Exhibit 10.3
EXECUTION COPY
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SERVICING AGREEMENT
by and among
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee for
Capital One Auto Finance Trust 2002-C,
JPMORGAN CHASE BANK,
as Indenture Trustee,
and
CAPITAL ONE AUTO FINANCE, INC.,
as Servicer
Dated as of
December 17, 2002
$842,553,191
CAPITAL ONE AUTO FINANCE TRUST 2002-C
ASSET BACKED NOTES, SERIES 2002-C
CLASS A NOTES AND CLASS B NOTES
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.......................................................................................2
Section 1.01 Defined Terms.................................................................................2
ARTICLE II ADMINISTRATION AND SERVICING OF RECEIVABLES.......................................................2
Section 2.01 Appointment and Duties of the Servicer........................................................2
Section 2.02 Collection of Receivable Payments; Defaulted Receivables; Reporting Obligations...............4
Section 2.03 Realization Upon Receivables..................................................................5
Section 2.04 Physical Damage Insurance.....................................................................6
Section 2.05 Maintenance of Security Interests in Financed Vehicles and Receivables........................6
Section 2.06 Covenants of the Servicer; Notices............................................................7
Section 2.07 Repurchase of Receivables Upon Breach.........................................................8
Section 2.08 Servicing Fee.................................................................................9
Section 2.09 Annual Statement as to Compliance.............................................................9
Section 2.10 Monthly Servicer's Reports...................................................................10
Section 2.11 Annual Servicing Review......................................................................10
Section 2.12 Costs and Expenses...........................................................................10
Section 2.13 Responsibility for Insurance Policies; Processing of Claims Under Insurance Policies;
Daily Records and Reports.................................................................11
Section 2.14 Delivery of Documents to the Custodian.......................................................12
Section 2.15 Conveyance of Copies of Documents to the Servicer; Indication of Owner Trustee
Ownership.................................................................................13
Section 2.16 Possession of Servicer Files.................................................................14
Section 2.17 Processing of Information....................................................................14
Section 2.18 Warranties and Representations With Respect to Compliance with Law and Enforcement...........14
Section 2.19 Standard of Care.............................................................................15
Section 2.20 Records......................................................................................15
Section 2.21 Inspection...................................................................................15
Section 2.22 Enforcement..................................................................................16
Section 2.23 Payment in Full on Receivable................................................................17
Section 2.24 Release of Receivable........................................................................17
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TABLE OF CONTENTS
(Continued)
Page
Section 2.25 [Reserved]...................................................................................17
Section 2.26 Responsibilities of the Servicer.............................................................17
Section 2.27 Re-Liening...................................................................................17
ARTICLE III ACCOUNTS; COLLECTIONS; STATEMENT TO CERTIFICATEHOLDERS AND NOTEHOLDERS...........................18
Section 3.01 Accounts.....................................................................................18
Section 3.02 Collections..................................................................................18
Section 3.03 Collection Account and Acknowledgment Letter.................................................18
Section 3.04 Statements to Certificateholders and Noteholders.............................................19
Section 3.05 Trustee Internet Website.....................................................................20
ARTICLE IV REPRESENTATIONS AND WARRANTIES...................................................................21
Section 4.01 Representations and Warranties of the Servicer...............................................21
Section 4.02 Representations and Warranties of the Owner Trustee..........................................22
Section 4.03 Survival of Representations and Warranties...................................................22
Section 4.04 Merger or Consolidation of, or Assumption of the Obligations of, or Resignation of the
Servicer..................................................................................22
ARTICLE V DEFAULT, REMEDIES AND INDEMNITY..................................................................23
Section 5.01 Events of Servicing Default..................................................................23
Section 5.02 Remedies.....................................................................................24
Section 5.03 Indemnity by the Servicer....................................................................27
Section 5.04 Notification to Noteholders..................................................................27
Section 5.05 Waiver of Events of Servicing Default........................................................28
Section 5.06 Survival.....................................................................................28
Section 5.07 Servicer Not to Resign.......................................................................28
ARTICLE VI TERMINATION OF AGREEMENT.........................................................................28
Section 6.01 Term.........................................................................................28
Section 6.02 Effect of Termination........................................................................28
Section 6.03 Transfer of Servicing........................................................................29
ARTICLE VII MISCELLANEOUS PROVISIONS.........................................................................29
Section 7.01 Amendment....................................................................................29
Section 7.02 Waivers......................................................................................29
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TABLE OF CONTENTS
(Continued)
Page
Section 7.03 Notices......................................................................................29
Section 7.04 Severability of Provisions...................................................................32
Section 7.05 Rights Cumulative............................................................................32
Section 7.06 No Offset....................................................................................32
Section 7.07 Inspection and Audit Rights..................................................................32
Section 7.08 Powers of Attorney...........................................................................32
Section 7.09 Assignment and Binding Effect................................................................32
Section 7.10 Captions.....................................................................................33
Section 7.11 Legal Holidays...............................................................................33
Section 7.12 Counterparts.................................................................................33
Section 7.13 Governing Law................................................................................33
Section 7.14 Parties......................................................................................33
Section 7.15 Relationship of the Parties..................................................................33
Section 7.16 No Bankruptcy Petition Against the Owner Trustee or the Seller...............................33
Section 7.17 Third Party Beneficiaries....................................................................33
Section 7.18 Other Agreements.............................................................................34
Section 7.19 Procedure for Indemnification................................................................34
Section 7.20 Reports to Holders...........................................................................34
Section 7.21 Purchase and Subsequent Pledge...............................................................35
Section 7.22 Limitation on Liability......................................................................35
Section 7.23 Limitation of Liability......................................................................35
EXHIBIT A FORM OF MONTHLY SERVICER'S REPORT
EXHIBIT B FORMS OF LATE NOTICES SENT TO OBLIGORS RE: DELINQUENCIES
EXHIBIT C REQUEST FOR RELEASE OF RECEIVABLE FILE
EXHIBIT D COAF'S CREDIT POLICY
EXHIBIT E COAF'S COLLECTION POLICY
EXHIBIT F FORM OF INVESTOR CERTIFICATION
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SERVICING AGREEMENT
This Servicing Agreement ("Servicing Agreement") is made as of December 17,
2002, by and among Wilmington Trust Company, not in its individual capacity but
solely as Owner Trustee for Capital One Auto Finance Trust 2002-C, a Delaware
common law trust (the "Owner Trustee"), JPMorgan Chase Bank, as indenture
trustee (the "Indenture Trustee") and Capital One Auto Finance, Inc., a Texas
corporation, as servicer ("COAF" or the "Servicer"). Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed thereto in
that certain Indenture dated as of even date herewith (the "Indenture") by and
between the Owner Trustee and the Indenture Trustee.
PRELIMINARY STATEMENT
WHEREAS, the Indenture provides for the issuance by the Owner Trustee of
the Owner Trustee's Asset Backed Notes, Series 2002-C, designated Class A Notes
(the "Class A Notes") and Class B Notes (the "Class B Notes" and, together with
the Class A Notes, the "Notes"); and
WHEREAS, the Note Insurer will issue a note guaranty insurance policy dated
as of the Closing Date guaranteeing the payment of regularly scheduled interest
and certain amounts with respect to principal due on the Class A Notes on each
Payment Date; and
WHEREAS, Capital One Auto Finance, Inc., a Texas corporation (the
"Transferor"), has acquired and will acquire certain motor vehicle receivables
evidenced by retail installment contracts and security agreements and/or
installment loans (the "Receivables") secured by security interests in Financed
Vehicles; and
WHEREAS, pursuant to that certain Transfer and Assignment Agreement, dated
as of December 17, 2002 (the "Transfer and Assignment Agreement") between the
Transferor and Capital One Auto Receivables, LLC, a Delaware limited liability
company (the "Seller"), the Transferor will transfer and absolutely assign the
Receivables identified in the Schedule of Receivables delivered to the Seller as
of December 17, 2002 (the "Closing Date"); and
WHEREAS, pursuant to the Transfer and Assignment Agreement, the Transferor
will absolutely assign the Subsequent Receivables identified on a schedule
substantially in the form of Schedule I to the Assignment attached as Exhibit A
thereto to the Seller on the Funding Dates; and
WHEREAS, pursuant to the Contribution Agreement, the Seller will contribute
and absolutely assign the Initial Receivables and the Subsequent Receivables to
the Owner Trustee on the Closing Date and on the Funding Dates, respectively;
and
WHEREAS, pursuant to the terms of the Indenture, on the Closing Date, the
Owner Trustee will Grant, inter alia, the Receivables and a first priority
security interest in the Financed Vehicles and the Interest Rate Swap Agreement
to the Indenture Trustee for the benefit of the Noteholders, the Swap
Counterparty and the Note Insurer; and
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WHEREAS, pursuant to the terms of the Indenture, the Owner Trustee shall
enter into an Initial Interest Rate Swap Agreement (the "Initial Interest Rate
Swap Agreement") with Bank of America, N.A. (the "Swap Counterparty"); and
WHEREAS, pursuant to the terms of the Indenture, the Transferor is
obligated to deliver or cause to be delivered to the Custodian, the documents to
be included in the Custodian File, which are to be held by the Custodian
pursuant to the terms of the Indenture; and
WHEREAS, the Owner Trustee, the Indenture Trustee, and the Servicer wish to
enter into this Servicing Agreement pursuant to which the Servicer will perform
the duties as described herein, including, making collections on all of the
Receivables assigned to the Seller pursuant to the terms of the Transfer and
Assignment Agreement and contributed and assigned to the Owner Trustee pursuant
to the terms of the Contribution Agreement and Granted to the Indenture Trustee
pursuant to the terms of the Indenture, realizing upon such Receivables, and
administering claims made under the Insurance Policies; and
WHEREAS, the Servicer desires to provide such services to the Owner
Trustee.
NOW THEREFORE, in consideration of the covenants and conditions contained
in this Servicing Agreement, the parties, intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Capitalized and defined terms used but not
defined in this Servicing Agreement shall have the respective meanings assigned
to them in the Indenture, unless the context otherwise requires, and the
definitions of such terms are equally applicable both to the singular and plural
forms of such terms and to the masculine, feminine and neuter genders of such
terms.
"Extension" shall have the meaning set forth in Section 2.02(a) hereof.
"Insurance Policies" means insurance policies covering the Financed
Vehicles or the Obligors.
"Subservicer" has the meaning set forth in Section 2.01(f) hereof.
"Subservicing Agreement" has the meaning set forth in Section 2.01(f)
hereof.
ARTICLE II
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 2.01 Appointment and Duties of the Servicer.
(a) The Owner Trustee hereby appoints COAF as Servicer. The Servicer
shall perform the services required pursuant to the terms of this Servicing
Agreement. In performing
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its duties hereunder, the Servicer shall have full power and authority to do or
cause to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable, within the terms of
this Servicing Agreement.
(b) As of the date of this Servicing Agreement, the Servicer is, and
shall remain, for so long as it is acting as Servicer, an Eligible Servicer.
Compensation and expense reimbursement payable to the Servicer under this
Servicing Agreement shall be payable from the Revenue Fund as defined in the
Indenture pursuant to the priority of payment set forth in Section 5.05(c) of
the Indenture, and except as provided herein or in the Indenture, none of the
Owner Trustee, the Note Insurer, the Indenture Trustee or the Noteholders will
have any liability to the Servicer with respect thereto; provided, however, that
the Owner Trustee shall remain liable for any fees, expenses and indemnities due
and payable to the Servicer which have not been paid from the Revenue Fund.
(c) The Note Insurer, or if a Note Insurer Default has occurred and is
continuing, the Indenture Trustee with the consent of Class A Noteholders
constituting Class A Noteholder Approval, or, if the Aggregate Outstanding
Principal Balance of the Class A Notes has been reduced to zero and the Note
Insurer has been paid in full all amounts then owing to it, the Class B
Noteholders constituting Class B Noteholder Approval, shall be entitled to
terminate the services of the Servicer under this Servicing Agreement, upon the
occurrence of an Event of Servicing Default in accordance with the terms and
conditions hereof. In the event of termination of the Servicer, the Note Insurer
with prior written notice to 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), or if a Note Insurer
Default has occurred and is continuing, the Indenture Trustee with the consent
of the Class A Noteholders constituting Class A Noteholder Approval, or, if the
Aggregate Outstanding Principal Balance of the Class A Notes has been reduced to
zero and the Note Insurer has been paid in full all amounts then owing to it,
the Class B Noteholders constituting Class B Noteholder Approval, shall appoint
a Successor Servicer and shall direct the Owner Trustee to enter into a
servicing agreement with a Successor Servicer (that shall be an Eligible
Servicer), which will be bound by the terms of such servicing agreement.
