Exhibit 10.6
INTEREST RATE SWAP INSURANCE POLICY
MBIA Insurance Corporation
Armonk, New York 10504
Policy No. 36990(2)
MBIA Insurance Corporation (the "Insurer"), in consideration of the payment
of the premium and subject to the terms of this Policy, hereby unconditionally
and irrevocably guarantees the full and complete payments of (i) amounts that
are Due for Payment (as defined below) by or on behalf of Capital One Auto
Finance Trust 2001-B (the "Obligor") under Transaction No. 47020740 dated
December 20, 2001, governed by the ISDA Master Agreement and the Schedule
thereto (collectively, the "Agreement"), dated as of December 20, 2001, by and
between the Obligor and Credit Suisse First Boston International (the
"Counterparty") to the Counterparty as such payments are Due for Payment (as
defined below) but shall not be so paid in accordance with the terms of the
Agreement and (ii) the reimbursement of any such payment described in (i) which
is subsequently recovered from the Counterparty pursuant to a final judgment by
a court of competent jurisdiction that such payment constitutes an avoidable
preference to the Counterparty within the meaning of any applicable bankruptcy
law and, in either case, for which a Demand for Payment in the form attached
hereto as Attachment 1 (the "Demand for Payment") has been presented to the
Insurer in accordance with the terms of this Policy, provided that unless the
Option (as defined below) is exercised by the Insurer the amount available
hereunder for payment pursuant to any one Demand for Payment shall not exceed
the regularly scheduled amount due for payment for the applicable Payment Date
minus any amount payable in the same currency by the Counterparty on such
Payment Date (the "Policy Coverage"), provided, further, that the Policy
Coverage shall never exceed the amount that is Due for Payment. As used herein,
the term "Due for Payment" refers to amounts that are required to be paid by the
Obligor on each regularly scheduled Payment Date stated in the Agreement, as the
same may be reduced from time to time in accordance with the terms of the
Agreement, and does not refer to any other amount that may otherwise be payable
by the Obligor pursuant to the Agreement, including, but not limited to, fees,
expenses or penalty rates. If a Demand for Payment is made under this Policy,
the Insurer will continue to make regularly scheduled payments under the
Agreement unless the Insurer elects, at its sole option, to direct the
Counterparty to designate an Early Termination Date (as defined in the
Agreement) on a specified future date (which election can be made at the time
the initial Demand for Payment has been made or at any time thereafter). If the
Insurer directs the Counterparty to designate an Early Termination Date (the
"Option"), the Insurer will pay to the Counterparty any amount due from the
Obligor as a result of the designation of such Early Termination Date following
receipt of a Demand for Payment with respect to such amount.
1. Upon the later of (i) three Business Days (as defined below) after
receipt by the Insurer of a Demand for Payment, duly executed by the
Counterparty; or (ii) the Payment Date stated in the Agreement and set forth on
Exhibit A as specified in the Demand for Payment presented by the Counterparty
to the Insurer, and after giving effect to any applicable grace period
provided in the Agreement, the Insurer will make a deposit of funds in an
account with State Street Bank and Trust Company, N.A., in New York, New York,
or its successor, sufficient for the payment to the Counterparty, of amounts
that are then due to the Counterparty (as specified in the Demand for Payment)
subject to the Policy Coverage. Upon receipt of an instrument of assignment, in
the form attached hereto as Attachment 2 evidencing the assignment to the
Insurer of all of the Counterparty's rights to amounts that are Due for Payment
and to be paid by the Insurer and all of the Counterparty's options, votes,
rights, powers and remedies under the Agreement, State Street Bank and Trust
Company, N.A. shall disburse to the Counterparty such amounts as are then due to
the Counterparty. Upon such payment, the Insurer shall have the right to receive
payment from the Obligor to the extent of such payment by the Insurer and the
Insurer shall be fully subrogated to, and shall be vested with, all of the
Counterparty's rights, powers and remedies under the Agreement and shall be
fully subrogated to all of the Counterparty's rights against any and all parties
in connection with the Agreement until such nonpayment has been cured by the
Obligor and the Insurer shall have been reimbursed in full by the Obligor for
amounts paid to the Counterparty as a result of a nonpayment. The Insurer shall
have the absolute right and discretion, without notice to the Counterparty or
the Obligor, to exercise or fail to exercise any right, power or remedy that the
Insurer may have hereunder or under any assignment required hereby. The Insurer
shall have no liability to the Counterparty or the Obligor for any loss, damage
or injury resulting from the Insurer's exercise or failure to exercise any such
right, power or remedy.
