Capital One 汽车贷款ABS信托2026-1完成约19.75亿美元票据定价，属常规证券化发行

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8-K
1
d117449d8k.htm
8-K
8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
Current Report
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): September 9, 2026
Capital One Auto Receivables, LLC
(Exact Name of Depositor as Specified in its Charter)
Commission File Number:
333-286543
Central Index Key Number: 0001133438
Capital One Prime Auto Receivables Trust
2026-1
(Exact Name of Issuing Entity as Specified in its Charter)
Commission File Number:
333-286543-02
Central Index Key Number: 0002149906
Capital One, National Association
(Exact Name of Sponsor as Specified in its Charter)
Central Index Key Number: 0000047288
Delaware
(State or Other
Jurisdiction of Incorporation of Registrant)
31-1750007
(Registrant’s I.R.S. Employer Identification No.)
Capital One Auto Receivables, LLC
1600 Capital One Drive, Room 27907B
McLean, Virginia
22102
(Address of Registrant’s Principal Executive Offices)
(Zip Code)
(703)
720-3148
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form
8-K
filing is intended to simultaneously satisfy the filing obligation of
the Registrant under any of the following provisions:
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to
Rule 14a-12
under the Exchange Act
(17 CFR
240.14a-12)
☐
Pre-commencement
communications pursuant to
Rule 14d-2(b)
under the Exchange Act (17 CFR
240.14d-2(b))
☐
Pre-commencement
communications pursuant to
Rule 13e-4(c)
under the Exchange Act (17 CFR
240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Securities Exchange Act of 1934:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which registered
N/A
N/A
N/A
Indicate by check mark whether the Registrant is an emerging growth company as defined in Rule 405 of the Securities Act of
1933 (§230.405 of this chapter) or Rule
12b-2
of the Securities Exchange Act of 1934
(§240.12b-2
of this chapter).
Emerging growth company ☐
If an emerging growth
company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On September 9, 2026, Capital One Auto Receivables, LLC (“
COAR
”) and Capital One, National Association (the
“
Bank
”) entered into an underwriting agreement (the “
Underwriting Agreement
”) with J.P. Morgan Securities LLC, BofA Securities, Inc. and RBC Capital Markets, LLC, each as underwriter and as representative of the
several underwriters identified therein, for the sale of the following notes to be issued by Capital One Prime Auto Receivables Trust
2026-1
(the “
Issuing Entity
”):
Class A-2-A
4.48% Auto Loan Asset Backed Notes in an initial amount of $543,760,000,
Class A-2-B
SOFR Rate + 0.37% Auto Loan Asset Backed Notes in an initial amount of $150,000,000,
Class A-3
4.77% Auto
Loan Asset Backed Notes in an initial amount of $693,760,000 and
Class A-4
4.88% Auto Loan Asset Backed Notes in an initial amount of $112,480,000 (collectively, the “
Publicly Registered
Notes
”). The Issuing Entity will also issue $336,400,000 of
Class A-1
Auto Loan Asset Backed Notes, $28,620,000 of
Class A-2-A
Auto Loan Asset Backed Notes, $7,900,000 of
Class A-2-B
Auto Loan
Asset Backed Notes, $36,520,000 of
Class A-3
Auto Loan Asset Backed Notes, $5,930,000 of
Class A-4
Auto Loan Asset Backed Notes, $19,740,000 of Class B
Auto Loan Asset Backed Notes, $19,740,000 of Class C Auto Loan Asset Backed Notes, and $19,740,000 of Class D Auto Loan Asset Backed Notes (collectively, the “
Retained Notes
,” and together with the Publicly Registered
Notes, the “
Notes
”). The Notes have an aggregate principal balance of $1,974,590,000 and will be issued on or about September 17, 2026 (the “
Closing Date
”).
Attached as Exhibit 1.1 is the Underwriting Agreement.
Item 8.01. Other Events.
COAR and
the Bank will enter into a purchase agreement (the “
Purchase Agreement
”), to be dated as of the Closing Date, whereby the Bank will transfer to COAR certain motor vehicle retail installment sales contracts relating to new or used
automobiles, light-duty trucks, SUVs and vans (the “
Receivables
”) and related property. Certain representations made by the Bank with respect to such Receivables under the Purchase Agreement may be reviewed, upon the satisfaction
of certain conditions, pursuant to an asset representations review agreement (the “
Asset Representations Review Agreement
”), to be dated as of the Closing Date, between the Issuing Entity, the Bank and Clayton Fixed Income
Services, LLC (“
Clayton
”), as asset representations reviewer. The Receivables and related property will subsequently be transferred to the Issuing Entity pursuant to a sale agreement (the “
Sale Agreement
”), to
be dated as of the Closing Date, between the Issuing Entity and COAR. The Bank will manage, service and otherwise administer the Receivables pursuant to a servicing agreement (the “
Servicing Agreement
”), to be dated as of the
Closing Date, between the Bank, as servicer, the Issuing Entity and Wilmington Trust, National Association, as indenture trustee (in such capacity, the “
Indenture Trustee
”).
The Issuing Entity, a Delaware statutory trust, was established pursuant to a trust agreement dated as of July 24, 2026, which will be
amended and restated by an Amended and Restated Trust Agreement to be dated as of the Closing Date (the “
Amended and Restated Trust Agreement
”), between COAR and BNY Mellon Trust of Delaware, as owner trustee (in such capacity,
the “
Owner Trustee
”), and acknowledged and agreed to by Wilmington Trust, National Association, as certificate registrar and certificate paying agent. The Issuing Entity will enter into an indenture (the
“
Indenture
”), to be dated as of the Closing Date, between the Issuing Entity and the Indenture Trustee, pursuant to which the Issuing Entity will cause the issuance of the Notes and will grant a security interest in the
Receivables and other related property to the Indenture Trustee in order to secure the Notes. The Bank will provide certain administrative services on behalf of the Issuing Entity relating to the Notes under an administration agreement (the
“
Administration Agreement
”), to be dated as of the Closing Date, between the Bank, the Issuing Entity and the Indenture Trustee.
Substantially final versions of the transaction documents, the forms of which were filed as Exhibits to the Registration Statement, are being
filed on this Current Report in order to satisfy the requirements of Item 1100(f) of Regulation AB. Attached as Exhibit 4.1 is the form of Indenture, as Exhibit 10.1 is the form of Purchase Agreement, as Exhibit 10.2 is the form of Asset
Representations Review Agreement, as Exhibit 10.3 is the form of Sale Agreement, as Exhibit 10.4 is the form of Servicing Agreement, as Exhibit 10.5 is the form of Amended and Restated Trust Agreement and as Exhibit 10.6 is the form of
Administration Agreement.
2
In connection with the offering of the Publicly Registered Notes, the president of the
Registrant has made the certifications required by Paragraph I.B.1(a) of Form
SF-3
attached as Exhibit 36.1. The certification is being filed on this Current Report to satisfy the requirements of
Item 601(b)(36) of Regulation
S-K.
Item 9.01. Financial Statements and Exhibits.
(a)
Not applicable.
(b)
Not applicable.
(c)
Not applicable.
(d)
Exhibits.
Exhibit
No.
Document Description
1.1
Underwriting Agreement, dated as of September
9, 2026, between J.P. Morgan Securities LLC, BofA Securities, Inc. and RBC Capital Markets, LLC, each as underwriter and as representative of the several underwriters identified therein, COAR and the Bank.
4.1
Form of Indenture, to be dated as of the Closing Date, between the Issuing Entity and the Indenture Trustee.
10.1
Form of Purchase Agreement, to be dated as of the Closing Date, between COAR and the Bank.
10.2
Form of Asset Representations Review Agreement, to be dated as of the Closing Date, between the Issuing Entity, the Bank and Clayton.
10.3
Form of Sale Agreement, to be dated as of the Closing Date, between the Issuing Entity and COAR.
10.4
Form of Servicing Agreement, to be dated as of the Closing Date, between the Bank, the Issuing Entity and the Indenture Trustee.
10.5
Form of Amended and Restated Trust Agreement, to be dated as of the Closing Date, between COAR and the Owner Trustee, and acknowledged and agreed to by Wilmington Trust, National Association, as certificate
registrar and certificate paying agent.
10.6
Form of Administration Agreement, to be dated as of the Closing Date, between the Issuing Entity, the Bank and the Indenture Trustee.
36.1
Depositor Certification, dated September 9, 2026, for shelf offerings of asset-backed securities.
3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
September 11, 2026
CAPITAL ONE AUTO RECEIVABLES, LLC
By:
/s/ Eric Bauder
Name:
Eric Bauder
Title:
Assistant Vice President, Treasurer
S-1
Form
8-K
re: Pricing

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EX-10.1
4
d117449dex101.htm
EX-10.1
EX-10.1
Exhibit 10.1
PURCHASE AGREEMENT
dated
as of September 17, 2026
between
CAPITAL ONE, NATIONAL ASSOCIATION
and
CAPITAL ONE AUTO
RECEIVABLES, LLC,
as Purchaser
COPAR 2026-1 Purchase Agreement
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND USAGE
SECTION 1.1 Definitions
1
SECTION 1.2 Other Interpretive Provisions
1
ARTICLE II PURCHASE
SECTION 2.1 Agreement to Sell and Contribute on the Closing Date
2
SECTION 2.2 Consideration and Payment for the Purchased Assets
2
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.1 Representations and Warranties of the Bank
2
SECTION 3.2 Representations and Warranties of the Bank Regarding the Purchased Assets
3
SECTION 3.3 Representations and Warranties of the Bank as to each Receivable
4
SECTION 3.4 Repurchase upon Breach
4
SECTION 3.5 Protection of Title.
5
SECTION 3.6 Other Liens or Interests
6
SECTION 3.7 Official Record
6
SECTION 3.8 Merger or Consolidation of, or Assumption of the Obligations of, the Bank
6
SECTION 3.9 Bank May Own Notes and Certificates
6
SECTION 3.10 Compliance with the FDIC Rule
7
SECTION 3.11 Dispute Resolution
7
SECTION 3.12 Cooperation with Voting
11
ARTICLE IV MISCELLANEOUS
SECTION 4.1 Transfers Intended as Sale; Security Interest
11
SECTION 4.2 Notices, Etc.
12
SECTION 4.3 Choice of Law
12
SECTION 4.4 Headings
12
SECTION 4.5 Counterparts
12
SECTION 4.6 Amendment
12
SECTION 4.7 Waivers
14
SECTION 4.8 Entire Agreement
14
SECTION 4.9 Severability of Provisions
14
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COPAR 2026-1 Purchase Agreement
TABLE OF CONTENTS
(continued)
Page
SECTION 4.10 Binding Effect
14
SECTION 4.11 Acknowledgment and Agreement
14
SECTION 4.12 Cumulative Remedies
15
SECTION 4.13 Nonpetition Covenant
15
SECTION 4.14 Submission to Jurisdiction; Waiver of Jury Trial
15
SECTION 4.15 Not Applicable to the Bank in Other Capacities
16
SECTION 4.16 Third-Party Beneficiaries
16
EXHIBITS
Exhibit A
Form of Assignment Pursuant to Purchase Agreement
Schedule I
Perfection Representations, Warranties and Covenants
Schedule II
Representations and Warranties with Respect to the Receivables
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COPAR 2026-1 Purchase Agreement
THIS PURCHASE AGREEMENT
is made and entered into as of September 17, 2026
(as amended, restated, supplemented or otherwise modified and in effect from time to time, this “
Agreement
”) by CAPITAL ONE, NATIONAL ASSOCIATION, a national banking association (the “
Bank
”), and
CAPITAL ONE AUTO RECEIVABLES, LLC, a Delaware limited liability company (“
COAR
”).
WITNESSETH:
WHEREAS, COAR desires to purchase from the Bank a portfolio of motor vehicle receivables, including motor vehicle retail installment sale
contracts and/or installment loans that are secured by new and used automobiles, light-duty trucks, SUVs and vans; and
WHEREAS, the Bank
is willing to sell such portfolio of motor vehicle receivables and related property to COAR on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
SECTION 1.1
Definitions
. Except as otherwise defined herein or as the context may otherwise require, capitalized terms used but
not otherwise defined herein are defined in
Appendix
A
to the Sale Agreement, dated as of the date hereof (as amended, supplemented, or otherwise modified and in effect from time to time, the “
Sale
Agreement
”), between the Issuer and COAR, which also contains rules as to usage that are applicable herein. As used herein, the following terms shall have the following meanings:
“
Purchased Assets
” has the meaning specified in
Section
2.1
.
SECTION 1.2
Other Interpretive Provisions
. For purposes of this Agreement, unless the context otherwise requires: (a) accounting
terms not otherwise defined in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under GAAP (
provided,
that, to the extent that the definitions in
this Agreement and GAAP conflict, the definitions in this Agreement shall control); (b) terms defined in Article 9 of the UCC as in effect in the relevant jurisdiction and not otherwise defined in this Agreement are used as defined in that Article;
(c) the words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) references to any Article,
Section, Schedule, Appendix or Exhibit are references to Articles, Sections, Schedules, Appendices and Exhibits in or to this Agreement and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or definition; (e) the term “including” and all variations thereof means “including without limitation”; (f) except as otherwise expressly
provided herein, references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (g) references to any Person include that Person’s successors and assigns; and
(h) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
COPAR 2026-1 Purchase Agreement
ARTICLE II
PURCHASE
SECTION 2.1
Agreement to Sell and Contribute on the Closing Date
. On the terms and subject to the conditions set forth in this Agreement, the Bank does hereby sell, transfer, assign, set over, contribute and otherwise convey to COAR without recourse
(subject to the obligations herein) on the Closing Date all of its right, title, interest, claims and demands in, to and under the Receivables, the Collections after the
Cut-Off
Date, the Receivable Files and
the Related Security relating thereto, whether now owned or hereafter acquired, as evidenced by an assignment substantially in the form of
Exhibit A
(the “
Assignment
”) delivered on the Closing Date (collectively, the
“
Purchased Assets
”). The sale, transfer, assignment, contribution and conveyance made hereunder does not constitute and is not intended to result in an assumption by COAR of any obligation of the Bank to the Obligors, the Dealers,
insurers or any other Person in connection with the Receivables or the other assets and properties conveyed hereunder or any agreement, document or instrument related thereto.
SECTION 2.2
Consideration and Payment for the Purchased Assets
. The purchase price for the sale of the Purchased Assets sold to COAR on
the Closing Date shall equal the estimated fair market value of the Purchased Assets on the Closing Date. Such purchase price shall be paid (a) in cash to the Bank in an amount agreed to between the Bank and COAR, (b) by delivery to or
upon the order of the Bank, the 144A Notes and, (c) to the extent not paid in cash by COAR, shall be paid by a capital contribution by the Bank of an undivided interest in such Purchased Assets that increases its equity interest in COAR in an
amount equal to the excess of the estimated fair market value of the Purchased Assets over the amount of cash paid by COAR to the Bank and the value of the 144A Notes.
ARTICLE III
REPRESENTATIONS,
WARRANTIES AND COVENANTS
SECTION 3.1
Representations and Warranties of the Bank
. The Bank makes the following representations and
warranties as of the Closing Date, on which COAR will be deemed to have relied in acquiring the Purchased Assets. The representations and warranties will survive the conveyance of the Purchased Assets to COAR pursuant to this Agreement, the
conveyance of the Purchased Assets by COAR to the Issuer pursuant to the Sale Agreement and the Grant thereof by the Issuer to the Indenture Trustee for the benefit of the Noteholders pursuant to the Indenture.
(a)
Existence and Power
. The Bank is a national banking association validly subsisting under the laws of the United States of America
and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Bank has obtained all necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely
affect the ability of the Bank to perform its obligations under this Agreement or affect the enforceability or collectability of the Receivables or any other part of the Purchased Assets.
(b)
Authorization and No Contravention
. The execution, delivery and performance by the Bank of this Agreement (i) have been duly
authorized by all necessary action on the part of the Bank and (ii) do not contravene or constitute a default under (A) any applicable
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COPAR 2026-1 Purchase Agreement
order, law, rule or regulation, (B) its organizational documents or (C) any material agreement, contract, order or other instrument to which it is a party or its property is subject
(other than violations which do not affect the legality, validity or enforceability of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Bank’s
ability to perform its obligations under, this Agreement).
(c)
No Consent Required
. No approval or authorization by, or filing
with, any Governmental Authority is required in connection with the execution, delivery and performance by the Bank of this Agreement other than (i) UCC filings, (ii) approvals and authorizations that have previously been obtained and
filings that have previously been made and (iii) approvals, authorizations or filings which, if not obtained or made, would not have a material adverse effect on the enforceability or collectability of the Receivables or any other part of the
Purchased Assets or would not materially and adversely affect the ability of the Bank to perform its obligations under this Agreement.