(d) Other than as set forth in Section 7.17 below, this Servicing
Agreement shall be deemed to be among the Indenture Trustee, the Servicer and
the Owner Trustee; the Note Insurer, the Swap Counterparty and the Noteholders
shall not be deemed parties hereto and neither the Note Insurer, the Swap
Counterparty, the Owner Trustee, the Indenture Trustee nor the Noteholders shall
have any obligations, duties or liabilities with respect to the Servicer except
as set forth herein and in the Indenture. In the Indenture, the Owner Trustee
has agreed that the Indenture Trustee, in its name or (to the extent required by
law) in the name of the Owner Trustee, may (but is not required to) enforce all
rights of the Owner Trustee and all obligations of the Servicer under, and shall
be entitled to all benefits of, this Servicing Agreement for and on behalf of
the Noteholders, the Swap Counterparty (unless the Interest Rate Swap Agreement
has been terminated and all amounts owed to the Swap Counterparty have been paid
in full) and the Note Insurer, whether or not the Owner Trustee is in default
thereunder. The Servicer, in making collections of Receivable payments pursuant
to Section 2.02 hereof, shall be
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acting as agent for the Indenture Trustee, and shall be deemed to be holding
such funds in trust on behalf of, and as agent for, the Indenture Trustee.
(e) The Owner Trustee shall, at its own expense, duly and punctually
perform and observe its obligations to the Servicer under this Servicing
Agreement in accordance with the terms hereof. In addition, promptly following a
request from the Indenture Trustee to do so and at the Owner Trustee's own
expense, the Owner Trustee shall take all such lawful action as the Indenture
Trustee may request to compel or secure the performance and observance by the
Servicer of each of its obligations to the Owner Trustee under or in connection
with this Servicing Agreement, in accordance with the terms hereof, and in
effecting such request shall exercise any and all rights, remedies, powers and
privileges lawfully available to the Owner Trustee under or in connection with
this Servicing Agreement to the extent and in the manner directed by the
Indenture Trustee, including, without limitation, the transmission of notices of
default on the part of the Servicer hereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Servicer of its obligations under this Servicing Agreement.
(f) The Servicer may enter into one or more subservicing agreements
(each, a "Subservicing Agreement") with one or more Subservicers (each, a
"Subservicer") for the servicing and administration of the Receivables.
References in this Servicing Agreement to actions taken or to be taken by the
Servicer in servicing the Receivables include actions taken or to be taken by a
Subservicer on behalf of the Servicer. Each Subservicing Agreement will be upon
such terms and conditions as are not inconsistent with this Servicing Agreement
and as the Servicer and the Subservicer have agreed. The Servicer and a
Subservicer may enter into amendments thereto; provided, however, that any such
amendments shall be consistent with and not violate the provisions of this
Servicing Agreement.
(g) The Servicer shall pay the Administrator the fee pursuant to the
Administration Agreement.
Section 2.02 Collection of Receivable Payments; Defaulted Receivables;
Reporting Obligations
(a) The Servicer shall be responsible for collection of payments
called for under the terms and provisions of the Receivables, as and when the
same shall become due. The Servicer, consistent with the standard of care set
forth in Section 2.19, shall service, manage, administer and make collections on
the Receivables on behalf of the Owner Trustee and shall have full power and
authority, acting alone and/or through Subservicers as provided in Section
2.01(f), to do any and all things which it may deem necessary or desirable in
connection therewith which are consistent with this Servicing Agreement. The
Servicer may extend the then-current maturity date of any Receivable by one
month (an "Extension"); provided, however, that (i) no more than three (3)
Extensions may be granted with respect to any Receivable during any twelve (12)
month period, and no more than six (6) Extensions may be granted with respect to
any Receivable during the term of that Receivable; (ii) no more than two (2)
Extensions may be granted with respect to any Receivable during any three (3)
month period; (iii) in any given three (3) month period, the average percentage
of Receivables that have been the subject of an Extension during each month (by
number of Receivables at the beginning of each month) shall
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not exceed 4.00% (or such other percentage as may be agreed to by the Note
Insurer or, if a Note Insurer Default has occurred and is continuing, by the
Indenture Trustee with the consent of Noteholders constituting Class A
Noteholder Approval, or if the Aggregate Outstanding Principal Balance of the
Class A Notes has been reduced to zero and all Reimbursement Obligations and
reimbursement for all Swap Termination Payments paid under the Swap Policy due
to the Note Insurer shall have been paid in full, Noteholders constituting Class
B Noteholder Approval); and (iv) no Extension may be given if, as a result, the
final Scheduled Payment due on such Receivable would be extended past the date
which is the month immediately preceding the Class B-2 Maturity Date. The
Servicer may in its discretion waive any late payment charge or any other fees
that may be collected in the ordinary course of servicing a Receivable. In no
event shall the principal balance of a Receivable be reduced, except in
connection with a settlement in the event the Receivable becomes a Defaulted
Receivable or a Cram Down Loss occurs. The Servicer shall also enforce all
rights of the Owner Trustee under the Dealer's Agreements including, but not
limited to, the right to require Dealers to repurchase Receivables for breaches
of representations and warranties made by the respective Dealers.
(b) If the full amount of a Scheduled Payment due under a Receivable
is not received when due, the Servicer will make reasonable and customary
efforts (such as are appropriate for obligors of similar characteristics as the
applicable Obligor) to contact such Obligor by telephone. The Servicer shall
continue its efforts to obtain payment from an Obligor whose payment has not
been made until the payments have been received by the Servicer or the Financed
Vehicle with respect to such Receivable is repossessed and sold or the Servicer
has determined that all amounts collectable on the Receivable have been
collected. The Servicer shall use its best efforts, consistent with the standard
of care set forth in Section 2.19 hereof, to collect funds on a Defaulted
Receivable; such collections shall be deposited into the Collection Account by
the close of business on the Business Day following receipt thereof.
(c) The Servicer shall, upon request, promptly, but no later than two
(2) Business Days after receipt of such request, provide, or cause to be
provided, to the Note Insurer copies of all monthly bank statements, notices,
reports or other documents received from the Indenture Trustee and from the
Collection Account Depository regarding funds held in or transferred to or from
all applicable accounts.
(d) Upon request but in no event later than two (2) Business Days
after receipt of such request, the Servicer shall forward to the Note Insurer,
via reputable overnight courier or electronic transmission, a computer diskette
in a format mutually acceptable to the Servicer and the Note Insurer of its
computerized records reflecting (i) all collections received during such
Collection Period with respect to the Receivables, (ii) the principal balance of
the Receivables as of the last day of the Collection Period, (iii) information
as of the last day of such Collection Period regarding the number of Defaulted
Receivables, (iv) the number of repossessed Financed Vehicles and the number of
sales of repossessed Financed Vehicles as of the last day of such Collection
Period, and (v) any other information reasonably requested by the Note Insurer.
Section 2.03 Realization Upon Receivables
(a) In the event a Receivable becomes or is reasonably anticipated to
become a Defaulted Receivable, the Servicer, itself or through the use of
independent contractors or
5
agents, shall, consistent with the standard of care set forth in Section 2.19,
including the Collection Policy, repossess or otherwise convert the ownership of
the Financed Vehicle securing any Receivable as to which the Servicer shall have
determined eventual payment in full is unlikely. In accordance with the priority
of payment set forth in Section 5.05(c) of the Indenture, all costs and expenses
incurred by the Servicer in connection with the repossession of the Financed
Vehicles securing such Receivables shall be reimbursed to the Servicer from the
Revenue Fund on the Payment Date relating to the Collection Period in which the
Servicer delivered to the Indenture Trustee an itemized statement of such costs
and expenses. Notwithstanding the foregoing and consistent with the terms of
this Servicing Agreement, the Servicer shall not be obligated to repossess or
take any action with respect to a Defaulted Receivable if, in its reasonable
judgment consistent with the servicing standards specified in Section 2.19, the
Liquidation Proceeds are expected to be less than the costs and expenses of such
repossession or action.
(b) The Servicer, itself or through the use of independent contractors
or agents to the extent allowed by Section 2.01(g), shall follow practices
consistent with the standard of care set forth in Section 2.19, including the
Collection Policy, in its servicing of automotive receivables, which may include
selling the Financed Vehicle, or requesting a Subservicer to sell the Financed
Vehicle, at public or private sale; provided, however, that the Servicer, itself
or through the use of independent contractors or agents to the extent allowed by
Section 2.01(g), shall, in accordance with its Collection Policy, maximize the
sales proceeds for each repossessed Financed Vehicle. The foregoing shall be
subject to the provision that, in any case in which the Financed Vehicle shall
have suffered damage, the Servicer shall not expend funds for the repair or the
repossession of such Financed Vehicle unless the Servicer shall determine in its
discretion that such repair or repossession should increase the Liquidation
Proceeds by an amount greater than the amount of such expenses.
Section 2.04 Physical Damage Insurance
(a) The Servicer, in accordance with the standard of care set forth in
Section 2.19, shall, upon receipt of notice that an Obligor's physical damage
insurance covering the Financed Vehicle has lapsed or is otherwise not in force,
send written notice to such Obligor stating that each Obligor is required to
maintain physical damage insurance covering the Financed Vehicle throughout the
term of the Receivable.
(b) In the event of any physical loss or damage to a Financed Vehicle
from any cause, whether through accidental means or otherwise, the Servicer
shall have no obligation to cause the affected Financed Vehicle to be restored
or repaired. However, the Servicer shall comply with the provisions of any
insurance policy or policies directly or indirectly related to any physical loss
or damage to a Financed Vehicle.
(c) The Servicer will administer the filings of claims under the
Insurance Policies as described under Section 2.13 hereof.
Section 2.05 Maintenance of Security Interests in Financed Vehicles and
Receivables
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(a) The Owner Trustee hereby directs the Servicer to (i) provide
written notice to the Owner Trustee and the Indenture Trustee promptly upon its
discovery of the relocation of a Financed Vehicle, (ii) take or cause to be
taken such steps as are necessary, in accordance with the standard of care set
forth in Section 2.19, to maintain perfection of the security interest created
by each Receivable in the related Financed Vehicle and (iii) within three (3)
Business Days of its receipt thereof forward to the Custodian (unless the
Servicer is the Custodian under the Indenture), on behalf of the Owner Trustee,
via reputable overnight courier, any Certificate of Title to a Financed Vehicle
received by the Servicer with respect to a Receivable serviced hereunder,
whether such Certificate of Title was not previously delivered to the Custodian
in connection with the Closing Date or Funding Date, as the case may be, or for
any other reason.
(b) The Servicer shall, at the direction of the Owner Trustee or the
Note Insurer, take any action necessary to preserve and protect the security
interests of the Owner Trustee and the Indenture Trustee in the Receivables,
including any action specified in any Opinion of Counsel delivered to the
Servicer.
Section 2.06 Covenants of the Servicer; Notices
(a) The Servicer shall (i) not release any Financed Vehicle securing
any Receivable from the security interest granted therein by such Receivable in
whole or in part except in the event of payment in full by the Obligor
thereunder or upon transfer of the Financed Vehicle to a successor purchaser
following repossession by the Servicer or a Subservicer, (ii) not impair the
rights of the Owner Trustee, the Noteholders, the Swap Counterparty, the Note
Insurer or the Indenture Trustee in the Receivables, (iii) not increase the
number of Scheduled Payments due under a Receivable except as permitted herein,
(iv) prior to the payment in full, not sell, pledge, assign, or transfer to any
other Person, or grant, create, incur, assume, or suffer to exist any Lien on
any Receivable pledged to the Indenture Trustee or any interest therein, (v)
immediately notify the Owner Trustee, the Note Insurer and the Indenture Trustee
of the existence of any Lien on any Receivable (other than the Lien of the
Indenture Trustee) if the Servicer has actual knowledge thereof, (vi) defend the
right, title, and interest of the Owner Trustee, the Noteholders, 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), the Note
Insurer and the Indenture Trustee in, to and under the Receivables pledged to
the Indenture Trustee, against all claims of third parties claiming through or
under the Servicer, (vii) deposit into the Collection Account all payments
received by the Servicer with respect to the Receivables in accordance with this
Servicing Agreement, (viii) comply, in all respects with the terms and
conditions of this Servicing Agreement relating to the obligation of the Owner
Trustee to remove Receivables from the Trust Property pursuant to the Indenture,
the obligation of the Seller to reacquire the Receivables from the Owner Trustee
pursuant to the Contribution Agreement and the obligation of the Transferor to
reacquire Receivables from the Seller pursuant to the Transfer and Assignment
Agreement, (ix) promptly notify the Owner 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), the Class B
Noteholders and the Indenture Trustee of the occurrence of any Event of
Servicing Default and any breach by the Servicer of any of its covenants or
representations and warranties contained herein, (x) promptly notify the Owner
Trustee, the Swap Counterparty (unless the Interest Rate Swap
7
Agreement has been terminated and all amounts owed to the Swap Counterparty have
been paid in full), the Note Insurer, and the Indenture Trustee of the
occurrence of any event which, to the knowledge of the Servicer, would require
that the Owner Trustee make or cause to be made any filings, reports, notices,
or applications or seek any consents or authorizations from any and all
government agencies, tribunals, or authorities in accordance with the UCC and
any State vehicle license or registration authority as may be necessary or
advisable to create, maintain, perfect and protect a first-priority security
interest of the Indenture Trustee in, to, and on the Financed Vehicles and a
first-priority security interest of the Indenture Trustee in, to, and on the
Receivables pledged to the Indenture Trustee, (xi) take all reasonable action
necessary to maximize the returns pursuant to the Insurance Policies, (xii)
deliver or cause to be delivered to the Owner Trustee no later than two (2)
Business Days preceding the Closing Date or Funding Date, as the case may be,
the Schedule of Receivables to be transferred to the Owner Trustee on such
Closing Date or Funding Date, as the case may be, and (xiii) deliver or cause to
be delivered to the Custodian (unless the Servicer is the Custodian under the
Indenture) or its designated bailee (which bailee shall not be the Owner Trustee
or any Affiliate thereof) within two (2) Business Days preceding the Closing
Date or Funding Date, as the case may be, the documents to be included in the
Custodian Files with respect to the Receivables pledged on such Closing Date or
Funding Date, as the case may be.