2. Demand for Payment hereunder may be made by prepaid telecopy, telex or
telegram of the executed Demand for Payment c/o of the Insurer. If a Demand for
Payment made hereunder does not, in any instance, conform to the terms and
conditions of this Policy, the Insurer shall, within one Business Day, give
notice to the Counterparty that such Demand for Payment was not effected in
accordance with the terms and conditions of this Policy and briefly state the
reason(s) therefor. Upon being notified that such Demand for Payment was not
effected in accordance with this Policy, the Counterparty may attempt to correct
any such nonconforming Demand for Payment if, and to the extent that, the
Counterparty is entitled and able to do so.
3. The amount payable by the Insurer under this Policy pursuant to a
particular Demand for Payment shall be limited to the Policy Coverage, unless
such Demand for Payment is with respect to an amount due from the Obligor as a
result of the designation of an Early Termination Date at the direction of the
Insurer.
4. Any service of process on the Insurer or notice to the Insurer may be
made to the Insurer at its offices located at 113 King Street, Armonk, New York
10504, and such service of process shall be valid and binding.
5. This Policy is noncancellable for any reason. The term of this Policy
shall expire upon the expiration or earlier termination of the Agreement.
6. The premium payable on this Policy is not refundable for any reason,
including the early termination of the Agreement.
7. This Policy shall be governed by and interpreted under the laws of the
State of New York. Any suit hereunder in connection with any payment may be
brought only by the Counterparty within one year after (i) a Demand for Payment,
with respect to such payment, is made pursuant to the terms of this Policy and
the Insurer has failed to make such payment, or (ii) payment would otherwise
have been due hereunder but for the failure on the part of the Counterparty to
deliver to the Insurer a Demand for Payment pursuant to the terms of this
Policy, whichever is earlier.
8. This Policy, including Attachment 1 hereto, sets forth in full the
terms of the obligations of the Insurer. Reference in this Policy to other
documents or instruments is for identification purposes and such reference shall
not modify or effect the terms hereof or cause such documents or instruments to
be deemed incorporated herein.
9. This Policy is not covered by the Property/Casualty Insurance Security
Fund specified in Article 76 of the New York Insurance Law.
10. "Business Day" means any day other than a day on which banks located
in the City of New York, New York are authorized by law to close or on which the
New York Stock Exchange is closed for business.
11. MBIA hereby irrevocably waives for the benefit of the Counterparty, as
a clarification and not as a limitation of its obligations hereunder, any
defenses to payment it may now or hereafter have arising from (i) the failure of
any of the representations of the Obligor set forth in the Agreement or in the
Insurance Agreement between the Insurer and the Obligor (the "Insurance
Agreement") to be true and correct; (ii) any indulgence, concession, waiver or
consent given to the Obligor; (iii) any taking, exchange, release, amendment,
non-perfection, realization or application of or on any security for or
guarantee of the Obligor's performance of the Agreement; (iv) any defect as to
the valid creation, existence or solvency of the Obligor or any change,
restructuring, or termination in or of the corporate structure or existence of
the Obligor; or (v) any other circumstance (including, without limitation, any
statute of limitations) that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor; provided, however, that without
prejudice to the specific waivers set forth in the foregoing clauses (i) through
(v), MBIA's obligations under this Policy shall be subject to the conditions to
payment by the Obligor expressly set forth in the terms of the Agreement.
IN WITNESS WHEREOF, the Insurer has caused this Policy to be executed
in facsimile on its behalf by its duly authorized officers, this 20th day of
December, 2001.