(d)
Binding Effect
. This Agreement constitutes the legal, valid and binding obligation of the Bank enforceable against the Bank in
accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws affecting the enforcement of creditors’ rights
generally and, if applicable, the rights of creditors of banking corporations from time to time in effect or by general principles of equity.
(e)
No Proceedings
. There are no Proceedings pending or, to the knowledge of the Bank, threatened against the Bank before or by any
Governmental Authority that (i) assert the invalidity or unenforceability of this Agreement or (ii) seek any determination or ruling that would materially and adversely affect the performance by the Bank of its obligations under this
Agreement.
(f)
Lien Filings
. The Bank is not aware of any material judgment, ERISA or tax lien filings against the Bank.
SECTION 3.2
Representations and Warranties of the Bank Regarding the Purchased Assets
. On the date hereof, the Bank hereby makes the
following representations and warranties to COAR as to the Receivables sold, transferred, assigned, contributed and otherwise conveyed to COAR under this Agreement on which such representations and warranties COAR will be deemed to have relied in
acquiring the Receivables and which will survive the conveyance of the Purchased Assets to COAR pursuant to this Agreement, the conveyance of the Purchased Assets by COAR to the Issuer pursuant to the Sale Agreement and the Grant thereof by the
Issuer to the Indenture Trustee for the benefit of the Noteholders pursuant to the Indenture:
(a) The Receivables were selected using
selection procedures that were not known or intended by the Bank to be adverse to the Issuer.
(b) The Receivables and the other Purchased
Assets have been validly assigned by the Bank to COAR.
-3-
COPAR 2026-1 Purchase Agreement
(c) The information with respect to the Receivables transferred on the Closing Date as set
forth in the Schedule of Receivables was true and correct in all material respects as of the
Cut-Off
Date.
(d) No Receivables are pledged, assigned, sold, subject to a security interest or otherwise conveyed by the Bank other than pursuant to the
Transaction Documents. The Bank has not authorized the filing of and is not aware of any authorized financing statements against the Bank that includes a description of collateral covering any Receivable other than any financing statement relating
to security interests granted under the Transaction Documents or that have been or, prior to the assignment of such Receivables hereunder, will be terminated, amended or released. This Agreement creates a valid and continuing security interest in
the Receivables (other than the Related Security with respect thereto, to the extent that an ownership interest therein cannot be perfected by the filing of a financing statement) in favor of COAR which security interest is prior to all other Liens
created by the Bank (other than Permitted Liens) with respect to the Receivables and is enforceable as such against all other creditors of and purchasers and assignees from the Bank.
(e) The representations and warranties regarding creation, perfection and priority of security interests in the Purchased Assets, which are
attached to this Agreement as
Schedule I
, are true and correct.
SECTION 3.3
Representations and Warranties of the Bank as to
each Receivable
. The Bank hereby makes the representations and warranties set forth on
Schedule II
as to the Receivables sold, transferred, assigned, set over and otherwise conveyed to COAR under this Agreement on which such
representations and warranties COAR relies in acquiring the Receivables. Such representations and warranties shall survive the sale of the Purchased Assets by COAR to the Issuer under the Sale Agreement and the Grant of the Purchased Assets by the
Issuer to the Indenture Trustee for the benefit of the Noteholders pursuant to the Indenture. Notwithstanding any statement to the contrary contained herein or in any other Transaction Document, the Bank shall not be required to notify any insurer
with respect to any Insurance Policy obtained by an Obligor or to notify any Dealer about any aspect of the transaction contemplated by this Agreement. The Bank hereby agrees that the Issuer shall have the right to enforce any and all rights under
this Agreement assigned to the Issuer under the Sale Agreement, including the right to cause the Bank to repurchase any Receivable with respect to which it is in breach of any of its representations and warranties set forth in
Schedule II
,
directly against the Bank as though the Issuer were a party to this Agreement, and the Issuer shall not be obligated to exercise any such rights indirectly through COAR.
SECTION 3.4
Repurchase upon Breach
. Upon discovery by or notice to a Responsible Officer of COAR or the Bank of a breach of any of the
representations and warranties set forth in
Section
3.3
with respect to any Receivable at the time such representations and warranties were made which materially and adversely affects the interests of the Issuer, the
Noteholders or the Certificateholders, the party discovering such breach or receiving such notice shall give prompt written notice thereof to the other party;
provided
, that delivery of a Servicer’s Report which identifies that
Receivables are being or have been repurchased shall be deemed to constitute prompt notice of such breach;
provided
,
further
, that the failure to give such notice shall not affect any obligation of the Bank hereunder. If the breach
materially and adversely affects the
-4-
COPAR 2026-1 Purchase Agreement
interests of the Issuer, the Noteholders or the Certificateholders, then the Bank shall either (a) correct or cure such breach or (b) repurchase such Receivable from COAR (or its
assignee), in either case on or before the Payment Date following the end of the Collection Period which includes the sixtieth (60
th
) day (or, if the Bank elects, an earlier date) after the date
that the Bank became aware or was notified of such breach. Any such breach or failure will be deemed not to have a material and adverse effect if such breach or failure has not affected the ability of COAR (or its assignee) to receive and retain
timely payment in full on such Receivable. Any such purchase by the Bank shall be at a price equal to the related Repurchase Price. In consideration for such repurchase, the Bank shall make (or shall cause to be made) a payment to COAR (or its
assignee) equal to the Repurchase Price by depositing such amount into the Collection Account prior to noon, New York City time, on the date of such repurchase, if such repurchase date is not a Payment Date or, if such repurchase date is a Payment
Date, then prior to the close of business on the Business Day prior to such repurchase date. Upon payment of such Repurchase Price by the Bank, COAR (or its assignee) shall release and shall execute and deliver such instruments of release, transfer
or assignment, in each case without recourse or representation, as may be reasonably requested by the Bank to evidence such release, transfer or assignment or more effectively vest in the Bank or its designee any Receivable and the related
Purchased Assets repurchased pursuant hereto. It is understood and agreed that the obligation of the Bank to purchase any Receivable as described above shall constitute the sole remedy respecting such breach available to COAR (or its assignee).
SECTION 3.5
Protection of Title
.
(a) The Bank shall authorize and file such financing statements and cause to be authorized and filed such continuation and other financing
statements, all in such manner and in such places as may be required by law fully to preserve, maintain and protect the interest of COAR under this Agreement in the Purchased Assets (to the extent that the interest of COAR therein can be perfected
by the filing of a financing statement). The Bank shall deliver (or cause to be delivered) to COAR file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing.
(b) The Bank shall notify COAR in writing within ten (10) days following the occurrence of (i) any change in the Bank’s
organizational structure as a banking corporation, (ii) any change in the Bank’s “location” (within the meaning of
Section 9-307
of the UCC) and (iii) any change in the
Bank’s name, and shall take all action prior to making such change (or shall have made arrangements to take such action substantially simultaneously with such change, if it is not practicable to take such action in advance) reasonably
necessary or advisable in the opinion of COAR to amend all previously filed financing statements or continuation statements described in paragraph (a) above. The Bank will at all times maintain its “location” within the United
States.
(c) The Bank shall maintain (or shall cause the Servicer to maintain) its computer systems so that, from time to time after the
conveyance under this Agreement of the Receivables, the master computer records (including any backup archives) that refer to a Receivable shall indicate clearly the interest of COAR (or any subsequent assignee of COAR) in such Receivable and that
such Receivable is owned by such Person. Indication of such Person’s interest in a Receivable shall not be deleted from or modified on such computer systems until, and only until, the related Receivable shall have been paid in full or
repurchased.
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COPAR 2026-1 Purchase Agreement
(d) If at any time the Bank shall propose to sell, grant a security interest in or otherwise
transfer any interest in motor vehicle receivables to any prospective purchaser, lender or other transferee, the Bank shall give to such prospective purchaser, lender or other transferee computer tapes, records or printouts (including any restored
from backup archives) that, if they shall refer in any manner whatsoever to any Receivable, shall indicate clearly that such Receivable has been sold and is owned by COAR (or any subsequent assignee of COAR).
SECTION 3.6
Other Liens or Interests
. Except for the conveyances and grants of security interests pursuant to this Agreement and the
other Transaction Documents, the Bank shall not sell, pledge, assign or transfer the Receivables or other property transferred to COAR to any other Person, or grant, create, incur, assume or suffer to exist any Lien (other than Permitted Liens) on
any interest therein, and the Bank shall defend the right, title and interest of COAR in, to and under such Receivables or other property transferred to COAR against all claims of third parties claiming through or under the Bank.
SECTION 3.7
Official Record
. So long as the Notes and the Certificates remain outstanding, this Agreement shall be treated as an
official record of the Bank within the meaning of Section 13(e) of the Federal Deposit Insurance Act (12 U.S.C. Section 1823(e)).
SECTION 3.8
Merger or Consolidation of, or Assumption of the Obligations of, the Bank
. Any Person (i) into which the Bank may be
merged or converted or with which it may be consolidated, to which it may sell or transfer its business and assets as a whole or substantially as a whole, (ii) resulting from any merger, sale, transfer, conversion, or consolidation to which the
Bank shall be a party, (iii) succeeding to the business of the Bank, or (iv) more than 50% of the voting stock or voting power and 50% or more of the economic equity of which is owned directly or indirectly by Capital One Financial
Corporation, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Bank under this Agreement, will be the successor to the Bank under this Agreement without the execution or filing of any
document or any further act on the part of any of the parties to this Agreement anything herein to the contrary notwithstanding. Notwithstanding the foregoing, if the Bank enters into any of the foregoing transactions and is not the surviving
entity, the Bank will deliver to the Indenture Trustee and the Owner Trustee an Opinion of Counsel either (A) stating that, in the opinion of such counsel, all financing statements and continuation statements and amendments thereto have been
executed and filed that are necessary to preserve and protect the interest of the Issuer and, if the Notes are Outstanding, the Indenture Trustee for the benefit of the Noteholders, respectively, in the Receivables, or (B) stating that, in the
opinion of such counsel, no such action is necessary to preserve and protect such interest.
SECTION 3.9
Bank May Own Notes and
Certificates
. The Bank, and any Affiliate of the Bank, may in its individual or any other capacity become the owner or pledgee of Notes and Certificates with the same rights as it would have if it were not the Bank or an Affiliate thereof,
except as otherwise expressly provided herein or in the other Transaction Documents. Except as set forth herein or in the other Transaction Documents, Notes and Certificates so owned by the Bank or any such Affiliate will have an equal and
proportionate benefit under the provisions of this Agreement and the other Transaction Documents, without preference, priority, or distinction as among all of the Notes and Certificates.
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COPAR 2026-1 Purchase Agreement
SECTION 3.10
Compliance with the FDIC Rule
. The Bank (i) shall perform the
covenants set forth in
Article XII
of the Indenture applicable to it and (ii) shall facilitate compliance with
Article XII
of the Indenture by the Capital One Parties.
SECTION 3.11
Dispute Resolution
.
(a) If any Receivable is subject to repurchase pursuant to
Section
3.4
of this Agreement, which repurchase is not
resolved in accordance with the terms of this Agreement within one hundred eighty (180) days after notice is delivered to the Bank by a Requesting Investor, the Requesting Investor providing such notice (the “
Requesting
Party
”) will have the right to refer the matter, at its discretion, to either third-party mediation (including nonbinding arbitration) or binding arbitration pursuant to this
Section
3.11
and the Bank is hereby
deemed to consent to the selected resolution method. At the end of the
180-day
period described above, the Bank may provide notice informing the Requesting Party of the status of its request or, in the absence
of any such notice, the Requesting Party may presume that its request remains unresolved. The Requesting Party must provide written notice of its intention to refer the matter to mediation (including nonbinding arbitration) or arbitration to the
Bank within thirty (30) days following such 180
th
day. The Bank agrees to participate in the resolution method selected by the Requesting Party.
(b) If the Requesting Party selects mediation (including nonbinding arbitration) as the resolution method, the following provisions will
apply:
(i) the mediation will be administered by the American Arbitration Association (the “
AAA
”)
pursuant to its Commercial Arbitration Rules and Mediation Procedures in effect at the time the mediation is initiated (the “
Rules
”);
provided
, that if any of the provisions in the Rules are inconsistent with the procedures
for the mediation or arbitration stated in this Agreement, the procedures in this Agreement will control;
(ii) the
mediator must be a Qualified Dispute Resolution Professional. Upon being supplied a list, by the AAA, of at least ten (10) potential mediators that are each Qualified Dispute Resolution Professionals, each of the Requesting Party and the Bank
will have the right to exercise two (2) peremptory challenges within fourteen (14) days and to rank the remaining potential mediators in order of preference. The AAA will select the mediator from the remaining potential mediators on the
list, respecting the preference choices of the parties to the extent possible;
(iii) each of the Requesting Party and the
Bank will use commercially reasonable efforts to begin the mediation within ten (10) Business Days of the selection of the mediator and to conclude the mediation within thirty (30) days of the start of the mediation;
(iv) the fees and expenses of the mediation will be allocated as mutually agreed by the Requesting Party and the Bank as part
of the mediation; and
(v) a failure by the Requesting Party and the Bank to resolve a disputed matter through mediation
shall not preclude either party from seeking a resolution of such
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COPAR 2026-1 Purchase Agreement
matter through the initiation of a judicial proceeding in a court of competent jurisdiction, subject to
Section
3.11(d)
below.
(c) If the Requesting Party selects arbitration as the resolution method, the following provisions will apply:
(i) the arbitration will be held in accordance with the United States Arbitration Act, notwithstanding any choice of law
provision in this Agreement, and under the auspices of the AAA and in accordance with the Rules;
(ii) if the repurchase
request specified in
Section
3.11(a)
involves the repurchase of an aggregate amount of Receivables with an aggregate Outstanding Principal Balance of less than five percent (5%) of the total Outstanding Principal Balance of
the Receivables as of the date of such repurchase request, a single arbitrator will be used. That arbitrator must be a Qualified Dispute Resolution Professional. Upon being supplied a list of at least ten (10) potential arbitrators that are
each Qualified Dispute Resolution Professionals by the AAA, each of the Requesting Party and the Bank will have the right to exercise two (2) peremptory challenges within fourteen (14) days and to rank the remaining potential arbitrators
in order of preference. The AAA will select the arbitrator from the remaining potential arbitrators on the list respecting the preference choices of the parties to the extent possible;
(iii) if the repurchase request specified in
Section
3.11(a)
involves the repurchase of an aggregate
amount of Receivables with an aggregate Outstanding Principal Balance equal to or in excess of five percent (5%) of the total Outstanding Principal Balance of the Receivables as of the date of such repurchase request, a three-arbitrator panel will
be used. The arbitral panel will consist of three Qualified Dispute Resolution Professionals, (A) one to be appointed by the Requesting Party within five (5) Business Days of providing notice to the Bank of its selection of arbitration,
(B) one to be appointed by the Bank within five (5) Business Days of the Requesting Party’s appointment of an arbitrator, and (C) the third, who will preside over the arbitral panel, to be chosen by the two party-appointed
arbitrators within five (5) Business Days of the Bank’s appointment. If any party fails to appoint an arbitrator or the two party-appointed arbitrators fail to appoint the third within the relevant time periods, then the appointments will
be made by the AAA pursuant to the Rules;
(iv) each arbitrator selected for any arbitration will abide by the Code of
Ethics for Arbitrators in Commercial Disputes in effect at the time the arbitration is initiated. Prior to accepting an appointment, each arbitrator must promptly disclose any circumstances likely to create a reasonable inference of bias or conflict
of interest or likely to preclude completion of the hearings within the prescribed time schedule. Any arbitrator selected may be removed by the AAA for cause consisting of actual bias, conflict of interest or other serious potential for conflict;
(v) the Requesting Party and the Bank each agree that it is their intention that after consulting with the parties, the
arbitrator or arbitral panel, as applicable, will devise procedures and deadlines for the arbitration, to the extent not already agreed to by
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COPAR 2026-1 Purchase Agreement
the parties, with the goal of expediting the proceeding and completing the arbitration within thirty (30) days after appointment of the arbitrator or arbitral panel, as applicable. The
arbitrator or the arbitral panel, as applicable, will have the authority to schedule, hear, and determine any and all motions, including dispositive and discovery motions, in accordance with New York law then in effect (including prehearing and post
hearing motions), and will do so on the motion of any party to the arbitration. Notwithstanding any other discovery that may be available under the Rules, unless otherwise agreed by the parties, each party to the arbitration will be limited to the
following discovery in the arbitration:
(A) consistent with the expedited nature of arbitration, the Requesting Party and
the Bank will, upon the written request of the other party, promptly provide the other with copies of documents relevant to the issues raised by any claim or counterclaim on which the producing party may rely in support of or in opposition to the
claim or defense;
(B) at the request of a party, the arbitrator or arbitral panel, as applicable, shall have the
discretion to order examination by deposition of witnesses to the extent the arbitrator or arbitral panel deems such additional discovery relevant and appropriate. Depositions shall be limited to a maximum of three (3) per party and shall be
held within thirty (30) days of the making of a request. Additional depositions may be scheduled only with the permission of the arbitrator or arbitral panel, and for good cause shown. Each deposition shall be limited to a maximum of three
(3) hours’ duration. All objections are reserved for the arbitration hearing except for objections based on privilege and proprietary or confidential information;
(C) any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrator or arbitral
panel, which determination shall be conclusive; and
(D) all discovery shall be completed within sixty (60) days
following the appointment of the arbitrator or the arbitral panel, as applicable;
provided
, that the arbitrator or the arbitral panel, as applicable, will have the ability to grant the parties, or either of them, additional discovery to the
extent that the arbitrator or the arbitral panel, as applicable, determines good cause is shown that such additional discovery is reasonable and necessary;
(vi) the Requesting Party and the Bank each agree that it is their intention that the arbitrator or the arbitral panel, as
applicable, will resolve the dispute in accordance with the terms of this Agreement, and may not modify or change this Agreement in any way. The arbitrator or the arbitral panel, as applicable, will not have the power to award punitive damages or
consequential damages in any arbitration conducted by it, and the Bank shall not be required to pay more than the applicable Repurchase Price with respect to any Receivable which the Bank is required to repurchase under the terms of this Agreement.