(b) The Servicer shall, within two (2) Business Days of its receipt
thereof, respond to reasonable written directions or written requests for
information that the Owner Trustee, the Indenture Trustee or the Note Insurer
might have with respect to the administration of the Receivables.
(c) The Servicer will promptly advise the Owner Trustee, the Note
Insurer, and the Indenture Trustee of any inquiry received from an Obligor which
requires the consent of the Owner Trustee or the Indenture Trustee. Inquiries
requiring consent of the Owner Trustee or the Indenture Trustee may include, but
are not limited to, inquiries about settlement of any unasserted claim or
defense, or compromise of any amount an Obligor owes.
(d) The Servicer will not make any material change to its Collection
Policy with respect to the Receivables without the prior written consent of the
Note Insurer, which consent shall not be unreasonably withheld.
Section 2.07 Repurchase of Receivables Upon Breach. The Servicer shall
inform the Owner Trustee, the Note Insurer, and the Indenture Trustee promptly,
in writing, upon the discovery of any breach pursuant to Section 3.02(b) of the
Transfer and Assignment Agreement or the Contribution Agreement; provided,
however, that the Servicer shall have no duty to investigate or determine the
existence of any breach except as specified herein. Unless the breach shall have
been cured within the applicable cure period following such discovery as set
forth in Section 7.02 of the Transfer and Assignment Agreement and Section 7.02
of the Contribution Agreement, or waived by the Note Insurer, the Servicer shall
deliver to the Owner Trustee a written demand to cause the Seller to reacquire
such Receivable from the Owner Trustee and the Transferor to repurchase such
Receivable from the Seller within five (5) Business Days following the
expiration of such cure period. The sole remedy of the Owner Trustee, the
Indenture Trustee, the Note Insurer, the Swap Counterparty or the Noteholders
against the Transferor and the Seller with respect to a breach pursuant to
Section 3.02(b) of the
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Transfer and Assignment Agreement or the Contribution Agreement shall be as set
forth in the Transfer and Assignment Agreement or the Contribution Agreement.
Promptly following a repurchase pursuant to Section 7.02 of the Transfer and
Assignment Agreement or the Contribution Agreement, the Servicer shall give the
Owner Trustee written notice thereof.
Section 2.08 Servicing Fee
(a) Pursuant to the Indenture, the Owner Trustee has agreed to cause
the Indenture Trustee to pay out of monthly collections with respect to the
Receivables to the Servicer a monthly servicing fee (the "Servicing Fee") with
respect to each Receivable serviced under this Servicing Agreement; provided,
however, that the Owner Trustee hereby agrees not to amend or consent to any
amendment of any provision of the Indenture relating to compensation of the
Servicer without the prior written consent of the Servicer and the Note Insurer.
Pursuant to the terms of the Indenture, the Owner Trustee has assumed liability
for all liabilities associated with the Trust Property or created under the
Indenture; provided that the Owner Trustee has and shall have no liability with
respect to the payment of principal and interest on the Notes, except as
otherwise provided in the Indenture.
(b) The Servicing Fee shall be (i) 2.50% per annum, calculated and
payable monthly on the basis of a 360-day year consisting of twelve-30 day
months, based on the Aggregate Receivable Balance on the first day of the
applicable Collection Period, plus (ii) all amounts remitted by or on behalf of
the Obligors for receipt during the prior Collection Period under the terms of,
or with respect to, the Receivables, which amounts represent late fees,
prepayment charges, including administrative fees or similar charges allowed by
applicable law. Determination of which amounts received from an Obligor
represent late charges, prepayment charges, including administrative fees or
similar charges allowed by State law, shall be made as set forth in the
definition of "Liquidation Proceeds" in the Indenture. The Servicing Fee with
respect to a Collection Period shall be due on the succeeding Payment Date. In
the event this Servicing Agreement is terminated on a date other than the last
day of a Collection Period or a Receivable is designated to be no longer
outstanding for purposes of this Servicing Agreement, then the Servicing Fee for
such period or with respect to such Receivable, as the case may be, shall be
determined on a pro rata basis.
Section 2.09 Annual Statement as to Compliance. The Servicer will deliver
to the Rating Agencies, the Owner Trustee, the Indenture Trustee, 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), within 120 days after the end of each fiscal year of the Servicer
(commencing 120 days after the fiscal year ended December 31, 2003) an Officer's
Certificate stating, as to the Authorized Officer signing such Officer's
Certificate, that:
(a) a review of the activities of the Servicer during such year and of
performance under this Servicing Agreement has been made under such Authorized
Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, the Servicer has complied with all conditions and covenants under this
Agreement throughout
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such year, or, if there has been a default in the compliance of any such
condition or covenant, specifying each such default known to such Authorized
Officer and the nature and status thereof.
Section 2.10 Monthly Servicer's Reports. The Servicer shall provide monthly
reports substantially in the form of Exhibit A hereto to the Indenture Trustee,
and the Indenture Trustee shall provide copies of such reports and certificates
to the Seller, the Note Insurer, the Noteholders, the Rating Agencies, 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 any other
Persons, as required under this Agreement, regarding (i) payments received from
or on behalf of the Obligors and deposited to the Collection Account (identified
in Section 3.03 hereof) representing collections with respect to the
Receivables, (ii) other amounts received with respect to the Receivables,
including Repurchase Prices, Defaulted Receivable Recoveries and Insurance
Proceeds and (iii) other matters relating to the Receivables including
delinquencies, repossessions and filing and payment of claims under Insurance
Policies. The Servicer shall include information regarding Defaulted
Receivables, Events of Default, Repurchased Receivables, Events of Servicing
Default, Re-Liening Triggers and Accelerated Reserve Fund Events in its monthly
report. Such reports shall be delivered to the Indenture Trustee by 11:00 a.m.,
New York time, on the earlier of ten (10) calendar days following the
Determination Date or three (3) Business Days prior to the Transfer Date for
such Payment Date.
Section 2.11 Annual Servicing Review
The Servicer will cause a firm of Independent Public Accountants to deliver
to the Rating Agencies, the Noteholders, the Swap Counterparty (unless the
Interest Rate Swap Agreement has been terminated and all amounts owed to the
Swap Counterparty have been paid in full) and the Note Insurer upon receipt of
covenants and representations from such Persons as the Independent Public
Accountants may require, and as soon as practicable, but in any event within 120
days after the end of each fiscal year, an annual review of the Servicer's
procedures and operations in form and substance reasonably satisfactory to the
Note Insurer, prepared by such firm of Independent Public Accountants, dated as
of December 31 of each year beginning December 31, 2003 and substantially
stating to the effect that (i) such accountants have examined the accounts and
records of the Servicer relating to the Trust Property (which records shall be
described in one or more schedules to such statement), (ii) such firm has
compared the information contained in certain Monthly Servicer Reports (and
similar reports for other securitization transactions sponsored by the Owner
Trustee or an affiliate thereof) delivered in the relevant period with
information contained in the accounts and records or other relevant source
documents for such period, and (iii) on the basis of the procedures performed,
whether the information examined and contained in such Monthly Servicer Reports
(and similar reports for such other securitization transactions) delivered on
the relevant period reconciles and agrees with the information contained in the
accounts and records or other relevant source documents except for such
exceptions as such Independent Public Accountants believe to be immaterial and
such other exceptions as shall be set forth in such statement.
Section 2.12 Costs and Expenses
(a) Except as set forth in Section 2.12(b) below, all costs and
expenses incurred by the Servicer in carrying out its duties hereunder, fees and
expenses of Independent
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Public Accountants with respect to preparation of the financial statements and
reports described in Section 2.11 and all other fees and expenses (including all
fees and expenses arising as a result of the occurrence of a Re-Liening Trigger)
not expressly stated hereunder to be for the account of the Owner Trustee, shall
be paid or caused to be paid by the Servicer out of the compensation to be paid
to the Servicer pursuant to Section 2.08.
(b) During the term of this Servicing Agreement, the Servicer shall be
reimbursed for actual out-of-pocket costs and expenses incurred in connection
with the sale or other disposal of a Financed Vehicle or collection of amounts
due with respect to a Receivable including, but not limited to, the following
(to the extent such cost or expense relates to the sale or other disposal or
collection of amounts due with respect to a Receivable or a Financed Vehicle):
(i) Any compensation paid to outside legal counsel retained to
protect the interests of the Owner Trustee, the Indenture Trustee, the Note
Insurer, the Swap Counterparty or the Noteholders in the assets administered
under this Servicing Agreement as the Servicer deems necessary in accordance
with its normal procedures;
(ii) Any compensation paid to independent repossessors,
auctioneers or appraisers and any direct out of pocket expenses arising from or
related to realization of the Receivables administered under this Servicing
Agreement;
(iii) Any sales, franchise, income, excise, personal property or
other taxes arising from or related to any Receivables administered under this
Servicing Agreement;
(iv) Any parking or other fines, insurance, title or other such
fees arising from or related to any Receivables administered under this
Servicing Agreement;
(v) Any expenses for special forms and materials, freight, tapes,
communications, lock-box and other bank service charges, and other expenses; and
(vi) Any expenses and fees paid to outside accountants in
connection with the procedures required to be performed pursuant to Section
2.11(b) hereof, provided that any such fees and expenses paid under this clause
(vi) shall not exceed $10,000 per annum.
Section 2.13 Responsibility for Insurance Policies; Processing of Claims
Under Insurance Policies; Daily Records and Reports.
(a) The Servicer, on behalf of the Owner Trustee, will administer and
enforce all rights and responsibilities of the holder of the Receivables
provided for in the Insurance Policies relating to the Receivables.
(b) The Servicer will administer the filings of claims under the
Insurance Policies by filing the appropriate notices related to claims,
including initial notices of loss, as well as claims with the respective
carriers or their authorized agents all in accordance with the terms of the
Insurance Policies. The Servicer shall use reasonable efforts to file such
claims on a timely basis after obtaining knowledge of the events giving rise to
such claims, subject to the
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servicing standard set forth in Section 2.20 hereof. The Servicer will utilize
such notices, claim forms and claim procedures as are required by the respective
insurance carriers.
The Servicer shall not be required to pay any premiums or, other than
administering the filing of claims and performing reporting requirements
specified in the Insurance Policies in connection with filing such claims,
perform any obligations of the named insured under such Insurance Policies. The
Servicer shall not be responsible to the Owner Trustee, the Note Insurer, the
Noteholders, 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) or the Indenture Trustee (i) for any act or omission to act done in order
to comply with the requirements or satisfy any provisions of the Insurance
Policies or (ii) for any act, absent willful misconduct or negligence, or
omission to act done in compliance with this Servicing Agreement. In the case of
any inconsistency between this Servicing Agreement and the terms of any
Insurance Policy, the Servicer shall comply with the latter.
(c) The Servicer shall provide to the Indenture Trustee, and the
Indenture Trustee shall copy to the Owner Trustee, the Rating Agencies, the Swap
Counterparty (unless the Interest Rate Swap Agreement has been terminated and
all amounts owed to the Swap Counterparty have been paid in full) and the Note
Insurer, a written monthly report substantially in the form of Exhibit A hereto
and, upon the request of the Owner Trustee, the Indenture Trustee, the Swap
Counterparty (unless the Interest Rate Swap Agreement has been terminated and
all amounts owed to the Swap Counterparty have been paid in full) or the Note
Insurer, the Servicer shall provide to the requesting party copies of notices
substantially in the form of Exhibit B hereto, verifying that such notices were
sent to Obligors, as appropriate indicating a delinquency by any Obligor of (i)
30 to 59 days and (ii) 60 days or more. This report will include:
(i) Obligor's name;
(ii) Date of last payment; and
(iii) Current unpaid balance.
