities Act or a violation of the Securities Act,
and that, if in the future we decide to resell, assign, pledge or
otherwise transfer any Certificates, such Certificates may be resold,
assigned, pledged or transferred only (i) to the Depositor or any
Affiliate thereof, (ii) so long as such Certificate is eligible for
resale pursuant to Rule 144A, to a person whom we reasonably believe
after due inquiry is a QIB acting for its own account (and not for the
account of others) or as a fiduciary or agent for others (which others
also are QIBs) to whom notice is given that the resale, pledge,
assignment or transfer is being made in reliance on Rule 144A, (iii)
pursuant to an effective registration statement under the Securities
Act or (iv) in a sale, pledge or other transfer made in a transaction
otherwise exempt from the registration requirements of the Securities
Act, in which case (A) the Owner Trustee will require that both the
prospective transferor and the prospective transferee certify to the
Owner Trustee and the Depositor in writing the facts surrounding such
transfer, which certification shall be in form and substance
satisfactory to the Owner Trustee and the Depositor and (B) the Owner
Trustee will require a written opinion of counsel (which will not be
at the expense of the Depositor or the Owner Trustee) satisfactory to
the Depositor and the Owner Trustee to the effect that such transfer
C-1
will not violate the Securities Act, in each case in accordance with
any applicable securities or "Blue Sky" laws of any state of the
United States;
d. No Certificate will be acquired or held by any "employee benefit plan"
subject to ERISA or a "plan" described by Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended, or by any entity deemed to
hold the assets of any of the foregoing by reason of an employee
benefit plan's or other plan's investment in such entity. Each Person
who acquires any Certificate or interest therein will certify that the
foregoing conditions are satisfied;
e. We are aware that we (or any account for which we are purchasing) may
be required to bear the economic risk of an investment in the
Certificates for an indefinite period, and we (or such account) are
able to bear such risk for an indefinite period;
f. We understand that the Certificates will bear legends substantially as
set forth in Section 3.12 of the Trust Agreement;
g. If we are acquiring any Certificates for the account of one or more
qualified institutional buyers, we represent that we have sole
investment discretion with respect to each such account and that we
have full power to make the foregoing acknowledgments, representations
and agreements on behalf of each such account; and
h. We acknowledge that the Owner Trustee, the Depositor, and their
Affiliates, and others will rely upon the truth and accuracy of the
foregoing acknowledgments, representations and agreements.
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You are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:_____________________________________
Name:
Title:
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