The Requesting Party and the Bank each agree that it is their intention that in its final determination, the arbitrator or the arbitral panel, as applicable, will determine and award the costs of the arbitration (including the fees of the arbitrator
or the arbitral panel,
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COPAR 2026-1 Purchase Agreement
as applicable, cost of any record or transcript of the arbitration, and administrative fees) and reasonable attorneys’ fees to the parties as determined by the arbitrator or the arbitral
panel, as applicable, in its reasonable discretion. The determination of the arbitrator or the arbitral panel, as applicable, must be consistent with the provisions of this Agreement, and will be in writing and counterpart copies will be promptly
delivered to the parties. The determination of the arbitrator or the arbitral panel, as applicable, may be reconsidered once by the arbitrator or the arbitral panel, as applicable, upon the motion and at the expense of either party. Following that
single reconsideration, the determination of the arbitrator or the arbitral panel, as applicable, will be final and
non-appealable
and may be entered in and may be enforced in, any court of competent
jurisdiction;
(vii) by selecting binding arbitration, the Requesting Party is giving up the right to sue in court,
including the right to a trial by jury; and
(viii) no Person may bring a putative or certified class action to
arbitration.
(d) The following provisions will apply to both mediations (including nonbinding arbitrations) and arbitrations:
(i) any mediation or arbitration will be held in New York, New York;
(ii) notwithstanding this dispute resolution provision, the parties will have the right to seek provisional or ancillary relief
from a competent court of law, including a temporary restraining order, preliminary injunction or attachment order, provided such relief would otherwise be available by law; and
(iii) the details and/or existence of any unfulfilled repurchase request specified in
Section
3.11(a)
above, any informal meetings, mediations or arbitration proceedings, including all offers, promises, conduct and statements, whether oral or written, made in the course of the parties’ attempt to informally resolve an unfulfilled repurchase
request, and any discovery taken in connection with any arbitration, will be confidential, privileged and inadmissible for any purpose, including impeachment, in any mediation, arbitration or litigation, or other proceeding; provided, however, that
any discovery taken in any arbitration will be admissible in that particular arbitration. Such information will be kept strictly confidential and will not be disclosed or discussed with any third party (excluding a party’s attorneys, experts,
accountants and other agents and representatives, as reasonably required in connection with the related resolution procedure), except as otherwise required by law, regulatory requirement or court order. If any party to a resolution procedure
receives a subpoena or other request for information from a third party (other than a governmental regulatory body) for such confidential information, the recipient will promptly notify the other party to the resolution procedure and will provide
the other party with the opportunity to object to the production of its confidential information. Notwithstanding anything in this
Section
3.11
to the contrary, any discovery taken in connection with any arbitration
pursuant to
Section
3.11(c)
above will be admissible in such arbitration.
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COPAR 2026-1 Purchase Agreement
SECTION 3.12
Cooperation with Voting
. Each of the Bank and COAR hereby acknowledges
and agrees that it shall cooperate with the Indenture Trustee to facilitate any vote by the Instituting Noteholders pursuant to the terms of
Section
7.6
of the Indenture.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1
Transfers Intended as Sale; Security Interest
.
(a) Each of the parties hereto expressly intends and agrees that the transfers contemplated and effected under this Agreement are complete and
absolute sales, transfers and assignments rather than pledges or assignments of only a security interest and shall be given effect as such for all purposes. It is further the intention of the parties hereto that the Receivables and the related
Purchased Assets shall not be part of the Bank’s estate in the event of a bankruptcy or insolvency of the Bank. The sales and transfers by the Bank of the Receivables and the related Purchased Assets hereunder are and shall be without recourse
to, or representation or warranty (express or implied) by, the Bank, except as otherwise specifically provided herein. The limited rights of recourse specified herein against the Bank are intended to provide a remedy for breach of representations
and warranties relating to the condition of the property sold, rather than to the collectibility of the Receivables.
(b) Notwithstanding
the foregoing, in the event that the Receivables and other Purchased Assets are held to be property of the Bank, or if for any reason this Agreement is held or deemed to create indebtedness or a security interest in the Receivables and other
Purchased Assets, then it is intended that:
(i) this Agreement shall be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the New York UCC and the UCC of any other applicable jurisdiction;
(ii) the conveyance
provided for in
Section
2.1
shall be deemed to be a grant by the Bank of, and the Bank hereby grants to COAR a security interest in all of its right (including the power to convey title thereto), title and interest, whether
now owned or hereafter acquired, in and to the Receivables and other Purchased Assets, to secure such indebtedness and the performance of the obligations of the Bank hereunder;
(iii) the possession by COAR or its agent of the Receivable Files and any other property that constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by COAR or a Person designated by COAR for purposes of perfecting the security interest pursuant to the New York UCC and the UCC
of any other applicable jurisdiction; and
(iv) notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, bailees or agents (as applicable) of COAR for the purpose of perfecting such security interest
under applicable law.
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COPAR 2026-1 Purchase Agreement
SECTION 4.2
Notices, Etc
. All demands, notices and communications hereunder shall be
in writing and shall be delivered or mailed by registered or certified
first-class
United States mail, postage prepaid, hand delivery, prepaid courier service, or by
e-mail
(if an applicable
e-mail
address is provided on
Schedule I
to the Sale Agreement), and addressed in each case as specified on
Schedule I
to the Sale
Agreement, or at such other address as shall be designated by any of the specified addressees in a written notice to the other parties hereto. Any notice required or permitted to be mailed to a Noteholder or Certificateholder shall be given by
first-class mail, postage prepaid, at the address of such Noteholder or Certificateholder as shown in the Note Register. Delivery shall occur only upon receipt or reported tender of such communication by an officer of the recipient entitled to
receive such notices located at the address of such recipient for notices hereunder;
provided
,
however
, that any notice to a Noteholder or Certificateholder mailed within the time and manner prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder or Certificateholder shall receive such notice.
SECTION
4.3
Choice of Law
.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO CONFLICTS OF LAW, OTHER THAN
SECTIONS
5-1401
AND
5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS
.
SECTION 4.4
Headings
. The section headings hereof have been inserted for convenience only and shall not be
construed to affect the meaning, construction or effect of this Agreement.
SECTION 4.5
Counterparts
. This Agreement may be
executed in any number of counterparts, each of which so executed shall be deemed to be an original, regardless of whether delivered in physical or electronic form, but all of such counterparts shall together constitute but one and the same
instrument.
SECTION 4.6
Amendment
.
(a) Any term or provision of this Agreement may be amended by the Bank and COAR without the consent of the Indenture Trustee, the Issuer, any
Noteholder, the Owner Trustee or any other Person subject to the satisfaction of one of the following conditions:
(i) the
Bank or COAR delivers an Opinion of Counsel or an Officer’s Certificate to the Indenture Trustee to the effect that such amendment will not materially and adversely affect the interests of the Noteholders; or
(ii) the Rating Agency Condition is satisfied with respect to such amendment and the Bank or COAR notifies the Indenture
Trustee in writing that the Rating Agency Condition is satisfied with respect to such amendment.
(b) This Agreement may also be amended
from time to time by the Bank and COAR with the consent of the Holders of Notes evidencing not less than a majority of the Outstanding Note Balance of the Controlling Class, for the purpose of adding any provisions to or
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COPAR 2026-1 Purchase Agreement
changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders. It will not be necessary for
the consent of Noteholders or Certificateholders to approve the particular form of any proposed amendment or consent, but it will be sufficient if such consent approves the substance thereof. The manner of obtaining such consents (and any other
consents of Noteholders and Certificateholders provided for in this Agreement) and of evidencing the authorization of the execution thereof by Noteholders and Certificateholders will be subject to such reasonable requirements as the Indenture
Trustee and Owner Trustee may prescribe, including the establishment of record dates pursuant to the Depository Agreement. For purposes of this
Section
4.6
, if the Bank and/or its Affiliates is the Holder of Notes
representing 100% of the Note Balance of the Outstanding Notes, such Person (or Persons) may consent to such amendment on behalf of the Noteholders. In determining whether the Bank and/or its Affiliates is the Holder of Notes representing 100% of
the Note Balance of the Outstanding Notes for purposes of the preceding sentence, any party shall be entitled to rely on an Officer’s Certificate or similar certification of the Bank or any Affiliate thereof to such effect.
(c) Prior to the execution of any amendment pursuant to this
Section
4.6
, the Bank or COAR shall provide written
notification of the substance of such amendment to each Rating Agency; and promptly after the execution of any such amendment, the Bank or COAR shall furnish a copy of such amendment to each Rating Agency, the Issuer and the Indenture Trustee;
provided
, that no amendment pursuant to this
Section
4.6
shall be effective which materially and adversely affects the rights, protections or duties of the Indenture Trustee or the Owner Trustee without the prior
written consent of such Person.
(d) Prior to the execution of any amendment to this Agreement, the Owner Trustee and the Indenture
Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and an Officer’s Certificate from COAR or the Administrator that
all conditions precedent to the execution and delivery of such amendment have been satisfied. The Owner Trustee and the Indenture Trustee may, but shall not be obligated to, enter into any such amendment which materially and adversely affects the
Owner Trustee’s or the Indenture Trustee’s, as applicable, own rights, privileges, indemnities, duties or obligations under this Agreement, the Transaction Documents or otherwise.
(e) Notwithstanding subsections (a) and (b) of this
Section
4.6
, this Agreement may only be amended by the Bank
and COAR if (i) the Majority Certificateholders or, if 100% of the aggregate Percentage Interests is then beneficially owned by the Bank and/or its Affiliates, such Person (or Persons), consent to such amendment or (ii) such amendment
shall not, as evidenced by an Officer’s Certificate of the Bank or COAR or an Opinion of Counsel delivered to the Indenture Trustee and the Owner Trustee, materially and adversely affect the interests of the Certificateholders. In determining
whether 100% of the aggregate Percentage Interests is then beneficially owned by the Bank and/or its Affiliates for purposes of clause (i), any party shall be entitled to rely on an Officer’s Certificate or similar certification of the Bank or
any Affiliate thereof to such effect.
(f) Notwithstanding anything herein to the contrary, for purposes of classifying the Issuer as a
grantor trust under the Code, no amendment shall be made to this Agreement that
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COPAR 2026-1 Purchase Agreement
would (i) result in a variation of the investment of the beneficial owners of the Certificates for purposes of the United States Treasury Regulation section
301.7701-4(c)
without the consent of Noteholders evidencing at least a majority of the Outstanding Note Balance of the Controlling Class and the Majority Certificateholders or (ii) cause the Issuer
(or any part thereof) to be classified as other than a grantor trust under subtitle A, chapter 1, subchapter J, part I, subpart E of the Code without the consent of all of the Noteholders and all of the Certificateholders.
SECTION 4.7
Waivers
. No failure or delay on the part of COAR, the Servicer, the Bank, the Issuer or the Indenture Trustee in exercising
any power or right hereunder (to the extent such Person has any power or right hereunder) shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on COAR or the Bank in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by either party under this Agreement shall, except as may
otherwise be stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval under this Agreement shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder.
SECTION 4.8
Entire Agreement
. The Transaction Documents contain a final and complete integration of all prior expressions by the
parties hereto with respect to the subject matter thereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter thereof, superseding all prior oral or written understandings. There are no unwritten
agreements among the parties.
SECTION 4.9
Severability of Provisions
. If any one or more of the covenants, agreements, provisions
or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in
no way affect the validity or enforceability of the other provisions of this Agreement.
SECTION 4.10
Binding Effect
. This
Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its
terms, and shall remain in full force and effect until such time as the parties hereto shall agree.
SECTION 4.11
Acknowledgment and
Agreement
. By execution below, the Bank expressly acknowledges and consents to the sale of the Purchased Assets and the assignment of all rights and obligations of the Bank related thereto by COAR to the Issuer pursuant to the Sale Agreement and
the Grant of a security interest in the Receivables and the other Purchased Assets by the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the Noteholders. In addition, the Bank hereby acknowledges and agrees that for so
long as the Notes are outstanding, the Indenture Trustee will have, pursuant to the Transaction Documents, the right to exercise all powers, privileges and claims of COAR under this Agreement in the event that COAR shall fail to exercise the same.
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COPAR 2026-1 Purchase Agreement
SECTION 4.12
Cumulative Remedies
. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 4.13
Nonpetition Covenant
. Each party hereto agrees that, prior to the date
which is one year and one day after payment in full of all obligations of each Bankruptcy Remote Party in respect of all securities issued by any Bankruptcy Remote Party (i) such party shall not authorize any Bankruptcy Remote Party to commence
a voluntary
winding-up
or other voluntary case or other Proceeding seeking liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian or other similar official with respect to such Bankruptcy Remote Party or any substantial
part of its property or to consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other Proceeding commenced against such Bankruptcy Remote Party, or to make a general assignment for
the benefit of its creditors generally, any party hereto or any other creditor of such Bankruptcy Remote Party, and (ii) such party shall not commence or join with any other Person in commencing any Proceeding against such Bankruptcy Remote
Party under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction. This Section shall survive the termination of this Agreement.
SECTION 4.14
Submission to Jurisdiction; Waiver of Jury Trial
. Each of the parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any Proceeding relating to this Agreement or any documents executed and delivered in connection
herewith, or for recognition and enforcement of any judgment in respect thereof, to the nonexclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York and
appellate courts from any thereof;
(b) consents that any such Proceeding may be brought in such courts and waives any objection that it
may now or hereafter have to the venue of such Proceeding in any such court or that such Proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such Proceeding may be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its address determined in accordance with
Section
4.2
of this Agreement;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e)
to the extent permitted by applicable law, each party hereto irrevocably waives all
right of trial by jury in any Proceeding or counterclaim based on, or arising out of, under or in connection with this Agreement, any other Transaction Document, or any matter arising hereunder or thereunder.
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COPAR 2026-1 Purchase Agreement
SECTION 4.15
Not Applicable to the Bank in Other Capacities
. Nothing in this
Agreement shall affect any obligation the Bank may have in any other capacity.
SECTION 4.16
Third-Party Beneficiaries
. This
Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns, and each of the Issuer and the Indenture Trustee shall be an express third-party beneficiary hereof and may enforce
the provisions hereof as if it were a party hereto. Except as otherwise provided in this Section, no other Person will have any right hereunder.
[Remainder of Page Intentionally Left Blank]
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COPAR 2026-1 Purchase Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first written above.
CAPITAL ONE, NATIONAL ASSOCIATION
By:
Name:
Title:
S-1
COPAR 2026-1 Purchase Agreement
CAPITAL ONE AUTO RECEIVABLES, LLC
By:
Name:
Title:
S-2
COPAR 2026-1 Purchase Agreement
EXHIBIT A
FORM OF
ASSIGNMENT
PURSUANT TO PURCHASE AGREEMENT
September 17, 2026
For value received, in accordance with the Purchase Agreement, dated as of September 17, 2026 (the “
Agreement
”),
between Capital One, National Association, a national banking association (the “
Bank
”), and Capital One Auto Receivables, LLC, a Delaware limited liability company (“
COAR
”), on the terms and subject to the
conditions set forth in the Agreement, the Bank does hereby transfer, assign, set over, sell and otherwise convey to COAR on the date hereof without recourse (subject to the obligations in the Agreement), all of its right, title, interest, claims
and demands, whether now owned or hereafter acquired, in, to and under the Receivables set forth on the Schedule of Receivables delivered by the Bank to COAR on the date hereof, the Collections after the
Cut-Off
Date, the Receivable Files and the Related Security relating thereto and all the proceeds of the foregoing, which sale shall be effective as of such
Cut-Off
Date.