Unless otherwise directed by the Owner Trustee, the Servicer will file a
claim for loss with the insurer on a form furnished by such insurer within the
time period specified in the applicable Insurance Policy. A copy of such claim
will be provided to the Owner Trustee upon the Owner Trustee's request.
Section 2.14 Delivery of Documents to the Custodian. Unless the Servicer is
the Custodian under the Indenture, the Servicer shall deliver or cause to be
delivered the Custodian File with respect to the Receivables in its possession
to the Custodian via reputable overnight courier service for receipt by the
Custodian or its designated bailee (which bailee shall not be the Owner Trustee
or any Affiliate thereof) within two (2) Business Days preceding the Closing
Date or the applicable Funding Date, as the case may be while in its possession
(unless the Servicer is the Custodian under the Indenture), the Servicer shall
hold the Custodian Files in trust on behalf of the Custodian and shall only
check out the Custodian Files with a Request for
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Release of Receivable File in the form of Exhibit C hereto (unless the Servicer
is the Custodian under the Indenture).
Section 2.15 Conveyance of Copies of Documents to the Servicer; Indication
of Owner Trustee Ownership.
(a) The Servicer shall maintain legible copies (in electronic or
hard-copy form, in the discretion of the Servicer) or originals of the following
documents in its files with respect to each Receivable and the Financed Vehicle
related thereto:
(i) application of the Obligor for credit;
(ii) a copy (but not the original) of the retail installment
contract and security agreement and/or installment loans and any amendments
thereto, provided, however, that the Servicer shall deliver any original
amendments to the retail installment contract and security agreement and/or
installment loans to the Custodian immediately following execution thereof
(unless the Servicer is the Custodian under the Indenture);
(iii) a copy (but not the original) of a Certificate of Title
with a lien notation or an application therefor;
(iv) a certificate of insurance or application therefor with
respect to the Financed Vehicle securing the Receivable;
(v) a copy of the score sheet, proof of income and references,
credit report and AAP approval sheet utilized by COAF in the underwriting of the
Receivable;
(vi) the invoice for the Financed Vehicle;
(vii) Obligor's order for the Financed Vehicle and the proof of
down payment;
(viii) a copy of the service contract, if any, on the Financed
Vehicle;
(ix) a copy of the credit life insurance policy, if any, and the
credit disability insurance policy, if any, on the Obligor relating to the
Financed Vehicle; and
(x) such other documents as the Servicer may reasonably request
in order to accomplish its duties under this Servicing Agreement.
(b) The Servicer shall keep books and records, satisfactory to the
Note Insurer, pertaining to each Receivable and shall make periodic reports in
accordance with this Servicing Agreement. Such records may not be destroyed or
otherwise disposed of except as provided herein and as allowed by applicable
laws, regulations or decrees. All documents, whether developed or originated by
the Servicer or not, reasonably required to document or to properly administer
any loan shall remain at all times the property of the Owner Trustee and shall
be held in trust by the Servicer. The Servicer shall not acquire any property
rights with respect to such records, and shall not have the right to possession
of them except as subject to the
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conditions stated in this Servicing Agreement. The Servicer shall bear the
entire cost of restoration in the event any Servicer Files (as defined below)
shall become damaged, lost or destroyed while in the Servicer's possession or
control.
Section 2.16 Possession of Servicer Files. Unless otherwise specified
herein, the Servicer shall maintain physical possession of the instruments and
documents listed in paragraph 2.15(a) above; such other instruments or documents
that modify or supplement the terms or conditions of any of the foregoing; and,
all other instruments, documents, correspondence and memoranda generated by or
coming into the possession of the Servicer (including, but not limited to,
insurance premium receipts, ledger sheets, payment records, insurance claim
files, correspondence and current and historical computerized data files) that
are required to document or service any Receivable. Collectively, all of the
documents described in this Section 2.16 with respect to a Receivable are
referred to as the "Servicer Files". The Servicer hereby agrees that the
computer files and other physical records of the Receivables maintained by the
Servicer will bear an indication reflecting that the Receivables are owned by
the Owner Trustee and Granted to the Indenture Trustee for the benefit of the
Noteholders, the Swap Counterparty (unless the Interest Rate Swap Agreement has
been terminated and all amounts owed to the Swap Counterparty have been paid in
full) and the Note Insurer and that all Servicer Files shall remain the property
of the Owner Trustee and shall be held in trust by the Servicer. The Servicer
shall respond to all third party inquiries concerning ownership of the
Receivables by indicating that the Receivables have been assigned by the
Transferor to the Seller, transferred by the Seller to the Owner Trustee and
Granted to the Indenture Trustee for the benefit of the Noteholders, the Swap
Counterparty (unless the Interest Rate Swap Agreement has been terminated and
all amounts owed to the Swap Counterparty have been paid in full) and the Note
Insurer.
Section 2.17 Processing of Information. Information with respect to each
Receivable is to be recorded into the Servicer's loan management and accounting
system.
Section 2.18 Warranties and Representations With Respect to Compliance with
Law and Enforcement.
(a) The Owner Trustee hereby represents to the Servicer, based on
certain representations the Transferor has made to the Owner Trustee concerning
the Receivables in the Transfer and Assignment Agreement and the Seller has made
in the Contribution Agreement, respectively, and on which representations the
Owner Trustee has relied in acquiring the Receivables and with respect to the
Grant of the Receivables to the Indenture Trustee, that each Receivable and the
sale of the related Financed Vehicle complied at the time it was originated or
made and on the Closing Date or Funding Date, as the case may be, does comply in
all material respects with all requirements of applicable federal, state and
local laws, and regulations thereunder.
(b) The Servicer warrants, represents and covenants that in the event
that the Servicer realizes upon any Receivable, the methods utilized by the
Servicer to realize upon such Receivable or otherwise enforce any provisions of
the Receivable will not subject the Servicer, the Owner Trustee, the Note
Insurer, the Swap Counterparty or the Indenture Trustee to liability under any
federal, state or local law, and that such enforcement by the Servicer will be
conducted
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in accordance with the provisions of this Servicing Agreement and the standard
of care set forth in Section 2.20 hereof, including the Collection Policy.
Section 2.19 Standard of Care. In performing its duties and obligations
hereunder and in administering and enforcing the Insurance Policies relating to
the Receivables pursuant to this Servicing Agreement, the Servicer will comply
with all applicable state and federal laws and shall service and administer the
Receivables by employing such procedures (including collection procedures) and
degree of care, in each case consistent with prudent industry standards, as are
customarily employed by the Servicer in servicing and administering motor
vehicle retail installment sales contracts and notes owned or serviced by the
Servicer comparable to the Receivables. In performing such duties, so long as
COAF is the Servicer (i) COAF shall comply with COAF's Collection Policy, and
(ii) COAF shall not make any material amendment to COAF's Collection Policy
without the prior written consent of the Note Insurer which consent shall not be
unreasonably withheld; provided, however, that notwithstanding the foregoing,
the Servicer shall not, except pursuant to a judicial order from a court of
competent jurisdiction, or as otherwise required by applicable law or
regulation, release or waive the right to collect the unpaid balance on any
Receivable. In performing its duties and obligations hereunder, the Servicer
shall comply with all applicable federal and state laws and regulations, shall
maintain all state and federal licenses and franchises necessary for it to
perform its servicing responsibilities hereunder, and shall not impair the
rights of the Owner Trustee, the Note Insurer or the Indenture Trustee on behalf
of the Noteholders and the Swap Counterparty in the Trust Property.
Section 2.20 Records. The Servicer shall maintain or cause to be maintained
such books of account and other records as will enable the Owner Trustee and the
Note Insurer to determine the status of each Receivable and any Insurance Policy
relating thereto.
Section 2.21 Inspection.
(a) At all times during the term hereof, the Servicer shall afford the
Owner Trustee, the Note Insurer, and the Indenture Trustee and their authorized
agents, upon three (3) Business Days' prior written notice, reasonable access
during normal business hours to the Servicer's records and files relating to the
Receivables and the Trust Property and will cause its personnel to assist in any
examination of such records by the Owner Trustee, the Note Insurer, or the
Indenture Trustee. The examination referred to in this Section 2.21 will be
conducted in a manner which does not unreasonably interfere with the Servicer's
normal operations or customer or employee relations. Without otherwise limiting
the scope of the examination, the Owner Trustee, the Note Insurer, or the
Indenture Trustee may, using generally accepted audit procedures, verify the
status of each Receivable and review the Servicer Files and records relating
thereto for conformity to monthly reports prepared pursuant to Section 2.02(c)
and compliance with the standards represented to exist as to each Receivable in
this Servicing Agreement. Nothing herein shall require the Owner Trustee, the
Note Insurer, or the Indenture Trustee to conduct any inspection pursuant to
this Section.
(b) At all times during the term hereof, the Servicer shall keep
available at its office located at 3901 Dallas Parkway, Plano, Texas 75093 (or
such other location as to which it
15
shall give written notice to the Indenture Trustee), for inspection by the Owner
Trustee, the Note Insurer, the Indenture Trustee and Noteholders, a copy of the
Schedule of Receivables.
(c) All information obtained by the Owner Trustee or the Indenture
Trustee regarding the Obligors and the Receivables, whether upon exercise of its
rights under this Section 2.21 or otherwise, shall be maintained by the Owner
Trustee or the Indenture Trustee in confidence and shall not be disclosed to any
other person, except as otherwise required by applicable law or regulation.
(d) The Servicer will, at the Owner Trustee's or the Note Insurer's
request, provide the Owner Trustee, the Indenture Trustee or the Note Insurer
with a data extract disk of portfolio information. One disk per month will be
provided without charge, and the Owner Trustee will pay the Servicer $125.00
each for any subsequent disks; provided, however, that such additional fee for
subsequent disks shall not apply to any disks provided to the Owner Trustee, the
Indenture Trustee or the Note Insurer to correct information previously provided
by the Servicer to the Owner Trustee or the Note Insurer.
Section 2.22 Enforcement.
(a) The Servicer will, consistent with the standard of care required
by Section 2.19 hereof, act with respect to the Receivables and the Insurance
Policies in such manner as will, in the reasonable judgment of the Servicer,
maximize the amount to be received by the Indenture Trustee with respect
thereto.
(b) The Servicer shall to the extent consistent with the servicing
standards set forth in Section 2.19, including the Collection Policy, or at the
written direction of the Note Insurer, sue to enforce or collect upon the
Receivables and the Insurance Policies (including unpaid claims), in its own
name, if possible, or as agent for the Owner Trustee or the Indenture Trustee.
If the Servicer commences a legal proceeding to enforce a Receivable or an
Insurance Policy, the act of commencement shall be deemed to be an automatic
assignment of the Receivable and the related rights under the Insurance Policies
by the Owner Trustee to the Servicer for purposes of collection only. If,
however, in any enforcement suit or legal proceeding it is held that the
Servicer may not enforce a Receivable or an Insurance Policy on the grounds that
it is not a real party in interest or a holder entitled to enforce the
Receivable or the Insurance Policy, the Owner Trustee, shall, at the Servicer's
request, assign the Receivable or the Insurance Policy to the Servicer for the
limited extent necessary to enforce the Receivable or the Insurance Policy, or
take such steps as the Owner Trustee deems necessary to enforce the Receivable
or the Insurance Policy, including bringing suit in its name.
(c) The Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Receivable in accordance with the
standard of care required by Section 2.19 hereof. In exercising such recourse
rights, the Servicer is hereby authorized on the Owner Trustee's behalf to
reassign the Receivable and to deliver the Certificate of Title to the Financed
Vehicle to the person against whom recourse exists at the price set forth in the
document creating the recourse.
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Section 2.23 Payment in Full on Receivable. The Servicer may grant to the
Obligor on any Receivable that has been repaid in full any rebate, refund or
adjustment that the Servicer in good faith believes is required because of
prepayment in full of the Receivable, and may deduct the amount of any such
rebate, refund or adjustment from the amount otherwise payable by the Servicer
into the Revenue Fund or the Collection Account, as the case may be. The
Servicer may not permit any rescission or cancellation of any Receivable nor may
it take any action with respect to any Receivable or Insurance Policy which
would materially impair the rights of the Indenture Trustee, the Owner Trustee,
the Note Insurer or the Noteholders therein or in the proceeds thereof.
Section 2.24 Release of Receivable. Upon payment in full on any Receivable,
the Servicer shall notify the Custodian (unless the Servicer is the Custodian
under the Indenture) prior to the next succeeding Payment Date by a certificate
and request for release of Receivable file substantially in the form of Exhibit
C hereto (which certificate shall include a statement of an officer of the
Servicer to the effect that all amounts received in connection with such payment
in full which are required to be deposited in the Revenue Fund or the Collection
Account, as the case may be pursuant to Sections 3.02 and 3.03 herein have been
so deposited).