MBIA INSURANCE CORPORATION
/s/ Gary Dunton
_________________________________
President
/s/ Amy R. Gonch
_________________________________
Assistant Secretary
Attachment 1
Interest Rate Swap
Insurance Policy
No. 36990(2)
DEMAND FOR PAYMENT
MBIA Insurance Corporation
113 King Street
Armonk, NY 10504
Attention: President
Reference is made to the Interest Rate Swap Insurance Policy No. 36990(2)
(the "Policy") issued by the MBIA Insurance Corporation (the "Insurer"). The
terms which are capitalized herein and not otherwise defined have the meanings
specified in the Policy unless the context otherwise requires.
(the "Counterparty") hereby certifies that:
[(a) The Capital One Auto Finance Trust 2001-B (the "Obligor") has
failed to make a payment due under the Agreement (attached hereto as
Exhibit A). In accordance with the provisions of the Agreement, such amount
was payable by the Obligor to the Counterparty on (the "Payment Date")
in an amount equal to $ (the "Amount Due").] or
(a) After notice, the Capital One Auto Finance Trust 2001-B (the
"Obligor") has failed to make a payment due under the Agreement (attached
hereto as Exhibit A) as a result of the designation of an Early Termination
Date at the direction of the Insurer. In accordance with the provisions of
the Agreement, such amount was calculated as follows:
[CALCULATION]
and was payable by the Obligor to the Counterparty on (the "Payment
Date") in an amount equal to $ (the "Amount Due").
(b) The amount paid to the Counterparty by or on behalf of the
Obligor on the Payment Date was $ less than the Amount Due (the
"Deficiency").
A copy of the notice prepared by the calculation agent under the Agreement
with respect to the calculation period for which such payment is due is attached
hereto.
The Counterparty hereby requests that payment of the Deficiency
(subject to the terms of the Policy, including the Policy Coverage, when
applicable) be made by the Insurer under the Policy and directs that payment
under the Policy be made to the following account by bank wire transfer of
federal or other immediately available funds in accordance with the terms of the
Policy:
[Counterparty Account].
Any Person Who Knowingly And With Intent To Defraud Any Insurance
Company Or Other Person Files An Application For Insurance Or Statement Of Claim
Containing Any Materially False Information, Or Conceals For The Purpose Of
Misleading, Information Concerning Any Fact Material Thereto, Commits A
Fraudulent Insurance Act, Which Is A Crime, And Shall Also Be Subject To A Civil
Penalty Not To Exceed Five Thousand Dollars And The Stated Value Of The Claim
For Each Such Violation.
CREDIT SUISSE FIRST BOSTON
INTERNATIONAL
By
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Its
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2
Attachment 2
Interest Rate Swap
Insurance Policy
No. 36990(2)
THE ASSIGNMENT OF RIGHTS
IN CONSIDERATION of the sum of Dollars ($ ) to be
paid to Credit Suisse First Boston International (the "Counterparty") under
Policy No. 36990(2), representing money owed to the Counterparty by Capital One
Auto Finance Trust 2001-B (the "Obligor") Transaction No. 47020740 dated
December 20, 2001, governed by the ISDA Master Agreement and the Schedule
thereto (collectively, the "Agreement"), dated as of December 20, 2001 (the
"Agreement"), the Counterparty HEREBY ASSIGNS, TRANSFERS AND SUBROGATES to MBIA
Insurance Corporation (the "Insurer"):
(i) all rights, claims and rights of action, to the extent of
the amount above stated, to payment of amounts now Due for Payment
under the Agreement; and
(ii) all other options, votes, rights, powers and remedies
permitted under the Agreement and all rights against any and all
parties in connection therewith until such time as the Insurer shall
have been reimbursed in full by the Obligor for all amounts paid by
the Insurer to the Counterparty.
IN WITNESS WHEREOF, the undersigned has executed this Assignment of
Rights on the day of , .
CREDIT SUISSE FIRST BOSTON
INTERNATIONAL
By
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Title
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