The foregoing sale does not constitute and is not intended to result in an assumption by COAR of any obligation of the Bank to the
Obligors, the Dealers, insurers or any other Person in connection with the Receivables, or the other assets and properties conveyed hereunder or any agreement, document or instrument related thereto.
This assignment is made pursuant to and upon the representations, warranties and agreements on the part of the undersigned contained in the
Agreement and is governed by the Agreement.
Capitalized terms used herein and not otherwise defined shall have the respective meanings
assigned to them in the Agreement or, if not defined in the Agreement, in
Appendix A
to the Sale Agreement, dated as of September 17, 2026, between Capital One Prime Auto Receivables Trust
2026-1
and COAR.
[Remainder of page intentionally left blank]
Ex-A-1
IN WITNESS WHEREOF, the undersigned has caused this assignment to be duly executed as of the
date first written above.
CAPITAL ONE, NATIONAL ASSOCIATION
By:
Name:
Title:
Ex-A-2
Exhibit A to the Purchase Agreement
SCHEDULE I
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in the Agreement, the Bank hereby represents, warrants, and covenants to
COAR as follows on the Closing Date:
General
1. This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Receivables and the other Purchased Assets in
favor of COAR which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from the Bank.
2. The
Receivables constitute “chattel paper” (including “electronic chattel paper” or “tangible chattel paper”), “accounts”, “instruments”, “promissory notes”, “payment
intangibles” or “general intangibles”, within the meaning of the applicable UCC. If a Receivable constitutes “electronic chattel paper,” the Servicer has “control” of such electronic chattel paper within the
meaning of Section 9-105 of the applicable UCC.
3. Immediately prior to the sale, transfer, contribution, assignment and/or conveyance of a Receivable,
such Receivable is secured by a first priority validly perfected and enforceable security interest in the related Financed Vehicle in favor of the Originator (or its assignee), as secured party, or all necessary actions with respect to such
Receivable have been taken or will be taken to perfect a first priority security interest in the related Financed Vehicle in favor of the Originator (or its assignee), as secured party, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization, liquidation or other similar laws and equitable principles relating to or affecting the enforcement of creditors’ rights generally.
Creation
4. Immediately prior to
the sale, transfer, contribution, assignment and/or conveyance of a Receivable by the Bank to COAR, the Bank owned and had good and marketable title to such Receivable free and clear of any Lien created by the Bank (other than any Liens in favor of
COAR) and immediately after the sale, transfer, assignment and conveyance of such Receivable to COAR, COAR will have good and marketable title to such Receivable free and clear of any Lien.
5. The Bank has received all consents and approvals to the sale of the Receivables hereunder to COAR required by the terms of the Receivables that constitute
instruments.
Perfection
6.
The Bank has submitted or will have caused to be submitted, on the effective date of this Agreement, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to
perfect the sale of the Receivables from the Bank to COAR and the security interest in the Receivables granted to COAR hereunder; and the Servicer, in its capacity as custodian, has in its possession the original copies of such instruments or
tangible chattel paper that constitute or evidence the Receivables, and all financing statements referred to in this paragraph contain a statement that: “A purchase of or security interest
I-1
in any collateral described in this financing statement will violate the rights of the Secured Party/Purchaser”.
7. With respect to Receivables that constitute an instrument or tangible chattel paper, either:
(i) All original executed copies of each such instrument or tangible chattel paper have been delivered to the Indenture Trustee, as pledgee of
the Issuer; or
(ii) Such instruments or tangible chattel paper are in the possession of the Servicer and the Indenture Trustee has
received a written acknowledgment from the Servicer that the Servicer (in its capacity as custodian) is holding such instruments or tangible chattel paper solely on behalf and for the benefit of the Indenture Trustee, as pledgee of the Issuer; or
(iii) The Servicer received possession of such instruments or tangible chattel paper after the Indenture Trustee received a written
acknowledgment from the Servicer that the Servicer is acting solely as agent of the Indenture Trustee, as pledgee of the Issuer.
Priority
8. The Bank has not
authorized the filing of, and is not aware of any authorized financing statements against the Bank that include a description of collateral covering the Receivables other than any financing statement (i) relating to the conveyance of the
Receivables by the Bank to COAR under the Purchase Agreement, (ii) relating to the conveyance of the Receivables by COAR to the Issuer under the Sale Agreement, (iii) relating to the security interest granted to the Indenture Trustee under
the Indenture or (iv) that has been terminated.
9. The Bank is not aware of any material judgment, ERISA or tax lien filings against the Bank.
10. Neither the Bank nor a custodian or vaulting agent thereof holding any Receivable that is electronic chattel paper has communicated an
“authoritative copy” (as such term is used in
Section 9-105
of the UCC) of any loan agreement that constitutes or evidences such Receivable to any Person other than the Servicer.
11. None of the instruments, electronic chattel paper or tangible chattel paper that constitutes or evidences the Receivables has any marks or notations
indicating that they have been pledged, assigned or otherwise conveyed to any Person other than COAR, the Issuer or the Indenture Trustee.
Survival of Perfection Representations
12. Notwithstanding any other provision of this Agreement, the perfection representations, warranties and covenants contained in this
Schedule I
shall
be continuing, and remain in full force and effect until such time as all obligations under Notes have been finally and fully paid and performed.
I-2
No Waiver
13. The Bank shall provide the Rating Agencies with prompt written notice of any material breach of the perfection representations, warranties and covenants
contained in this
Schedule
I
, and shall not, without satisfying the Rating Agency Condition, waive a breach of any of such perfection representations, warranties or covenants.
I-3
SCHEDULE II
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE RECEIVABLES
(a)
Characteristics of Receivables
. As of the
Cut-Off
Date (or such other date as may be
specifically set forth below), each Receivable:
(i) has been fully and properly executed or electronically authenticated
by the Obligor thereto;
(ii) has been originated by a Dealer to finance the retail sale by that Dealer of the related
Financed Vehicle and has been purchased by the Bank from that Dealer;
(iii) as of the Closing Date, is secured by a first
priority validly perfected security interest in the Financed Vehicle in favor of the Originator, as secured party, or all necessary actions have been commenced that would result in a first priority security interest in the Financed Vehicle in favor
of the Originator, as secured party;
(iv) contains customary and enforceable provisions such that the rights and remedies
of the holder thereof are adequate for realization against the collateral of the benefits of the security;
(v) provided,
at origination, for level monthly payments which fully amortize the initial Outstanding Principal Balance over the original term;
provided
, that the amount of the first or last scheduled payment may be different from the level payment but in
no event more than three times the level monthly payment;
(vi) provides for interest at the Contract Rate specified in the
Schedule of Receivables;
(vii) was originated in the United States;
(viii) is secured by a new or used automobile, light duty truck, SUV or van;
(ix) has a Contract Rate of at least 1.00%;
(x) had an original term to maturity of not more than eighty-four (84) months and each Receivable has a remaining term to
maturity, as of the
Cut-Off
Date, of not more than seventy-nine (79) months and not less than seven (7) months;
(xi) has an Outstanding Principal Balance of at least $1,000;
(xii) has a final scheduled payment due on or before February 2033;
II-1
(xiii) was not more than twenty-nine (29) days past due as of the
Cut-Off
Date;
(xiv) was not noted in the records of the Servicer as being the subject of
any verified bankruptcy or insolvency Proceeding;
(xv) is a Simple Interest Receivable; and
(xvi) provides that a prepayment by the related Obligor will fully pay the Outstanding Principal Balance and accrued interest
through the date of prepayment based on the Receivable’s Contract Rate.
(b)
Compliance with Law.
The Receivable complied at
the time it was originated or made in all material respects with all requirements of applicable federal, state and local laws, and regulations thereunder, except where the failure to comply (i) was remediated or cured in all material respects
prior to the
Cut-Off
Date, or (ii) would not render such Receivable unenforceable or create liability for COAR or the Issuer, as an assignee of such Receivable.
(c)
Binding Obligation.
The Receivable constitutes the legal, valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms, except (i) as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, liquidation or other similar laws and equitable principles relating to or
affecting the enforcement of creditors’ rights generally and (ii) as such Receivable may be modified by the application after the
Cut-Off
Date of the Servicemembers Civil Relief Act, as amended, to
the extent applicable to the related Obligor.
(d)
Receivable in Force.
The Receivable has not been satisfied, subordinated or
rescinded nor do the records of the Servicer indicate that the related Financed Vehicle has been released from the lien of such Receivable in whole or in part.
(e)
No Default; No Waivers.
Except for payment delinquencies continuing for a period of not more than twenty-nine (29) days as of
the
Cut-Off
Date or the failure of the Obligor to maintain physical damage insurance covering the related Financed Vehicle in accordance with the requirements of the Receivable, the records of the Servicer did
not disclose that any default, breach, violation or event permitting acceleration under the terms of the Receivable existed as of the
Cut-Off
Date
.
(f)
Insurance.
The Receivable requires that the Obligor thereunder obtain physical damage insurance covering the related Financed
Vehicle.
(g)
No Government Obligor.
The Obligor on the Receivable is not the United States of America or any state thereof or any
local government, or any agency, department, political subdivision or instrumentality of the United States of America or any state thereof or any local government.
(h)
Assignment.
No Receivable has been originated in, or is subject to the laws of, any jurisdiction under which the sale, transfer,
assignment, contribution, conveyance or pledge of such Receivable would be unlawful, void, or voidable.
II-2
(i)
Good Title.
As of the Closing Date and immediately prior to the sale and transfer
contemplated in the Purchase Agreement, the Bank had good and marketable title to and was the sole owner of each Receivable free and clear of all Liens created by the Bank (except any Lien which will be released prior to assignment of such
Receivable thereunder), and, immediately upon the sale and transfer by the Bank to COAR, COAR will have good and marketable title to each Receivable, free and clear of all Liens created by COAR (other than Permitted Liens). Immediately upon the sale
and transfer by COAR to the Issuer pursuant to the Sale Agreement, the Issuer will have good and marketable title to each Receivable, free and clear of all Liens created by the Issuer (other than Permitted Liens).
(j)
Characterization of Receivables.
Each Receivable constitutes either “tangible chattel paper,” “electronic chattel
paper,” an “account,” an “instrument,” or a “general intangible,” each as defined in the UCC.
(k)
One Original.
There is only one executed original, electronically authenticated original or authoritative copy of the Contract (in
each case within the meaning of the UCC) related to each Receivable.
(l)
No Defenses
. The records of the Servicer do not reflect
any material facts which have not been remediated or cured which would constitute the basis for any right of rescission, offset, claim, counterclaim or defense with respect to such Receivable or the same being asserted or threatened with respect to
such Receivable.
II-3

----- d117449dex102.htm -----
EX-10.2
5
d117449dex102.htm
EX-10.2
EX-10.2
Exhibit 10.2
ASSET REPRESENTATIONS REVIEW
AGREEMENT
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1,
as Issuer,
CAPITAL ONE, NATIONAL
ASSOCIATION,
as Sponsor and Servicer
and
CLAYTON FIXED INCOME
SERVICES LLC,
as Asset Representations Reviewer
Dated as of September 17, 2026
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS
1
Section 1.1
Definitions
1
Section 1.2
Additional Definitions
1
ARTICLE II. ENGAGEMENT; ACCEPTANCE
3
Section 2.1
Engagement; Acceptance
3
Section 2.2
Eligibility of Asset Representations Reviewer
3
Section 2.3
Independence of the Asset Representations Reviewer
3
ARTICLE III. DUTIES OF THE ASSET REPRESENTATIONS REVIEWER
3
Section 3.1
Review Scope
3
Section 3.2
Review Notices
4
Section 3.3
Review Materials
4
Section 3.4
Missing or Incomplete Review Materials
4
Section 3.5
The Asset Review
5
Section 3.6
Review Period
5
Section 3.7
Review Report
5
Section 3.8
Resolution of Review for Certain Subject Receivables
6
Section 3.9
Termination of Review
6
Section 3.10
Review and Procedure Limitations
6
Section 3.11
Review Systems
7
Section 3.12
Representatives
7
Section 3.13
Dispute Resolution
7
Section 3.14
Records Retention
8
Section 3.15
No Delegation
8
ARTICLE IV. PAYMENTS TO ASSET REPRESENTATIONS REVIEWER
8
Section 4.1
Annual Fee
8
Section 4.2
Review Fee
8
Section 4.3
Dispute Resolution; Travel Expenses
9
Section 4.4
Payment
9
Section 4.5
Payments by the Issuer
9
ARTICLE V. OTHER MATTERS PERTAINING TO THE ASSET REPRESENTATIONS REVIEWER
10
Section 5.1
Representations and Warranties of the Asset Representations Reviewer
10
Section 5.2
Limitation of Liability of Asset Representations Reviewer
11
Section 5.3
Indemnification of Asset Representations Reviewer
11
Section 5.4
Indemnification by Asset Representations Reviewer
12
ARTICLE VI. REMOVAL, RESIGNATION; SUCCESSOR ASSET REPRESENTATION REVIEWER
13
-i-
TABLE OF CONTENTS
(continued)
Page
Section 6.1
Eligibility Requirements for Asset Representations Reviewer
13
Section 6.2
Resignation and Removal of Asset Representations Reviewer
13
Section 6.3
Successor Asset Representations Reviewer
14
Section 6.4
Merger, Consolidation or Succession
14
ARTICLE VII. TREATMENT OF CONFIDENTIAL INFORMATION
14
Section 7.1
Confidential Information
14
Section 7.2
Safeguarding Personally Identifiable Information
17
ARTICLE VIII. OTHER MATTERS PERTAINING TO THE ISSUER
18
Section 8.1
Termination of this Agreement
18
Section 8.2
Limitation of Liability
18
ARTICLE IX. MISCELLANEOUS PROVISIONS
18
Section 9.1
Amendment
18
Section 9.2
Notices, Etc.
20
Section 9.3
Severability Clause
20
Section 9.4
Governing Law
20
Section 9.5
Headings
20
Section 9.6
Counterparts
20
Section 9.7
Waivers
20
Section 9.8
Entire Agreement
21
Section 9.9
Severability of Provisions
21
Section 9.10
Binding Effect
21
Section 9.11
Cumulative Remedies
21
Section 9.12
Nonpetition Covenant
21
Section 9.13
Submission to Jurisdiction; Waiver of Jury Trial
21
Section 9.14
Third-Party Beneficiaries
22
Exhibit A – Agreed Upon Procedures
-ii-
ASSET REPRESENTATIONS REVIEW AGREEMENT
This ASSET REPRESENTATIONS REVIEW AGREEMENT is made and entered into as of September 17, 2026 (this “
Agreement
”), by
and between CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1,
a Delaware statutory trust (the “
Issuer
”), CAPITAL ONE, NATIONAL ASSOCIATION, a national banking association (the
“
Bank
”, and in its capacity as sponsor, the “
Sponsor
”, and in its capacity as servicer, the “
Servicer
”), and CLAYTON FIXED INCOME SERVICES LLC, a Delaware limited liability company
(“
Clayton
”, and in its capacity as asset representations reviewer, the “
Asset Representations Reviewer
”).
WHEREAS, the Issuer has determined to engage the Asset Representations Reviewer to perform reviews of Receivables for compliance with the
representations and warranties made by the Sponsor regarding such Receivables; and
WHEREAS, the Asset Representations Reviewer desires to
accept such engagement;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I.
DEFINITIONS
Section
1.1
Definitions
. Except as otherwise defined herein or as the context may otherwise require,
capitalized terms used but not otherwise defined herein are defined in
Appendix
A
to the Sale Agreement dated as of the date hereof (as from time to time amended, supplemented or otherwise modified and in effect, the
“
Sale Agreement
”) between the Issuer and Capital One Auto Receivables, LLC, as seller, which also contains rules as to usage that are applicable herein.
Section
1.2
Additional Definitions
. Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
“
Annual ARR Fee
” has the meaning set forth in
Section
4.1
.
“
Asset Review
” means the completion by the Asset Representations Reviewer of the “Tests” set forth in Exhibit A
for each Subject Receivable as further described in
Section
3.5
.
“
Client Records
” has the
meaning set forth in
Section
3.14
.
“
Confidential Information
” has the meaning set forth in
Section
7.1
.
“
Disclosing Party
” has the meaning set forth in
Section
7.1
.
“
Eligible Asset Representations Reviewer
” means a Person who (i) is not,
and is not Affiliated with, the Sponsor, the Seller, the Servicer, the Indenture Trustee, the Owner Trustee or any of their respective Affiliates and (ii) was not engaged or Affiliated with a Person that was
engaged by the Sponsor or any Underwriter to perform due diligence work on the Receivables prior to the Closing Date.
“
Eligibility Representations
” shall mean those representations identified within the “Tests” included in
Exhibit A.
“
Indemnified Person
” has the meaning set forth in
Section
5.4
.
“
Personally Identifiable Information
” or “
PII
” has the meaning set forth in
Section
7.2
.
“
Privacy Laws
” has the meaning set forth in
Section
7.2
.