Section 2.25 [Reserved].
Section 2.26 Responsibilities of the Servicer. The Servicer shall not have
any duties, obligations or responsibilities other than those specifically
expressed and set forth herein and no implied obligations of the Servicer shall
be read into this Servicing Agreement. Neither the Servicer nor any of its
respective directors, officers, agents or employees shall be liable to any
person, including, without limitation, the Owner Trustee, the Note Insurer, the
Swap Counterparty, the Indenture Trustee or the Noteholders in connection with
this Servicing Agreement, except for the breach of any of its representations
and warranties or obligations under this Servicing Agreement or for the
negligence, bad faith or willful misconduct of the Servicer, or any of its
respective officers, directors, agents or employees.
Section 2.27 Re-Liening. Upon the occurrence of a Re-Liening Trigger, the
Note Insurer may instruct the Indenture Trustee and the Servicer to take or
cause to be taken such actions as may, in the judgment of the Note Insurer or
its counsel, be necessary to perfect or re-perfect the security interests in the
Financed Vehicles in the name of the Indenture Trustee by amending the title
documents relating to such Financed Vehicles or by such other reasonable means
as may, in the judgment of the Note Insurer or its counsel, be necessary or
prudent. The Indenture Trustee and the Servicer shall take or cause to be taken
such actions. COAF hereby agrees to reimburse the Indenture Trustee for all
Re-Liening Expenses related to such perfection or re-perfection and to take all
action necessary therefor, including the preparation, execution and delivery of
all such documents as may be requested by the Indenture Trustee or the Servicer
in connection therewith. In addition, as provided in Section 5.05(c) of the
Indenture, the Indenture Trustee shall be entitled to be reimbursed for
Re-Liening Expenses incurred in connection with taking or causing to be taken
such actions, to the extent not paid by the Servicer. On the Closing Date, the
Servicer shall grant to the Indenture Trustee an irrevocable power of attorney,
pursuant to which the Servicer shall appoint the Indenture Trustee as its
attorney-in-fact, such appointment being coupled with an interest, to take any
and all steps required to be performed by it pursuant to this Section 2.27
including execution of certificates of title or any
17
other documents in the name and stead of the Servicer. If at any time a Person
other than COAF becomes the Servicer, COAF shall grant to such Successor
Servicer, promptly after its appointment as such, a power of attorney as
described in the preceding sentence.
ARTICLE III
ACCOUNTS; COLLECTIONS; STATEMENT
TO CERTIFICATEHOLDERS AND NOTEHOLDERS
Section 3.01 Accounts. There have been established pursuant to the
Indenture certain accounts in the name of the Indenture Trustee for the benefit
of the Noteholders, the Swap Counterparty (unless the Interest Rate Swap
Agreement has been terminated and all amounts owed to the Swap Counterparty have
been paid in full) and the Note Insurer to the extent described herein,
including, without limitation, the Collection Account, the Issuance Fund, the
Pre-Funding Account, the Reserve Fund and the Revenue Fund.
Section 3.02 Collections.
(a) The Servicer shall remit or cause a Subservicer to remit to the
Collection Account described in Section 3.03 hereof, and to no other account, as
soon as practicable, but in no event later than the Collection Account's
Depository's close of business two (2) Business Days after receipt thereof, all
payments received by or on behalf of the Obligors, including all Actual
Payments, Insurance Proceeds, Defaulted Receivable Recoveries, Principal
Collections, Liquidation Proceeds, Repurchase Prices and all proceeds relating
to the repossession or disposition of the Financed Vehicles (including recourse
payments received from Dealers with respect to a breach of a representation or
warranty of such Dealers under the Dealer's Agreements), all as collected during
the Collection Period, in respect of a Receivable being serviced by the Servicer
or a Receivable subject to a Repurchase Event, and all payments or other
amounts, if any, made by or on behalf of an Obligor or received by the Servicer
with respect to any Receivable.
(b) With respect to checks or drafts (i) issued by an insurer for
payment of loss on Receivables, (ii) made payable to the named insured, the
Indenture Trustee or any other Person, and (iii) received by the Servicer, the
Servicer shall take all necessary action to document the receipt of each such
draft on the day of receipt thereof and if made payable to the Indenture
Trustee, forward the original draft by reputable overnight courier to the
Indenture Trustee at the address set forth in Section 7.03 hereof for receipt by
the Indenture Trustee two (2) Business Days for immediate endorsement and return
to the Servicer via overnight courier.
Section 3.03 Collection Account and Acknowledgment Letter.
(a) There is hereby appointed JPMorgan Chase Bank, as the initial
Collection Account Depository with respect to the Receivables serviced under
this Servicing Agreement. The Owner Trustee shall provide thirty (30) days'
written notice to the Servicer, the Indenture Trustee, and the Note Insurer of
its appointment of a successor Collection Account Depository which shall be
acceptable to the Rating Agencies, the Note Insurer and the Indenture Trustee
and
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which shall hold the Collection Account under the terms and conditions
outlined herein and in the Indenture.
(b) Except as otherwise provided herein, the Servicer shall deposit or
cause to be deposited into the Collection Account all amounts (including late
payments) remitted by Obligors to the Servicer under the terms of the
Receivables within two (2) Business Days after receipt thereof; provided,
however, that the Servicer shall, pursuant to Section 2.08(c), be entitled to
reimbursement of all amounts remitted by or on behalf of the Obligors to the
Servicer under the terms of, or with respect to, the Receivables, which amounts
represent late fees, prepayment charges, including administrative fees or
similar charges allowed by applicable law.
Section 3.04 Statements to Certificateholders and Noteholders. On each
Payment Date, the Servicer shall provide to Indenture Trustee written
instructions for the Indenture Trustee to forward to each Noteholder of record,
to each Paying Agent, if any, (with a copy to each Rating Agency 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)) and to the
Owner Trustee for the Owner Trustee to forward to each Certificateholder of
record, a statement setting forth at least the following information (based on
the information contained in the Monthly Servicer's Report delivered on the
related Payment Date pursuant to Section 2.10) as to the Notes and the
Certificates to the extent applicable:
(a) the amount of such distribution allocable to principal of each
class of Notes;
(b) the amount of such distribution allocable to interest on or with
respect to each class of Notes;
(c) the Reserve Fund transfer amount, if any, for such Payment Date,
the Reserve Account Minimum for such Payment Date, the amount deposited into the
Reserve Fund on such Payment Date, and the balance of the Reserve Fund (if any)
on such Distribution Date, after giving effect to changes therein on such
Payment Date;
(d) the overcollateralization amount as of such Payment Date;
(e) the amount of the Servicing Fee paid to the Servicer with respect
to the related Collection Period and with respect to previously accrued and
unpaid Servicing Fees;
(f) the amount of any previously due and unpaid payment of principal
on the Notes, and the change in such amount from that of the prior Payment Date;
(g) the aggregate outstanding principal balance of each class of the
Notes for each such class after giving effect to payments allocated to principal
reported under clause (a) above;
(h) the aggregate amounts paid by the Seller or the Servicer with
respect to the related Collection Period;
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(i) the Pool Balance as of the close of business on the last day of
the preceding Collection Period;
(j) the number, and aggregate Receivable Balance outstanding, of
Receivables past due 30-59 days, 60-89 days and 90 days and over;
(k) the weighted average Contract Rates of the Receivables, weighted
based on the Receivable Balance of each such Receivable as of the last day of
the related Collection Period;
(l) the weighed average remaining term to maturity of the Receivables,
weighted based on the Receivable Balance of each such Receivables as of the last
day of the related Collection Period;
(m) the amount of the Aggregate Receivable Balance of any Receivables
that became Defaulted Receivables, if any, during such Collection Period;
(n) the aggregate net losses on the Receivables incurred during the
period from the Cutoff Date to and including the last day of the related
Collection Period;
(o) the amount distributed to Certificateholders; and
(p) the Net Swap Receipts, if any.
Each amount set forth pursuant to paragraph (a), (b), or (e) above relating to
the Notes shall be expressed as a dollar amount per $1,000 of the initial
principal balance of the Notes (or Class thereof).
Section 3.05 Trustee Internet Website. The Indenture Trustee may make
available to any Paying Agent, any Swap Counterparty (unless the Interest Rate
Swap Agreement has been terminated and all amounts owed to the Swap Counterparty
have been paid in full), the Noteholders, the Note Insurer or Owner Trustee, via
the Indenture Trustee's Internet Website all reports or notices required to be
provided by the Indenture Trustee under the terms of this Servicing Agreement
(including, but not limited to Sections 2.10 and 3.04) and any Supplement
available and, with the consent or at the direction of the Servicer and the
Owner Trustee, such other information regarding the Notes and/or the Receivables
as the Indenture Trustee may have in its possession. Any information that is
disseminated in accordance with the provisions of this Section 3.05 shall not be
required to be disseminated in any other form or manner. The Indenture Trustee
will make no representation or warranties as to the accuracy or completeness of
such documents and will assume no responsibility therefor.
The Indenture Trustee's Internet Website shall be initially located at
"www.jpmorgan.com/absmbs" or at such other address as shall be specified by the
Indenture Trustee from time to time writing to the Noteholders, the Owner
Trustee or any Paying Agent. In connection with providing access to the
Indenture Trustee's Internet Website, the Indenture Trustee may require
registration and the acceptance of a disclaimer. The Indenture Trustee shall not
be liable for the dissemination of information in accordance with this Servicing
Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Servicer. The Servicer
hereby represents, warrants and covenants to the Owner Trustee, the Note
Insurer, the Swap Counterparty, the Noteholders and the Indenture Trustee that
as of the date of this Servicing Agreement and for so long as the Servicer shall
continue to act as Servicer hereunder:
(a) The Servicer is a corporation duly organized, validly existing and
in good standing under the laws of the State of Texas;
(b) All necessary corporate, regulatory or other similar action has
been taken to authorize and empower the Servicer and the officers or
representatives acting on the Servicer's behalf, and the Servicer has full power
and authority to execute, deliver and perform this Servicing Agreement;
(c) This Servicing Agreement has been duly authorized, executed and
delivered by the Servicer and the performance and compliance with the terms of
this Servicing Agreement will not violate the Servicer's articles of
incorporation or bylaws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in the
breach of, any contract, indenture, loan, lease, credit agreement or any other
agreement or instrument to which the Servicer is a party or which may be
applicable to the Servicer or any of its assets;
(d) The Servicer is duly licensed and qualified to perform the
functions specified herein and this Servicing Agreement constitutes a valid,
legal and binding obligation of the Servicer, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' rights generally and to
general principles of equity;
(e) The Servicer is not in violation of, and the execution, delivery
and performance of this Servicing Agreement by the Servicer will not constitute
a violation with respect to, any order or decree of any court or any order,
regulation or demand of any federal, State, municipal or governmental agency,
which violation might have consequences that would materially and adversely
affect the condition (financial or other) or operations of the Servicer or its
properties or might have consequences that would affect the performance of its
duties hereunder;
(f) No proceeding of any kind, including but not limited to
litigation, arbitration, judicial or administrative, is pending or threatened
against or contemplated by the Servicer which would under any circumstance have
an adverse effect on the execution, delivery, performance or enforceability of
this Servicing Agreement;
(g) No information, Officer's Certificate or statement furnished in
writing or report delivered to the Indenture Trustee, the Owner Trustee, the
Note Insurer, the Swap Counterparty or any Noteholder by the Servicer required
under this Servicing Agreement contains any untrue statement of a material fact
or omits a material fact necessary to make the
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information, certificate, statement or report in light of the circumstances
under which it was made, not misleading; provided that the Servicer makes no
representation or warranty with respect to any information incorporated into or
forming the basis of any Officer's Certificate, information, statement or report
provided by the Servicer that is provided to the Servicer by any other Person;
(h) The Servicer has the knowledge, the experience and the systems,
financial and operational capacity available to timely perform each of its
obligations hereunder; and
(i) The Servicer has, with respect to the Receivables, complied in all
material respects with the Collection Policy.
Section 4.02 Representations and Warranties of the Owner Trustee. The Owner
Trustee hereby represents, warrants and covenants to the Servicer, the
Noteholders, the Swap Counterparty, the Note Insurer and the Indenture Trustee
that as of the date of this Servicing Agreement or as of such date specifically
provided herein:
(a) Capital One Auto Finance Trust 2002-C is a Delaware common law
trust and the Owner Trustee has full power and authority to execute and deliver
this Servicing Agreement and to perform the terms and provisions hereof;
(b) The execution, delivery and performance by the Owner Trustee of
this Servicing Agreement have been duly authorized by all necessary action by
the Owner Trustee, do not require any approval or consent of any Person, and do
not and will not conflict with or result in a breach which would constitute a
material default under any agreement binding upon or applicable to it or such of
its property which is material to it, or any law or governmental regulation or
court decree applicable to it or such material property, and this Servicing
Agreement is the legal, valid and binding obligation of the Owner Trustee
enforceable in accordance with its terms except as the same may be limited by
insolvency, bankruptcy, reorganization or other laws relating to or affecting
the enforcement of creditors' rights or by general equity principles; and
(c) No litigation or administrative proceeding of or before any court,
tribunal or governmental body is presently pending, or to the knowledge of the
Owner Trustee threatened, against the Owner Trustee or its properties or with
respect to this Servicing Agreement, which, if adversely determined would, in
the opinion of the Owner Trustee, have a material adverse effect on the
transactions contemplated by this Servicing Agreement.
Section 4.03 Survival of Representations and Warranties. The
representations and warranties set forth in this Article IV are continuous and
shall survive the date of this Servicing Agreement. Upon discovery by any of the
Owner Trustee, the Indenture Trustee, or the Servicer of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other parties hereto, including 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 the Indenture Trustee.
Section 4.04 Merger or Consolidation of, or Assumption of the Obligations
of, or Resignation of the Servicer. Any Person (a) into which the Servicer may
be merged or
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consolidated, (b) which may result from any merger or consolidation to which the
Servicer shall be a party, (c) which may succeed to the properties and assets of
the Servicer substantially as a whole, or (d) which may succeed to the duties
and obligations of the Servicer under this Servicing Agreement following the
resignation of the Servicer subject to Sections 2.01 and 5.07 hereof, which
Person executes an agreement of assumption to perform every obligation of the
Servicer hereunder, shall, with the prior written consent of the Note Insurer
(unless such merger or consolidation is with or into Capital One Financial
Corporation or one of its Affiliates), be the successor to the Servicer or under
this Servicing Agreement without further act on the part of any of the parties
to this Servicing Agreement; provided, however, that (i) prior written notice of
such merger, consolidation or assumption of liabilities shall be delivered by
the Servicer to 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 the Rating Agencies and (ii)
immediately after giving effect to such transaction, no Event of Servicing
Default (as defined in Section 5.01), and no event which, after notice or lapse
of time, or both, would become an Event of Servicing Default shall have occurred
or be continuing, (iii) no Event of Default or Re-Liening Trigger would occur as
a result of such merger, consolidation or assumption of liability, (iv) the
Servicer shall have delivered to the Owner 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 the
Indenture Trustee an Officer's Certificate and an opinion of counsel each
stating that such consolidation, merger, succession or resignation and such
agreement of assumption comply with this Section 4.04 and that all conditions
precedent provided for in this Servicing Agreement relating to such transaction
have been complied with and (v) the Servicer shall have delivered to the Owner
Trustee, the Swap Counterparty (unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid in
full), the Note Insurer, and the Indenture Trustee an opinion of counsel either
(A) stating that, in the opinion of such counsel, all financing statements,
continuation statements and amendments and notations on certificates of title
thereto have been executed and filed that are necessary fully to preserve and
protect the interest of the Owner Trustee, the Noteholders, the Swap
Counterparty, the Note Insurer and the Indenture Trustee in the Receivables and
the Financed Vehicles, and reciting the details of such filings, or (B) stating
that, in the opinion of such counsel, no such action shall be necessary to
preserve and protect such interest.
ARTICLE V
DEFAULT, REMEDIES AND INDEMNITY
Section 5.01 Events of Servicing Default. Any of the following acts or
occurrences shall constitute an "Event of Servicing Default" under this
Servicing Agreement:
(a) any failure by the Servicer to make any payment, transfer or
deposit to the Indenture Trustee on the date such payment, transfer or deposit
is required to be made;
(b) any failure by the Servicer to provide any notices to the
Indenture Trustee and the Note Insurer pursuant to this Servicing Agreement
relating to the transfer or calculation of funds;
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(c) failure on the part of the Servicer to either duly observe or
perform in any material respect any other covenants or agreements of the
Servicer set forth in this Servicing Agreement which continues unremedied for a
period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer, as the
case may be, by the Indenture Trustee, the Note Insurer, the Seller or the Owner
Trustee; or the Servicer shall assign its duties hereunder (except as expressly
permitted herein);
(d) any representation, warranty or certification made by the Servicer
in this Servicing Agreement, or any certificate delivered pursuant to this
Servicing Agreement, shall prove to have been incorrect when made, which has a
material adverse effect on the Noteholders, the Swap Counterparty or the Note
Insurer;
(e) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the Servicer or
of or relating to all or substantially all of its properties; or a decree or
order of a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or the
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file or have filed against it a petition or commence an action to
take advantage of any applicable insolvency or reorganization statute, make any
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations;
(f) the Servicer shall fail to be an Eligible Servicer as determined
by the Note Insurer;
(g) the Servicer makes any material adverse changes to its Collection
Policy with respect to the Receivables without the consent of the Note Insurer,
which consent shall not be unreasonably withheld; or
(h) an Event of Default occurs (i) which has not been waived by the
Note Insurer or, if a Note Insurer Default has occurred and is continuing,
Noteholders constituting Class A Noteholder Approval, or if the Aggregate
Outstanding Principal Balance for the Class A Notes (and all interest accrued
thereon) is reduced to zero and all Reimbursement Obligations and reimbursement
for all Swap Termination Payments paid under the Swap Policy due to the Note
Insurer shall have been paid in full, Noteholders constituting Class B
Noteholder Approval or (ii) which has not been otherwise cured within the
applicable grace period pursuant to the terms of the Indenture.
Section 5.02 Remedies.
(a) If an Event of Servicing Default shall occur and be continuing,
the Note Insurer (or, if a Note Insurer Default shall have occurred and be
continuing, either the Indenture Trustee (to the extent an officer of the
Indenture Trustee has actual knowledge thereof), the Owner Trustee, or
Noteholders constituting Noteholder Approval, or if the Aggregate
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Outstanding Principal Balance for the Class A Notes (and all interest accrued
thereon) is reduced to zero and all Reimbursement Obligations and reimbursement
for all Swap Termination Payments paid under the Swap Policy due to the Note
Insurer shall have been paid in full, Noteholders constituting Class B
Noteholder Approval, by notice given in writing to the Servicer ("Termination
Notice") (with copies to the Indenture Trustee and the Owner Trustee if given by
the Note Insurer or Noteholders constituting the Noteholder Approval or Class B
Noteholder Approval, as applicable), may terminate all of the rights and
obligations of the Servicer under this Servicing Agreement (except as set forth
in Section 5.03). On or after the receipt by the Servicer of such Termination
Notice, all authority, power, obligations and responsibilities of the Servicer
under this Servicing Agreement, whether with respect to the Receivables, or
otherwise, automatically shall pass to, be vested in and become obligations and
responsibilities of the Successor Servicer appointed in accordance with Section
5.02(c); provided, however, that the Successor Servicer shall have no liability
with respect to any obligation which was required to be performed by the
terminated Servicer prior to the date that the Successor Servicer becomes the
Servicer or any claim based on any alleged action or inaction of the terminated
Servicer. The Successor Servicer is authorized and empowered by this Agreement
to execute and deliver, on behalf of the terminated Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents to show the Owner Trustee
or the Indenture Trustee as lienholder or secured party on the related title
documents, or otherwise. The terminated Servicer agrees to cooperate with the
Successor Servicer in effecting the termination of the responsibilities and
rights of the terminated Servicer under this Servicing Agreement, including,
without limitation, the transfer to the Successor Servicer for administration by
it of all cash amounts that shall at the time be held by the terminated Servicer
for deposit, or have been deposited by the terminated Servicer, in the
Collection Account or thereafter received with respect to the Receivables and
the delivery to the Successor Servicer of all Servicer Files, collection records
and a computer tape in readable form as of the most recent Business Day
containing all information necessary to enable the Successor Servicer to service
the Receivables. If requested by the Note Insurer, the Successor Servicer shall
direct the Obligors then making payments directly to the Servicer to make all
payments under the Receivables directly to the Successor Servicer (in which
event the Successor Servicer shall process all such payments in accordance with
Section 3.03(b), or to a lockbox established by the Successor Servicer at the
direction of the Note Insurer). The terminated Servicer shall grant the Owner
Trustee, the Indenture Trustee, the Successor Servicer and the Note Insurer
reasonable access to the terminated Servicer's premises at the terminated
Servicer's expense. As provided in Section 5.05(c) of the Indenture, the
Successor Servicer shall be entitled to be reimbursed for Transition Costs
incurred by it in connection with a transfer of servicing from the Servicer to
such Successor Servicer. The Servicer shall reimburse the Successor Servicer and
the Indenture Trustee for Transition Costs incurred by them in connection with a
transfer of servicing from the Servicer to such Successor Servicer (to the
extent not paid pursuant to the preceding sentence, if applicable).
(b) On and after the receipt by the terminated Servicer of a
Termination Notice pursuant to this Section 5.02, the terminated Servicer shall
continue to perform all servicing functions under this Servicing Agreement until
the date specified in the Termination Notice. The Note Insurer with prior
written notice to the Rating Agencies may exercise at any
25
time its right to appoint as Successor Servicer a Person other than the Person
serving as Indenture Trustee at the time, and (without limiting the Note
Insurer's obligations under the Note Guaranty Insurance Policy with respect to
the Class A Notes) shall have no liability to the Owner Trustee, the Indenture
Trustee, COAF, any Noteholders or any other Person if it does so. If a Successor
Servicer is not chosen within 90 calendar days after the receipt by the Servicer
of the Termination Notice, the outgoing Servicer shall continue to act as
Servicer until a successor has been appointed and accepted such appointment;
provided that if a Note Insurer Default shall have occurred and be continuing,
the Indenture Trustee, or Noteholders constituting Class A Noteholder Approval,
or if the Aggregate Outstanding Principal Balance of the Class A Notes has been
reduced to zero, Noteholders constituting Class B Noteholder Approval, or the
Owner Trustee may petition a court of competent jurisdiction to appoint an
Eligible Servicer as the Successor Servicer. Within 30 days of termination of
the Servicer, if such termination causes a change in the address to which
Obligor payments are to be sent, the Successor Servicer shall send, or cause to
be sent, to each Obligor, a written notice of the name and mailing address of
the Successor Servicer to which payments on the Receivables are to be made.
(c) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the terminated Servicer with respect to servicing
functions under this Servicing Agreement and shall be subject to all the
responsibilities, duties and liabilities (arising on and after the time of such
appointment except for liability arising from the condition of the Servicer's
records at the time the servicing duties are transferred to the Successor
Servicer or for actions or omissions of other Persons) relating thereto placed
on the Servicer by the terms and provisions hereof, and all references in this
Servicing Agreement to the Servicer shall be deemed to refer to the Successor
Servicer unless the context otherwise requires.
(d) In connection with such appointment and assumption, the Successor
Servicer may make such arrangements for the compensation of itself out of
collections of Receivable payments, as it and the Owner Trustee shall agree;
provided, however, that no such compensation shall be in excess of the Servicing
Fees permitted to the Servicer pursuant to this Servicing Agreement without the
approval of the Note Insurer or, if a Note Insurer Default has occurred and is
continuing, the Noteholders constituting Class A Noteholder Approval, or if the
Aggregate Outstanding Principal Balance of the Class A Notes has been reduced to
zero and all Reimbursement Obligations and reimbursement for all Swap
Termination Payments paid under the Swap Policy due to the Note Insurer shall
have been paid in full, Noteholders constituting Class B Noteholder Approval.
(e) All authority and power granted to the Servicer or the Successor
Servicer under the Servicing Agreement shall automatically cease and terminate
upon termination of the Indenture, and shall pass to and be vested in the Seller
and, without limitation, the Seller is hereby authorized and empowered to
execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, all documents and other instruments, and to do and accomplish all
other acts or things necessary or appropriate to effect the purposes of such
transfer of servicing rights. The Servicer agrees to cooperate with the Seller
and the Indenture Trustee in effecting the termination of the responsibilities
and rights of the Servicer to conduct servicing on the Receivables. The Servicer
shall transfer its electronic records relating to the Receivables to the Seller
in such electronic form as the Seller may reasonably request and shall transfer
all other records, correspondence and documents to the Seller in the manner and
at such times as the
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Seller shall reasonably request, provided that all fees and expenses owed to the
Servicer (or its successor) have been paid. To the extent that compliance with
this Section 5.02 shall require the Servicer to disclose to the Seller
information of any kind which the Servicer deems to be confidential, the Seller
shall be required to enter into such reasonable and customary licensing and
confidentiality agreements as the Servicer reasonably shall deem necessary to
protect its interests.