“
Receiving Party
” has the meaning set forth in
Section
7.1
.
“
Representatives
” has the meaning set forth in
Section
7.1
.
“
Review Fee
” has the meaning set forth in
Section
4.2
.
“
Review Invoice
” means, with respect to any Asset Review, a detailed invoice
prepared by the Asset Representations Reviewer setting forth the calculation of the applicable Review Fee for such Asset Review.
“
Review Materials
” means the documents, data, and other information required for each “Test” in Exhibit A.
“
Review Period
” has the meaning set forth in
Section
3.6
.
“
Review Report
” has the meaning set forth in
Section
3.7
.
“
Subject Receivables
” means, for any Asset Review, all Receivables which are
60-Day
Delinquent Receivables as of the related Review Satisfaction Date;
provided
, that any Receivable repurchased by the Sponsor or the Servicer in accordance with the Transaction Documents or paid in full by the related Obligor after the Review
Satisfaction Date will no longer be a Subject Receivable.
“
Tests
” mean the procedures listed in Exhibit A as applied
to the process described in
Section
3.5
.
“
Test Fail
” has the meaning set forth in
Section
3.5
.
“
Test Incomplete
” has the meaning set forth in
Section
3.5
.
“
Test Otherwise Resolved
” has the meaning set forth in
Section
3.8
.
“
Test Pass
” has the meaning set forth in
Section
3.5
.
2
ARTICLE II.
ENGAGEMENT; ACCEPTANCE
Section 2.1
Engagement; Acceptance
.
The Issuer hereby engages Clayton to act as the Asset Representations Reviewer for the Issuer. The Asset Representations Reviewer hereby
accepts the engagement and agrees to perform the obligations of the Asset Representations Reviewer on the terms stated in this Agreement.
Section 2.2
Eligibility of Asset Representations Reviewer
.
Clayton represents and warrants to the Issuer and the Sponsor that it is an Eligible Asset Representations Reviewer. The Asset Representations
Reviewer will notify the Issuer, the Sponsor and the Servicer promptly if it is not, or on the occurrence of any action that would result in it not being, an Eligible Asset Representations Reviewer.
Section 2.3
Independence of the Asset Representations Reviewer
.
The Asset Representations Reviewer will be an independent contractor and will not be subject to the supervision of the Issuer, the Sponsor,
the Servicer, the Indenture Trustee or the Owner Trustee for the manner in which it accomplishes the performance of its obligations under this Agreement. Unless expressly authorized by the Issuer, the Sponsor, the Servicer, the Indenture Trustee or
the Owner Trustee, the Asset Representations Reviewer will have no authority to act for or represent the Issuer, the Sponsor, the Servicer, the Indenture Trustee or the Owner Trustee, respectively, and will not be considered an agent of the Issuer,
the Sponsor, the Servicer, the Indenture Trustee or the Owner Trustee. Nothing in this Agreement will make the Asset Representations Reviewer and any of the Issuer, the Sponsor, the Servicer, the Indenture Trustee or the Owner Trustee members of any
partnership, joint venture or other separate entity or impose any liability as such on any of them.
ARTICLE III.
DUTIES OF THE ASSET REPRESENTATIONS REVIEWER
Section 3.1
Review Scope
.
The parties confirm that the Asset Representations Reviewer is not responsible for (a) reviewing the Receivables for compliance with the
representations and warranties under the Transaction Documents, except as described in this Agreement or (b) determining whether noncompliance with the representations and warranties constitutes a breach of the Eligibility Representations. For
the avoidance of doubt, the parties confirm that the review is not designed to determine why an Obligor is delinquent or the creditworthiness of the Obligor, either at the time of any Asset Review or at the time of origination of the related
Receivable. Further, the Asset Review is not designed to establish cause, materiality or recourse for any Test Fail.
3
Section 3.2
Review Notices
.
Upon (i) receipt of a “
Review Notice
” from the Indenture Trustee in accordance with
Section
7.6(b)
of the Indenture and (ii) obtaining access to the Review Materials in accordance with
Section
3.3
of this Agreement, the Asset Representations Reviewer will start an Asset
Review. The Asset Representations Reviewer will not be obligated to begin, and may not begin, an Asset Review until the Asset Representations Reviewer receives a Review Notice. Within ten (10) Business Days of receipt of a Review Notice, the
Servicer shall provide the list of Subject Receivables to the Asset Representations Reviewer in the format selected by the Servicer to the address specified in
Section
9.2
.
None of the Issuer, the Servicer, the Sponsor or the Asset Representations Reviewer is obligated to verify whether the Indenture Trustee
properly determined that a Review Notice was required. None of the Issuer, the Sponsor or the Asset Representations Reviewer is obligated to verify the accuracy or completeness of the list of Subject Receivables provided by the Servicer.
Section 3.3
Review Materials
.
The Servicer will provide reasonable assistance to the Asset Representations Reviewer to facilitate the Asset Review. Within sixty
(60) days of receipt by the Servicer of the Review Notice, the Servicer will provide the Asset Representations Reviewer with access to the Review Materials for all Subject Receivables in one or more of the following ways, as elected by the
Servicer: (i) by providing access to the Servicer’s receivables system, either remotely or at one or more of the properties of the Servicer; (ii) by electronic posting of Review Materials to a password-protected website to which the
Asset Representations Reviewer has access; (iii) by providing originals or photocopies at one or more of the offices of the Servicer (or any subservicer or vendor) where the Receivable Files are located; (iv) by sending originals or
photocopies of Review Materials to the Asset Representations Reviewer at the address specified in
Section
9.2
; or (v) in another manner agreed to by the Servicer and the Asset Representations Reviewer. The Servicer may
redact or remove Personally Identifiable Information from the Review Materials so long as such redaction or removal does not result in a change in the meaning or usefulness of the Review Materials. The Asset Representations Reviewer shall not be
liable for any failure of the Review Materials to be accurate and complete, including any failure that results in the Review Materials being misleading in any material respect.
If the Servicer provides access to the Review Materials at one of its offices, such access will be afforded without additional charge but only
(i) upon reasonable notice, (ii) during normal business hours, (iii) subject to the Servicer’s normal security and confidentiality procedures and (iv) at offices designated by the Servicer.
Section 3.4
Missing or Incomplete Review Materials
.
The Asset Representations Reviewer will complete the Tests for each Eligibility Representation only using documentation that is made available
to it. Upon receipt of the Review Materials, the Asset Representations Reviewer will complete an initial document inventory to determine if any Review Materials are missing or insufficient for the Asset Representations Reviewer to perform any Test.
If the Asset Representations Reviewer reasonably determines that
4
any of the Review Materials are missing or insufficient for the Asset Representations Reviewer to perform any Test, the Asset Representations Reviewer will notify the Servicer promptly, and in
any event no less than twenty (20) calendar days before completing the Review, and the Servicer will use reasonable efforts to provide the Asset Representations Reviewer access to such missing Review Materials or other documents or information
to correct the insufficiency within fifteen (15) calendar days. Once the Asset Representations Reviewer has confirmed the majority of the Review Materials have been provided in accordance with
Section
3.3
, the Asset
Representations Reviewer will commence the Asset Review. In instances where Review Material is not accessible, clearly unidentifiable, and/or illegible, the Asset Representations Reviewer will request that the Servicer (with a copy to the Sponsor)
provide an updated copy of such Review Material. If the Servicer and the Sponsor have not provided the missing Review Material for a Subject Receivable to the Asset Representations Reviewer within sixty (60) days of notification by the Asset
Representations Reviewer, the parties agree that such Subject Receivable will have a Test Incomplete for the related Test(s) and the Review Report will indicate the reason for the Test Incomplete.
Section 3.5
The Asset Review
.
(a) For an Asset Review, the Asset Representations Reviewer will perform for each Subject Receivable the applicable procedures listed under
“Tests” in Exhibit A for each Eligibility Representation. In the course of its review, the Asset Representations Reviewer will use the Review Materials listed in
Exhibit A
. For each Test and Subject Receivable, the Asset
Representations Reviewer will determine if the Test has been satisfied (a “
Test Pass
”), if the Test has not been satisfied (a “
Test Fail
”) or if the Test could not be concluded as a result of missing or
incomplete Review Materials (a “
Test Incomplete
”);
provided
,
however
, that prior to determining that the Test has not been satisfied, the Asset Representations Reviewer will consult with the Servicer to determine
whether the Servicer is able to provide supplemental information to the Asset Representations Reviewer for the related Subject Receivable in connection with such Test, pursuant to the procedure described in
Section
3.4
.
(b) If a Subject Receivable was included in a prior Asset Review, the Asset Representations Reviewer will not conduct additional Tests on
any such duplicate Subject Receivable unless such Subject Receivable was deemed a Test Incomplete as a result of the failure of the Servicer and the Sponsor to provide missing Review Materials for such Subject Receivable and the Sponsor elects to
have such Subject Receivable included in the current Asset Review. The Asset Representations Reviewer will include the previously reported Test results for any such duplicate Subject Receivable within the Review Report for the current Asset Review.
Section 3.6
Review Period
.
The Asset Representations Reviewer will complete the Review within sixty (60) days of receiving access to the Review Materials in
accordance with
Section
3.3
(such time period, the “
Review Period
”);
provided
, that if additional Review Materials are provided to the Asset Representations Reviewer as described in
Section
3.4 or Section
3.5
, the Review Period will be extended for an additional thirty (30) days.
Section 3.7
Review Report
.
5
Within ten (10) Business Days following the end of the applicable Review Period
described in
Section
3.6
, the Asset Representations Reviewer will provide the Issuer, the Servicer and the Indenture Trustee with a report (a “
Review Report
”) specifying for each Subject Receivable
whether there was a Test Pass, a Test Fail, a Test Incomplete (as contemplated by
Section
3.5
) or a Test Otherwise Resolved (as contemplated by
Section
3.8
) for each Test and Subject Receivable.
The Review Report will include a summary of the findings and conclusions of the Asset Representations Reviewer with respect to the Asset Review to be included in the Form
10-D
for the Issuer for the Collection
Period in which the Review Report is received. The Asset Representations Reviewer will ensure that the Review Report does not contain any Personally Identifiable Information. Upon reasonable request of the Servicer, the Asset Representations
Reviewer will provide additional detail regarding the Test results. For the avoidance of doubt, the Indenture Trustee shall have no obligation to forward the Review Report to any Noteholder or any other person.
Section 3.8
Resolution of Review for Certain Subject Receivables
.
Following the delivery of the list of the Subject Receivables and before the delivery of the Review Report by the Asset Representations
Reviewer, the Servicer may notify the Asset Representations Reviewer if a Subject Receivable is paid in full by or on behalf of the Obligor or purchased from the Issuer by the Sponsor or the Servicer in accordance with the Transaction Documents. On
receipt of notice, the Asset Representations Reviewer will immediately terminate all Tests of such Receivables and the Asset Review of such Receivables will be considered resolved (a “
Test Otherwise Resolved
”). In this case, the
Review Report will indicate a Test Otherwise Resolved for the Receivables and the related reason.
Section 3.9
Termination of
Review
.
If an Asset Review is in process and the Notes will be paid in full on the next Payment Date (including any payment in full
as a result of any early redemption of the Notes), the Servicer will notify the Asset Representations Reviewer and the Indenture Trustee no less than ten (10) days before that Payment Date. On receipt of notice, the Asset Representations
Reviewer will terminate the Asset Review immediately and will not be obligated to deliver a Review Report. Within ten (10) days after receipt of such notice, the Asset Representations Reviewer will provide the Issuer, the Servicer and the
Indenture Trustee with the related Review Invoice.
Section 3.10
Review and Procedure Limitations
.
The Asset Representations Reviewer will have no obligation (i) to determine whether a Delinquency Trigger has occurred, (ii) to
determine whether the required percentage of Noteholders has voted to direct an Asset Review and may rely on the information in any Review Notice delivered by the Indenture Trustee, (iii) to determine which Receivables are Subject Receivables
and may rely on the list of Subject Receivables provided by the Servicer, (iv) to confirm the validity of the Review Materials, (v) other than as specified in
Section
3.3
, to obtain missing or insufficient Review
Materials, or (vi) to take any action or to cause any other party to take any action under any of the Transaction Documents to enforce any remedies for any breach of a representation, warranty or covenant, including any Eligibility
Representation.
6
The Asset Representations Reviewer shall be required to perform only the testing procedures
listed under “Tests” in
Exhibit A
, and shall have no obligation to perform additional testing procedures on any Subject Receivables or to consider any additional information provided by any party. The Asset Representations
Reviewer shall have no obligation to provide reporting or other information other than the Review Report described in
Section
3.7
. However, the Asset Representations Reviewer may provide additional information about any
Subject Receivable that it determines in good faith to be material to its performance of an Asset Review.
Section 3.11
Review
Systems
.
The Asset Representations Reviewer shall maintain and utilize an electronic case management system to manage the Tests and
to provide systematic control over each step in the Asset Review process and ensure consistency and repeatability for the Tests. The Asset Representations Reviewer will ensure that these systems allow for each Subject Receivable and the related
Review Materials to be individually tracked and stored as contemplated by this Agreement. The Asset Representations Reviewer will maintain adequate staff that is properly trained to conduct Asset Reviews as required by this Agreement.
Section 3.12
Representatives
.
(a)
Servicer Representative
. The Servicer will provide reasonable access to one or more designated representatives to respond to
reasonable requests and inquiries made by the Asset Representations Reviewer in its completion of an Asset Review.
(b)
Asset
Representations Review Representative
. The Asset Representations Reviewer will provide reasonable access to one or more designated representatives to respond to reasonable requests and inquiries made by the Servicer, the Sponsor, the Issuer or
the Indenture Trustee during the Asset Representations Reviewer’s completion of an Asset Review. The Asset Representations Reviewer shall have no obligation to respond to requests or inquiries, and other than as specified in
Section
3.13
shall not respond to requests or inquiries, made by any Person not party to this Agreement other than the Indenture Trustee;
provided
, that if the Asset Representations Reviewer receives any request or
inquiry from a Person not a party to this Agreement, then the Asset Representations Reviewer may inform such Person that they may contact the Servicer and/or the Indenture Trustee with respect to such request or inquiry.
Section 3.13
Dispute Resolution
.
If a Subject Receivable that was reviewed by the Asset Representations Reviewer during an Asset Review is the subject of a dispute resolution
proceeding under
Section
3.11
of the Purchase Agreement, the Asset Representations Reviewer shall participate in the dispute resolution proceeding on request of a party to the proceeding. The reasonable
out-of-pocket
expenses and reasonable compensation of the Asset Representations Reviewer for its participation in any dispute resolution proceeding will be considered expenses
of the Requesting Party for the dispute resolution and (subject to
Section
4.3
) will be paid by a party to the dispute resolution as determined by the mediator or arbitrator for the dispute resolution according to
Section
3.11
of the Purchase Agreement.
7
Section 3.14
Records Retention
.
The Asset Representations Reviewer will maintain copies of Review Materials, Review Reports and internal work papers and correspondence
(collectively the “
Client Records
”) for a period of three (3) years after the termination of this Agreement. At the expiration of the retention period, the Asset Representations Reviewer, at the option of the Servicer,
(i) shall return all Client Records to the Servicer, in electronic format or, to the extent held in tangible form, in that form, or (ii) shall destroy such Client Records, in each case in accordance with
Section
7.1(e)
of this Agreement. Upon the return or destruction of the Client Records, as applicable, the Asset Representations Reviewer shall have no obligation to retain such Client Records or to respond to inquiries
concerning any Asset Review.
Section 3.15
No Delegation
.
The Asset Representations Reviewer may not delegate or subcontract its obligations under this Agreement to any Person without the consent of
the Issuer, the Sponsor and the Servicer.
ARTICLE IV.
PAYMENTS TO ASSET REPRESENTATIONS REVIEWER
Section 4.1
Annual Fee
.
As compensation for its activities hereunder, the Asset Representations Reviewer shall be entitled to receive an annual fee in an amount equal
to $5,000.00 (the “
Annual ARR Fee
”) during the term of this Agreement, which shall be paid by or on behalf of the Sponsor within thirty (30) days of the date hereof, with respect to the initial Annual ARR Fee, and within
thirty (30) days of the annual anniversary of this Agreement with respect to each subsequent Annual ARR Fee;
provided
,
however
, that if the Asset Representations Reviewer resigns or is removed in accordance with
Section
6.2
, then the Asset Representations Reviewer shall refund to the Sponsor the portion of the Annual ARR Fee attributable to the portion of the annual period during which Clayton will no longer act as the Asset
Representations Reviewer, assuming for purposes of such calculation that the Annual ARR Fee for each day during the annual period is an amount equal to the Annual ARR Fee divided by 365.
Section 4.2
Review Fee
.