Section 5.03 Indemnity by the Servicer. The Servicer shall be liable to the
Seller, the Owner Trustee, the Note Insurer, the Indenture Trustee, the Swap
Counterparty (unless the Interest Rate Swap Agreement has been terminated and
all amounts owed to the Swap Counterparty have been paid in full) and each
Noteholder (collectively, the "Indemnified Parties") to the extent of the
following:
(a) The Servicer shall indemnify, defend and hold harmless the
Indemnified Parties and any of the officers, directors, employees and agents of
the Indemnified Parties from and against any and all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel and expenses of litigation, arising out of or resulting from the use,
ownership or operation by the Servicer or any affiliate thereof of a Financed
Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless the
Indemnified Parties and any of the officers, directors, employees and agents of
the Indemnified Parties from and against any and all costs, expenses, losses,
claims, damages and liabilities to the extent that such cost, expense, loss,
claim, damage or liability arose out of, or was imposed upon any such Person
through the breach of this Servicing Agreement by the Servicer, the negligence,
misfeasance or bad faith of the Servicer in the performance of its duties under
this Servicing Agreement or by reason of reckless disregard of its obligations
and duties under this Servicing Agreement.
(c) The Servicer shall be strictly accountable for all payments
actually received on the Receivables.
Section 5.04 Notification to Noteholders. Upon discovery of the occurrence
of any Event of Servicing Default, after the applicable grace period set forth
in the applicable subparagraphs of Section 5.01, the Servicer shall give written
notice of the occurrence of an Event of Servicing Default to the Note Insurer
or, if a Note Insurer Default has occurred and is continuing, to the Class A
Noteholders. Unless the Note Insurer or, if a Note Insurer Default has occurred
and is continuing, Noteholders constituting Class A Noteholder Approval, or if
the Aggregate Outstanding Principal Balance of the Class A Notes has been
reduced to zero and all Reimbursement Obligations and reimbursement for all Swap
Termination Payments paid under the Swap Policy due to the Note Insurer shall
have been paid in full, Noteholders constituting Class B Noteholder Approval,
gives written notice to the Servicer or within seven (7) Business Days of
receipt of such notice from the Servicer that the Note Insurer or Noteholders
constituting Noteholder Approval, as the case may be, have waived such Event of
Servicing Default, the Servicer shall then give notice in writing to 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), the Rating Agencies, the Owner Trustee
27
and any other Persons identified on a list provided to the Servicer as such list
may be amended from time to time, and the Indenture Trustee shall give notice to
the Noteholders at their respective addresses appearing in the Note Register.
Upon any termination or appointment of a Successor Servicer pursuant to this
Article V, the Indenture Trustee shall give prompt written notice thereof to 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 to the
Noteholders at their respective addresses appearing in the Note Register.
Section 5.05 Waiver of Events of Servicing Default. The Note Insurer or, if
a Note Insurer Default has occurred and is continuing, the Noteholders
constituting Class A Noteholder Approval, or if the Aggregate Outstanding
Principal Balance of the Class A Notes has been reduced to zero and all
Reimbursement Obligations and reimbursement for all Swap Termination Payments
paid under the Swap Policy due to the Note Insurer shall have been paid in full,
Noteholders constituting Class B Noteholder Approval may, on behalf of the
Noteholders of all Notes Outstanding, waive any Event of Servicing Default. Upon
any such waiver of an Event of Servicing Default, such default shall cease to
exist, and any default arising therefrom shall be deemed to have been remedied
for every purpose of this Servicing Agreement. No such waiver shall extend to
any subsequent or other default or impair any right consequent thereon except to
the extent expressly so waived.
Section 5.06 Survival. The agreements in Section 5.03 shall survive the
termination of the Indenture and the payment in full of the Class A Notes and
the Class B Notes.
Section 5.07 Servicer Not to Resign. Subject to the provisions of Section
5.02, the Servicer shall not resign from the obligations and duties imposed on
it by this Servicing Agreement as Servicer except upon a determination that by
reason of a change in legal requirements the performance of its duties under
this Servicing Agreement would cause it to be in violation of such legal
requirements in a manner which would have a material adverse effect on the
Servicer and the Note Insurer does not elect to waive the obligations of the
Servicer to perform the duties which render it legally unable to act or to
delegate those duties to another Person. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered and acceptable to the Owner Trustee, the Indenture Trustee, and
the Note Insurer. Unless a Note Insurer Default has occurred and is continuing,
no resignation of the Servicer shall become effective until an entity acceptable
to the Note Insurer shall have assumed the responsibilities and obligations of
the Servicer.
ARTICLE VI
TERMINATION OF AGREEMENT
Section 6.01 Term. This Servicing Agreement shall remain in effect until
termination of the Indenture.
Section 6.02 Effect of Termination. Upon termination of this Servicing
Agreement, the Servicer shall, at the direction of the Owner Trustee, promptly
return all Servicer Files and any related files and correspondence in its
possession as are related to the management of the Receivables and the services
provided hereunder.
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Section 6.03 Transfer of Servicing. Upon termination of this Servicing
Agreement, the Servicer shall cooperate in the transfer of the Servicer Files.
Any matters pending at the effective termination date will continue to be
processed in an orderly and timely fashion; it being intended, however, that
responsibility for the Receivables shall transfer as quickly as practicable and
in any event within thirty (30) days after the termination date.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment. This Servicing Agreement may only be amended (i) by
mutual written consent of the parties hereto, (ii) with the prior written
consent of the Note Insurer, (iii) to the extent such amendment adversely
affects the Swap Counterparty, 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 (iv) upon the satisfaction of the Rating Agency
Condition. No amendment made to the Transfer and Assignment Agreement, the
Contribution Agreement or the Indenture, without the Servicer's written consent,
shall be effective as to the Servicer, to the extent such amendment is
disadvantageous in any respect to the Servicer.
Section 7.02 Waivers. The provisions of this Servicing Agreement may only
be waived by written consent of the Note Insurer or, if a Note Insurer Default
has occurred and is continuing, the Noteholders constituting Class A Noteholder
Approval, or if the Aggregate Outstanding Principal Balance of the Class A Notes
has been reduced to zero and all Reimbursement Obligations and reimbursement for
all Swap Termination Payments paid under the Swap Policy due to the Note Insurer
shall have been paid in full, Noteholders constituting Class B Noteholder
Approval, and if adversely affected thereby, the Swap Counterparty and the
parties hereto. The failure of any party at any time to require performance by
the other of any provision of this Servicing Agreement shall in no way affect
that party's right to enforce such provision, nor shall the waiver by any party
of any breach of any provision of this Servicing Agreement be taken or held to
be a waiver of any further breach of the same provision or any other provision.
Section 7.03 Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered personally
or mailed by first-class registered or certified mail, postage prepaid, or by
telephonic facsimile transmission and overnight delivery service, postage
prepaid, in any case addressed as follows:
To the Servicer: Capital One Auto Finance Inc.
3901 Dallas Parkway
Plano, Texas 75093
Attention: Manager of Securitization
Phone: (972) 247-0777
Fax: (888) 722-5184
29
Capital One Auto Receivables, LLC
1680 Capital One Drive
McLean, Virginia 22102
Attention: Manager of Securitization
Phone: (703) 720-1000
Fax: (703) 720-2121
Copy to: Legal
To the Indenture Trustee: JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004-2413
Attention: Structured Finance Administration -
Capital One Auto Finance 2002-C
Phone: (212) 623-5379
Fax: (212) 623-5932
To the Owner Trustee: Wilmington Trust Company, as owner trustee for
Capital One Auto Finance Trust 2002-C
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Don Mackelcan
Phone: (302) 651-1119
Fax: (302) 651-1576
With a Copy to:
Capital One Auto Receivables, LLC
1680 Capital One Drive
McLean, Virginia 22102
Attention: Manager of Securitization -
Copy to: Legal Department
Phone: (703) 720-1000
Fax: (703) 720-2121
Mayer, Brown, Rowe & Maw
190 S. LaSalle Street
Chicago, Illinois 60603
Attention: Stuart M. Litwin
Phone: (312) 782-0600
Fax: (312) 701-7711
30
To the Rating Agencies: Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: ABS Monitoring Department
Phone: (212) 553-3785
Fax: (212) 553-4948
Standard & Poor's
55 Water Street
New York, New York 10041
Attention: Surveillance
Phone: (212) 438-2588
Fax: (212) 438-2664
Fitch, Inc.
One State Street Plaza
New York, New York 10004
Attention: Carlen Moday
Phone: (212) 908-0682
Fax: (212) 480-4438
To the Underwriter: Banc of America Securities LLC
J.P. Morgan Securities Inc.
c/o Banc of America Securities LLC
10th Floor
100 North Tryon St.
Charlotte, NC 28255
Attention: Andy Glenn
Phone: (704) 386-7233
Fax: (704) 386-2731
To the Note Insurer: MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention: Insured Portfolio Management
Structured Finance (IPM-SF)
Phone: (914) 273-4545
Fax: (914) 765-3810
To the Swap Counterparty: Bank of America, N.A.
233 South Wacker Drive
Chicago, IL 60606-3606
Attention: Michael Bilello
Phone: (312) 234-2787
Fax: (312) 453-2787
31
Such notice request consent or other communication shall be deemed given when so
delivered, or if mailed, two days after deposit with the U.S. Postal Service.
Section 7.04 Severability of Provisions. If one or more of the provisions
of this Servicing Agreement shall be held invalid for any reason, such
provisions shall be deemed severable from the remaining provisions of this
Servicing Agreement and shall in no way affect the validity or enforceability of
such remaining provisions. To the extent permitted by law, the parties hereto
hereby waive any law which renders any provision of this Servicing Agreement
prohibited or unenforceable.
Section 7.05 Rights Cumulative. All rights and remedies under this
Servicing Agreement are cumulative, and none is intended to be exclusive of
another. No delay or omission in insisting upon the strict observance or
performance of any provision of this Servicing Agreement, or in exercising any
right or remedy, shall be construed as a waiver or relinquishment of such
provision, nor shall it impair such right or remedy. Every right and remedy may
be exercised from time to time and as often as deemed expedient.
Section 7.06 No Offset. Prior to the termination of this Servicing
Agreement, the obligations of the Servicer under this Servicing Agreement shall
not be subject to any defense, counterclaim or right of offset which the
Servicer may have against the Owner Trustee, the Seller, PeopleFirst Finance,
LLC, the Transferor, the Note Insurer, the Swap Counterparty, any Noteholder or
the Indenture Trustee, whether in respect of this Servicing Agreement, any
Receivable or otherwise.
Section 7.07 Inspection and Audit Rights. The Servicer agrees that, upon
prior written notice, it will permit the Owner Trustee, the Note Insurer or the
Indenture Trustee and their respective representatives, during the Servicer's
normal business hours, to examine the Servicer Files, all the books of account,
records, reports and other papers of the Servicer relating to the Receivables,
to make copies and extracts therefrom, to cause such books to be audited by
Independent Public Accountants selected by the Owner Trustee, and to discuss its
affairs, finances and accounts relating to the Receivables with its officers,
employees and independent certified public accountants, all at such reasonable
times and as often as may be reasonably requested. Any expense incident to the
exercise by the Owner Trustee, the Note Insurer or the Indenture Trustee of any
right under this paragraph 7.07 shall be borne by the Servicer. The Servicer
shall allow such examination within two Business Days of receipt of the required
notice if so requested by the requesting party.
Section 7.08 Powers of Attorney. The Owner Trustee shall, from time to
time, provide to the employees of the Servicer and the Indenture Trustee
limited, revocable powers of attorney or other such written authorizations as
may be appropriate to enable the Servicer and the Indenture Trustee to perform
its respective obligations under this Servicing Agreement and the Indenture;
provided, however, that the Owner Trustee shall not be required to provide such
powers with respect to any matter for which the Owner Trustee does not have
authority to perform itself.
Section 7.09 Assignment and Binding Effect. Except with respect to the
Grant of this Servicing Agreement by the Owner Trustee to the Indenture Trustee
under the Indenture and as
32
expressly provided herein, this Servicing Agreement may be assigned only with
the written consent of the parties hereto and the Note Insurer or, if a Note
Insurer Default has occurred and is continuing, the Noteholders constituting
Class A Noteholder Approval, or if the Aggregate Outstanding Principal Balance
of the Class A Notes has been reduced to zero and all Reimbursement Obligations
and reimbursement for all Swap Termination Payments paid under the Swap Policy
due to the Note Insurer shall have been paid in full, Noteholders constituting
Class B Noteholder Approval; however, in the event of an assignment, all
provisions of this Servicing Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto.
Section 7.10 Captions. The article, paragraph and other headings contained
in this Servicing Agreement are for reference purposes only, and shall not limit
or otherwise affect the meaning hereof.
Section 7.11 Legal Holidays. In the case where the date on which any action
required to be taken, document required to be delivered or payment required to
be made is not a Business Day in Plano, Texas, New York, New York or Falls
Church, Virginia such action, delivery or payment need not be made on that date,
but may be made on the next succeeding Business Day.