Following the completion of an Asset Review and delivery to the Indenture Trustee, the Sponsor, the Servicer and the Issuer of the Review
Report, or, if earlier, the termination of Asset Review according to
Section
3.9
, and the delivery to the Sponsor of the related Review Invoice, the Sponsor shall pay to the Asset Representations Reviewer a fee of $200.00
for each Subject Receivable for which the Asset Review was completed plus reasonable
out-of-pocket
expenses incurred in connection with travel to the location at which
Review Materials are made available in accordance with
Section
3.3
(the “
Review Fee
”). However, no Review Fee will be charged for any Subject Receivable which was included in a prior Asset Review or for
which no Tests were completed prior to the Asset Representations Reviewer being notified of a termination of the Asset Review according to
Section
3.9
or the Asset Representations Reviewer being notified of the payment in
full or purchase of any Subject Receivable according to
Section
3.8
.
8
Section 4.3
Dispute Resolution; Travel Expenses
.
(a)
Dispute Resolution
Expenses. If the Asset Representations Reviewer
participates in a dispute resolution proceeding under
Section
3.13
and its reasonable
out-of-pocket
expenses and reasonable compensation for
the time it incurs in participating in the proceeding are not paid by a party to the dispute resolution within ninety (90) days of the end of the proceeding, the Sponsor will reimburse the Asset Representations Reviewer for such expenses upon
receipt of a detailed invoice. If the Sponsor makes any payment under this Section and the Asset Representations Reviewer later collects any of the amounts for which the payments were made to it from others, the Asset Representations Reviewer will
promptly repay the amounts to the Sponsor.
(b)
Reimbursement of Travel Expenses
. If the Servicer provides access to the Review
Materials at one of its properties, the Sponsor will reimburse the Asset Representations Reviewer for its reasonable travel expenses incurred in connection with the Asset Review upon receipt of a detailed invoice.
Section 4.4
Payment
.
All payments made to the Asset Representations Reviewer shall be made to the account specified by the Asset Representations Reviewer from time
to time in writing to the Indenture Trustee, the Sponsor, the Servicer and the Issuer. For the avoidance of doubt, there shall be no aggregate limit on the Review Fee, reimbursable expenses, or indemnities payable by the Sponsor or the Issuer
(subject to
Section
4.5
) to the Asset Representations Reviewer pursuant to this
Article IV
.
Section 4.5
Payments by the Issuer
.
To the extent not paid by the Sponsor and outstanding for at least sixty (60) days after receipt by the Indenture Trustee, the Sponsor,
the Servicer and the Issuer of the Review Invoice, the Asset Representations Reviewer may provide notice to the Indenture Trustee, the Sponsor, the Servicer and the Issuer that the Review Fee shall be paid by the Issuer pursuant to the priority of
payments set forth in
Section
8.5(a)
of the Indenture or
Section
5.4(b)
of the Indenture, as applicable. After receipt of such notice, the Sponsor shall either (i) cause the Servicer to
include such Review Fee in the Servicer’s Report to be delivered on the Determination Date following the receipt of such notice for payment on the corresponding Payment Date (or, if such notice was received less than five (5) Business
Days prior to such Determination Date, on the next succeeding Determination Date for payment on the related Payment Date) pursuant to the priority of payments set forth in
Section
8.5(a)
of the Indenture or
Section
5.4(b)
of the Indenture, as applicable or (ii) pay such Review Fee directly to the Asset Representations Reviewer prior to the Payment Date following receipt of such notice. The Asset Representations Reviewer
acknowledges and agrees that any payments payable by the Issuer under this Agreement, including pursuant to this Article IV or
Section
5.3
, shall be limited to amounts available to make such payments pursuant to
Section
8.5(a)
of the Indenture and
Section
5.4(b)
of the Indenture, as applicable.
9
ARTICLE V.
OTHER MATTERS PERTAINING TO THE ASSET REPRESENTATIONS REVIEWER
Section 5.1
Representations and Warranties of the Asset Representations Reviewer
.
Clayton hereby makes the following representations and warranties as of the date hereof:
(a)
Existence and Power
. Clayton is a limited liability company validly existing and in good standing under the laws of its state of
formation and has, in all material respects, full power and authority to own its assets and operate its business as presently owned or operated, and to execute, to deliver and to perform its obligations under this Agreement. Clayton has obtained all
necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely affect the ability of Clayton to perform its obligations under this Agreement.
(b)
Authorization and No Contravention
. The execution, delivery and performance by Clayton of the Transaction Documents to which it is
a party have been duly authorized by all necessary limited liability company action on the part of Clayton and do not contravene or constitute a default under (i) any applicable law, rule or regulation, (ii) its organizational documents or
(iii) any material indenture or material agreement or instrument to which Clayton is a party or by which its properties are bound (other than violations of such laws, rules, regulations, organizational documents, indentures, agreements or
instruments which do not affect the legality, validity or enforceability of any of such agreements and which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or Clayton’s ability to
perform its obligations under, this Agreement).
(c)
No Consent Required
. No approval or authorization by, or filing with, any
Governmental Authority is required in connection with the execution, delivery and performance by Clayton of this Agreement other than (i) approvals and authorizations that have previously been obtained and filings that have previously been made
and (ii) approvals, authorizations or filings which, if not obtained or made, would not have a material adverse effect on the ability of Clayton to perform its obligations under this Agreement.
(d)
Binding Effect
. This Agreement constitutes the legal, valid and binding obligation of Clayton enforceable against Clayton in
accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws affecting the enforcement of creditors’ rights
generally and, if applicable, the rights of creditors of corporations from time to time in effect or by general principles of equity.
(e)
No Proceedings
. There are no actions, orders, suits or proceedings pending or, to the knowledge of Clayton, threatened against Clayton before or by any Governmental Authority that (i) assert the invalidity or unenforceability of this
Agreement or (ii) seek any determination or ruling that would materially and adversely affect the performance by Clayton of its obligations under this Agreement.
(f)
Eligibility
. The Asset Representations Reviewer is an Eligible Asset Representations Reviewer.
10
Section 5.2
Limitation of Liability of Asset Representations Reviewer
.
To the fullest extent permitted by applicable law, the Asset Representations Reviewer shall not be under any liability to the Issuer, the
Servicer, the Seller, the Indenture Trustee, the Owner Trustee, any Noteholder or any other Person for any action taken or for refraining from the taking of an action in its capacity as Asset Representations Reviewer pursuant to this Agreement, or
for errors in judgment, whether arising from express or implied duties under this Agreement;
provided
,
however
, that this provision shall not protect the Asset Representations Reviewer against any liability which would otherwise be
imposed by reason of willful misconduct, bad faith, breach of this Agreement or negligence in the performance of its duties. In no event will the Asset Representations Reviewer be liable for special, indirect or consequential loss or damage
(including loss of profit) even if the Asset Representations Reviewer has been advised of the likelihood of the loss or damage and regardless of the form of action.
The Asset Representations Reviewer and any director, officer, employee, or agent may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters arising hereunder. The Asset Representations Reviewer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its
duties as Asset Representations Reviewer hereunder.
Section 5.3
Indemnification of Asset Representations Reviewer
.
(a) The Sponsor will indemnify the Asset Representations Reviewer and its officers, directors, employees and agents (each, an “
ARR
Indemnified Person
”), for all reasonable and documented costs, expenses, losses, damages and liabilities resulting from any third-party claim arising out of the performance of the Asset Representations Reviewer’s obligations under
this Agreement (including the costs and expenses of defending itself against any loss, damage or liability), but excluding any cost, expense, loss, damage or liability resulting from (i) the Asset Representations Reviewer’s willful
misconduct, bad faith or negligence or (ii) the Asset Representations Reviewer’s breach of any of its representations, warranties or covenants in this Agreement. To the extent not paid by the Sponsor and outstanding for at least sixty
(60) days after receipt by the Indenture Trustee, the Sponsor, the Servicer and the Issuer of an invoice with reasonable detail of indemnification amounts, the Asset Representations Reviewer may provide notice to the Indenture Trustee, the
Sponsor, the Servicer and the Issuer that any such indemnification amounts shall be paid by the Issuer pursuant to the priority of payments set forth in
Section
8.5(a)
of the Indenture or
Section
5.4(b)
of the Indenture, as applicable. After receipt of such notice, the Sponsor shall either (i) cause the Servicer to include such indemnification amounts in the Servicer’s Report to be delivered on
the Determination Date following the receipt of such notice for payment on the corresponding Payment Date (or, if such notice was received less than five (5) Business Days prior to such Determination Date, on the next succeeding Determination
Date for payment on the related Payment Date) pursuant to the priority of payments set forth in
Section
8.5(a)
of the Indenture or
Section
5.4(b)
of the Indenture, as applicable or (ii) pay
such indemnification amounts directly to the Asset Representations Reviewer prior to the Payment Date following receipt of such notice.
(b) In case any such action, investigation or proceeding will be brought involving an ARR Indemnified Person as contemplated by
Section
5.3(a)
, the Sponsor will assume the defense
11
thereof, including the employment of counsel and the payment of all expenses. The Asset Representations Reviewer will have the right to employ separate counsel in any such action, investigation
or proceeding and to participate in the defense thereof and the reasonable fees and expenses of such counsel will be paid by the Sponsor. In the event of any claim, action, or proceeding for which indemnity will be sought pursuant to this
Section
5.3
, the Asset Representations Reviewer’s choice of legal counsel shall be subject to the good faith objection by the Sponsor to a conflict of interest under the applicable rules of professional conduct. If
there is a conflict, the Sponsor will pay for the reasonable fees and expenses of separate counsel to the ARR Indemnified Person. No settlement may be made without the approval of the Sponsor and the ARR Indemnified Person, which approval will not
be unreasonably withheld.
(c) The indemnification set forth in this
Section
5.3
will survive the termination of
this Agreement and the resignation or removal of the Asset Representations Reviewer.
(d) If the Sponsor or the Issuer makes any payment
under this
Section
5.3
and the ARR Indemnified Person later collects any of the amounts for which the payments were made to it from others, the ARR Indemnified Person will promptly repay the amount to the Sponsor or the
Issuer, as applicable.
Section 5.4
Indemnification by Asset Representations Reviewer
.
(a) To the fullest extent permitted by law, the Asset Representations Reviewer shall indemnify and hold harmless each of the Issuer, the
Sponsor, the Servicer and the Indenture Trustee, and its respective officers, directors, successors, assigns, legal representatives, agents, and servants (each an “
Indemnified Person
”), from and against any and all fees,
liabilities, obligations, losses, damages, penalties, taxes, claims, actions, investigations, proceedings, costs, expenses or disbursements (including reasonable legal fees, expenses and court costs incurred by an Indemnified Person in connection
with the enforcement of any indemnification or other obligation of the Asset Representations Reviewer) of any kind and nature whatsoever which may be imposed on, incurred by, or asserted at any time against an Indemnified Person (whether or not also
indemnified against by any other person) which arose out of the negligence, willful misconduct or bad faith of the Asset Representations Reviewer in the performance of its obligations and duties under this Agreement;
provided
,
however
,
that the Asset Representations Reviewer shall not be liable for or required to indemnify an Indemnified Person from and against expenses arising or resulting from (i) the Indemnified Person’s own willful misconduct, bad faith or
negligence, or (ii) the breach of any representation, warranty or covenant made by the Indemnified Person.
(b) In case any such
action, investigation or proceeding will be brought involving an Indemnified Person as contemplated by
Section
5.4(a)
, the Asset Representations Reviewer will assume the defense thereof, including the employment of counsel
and the payment of all expenses. The Issuer, the Servicer, the Sponsor and the Indenture Trustee each will have the right to employ separate counsel in any such action, investigation or proceeding and to participate in the defense thereof and the
reasonable fees and expenses of such counsel will be paid by the Asset Representations Reviewer. In the event of any claim, action, or proceeding for which indemnity will be sought pursuant to this
Section
5.4
, the
Issuer’s, the Servicer’s, the Sponsor’s and the Indenture Trustee’s choice of legal counsel shall be subject to the good faith objection by the Asset Representations Reviewer to a conflict of interest under the applicable
rules of professional
12
conduct. If there is a conflict, the Asset Representations Reviewer will pay for the reasonable fees and expenses of separate counsel to the Indemnified Person. No settlement may be made without
the approval of the Asset Representations Reviewer and the Indemnified Person, which approval will not be unreasonably withheld.
(c) The
indemnification set forth in this
Section
5.4
will survive the termination or assignment of this Agreement and the resignation or removal of the Asset Representations Reviewer or any Indemnified Person.
ARTICLE VI.
REMOVAL,
RESIGNATION; SUCCESSOR ASSET REPRESENTATION REVIEWER
Section 6.1
Eligibility Requirements for Asset Representations
Reviewer
. The Asset Representations Reviewer must be an Eligible Asset Representations Reviewer.
Section 6.2
Resignation and
Removal of Asset Representations Reviewer
.
(a)
No Resignation of Asset Representations Reviewer
. The Asset Representations
Reviewer may not resign as Asset Representations Reviewer except (i) if the Asset Representations Reviewer is no longer an Eligible Asset Representations Reviewer, (ii) upon a determination that the performance of its duties under this
Agreement is no longer permissible under applicable law, as evidenced by an Opinion of Counsel delivered to the Issuer, the Sponsor and the Indenture Trustee, or (iii) if it does not receive payment in full of any amounts required to be paid to
the Asset Representations Reviewer in accordance with the terms of Article IV and pursuant to an undisputed invoice. Without limiting the foregoing, the Asset Representations Reviewer shall promptly resign if it is no longer an Eligible Asset
Representations Reviewer. If the Asset Representations Reviewer resigns pursuant to clause (ii) above, the Asset Representations Reviewer shall deliver a notice of resignation to the Issuer and the Servicer, with a copy to the Indenture
Trustee, no less than thirty (30) days prior to the date of its resignation.
(b)
Removal of Asset Representations Reviewer
.
If any of the following events occur, the Indenture Trustee may, or, at the direction of Noteholders evidencing a majority of the aggregate Outstanding Note Balance shall, by notice to the Asset Representations Reviewer, remove the Asset
Representations Reviewer and terminate its rights and obligations under this Agreement:
(i) the Asset Representations
Reviewer is no longer an Eligible Asset Representations Reviewer;
(ii) the Asset Representations Reviewer breaches any of
its representations, warranties, covenants or obligations in this Agreement; or
(iii) a Bankruptcy Event of the Asset
Representations Reviewer occurs.
(c)
Notice of Resignation or Removal
. The Servicer will notify the Issuer, the Owner Trustee and
the Indenture Trustee of any resignation or removal of the Asset Representations Reviewer.
13
Section 6.3
Successor Asset Representations Reviewer
.
(a)
Engagement of Successor Asset Representations Reviewer
. Following the resignation or removal of the Asset Representations Reviewer,
(i) if the Delinquency Percentage has exceeded the Delinquency Trigger as of the most recent Payment Date, the Indenture Trustee (at the direction of the Noteholders, provided, that if the Indenture Trustee has received conflicting or
inconsistent requests from two or more groups of Noteholders, each representing less than the majority of the Note Balance, the Indenture Trustee shall follow the direction of the Noteholders representing the greater percentage of the Note Balance)
and (ii) if the Delinquency Percentage has not exceeded the Delinquency Trigger as of the most recent Payment Date, the Sponsor, will appoint a successor Asset Representations Reviewer which is an Eligible Asset Representations Reviewer.
(b)
Effectiveness of Resignation or Removal
. No resignation or removal of the Asset Representations Reviewer will be effective until
the successor Asset Representations Reviewer has executed and delivered to the Issuer, the Sponsor and the Servicer an agreement accepting its engagement and agreeing to perform the obligations of the Asset Representations Reviewer under this
Agreement or entered into a new agreement with the Issuer and the Servicer on substantially the same terms as this Agreement.
(c)
Transition and Expenses
. If the Asset Representations Reviewer resigns or is removed, the Asset Representations Reviewer will cooperate with the Issuer and take all actions reasonably requested to assist the Issuer in making an orderly
transition of the Asset Representations Reviewer’s rights and obligations under this Agreement to the successor Asset Representations Reviewer. Except for a permitted resignation pursuant to
Section
6.2(a)(iii)
, the
Asset Representations Reviewer will pay the reasonable expenses (including the fees and expenses of counsel) of transitioning the Asset Representations Reviewer’s obligations under this Agreement and preparing the successor Asset
Representations Reviewer to take on such obligations on receipt of an invoice with reasonable detail of the expenses from the Issuer or the successor Asset Representations Reviewer.
Section 6.4
Merger, Consolidation or Succession
. Any Person (a) into which the Asset Representations Reviewer is merged or
consolidated, (b) resulting from any merger or consolidation to which the Asset Representations Reviewer is a party or (c) succeeding to the business of the Asset Representations Reviewer, if that Person is an Eligible Asset
Representations Reviewer, will be the successor to the Asset Representations Reviewer under this Agreement. Such Person will execute and deliver to the Issuer, the Sponsor and the Servicer an agreement to assume the Asset Representations
Reviewer’s obligations under this Agreement (unless the assumption happens by operation of law).