Section 7.12 Counterparts. This Servicing Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 7.13 Governing Law. This Servicing Agreement shall be deemed
entered into with and shall be governed by and interpreted in accordance with
the laws of the State of Texas, except to the extent that it is mandatory that
the laws of some other jurisdiction apply.
Section 7.14 Parties. Except as set forth in Section 7.17 hereof, this
Servicing Agreement shall inure solely to the benefit of and shall be binding
upon the parties hereto, and their respective successors, legal representatives
and assigns, and no other person shall have or be construed to have any
equitable right, remedy or claim under or in respect of or by virtue of this
Servicing Agreement or any provision contained herein.
Section 7.15 Relationship of the Parties. The relationship of the parties
to this Servicing Agreement is that of independent contractors. Neither this
Servicing Agreement nor any of the activities contemplated hereby shall be
deemed to create any partnership, joint venture, agency or employer/employee
relationship among the Servicer and the Owner Trustee.
Section 7.16 No Bankruptcy Petition Against the Owner Trustee or the
Seller. The Servicer and the Indenture Trustee agree that, prior to the date
that is one year and one day after the payment in full of all outstanding Class
A Notes and Class B Notes, none of them will institute against the Owner Trustee
or the Seller, or join any other Person in instituting against the Owner Trustee
or the Seller any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings under the laws of the United States
or any State of the United States. This Section 7.16 shall survive the
termination of this Servicing Agreement.
Section 7.17 Third Party Beneficiaries. This Servicing Agreement shall
inure to the benefit of each Noteholder, the Note Insurer, the Swap Counterparty
(unless the Interest Rate
33
Swap Agreement has been terminated and all amounts owed to the Swap Counterparty
have been paid in full), the Indenture Trustee and their respective successors
and assigns. Without limiting the generality of the foregoing, all covenants and
agreements in this Servicing Agreement which expressly confer rights upon the
Owner Trustee, the Note Insurer, the Noteholders, 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) or the Indenture Trustee shall be for
the benefit of and run directly to each Noteholder, 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 the
Indenture Trustee, and each Noteholder, 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 the Indenture Trustee
shall be entitled to rely on and enforce such covenants to the same extent as if
it were a party hereto. If a Note Insurer Default has occurred and is
continuing, all rights conferred on the Note Insurer by this Servicing Agreement
shall be suspended until such time as the Note Insurer Default has been fully
cured; provided, however, that upon such cure, the Note Insurer's rights shall
be immediately reinstated in full. Notwithstanding anything contained in this
Servicing Agreement to the contrary, the Noteholders shall have no rights to
enforce the provisions of this Servicing Agreement so long as there is no Note
Insurer Default that is continuing.
Section 7.18 Other Agreements. The Servicer will not be obligated or bound
by any provision or term of any other agreement, including the Indenture, the
Contribution Agreement and the Transfer and Assignment Agreement, except to the
extent, and only to the extent, expressly stated herein or therein.
Section 7.19 Procedure for Indemnification. Notwithstanding anything to the
contrary in this Servicing Agreement, in the event that a Person is entitled to
indemnification pursuant to the terms of this Servicing Agreement, such Person
(hereinafter called the "Indemnified Party") shall promptly notify the person
against whom such indemnity may be sought (hereinafter called the "Indemnifying
Party") in writing and the Indemnifying Party, upon request of the Indemnified
Party, shall retain counsel reasonably satisfactory to the Indemnified Party or,
at the Indemnified Party's option, such Indemnified Party may select its own
counsel with the consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed, to represent the Indemnified Party and any
others the Indemnifying Party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding. It
is understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm at any one time (in
addition to any local counsel) for all such Indemnified Parties (unless
necessary because of conflicts of interest), and all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Indemnified Party. The Indemnifying Party shall not be liable for
any settlement of any proceeding effected without its written consent, which
consent shall not be unreasonably withheld or delayed, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Party agrees to indemnify the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment.
Section 7.20 Reports to Holders. Any report, notice or financial statement
delivered pursuant to this Servicing Agreement by the Servicer to the
Noteholders shall be provided by
34
such Persons to each Noteholder at the address last provided to the Servicer by
the Indenture Trustee or such Noteholder.
Section 7.21 Purchase and Subsequent Pledge. The Servicer hereby
acknowledges that the Owner Trustee, concurrently with the execution of this
Servicing Agreement, will acquire the Receivables and the other items included
in the Trust Property pursuant to the Contribution Agreement and will Grant the
Receivables and the other items included in the Trust Property along with
certain of the Owner Trustee's rights under the Contribution Agreement, this
Servicing Agreement and the Transfer and Assignment Agreement to the Indenture
Trustee pursuant to the terms of the Indenture, and that the representations and
warranties contained in the Contribution Agreement, this Servicing Agreement and
the Transfer and Assignment Agreement and the rights of the Owner Trustee under
Section 7.02 of the Contribution Agreement, this Servicing Agreement and the
Transfer and Assignment Agreement are intended to benefit the Noteholders, the
Swap Counterparty (unless the Interest Rate Swap Agreement has been terminated
and all amounts owed to the Swap Counterparty have been paid in full) and the
Note Insurer.
Section 7.22 Limitation on Liability. Notwithstanding anything to the
contrary contained in this Agreement, the obligations of the Owner Trustee under
this Agreement are solely the corporate obligations of the Owner Trustee and
shall be payable by the Owner Trustee solely (y) from funds available pursuant
to and in accordance with the payment priorities set forth in Section 5.05(c) of
the Indenture or (z) to the extent that it receives additional funds designated
for such purposes or to the extent that it has additional funds available (other
than funds described in the preceding clause (y)) that would be in excess of
amounts that would be necessary to pay the debt and other obligations of such
entity incurred in accordance with its limited liability company agreement and
all financing documents to which it is a party as they come due. In addition, no
amount owing by the Owner Trustee hereunder in excess of the liabilities that it
is required to pay in accordance with the preceding sentence shall constitute a
"claim" (as defined in Section 101(5) of the Bankruptcy Code) against it. No
recourse shall be had for the payment of any amount owing hereunder or any other
obligation of, or claim against, the Owner Trustee arising out of or based upon
this Agreement against any member, employee, officer, agent, director or
authorized person of the Owner Trustee; provided, however, that the foregoing
shall not relieve any such person or entity of any liability they might
otherwise have as a result of fraudulent actions or omissions taken by them nor
shall the foregoing relieve any person of any liability expressly undertaken by
such person under the Transaction Documents.
Section 7.23 Limitation of Liability. It is expressly understood and agreed
by and between the parties hereto (i) that this Agreement is executed and
delivered by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee under the Amended and Restated Trust Agreement dated as of
December 17, 2002 with Capital One Auto Receivables, LLC (the "Trust Agreement")
in the exercise of the power and authority conferred and vested in it as such
Owner Trustee, (ii) each of the representations, undertakings and agreements
made herein by the Owner Trustee are not personal representations, undertakings
and agreements of Wilmington Trust Company, but are binding only on the trust
estate created pursuant to the Trust Agreement, (iii) nothing contained herein
shall be construed as creating any liability on Wilmington Trust Company,
individually or personally, to perform any covenant of the Owner Trustee either
expressed or implied contained herein, all such liability, if any, being
expressly
35
waived by the parties hereto and by any person claiming by, through or under any
such party, and (iv) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any indebtedness or expense of the Owner
Trustee or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Owner Trustee
under this Agreement.
36
IN WITNESS WHEREOF, the Owner Trustee, the Servicer and the Indenture
Trustee have caused this Servicing Agreement to be duly executed by their
respective authorized officers as of the date and year first above written.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee for
Capital One Auto Finance Trust 2002-C
By: /s/ Donald G. Mackelcan
------------------------------------------------
Name: Donald G. Mackelcan
Title: Vice President
S-1
CAPITAL ONE AUTO FINANCE, INC., as
Servicer
By: /s/ Jeffery A. Elswick
------------------------------------------------
Name: Jeffery A. Elswick
Title: Manager of Securitization
S-2
JPMORGAN CHASE BANK,
as Indenture Trustee
By: /s/ Craig M. Kantor
------------------------------------------------
Name: Craig M. Kantor
Title: Vice President
S-3
EXHIBIT A
MONTHLY SERVICER'S REPORT
A-1
EXHIBIT B
FORMS OF LATE NOTICES SENT
TO OBLIGORS RE: DELINQUENCIES
[Date]
[Name]
[Address]
[Address]
Dear [Name]:
Our records indicate we have not received your payment in the amount of
$ which was due [due date].
----------
If you have not already done so, please forward your check for $
---------
by return mail to bring your account current. If payment is not received by
[date], your account will be assessed a late charge of $ .
----------
If payment has been sent, please disregard this notice.
Sincerely,
CAPITAL ONE AUTO FINANCE, INC.
By:
------------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
B-1
EXHIBIT C
REQUEST FOR RELEASE OF RECEIVABLE FILE
To: *[_________________] DATE PREPARED
In connection with the administration of the pool of receivables
("Receivables") held by you as custodian ("Custodian"), pursuant to the
Indenture dated as of December 17, 2002 (the "Indenture") by and between
Wilmington Trust Company, not in its individual capacity but solely as Owner
Trustee for Capital One Auto Finance Trust 2002-C, as owner trustee (the "Owner
Trustee"), and you, as Indenture Trustee and Custodian, the undersigned, as
servicer ("Servicer") of the Receivables pursuant to the Servicing Agreement
dated as of December 17, 2002 by and among the Owner Trustee, JPMorgan Chase
Bank, as Indenture Trustee, and the Servicer (the "Servicing Agreement"),
requests the release of the Receivable file described below for the reason
indicated. The undersigned shall hold such documents in trust on behalf of the
Custodian and shall return the documents to the Custodian when the undersigned's
need therefor no longer exists, except where the Receivable is paid in full,
repossessed, liquidated or repurchased (as indicated below).
The undersigned hereby certifies that if this release is requested due to
payment in full of a Receivable, or repurchase upon breach, all amounts received
in connection therewith which are required to be deposited in the Collection
Account pursuant to Section 3.02 of the Servicing Agreement have been so
deposited.
REASON FOR REQUESTING DOCUMENTS:
RECEIVABLE PAID IN FULL
REPOSSESSION
LIQUIDATION
REPURCHASE UPON BREACH
OTHER
Capital One Auto Finance, Inc.
3901 Dallas Parkway Authorized Signature of Servicer
Plano, Texas 75093
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
C-1
COMMITMENT/POOL NUMBER
LOAN NUMBER
CUSTOMER
TO CUSTODIAN: Please acknowledge below by your signature the execution of the
above request. You must retain this form for your file, and a copy of this form,
signed and dated by you, shall be returned to the Servicer.
Authorized Signature of Custodian Release Date
SERVICER RECEIPT
The undersigned, on behalf of the Servicer, hereby acknowledges that the
Servicer is holding the documents described below relating to the Receivables on
behalf of the Indenture Trustee, the Noteholders and the Note Insurer, as their
interests may appear.
Documents:
Authorized Signature of Servicer
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
RETURN OF RELEASED DOCUMENT(S)/FILE
All Documents Identified above as Previously Released Have Been Returned:
Authorized Signature of Custodian Date of Return
C-2
EXHIBIT D
COAF'S CREDIT POLICY
D-1
EXHIBIT E
COAF'S COLLECTION POLICY
E-1
EXHIBIT F
FORM OF INVESTOR CERTIFICATION
JPMorgan Chase Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Corporate Trust Services -- Asset-Backed Administration
In accordance with Section 3.05 of the Servicing Agreement (the
"Agreement"), with respect to Series 2002-C Notes (the "Notes"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of $ in
----------------
principal balance of the Notes.
2. The undersigned is requesting a password pursuant to Section 3.05 of
the Agreement for access to certain information (the "Information") on
the Indenture Trustee's website.
3. In consideration of the Indenture Trustee's disclosure to the
undersigned of the Information, or the password in connection
therewith, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in connection
with the related Notes, from its accountants and attorneys, and
otherwise from such governmental or banking authorities or agencies to
which the undersigned is subject), and such Information will not,
without the prior written consent of the Indenture Trustee, be
otherwise disclosed by the undersigned or by its officers, directors,
partners, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange
Act of 1934, as amended, or would require registration of any
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement
by itself or any of its Representatives and shall indemnify the
Issuer, the Servicer and the Indenture Trustee for any loss, liability
or expense incurred thereby with respect to any such breach by the
undersigned or any of its Representatives.
6. Capitalized terms used by not defined herein shall have the respective
meanings assigned thereto in the Agreement.
F-1
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereby
by its duly authorized officer, as of the day and year written above.
---------------------------------------------------
Beneficial Owner
By:
------------------------------------------------
Title:
---------------------------------------------
Company:
-------------------------------------------
Phone
----------------------------------------------
F-2