ARTICLE VII.
TREATMENT OF CONFIDENTIAL INFORMATION
Section 7.1
Confidential Information
.
14
(a)
Confidential Information Defined
. For the purposes of this Agreement,
“
Confidential Information
” means information that (i) is identified as
non-public,
confidential or proprietary information or (ii) a reasonable person would deem to be
non-public,
confidential or proprietary information of a party (the “
Disclosing Party
”) that is disclosed to the other party (the “
Receiving Party
”) by the Disclosing Party or
any of its Representatives in connection with the performance of this Agreement, including but not limited to: (A) business or technical processes, formulae, source codes, object code, product designs, sales, cost and other unpublished
financial information, customer information, product and business plans, projections, marketing data or strategies, trade secrets, intellectual property rights,
know-how,
expertise, methods and procedures for
operation, information about employees, customer names, business or technical proposals, and any other information which is or should reasonably be understood to be confidential or proprietary to the Disclosing Party; (B) Personally
Identifiable Information (as defined in
Section
7.2
of this Agreement); and (C) Review Materials. The foregoing definition of Confidential Information applies to: (i) all such information, whether tangible or
intangible and regardless of the medium in which it is stored or presented; and (ii) all copies of such information, as well as all memoranda, notes, summaries, analyses, computer records, and other materials prepared by the Receiving Party or
any of its employees, agents, advisors, directors, officers, and subcontractors (collectively “
Representatives
”) that contain or reflect the Confidential Information.
(b)
Use of Confidential Information
. Each party acknowledges that during the term of this Agreement it may be exposed to or acquire
Confidential Information of the other party or its Affiliates. The Receiving Party shall hold the Confidential Information of the Disclosing Party in strict confidence and will not disclose such information except to its Representatives who have a
need to know such information in connection with the performance of this Agreement and who are informed by the Receiving Party of the confidential nature of the Confidential Information and are directed by the Receiving Party to treat the
Confidential Information in a manner consistent with the terms of this Agreement. The Receiving Party shall be responsible for the breach of this Agreement by any of its Representatives. The Receiving Party will hold and protect the Disclosing
Party’s Confidential Information using the same degree of care that it uses to protect its own confidential,
non-public
and/or proprietary information, but in no event with less than a commercially
reasonable standard of care.
(c)
Exceptions
. Confidential Information shall not include, and this Agreement imposes no obligations
with respect to, information that:
(i)
was, at the time of disclosure to the Receiving Party, in the public domain or, after disclosure to the
Receiving Party, has become part of the public domain through no act or omission of the Receiving Party;
(ii)
was in the possession of the Receiving Party, without confidentiality restrictions, at the time of disclosure
to the Receiving Party hereunder;
(iii)
was or hereafter is independently developed by a party outside of this Agreement and without use of, reference
to, access to or reliance on any Confidential Information of the other party; or
15
(iv)
was lawfully and independently obtained by the Receiving Party from a third party who, to the knowledge of the
Receiving Party after reasonable inquiry, is not subject to an obligation of confidentiality or otherwise prohibited from disclosing or transmitting the information to the Receiving Party.
The foregoing exceptions shall not apply to any Personally Identifiable Information, which shall remain confidential in all circumstances,
except as required or permitted to be disclosed by applicable law, statute, or regulation.
(d)
Disclosure by Operation of Law
. If
any party or any of its Representatives is requested or required (orally or in writing, by law, regulation or interrogatory, request for information or documents, court order, subpoena, deposition, administrative proceedings, inspection, audit,
civil investigative demand or other legal, governmental or regulatory process) to disclose all or any part of any Confidential Information, such party shall (i) to the extent permitted by law, rule and regulation, promptly notify the other
party of the existence, terms and circumstances surrounding such request; (ii) consult with the other party on the advisability of taking legally available steps to resist or narrow such request and cooperate with such party on any steps it
considers advisable; and (iii) if disclosure of the Confidential Information is required or deemed advisable, exercise commercially reasonable efforts to obtain an order, stipulation or other reliable assurance that confidential treatment shall
be accorded to such portion of the Confidential Information to be disclosed. Each party shall reimburse the other party for reasonable legal fees and expenses incurred in connection with such party’s efforts to comply with this section.
Notwithstanding anything to the contrary contained herein, the Servicer and its Affiliates may disclose Confidential Information, without notice to the Asset Representations Reviewer, to any governmental agency, regulatory authority or
self-regulatory authority (including, without limitation, bank and securities examiners) having or claiming to have authority to regulate or oversee any aspect of the Servicer’s business or that of its Affiliates in connection with the
exercise of such authority or claimed authority.
(e)
Return of Confidential Information
. Upon the written request of the
Disclosing Party, the Receiving Party shall return or destroy all Confidential Information to the Disclosing Party provided to it pursuant to this Agreement;
provided, however,
(i) the Receiving Party shall be permitted to retain copies
of the Disclosing Party’s Confidential Information solely for archival, audit, disaster recovery, legal, and/or regulatory purposes or, if longer, for the period of time set forth in
Section
3.14
, and (ii) the
Receiving Party shall be permitted to retain copies of the Disclosing Party’s Confidential Information to the extent it would be unreasonably burdensome to return or destroy such Confidential Information;
provided further,
that
(x) any Confidential Information so retained will remain subject to the obligations and restrictions contained in this Agreement, notwithstanding any termination hereof, and (y) the Receiving Party will not use the retained Confidential
Information for any other purpose.
(f)
Remedies
. Each of the parties acknowledges that all Confidential Information of the other
party is considered to be proprietary and of competitive value, and in many instances, trade secrets. Each of the parties hereto agrees that because of the unique nature of such Confidential Information, any breach of this Section by it or its
Representatives would cause irreparable harm to the Disclosing Party and that money damages and other remedies available at law in the event of a breach would not be adequate to compensate the Disclosing Party for any
16
such breach. Accordingly, each party shall be entitled, without the requirement of posting a bond or other security, to equitable relief, including, without limitation, injunctive relief and
specific performance, as a remedy for any such breach. Such relief shall be in addition to, and not in lieu of, all other remedies available to such party, whether under this Agreement, at law or in equity.
Section 7.2
Safeguarding Personally Identifiable Information
.
(a)
Definition
. “
Personally Identifiable Information
”, or “
PII
”, means information in any format
about an identifiable individual, including, name, address, phone number,
e-mail
address, account number(s), identification number(s), any other actual or assigned attribute associated with or identifiable to
an individual and any information that when used separately or in combination with other information could identify an individual, as further described in § 501(b) of the Gramm-Leach-Bliley Act and the Interagency Guidelines Establishing
Standards for Safeguarding Customer Information (12 C.F.R. Section 208, Appendix
D-2)
(collectively, the “
Privacy Laws
”), that is provided or made available to the Asset Representations
Reviewer pursuant to this Agreement.
(b)
Non-Disclosure
. To the extent the Asset
Representations Reviewer receives Personally Identifiable Information in the performance of its obligations hereunder, the Asset Representations Reviewer agrees that it will not disclose or use any Personally Identifiable Information except
(i) to the extent necessary to carry out its obligations under the Agreement and for no other purpose; or (ii) as may be required by valid operation of law.
(c)
Safeguards
. To the extent the Asset Representations Reviewer receives Personally Identifiable Information in the performance of
services under this Agreement, the Asset Representations Reviewer represents and warrants that it has, and will continue to have adequate administrative, technical, and physical safeguards: (i) to ensure the security and confidentiality of
Personally Identifiable Information; (ii) to protect against any anticipated threats or hazards to the security or integrity of Personally Identifiable Information; and (iii) to protect against unauthorized acquisition of, access to or use
of Personally Identifiable Information which could result in a “breach” as that term is defined under applicable Privacy Laws.
(d)
Information
. The Asset Representations Reviewer agrees to provide the Issuer and the Sponsor with information regarding its privacy
and information security systems, policies and procedures as the Issuer may reasonably request relating to compliance with this Agreement and applicable Privacy Laws. The Asset Representations Reviewer agrees to provide training in the Privacy Laws
and the Asset Representations Reviewer’s information security policies to all personnel whose duties pursuant to this Agreement could bring them in contact with Personally Identifiable Information.
(e)
Breach
. In the event of any actual or apparent theft, unauthorized use or disclosure of any Personally Identifiable Information,
the Asset Representations Reviewer will commence all reasonable efforts to investigate and correct the causes and remediate the results thereof. As soon as practicable following discovery of any such event, the Asset Representations Reviewer will
provide the Issuer, the Servicer and the Sponsor notice thereof, and shall cooperate with the Servicer and the Sponsor (including by providing any further information and assistance as may
17
be reasonably requested) to expeditiously implement the data security breach investigation and response protocols of the Servicer and the Sponsor.
ARTICLE VIII.
OTHER
MATTERS PERTAINING TO THE ISSUER
Section 8.1
Termination of this Agreement
.
This Agreement will terminate, except for obligations under
Section
5.3
,
Section
5.4
,
Section
9.13
and
Article VII
, on the earlier of (a) the payment in full of all outstanding Notes and the satisfaction and discharge of the Indenture and (b) the date the Issuer is terminated under the Trust
Agreement.
Section 8.2
Limitation of Liability
. It is expressly understood and agreed by the parties that (a) this
document is executed and delivered by BNY Mellon Trust of Delaware, not individually or personally, but solely as Owner Trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it, pursuant to the Trust Agreement,
(b) each of the representations, warranties, covenants, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, warranties, covenants, undertakings and agreements by BNY Mellon
Trust of Delaware, but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on BNY Mellon Trust of Delaware, individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any person claiming by, through or under the parties hereto, and (d) under no circumstances shall BNY Mellon
Trust of Delaware be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Agreement
or under the Notes or any of the other Transaction Documents or in any of the certificates, notices or agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer.
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.1
Amendment
.
(a) Any term or provision of this Agreement may be amended by the Sponsor, the Servicer and the Asset Representations Reviewer without the
consent of the Indenture Trustee, any Noteholder, the Issuer, the Owner Trustee or any other Person subject to the satisfaction of one of the following conditions:
(i) the Sponsor or the Servicer delivers an Opinion of Counsel to the Indenture Trustee to the effect that such amendment will
not materially and adversely affect the interests of the Noteholders; or
18
(ii) the Rating Agency Condition is satisfied with respect to such amendment
and the Servicer notifies the Indenture Trustee in writing that the Rating Agency Condition is satisfied with respect to such amendment;
provided
,
that no amendment pursuant to this
Section
9.1(a)
shall be effective which affects the rights, protections or duties of the Indenture Trustee or the Owner Trustee without the prior written consent of such Person.
(b) This Agreement may also be amended from time to time by the Sponsor, the Servicer and the Asset Representations Reviewer, with the consent
of the Holders of Notes evidencing not less than a majority of the aggregate Note Balance of the Controlling Class, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders,
provided
, that no amendment pursuant to this
Section
9.1(b)
shall be effective which affects the rights, protections or duties of the Indenture Trustee or the
Owner Trustee without the prior written consent of such Person. It will not be necessary for the consent of Noteholders to approve the particular form of any proposed amendment or consent, but it will be sufficient if such consent approves the
substance thereof. The manner of obtaining such consents (and any other consents of Noteholders provided for in this Agreement) and of evidencing the authorization of the execution thereof by Noteholders will be subject to such reasonable
requirements as the Indenture Trustee may prescribe, including the establishment of record dates pursuant to the Depository Agreement. For purposes of this
Section
9.1
, if the Bank and/or its Affiliates is the Holder of
Notes representing 100% of the Note Balance of the Outstanding Notes, such Person (or Persons) may consent to such amendment on behalf of the Noteholders. In determining whether the Bank and/or its Affiliates is the Holder of Notes representing 100%
of the Note Balance of the Outstanding Notes for purposes of the preceding sentence, any party hereto shall be entitled to rely on an Officer’s Certificate or similar certification of the Bank or any Affiliate thereof to such effect.
(c) Any term or provision of this Agreement may also be amended from time to time by the Sponsor, the Servicer and the Asset Representations
Reviewer for the purpose of conforming the terms of this Agreement to the description thereof in the Prospectus or, to the extent not contrary to the Prospectus, to the description thereof in an offering memorandum with respect to the 144A Notes or
the Certificates without the consent of the Indenture Trustee, any Noteholder, the Issuer, the Owner Trustee or any other Person,
provided
,
however
, that the Sponsor, the Servicer and the Asset Representations Reviewer shall provide
written notification of the substance of such amendment to the Indenture Trustee, the Issuer and the Owner Trustee and promptly after the execution of such amendment, the Sponsor and the Servicer shall furnish a copy of such amendment to the
Indenture Trustee, the Issuer and the Owner Trustee.
(d) Prior to the execution of any amendment or consent pursuant to this
Section
9.1
, the Sponsor shall provide written notification of the substance of such amendment to each Rating Agency; and promptly after the execution of any such amendment or consent, the Sponsor shall furnish a copy of
such amendment or consent to each Rating Agency and the Indenture Trustee.
(e) Prior to the execution of any amendment to this Agreement,
the Owner Trustee and the Indenture Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and
19
that all conditions precedent to the execution and delivery of such amendment have been satisfied. The Owner Trustee and the Indenture Trustee may, but shall not be obligated to, enter into any
such amendment which adversely affects the Owner Trustee’s or the Indenture Trustee’s, as applicable, own rights, duties or immunities under this Agreement.
Section 9.2
Notices, Etc
.
All demands, notices and communications hereunder shall be in writing and shall be delivered or
mailed by registered or certified first-class United States mail, postage prepaid, hand delivery, prepaid courier service, or by electronic transmission (when receipt is confirmed by telephone or reply email from the recipient), and addressed in
each case as specified on
Schedule I
to the Sale Agreement, or at such other address as shall be designated by any of the specified addressees in a written notice to the other parties hereto. Delivery shall occur only upon receipt or reported
tender of such communication by an officer of the recipient entitled to receive such notices located at the address of such recipient for notices hereunder.
Section 9.3
Severability Clause
.
This Agreement constitutes the entire agreement between the Asset Representations Reviewer, the Issuer, the Servicer, and the Sponsor. All
prior representations, statements, negotiations and undertakings with regard to the subject matter hereof are superseded hereby.
If any
term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remaining terms and provisions of this Agreement, or the application of such terms or provisions to
persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
Section 9.4
Governing Law
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF
THE STATE OF NEW YORK WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO CONFLICTS OF LAW, OTHER THAN SECTIONS
5-1401
AND
5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.5
Headings
. The section headings hereof have been inserted for convenience only and shall not be construed to affect the meaning, construction or effect of this Agreement.
Section 9.6
Counterparts
. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed
to be an original, but all of such counterparts shall together constitute but one and the same instrument.
Section 9.7
Waivers
. No failure or delay on the part of the Servicer, the Asset Representations Reviewer, the Issuer or the Indenture Trustee in exercising any power or right hereunder (to the extent such Person has any power or right hereunder) shall
operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on any party hereto in any case shall
entitle it to any notice or demand in similar or other
20
circumstances. No waiver or approval by either party under this Agreement shall, except as may otherwise be stated in such waiver or approval, be applicable to subsequent transactions. No waiver
or approval under this Agreement shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder.
Section 9.8
Entire Agreement
. This Agreement contains a final and complete integration of all prior expressions by the parties
hereto with respect to the subject matter thereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter thereof, superseding all prior oral or written understandings. There are no unwritten agreements
among the parties.
Section 9.9
Severability of Provisions
. If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no
way affect the validity or enforceability of the other provisions of this Agreement.
Section 9.10
Binding Effect
. This
Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its
terms, and shall remain in full force and effect until such time as the parties hereto shall agree.
Section 9.11
Cumulative
Remedies
. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
Section 9.12
Nonpetition Covenant
. Each party hereto agrees that, prior to the date which is one year and one day after payment in full of all obligations of each Bankruptcy Remote Party in respect of all securities issued by any Bankruptcy Remote Party
(i) such party hereto shall not authorize any Bankruptcy Remote Party to commence a voluntary
winding-up
or other voluntary case or other Proceeding seeking liquidation, reorganization or other relief
with respect to such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian
or other similar official with respect to such Bankruptcy Remote Party or any substantial part of its property or to consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other
Proceeding commenced against such Bankruptcy Remote Party, or to make a general assignment for the benefit of its creditors generally, any party hereto or any other creditor of such Bankruptcy Remote Party, and (ii) such party shall not
commence, join with any other Person in commencing or institute with any other Person, any Proceeding against such Bankruptcy Remote Party under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in
any jurisdiction. This Section shall survive the termination of this Agreement.
Section 9.13
Submission to Jurisdiction; Waiver
of Jury Trial
. Each of the parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any
legal action or proceeding relating to this Agreement or any documents executed and delivered in connection herewith, or for recognition
21
and enforcement of any judgment in respect thereof, to the nonexclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern
District of New York and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought and maintained
in such courts and waives any objection that it may now or hereafter have to the venue of such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such Person at its address determined in accordance with
Section
9.2
of this Agreement;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e)
to the extent permitted by applicable law, each party hereto irrevocably waives all
right of trial by jury in any action, proceeding or counterclaim based on, or arising out of, under or in connection with this Agreement, any other Transaction Document, or any matter arising hereunder or thereunder.
Section 9.14
Third-Party Beneficiaries
. This Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and permitted assigns and the Indenture Trustee shall be an express third-party beneficiary hereof and may enforce the provisions hereof as if it were a party hereto. Except as otherwise provided in this Section, no other
Person will have any right hereunder.
[Remainder of Page Intentionally Left Blank]
22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first written above.
CAPITAL ONE, NATIONAL ASSOCIATION
By:
Name:
Title:
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
By:
BNY MELLON TRUST OF DELAWARE
,
not in its individual capacity but solely as Owner Trustee
By:
Name:
Title:
CLAYTON FIXED INCOME SERVICES LLC
,
as Asset Representations Reviewer
By:
Name:
Title:
S-1
COPAR 2026-1 Asset Representations Review
Agreement
Exhibit A
Capital One Agreed Upon Procedures
Representation
a)
Characteristics of Receivables
As of the
Cut-Off
Date (or such other date as may be specifically set forth below), each Receivable:
(i) has been fully and properly executed or electronically authenticated by the Obligor thereto;
(ii) has been originated by a Dealer to finance the retail sale by that Dealer of the related Financed Vehicle and has been
purchased by the Bank from that Dealer;
(iii) as of the Closing Date, is secured by a first priority validly perfected
security interest in the Financed Vehicle in favor of the Originator, as secured party, or all necessary actions have been commenced that would result in a first priority security interest in the Financed Vehicle in favor of the Originator, as
secured party;
(iv) contains customary and enforceable provisions such that the rights and remedies of the holder thereof
are adequate for realization against the collateral of the benefits of the security;
(v) provided, at origination, for
level monthly payments which fully amortize the initial Outstanding Principal Balance over the original term;
provided
, that the amount of the first or last scheduled payment may be different from the level payment but in no event more than
three times the level monthly payment;
(vi) provides for interest at the Contract Rate specified in the Schedule of
Receivables;
(vii) was originated in the United States;
(viii) is secured by a new or used automobile, light duty truck, SUV or van;
(ix) has a Contract Rate of at least 1.00%;
(x) had an original term to maturity of not more than 84 months and each Receivable has a remaining term to maturity, as of
the
Cut-Off
Date, of not more than 79 months and not less than 7 months;
(xi) has
an Outstanding Principal Balance of at least $1,000.00;
Exh. A - 1
(xii) has a final scheduled payment due on or before February 2033;
(xiii) was not more than 29 days past due as of the
Cut-Off
Date;
(xiv) was not noted in the records of the Servicer as being the subject of any verified bankruptcy or insolvency Proceeding;
(xv) is a Simple Interest Receivable; and
(xvi) provides that a prepayment by the related Obligor will fully pay the Outstanding Principal Balance and accrued interest
through the date of prepayment based on the Receivable’s Contract Rate.
Documents
Retail Sale Contract
Title Documents
Receivable File
Schedule of Receivables
Servicing System/Data Tape
Procedures to be Performed
i)
Confirm the contract was signed or electronically authenticated by the Obligor
ii)
Origination of the Receivable
a.
Review the Retail Sale Contract and confirm that Capital One, National Association or another Approved Party is
listed as the Assignee within the Assignment Section
1
iii)
Security Interest Enforcement
a.
Confirm the title documents show Capital One, National Association or another Approved Party as the first
lienholder
b.
Review the servicing system and confirm the Rpt. Branch Code in the system matches the Rpt. Branch Code for the
transaction related to the deal
iv)
Customary and Enforceable Provisions
a.
Confirm the Contract form number is listed on the Approved Contract Form List
2
v)
Fully Amortizing Payment Schedule
a.
Confirm all payments are equivalent with the possible exception that the first and last payments may be
different from the level monthly payment
1
“Approved Party” means a party specified as an “Approved Party” on the list of Approved
Parties provided by Capital One to Clayton.
2
“Approved Contract Form List” means a list of Approved Contract Forms provided by Capital One to
Clayton.
Exh. A - 2
i.
If the first and last payments are different from the level monthly payment, confirm that these payments are no
more than three times the level monthly payment amount
b.
Review the Truth in Lending section of the Retail Sale Contract and calculate the product of the Amount of
Payments with the Number of Payments and confirm that this amount is equal to the Total of Payments
vi)
Provides for Interest at the Contract Rate
a.
Review the Schedule of Receivables and confirm that the stated rate is equal to the APR as shown in the Federal
Truth in Lending section of the Retail Sale Contract
vii)
Origination of the Receivable
a.
Review the Retail Sale Contract and confirm the Dealer address is in the United States
viii)
Condition, Make and Model of Financed Vehicle
a.
Review the New/Used section of the Retail Sale Contract and confirm that the Financed Vehicle is stated to be
new or used
b.
Review the “Year and Make” and “Model” sections of the Retail Sale Contract and confirm
that the Financed Vehicle constitutes an automobile, light-duty truck, SUV or van
ix)
Contract Annual Percentage Rate
a.
Review the Federal Truth in Lending Section of the Retail Sale Contract and confirm that the Annual Percentage
Rate is greater than the minimum allowed percentage rate
x)
Remaining Maturity Date
a.
Confirm that the Number of Payments section within the Truth in Lending section of the Retail Sale Contract
indicates a number of payments that does not exceed the maximum allowable number of payments
b.
Review the Data Tape and confirm that the remaining term to maturity is within the stated allowable limits
xi)
Outstanding Principal Balance
a.
Review the Data Tape and confirm that the unpaid Outstanding Principal Balance as of the
Cut-Off
Date is within the stated allowable limits
xii)
Final Schedule Payment Date
a.
Review the Data Tape and confirm that the Final Scheduled Payment Due Date will occur on or before the latest
allowable final payment date
Exh. A - 3
xiii)
Days Past Due
a.
Review the data file and confirm the Receivable was not more than 29 days past due as of the
Cut-Off
Date
xiv)
Bankruptcy
a.
Review the Receivable File and any applicable servicing notes and confirm there is no indication of pending
bankruptcy or insolvency proceedings as of the
Cut-Off
Date
xv)
Force Place Insurance
a.
Review the servicing system and confirm the Receivable did not have Force Place Insurance as of the
Cut-Off
Date
xvi)
Simple Interest Receivable
a.
Confirm that interest under the Contract is calculated pursuant to the Simple Interest Method
b.
Review the payment history and confirm the first payment was appropriately applied to principal and interest
xvii)
Prepayment
a.
Confirm the Contract contains the appropriate Prepayment Disclosures
xviii)
If sections i through xvii are confirmed, then Test Pass
Exh. A - 4
Representation
Compliance with Law
The Receivable
complied at the time it was originated or made in all material respects with all requirements of applicable federal, state and local laws, and regulations thereunder, except where the failure to comply (i) was remediated or cured in all
material respects prior to the
Cut-Off
Date, or (ii) would not render such Receivable unenforceable or create liability for COAR or the Issuer, as an assignee of such Receivable.
Documents
Retail Sale Contract
Servicing System/Data Tape
Approved Contract Form List
Procedures to be Performed
i)
Confirm the Contract Form number and revision date are on the Approved Contract Form List
ii)
Confirm the Contract is complete
a.
Confirm that all lines in the Contract are filled out appropriately
b.
Confirm the Name and address of Creditor, APR, Finance Charge, Amount of Payments, Total of Payments and Total
Sale Price are properly filled out
c.
Confirm all lines on the Contract are completed or properly left blank
iii)
Confirm the Amount Financed is correctly calculated
a.
Calculate the Amount Financed using the Cash Price, Total Down Payment and Total Amount Paid on Buyer’s
Behalf
b.
Confirm the Calculated Amount Financed matches the Amount Financed as stated within the Truth in Lending
section of the Contract
iv)
Confirm the Total Sale Price is correctly calculated
a.
Calculate the Total Sale Price by taking the difference of the Total of Payments as stated within the Truth in
Lending section and the Total Down Payment as stated within the Itemization of Amount Financed
b.
Confirm the Calculated Total Sale Price matches the Total Sale Price as stated within the Truth in Lending
section of the Contract
v)
Confirm the Total of Payments is correctly calculated
a.
Calculate the Total of Payments by taking the product of the Number of Payments and Amount of Payments as
stated within the Truth in Lending section of the Contract
Exh. A - 5
b.
Confirm the Calculated Total of Payments from step (a) is equal to the Total of Payments as stated within
the Truth in Lending section of the Contract
c.
Calculate the Total of Payments by taking the sum of the Finance Charge and Amount Financed as stated within
the Truth in Lending section of the Contract
d.
Confirm the Calculated Total of Payments from step (c) is equal to the Total of Payments as stated within
the Truth in Lending section of the Contract
vi)
Confirm the APR is correctly calculated
a.
Calculate the APR using information within the Truth in Lending section of the Contract
b.
Confirm the Calculated APR is within an acceptable range of the APR as stated within the Truth in Lending
Section of the Contract
vii)
Confirm the first payment due date as stated within the When Payments are Due section of the Truth in Lending
section of the Contract is within an acceptable timeframe of the Contract Date
viii)
If Steps i through vii are confirmed, then Test Pass
Exh. A - 6
Representation
Binding Obligation
The Receivable
constitutes the legal, valid and binding payment obligation in writing of the Obligor, enforceable by the holder thereof in accordance with its terms, except (i) as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation or other similar laws and equitable principles relating to or affecting the enforcement of creditors’ rights generally and (ii) as such Receivable may be modified by the application after the
Cut-Off
Date of the Servicemembers Civil Relief Act, as amended, to the extent applicable to the related Obligor.
Documents
Retail Sale Contract
Procedures to be Performed
i)
Confirm the Contract Form number is on the Approved Contract Form List
ii)
Confirm the borrower and
co-borrower
(if applicable) signed the
Contract
iii)
If Steps i and ii are confirmed, then Test Pass
Exh. A - 7
Representation
Receivable in Force
The Receivable has
not been satisfied, subordinated or rescinded nor do the records of the Servicer indicate that the related Financed Vehicle has been released from the lien of such Receivable in whole or in part.
Documents
Servicing System/Data Tape
Title Documents
Procedures to be Performed
i)
Confirm the Receivable exists on the Servicing System as an active Receivable
ii)
Confirm the title documents show Capital One, National Association or another Approved Party as the first
lienholder
iii)
If Steps i and ii are confirmed, then Test Pass
Exh. A - 8
Representation
No Default; No Waiver
Except for payment
delinquencies continuing for a period of not more than 29 days as of the
Cut-Off
Date or the failure of the Obligor to maintain physical damage insurance covering the related Financed Vehicle in accordance
with the requirements of the Receivable, the records of the Servicer did not disclose that any default, breach, violation or event permitting acceleration under the terms of the Receivable existed as of the
Cut-Off
Date.
Documents
Receivable File
Servicing System/Data Tape
Procedures to be Performed
i)
Confirm there is no indication of a default, breach, violation or event that would permit acceleration under
the terms of the Receivable except for payment default within 29 days of the
Cut-Off
Date
ii)
Confirm that no continuing condition would constitute a default, breach, violation or event permitting
acceleration under the terms of the Receivable
iii)
If Steps (i) and (ii) are confirmed, then Test Pass
Exh. A - 9
Representation
Insurance
The Receivable requires that
the Obligor thereunder obtain physical damage insurance covering the related Financed Vehicle.
Documents
Retail Sale Contract
Procedures to be Performed
i)
Confirm the Retail Sale Contract contains language that required the Obligor to obtain and maintain insurance
against physical damage to the Financed Vehicle
ii)
If confirmed, then Test Pass
Exh. A - 10
Representation
No Government Obligor
The Obligor on the
Receivable is not the United States of America or any state thereof or any local government, or any agency, department, political subdivision or instrumentality of the United States of America or any state thereof or any local government.
Documents
Retail Sale Contract
Procedures to be Performed
i)
Review the buyer section on the Contract and confirm a person’s or business name is reported
ii)
If the buyer section on the Contract does not report a person’s or business name, confirm internet search
results do not indicate the buyer to be a government agency, department, political subdivision or instrumentality
iii)
If (i) and (ii) are confirmed, then Test Pass
Exh. A - 11
Representation
Assignment
No Receivable has been
originated in, or is subject to the laws of, any jurisdiction under which the sale, transfer, assignment, contribution, conveyance or pledge of such Receivable would be unlawful, void, or voidable.
Documents
Retail Sale Contract
Receivable File
Servicing System
Procedures to be Performed
i)
Confirm the Retail Sale Contract was completed on a contract form included in the Approved Contract Form List
ii)
If Step (i) is confirmed, then Test Pass
Exh. A - 12
Representation
Good Title
As of the Closing Date and
immediately prior to the sale and transfer contemplated in the Purchase Agreement, the Bank had good and marketable title to and was the sole owner of each Receivable free and clear of all Liens created by the Bank (except any Lien which will be
released prior to assignment of such Receivable thereunder), and, immediately upon the sale and transfer by the Bank to COAR, COAR will have good and marketable title to each Receivable, free and clear of all Liens created by COAR (other than
Permitted Liens). Immediately upon the sale and transfer by COAR to the Issuer pursuant to the Sale Agreement, the Issuer will have good and marketable title to each Receivable, free and clear of all Liens created by the Issuer (other than Permitted
Liens).
Documents
Title Documents
Procedures to be Performed
i)
Confirm the title documents show Capital One, National Association or another Approved Party as the first
lienholder
ii)
Review the servicing system and confirm the Rpt. Branch Code in the system matches the Rpt. Branch Code for the
transaction related to the deal
iii)
If (i) and (ii) are confirmed, then Test Pass
Exh. A - 13
Representation
Characterizations of Receivables
Each
Receivable constitutes either “tangible chattel paper,” “electronic chattel paper,” an “account,” an “instrument,” or a “general intangible,” each as defined in the UCC.
Documents
Contract
Title Documents
Approved Contract Form List
Procedures to be Performed
i)
Confirm the Contract form number is on the Approved Contract Form List
ii)
Confirm the Amount Financed as reported on the Contract is greater than zero
iii)
Confirm there is documentation of a lien against the financed vehicle
iv)
If tests (i) through (iii) are confirmed, then Test Pass
Exh. A - 14
Representation
One Original
There is only one executed
original, electronically authenticated original or authoritative copy of the Contract (in each case within the meaning of the UCC) related to each Receivable.
Documents
Contract
Procedures to be Performed
i)
Confirm there is a final version of the Contract available for review
ii)
Confirm the Contract was signed by the buyer(s) and the Dealer
iii)
If (i) and (ii) are confirmed, then Test Pass
Exh. A - 15
Representation
No Defenses
The records of the Servicer
do not reflect any material facts which have not been remediated or cured which would constitute the basis for any right of rescission, offset, claim, counterclaim or defense with respect to such Receivable or the same being asserted or threatened
with respect to such Receivable.
Documents
Receivable File
Procedures to be Performed
i)
Review the Receivable File and servicing system and confirm there is no evidence of litigation or other
attorney involvement as of the
Cut-Off
Date
ii)
If confirmed, then Test Pass
Exh. A - 16

----- d117449dex103.htm -----
EX-10.3
6
d117449dex103.htm
EX-10.3
EX-10.3
Exhibit 10.3
SALE AGREEMENT
dated as of September 17, 2026
between
CAPITAL ONE AUTO
RECEIVABLES, LLC
and
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1,
as Purchaser
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND USAGE
1
SECTION 1.1
Definitions
1
SECTION 1.2
Other Interpretive Provisions
1
ARTICLE II PURCHASE
2
SECTION 2.1
Conveyance of Transferred Assets
2
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS
2
SECTION 3.1
Representations and Warranties of the Seller
2
SECTION 3.2
Representations and Warranties of the Seller Regarding the Transferred Assets
3
SECTION 3.3
Liability of the Seller
3
SECTION 3.4
Merger or Consolidation of, or Assumption of the Obligations of, Seller
5
SECTION 3.5
Seller May Own Notes and Certificates
5
SECTION 3.6
Compliance with Organizational Documents
5
SECTION 3.7
Protection of Title.
5
SECTION 3.8
Other Liens or Interests
6
SECTION 3.9
Exchange Act Filings
6
SECTION 3.10
Sarbanes-Oxley Act Requirements
6
SECTION 3.11
Compliance with the FDIC Rule
6
SECTION 3.12
Noteholder Communication
6
ARTICLE IV MISCELLANEOUS
7
SECTION 4.1
Transfers Intended as Sale; Security Interest.
7
SECTION 4.2
Notices, Etc
8
SECTION 4.3
Choice of Law
8
SECTION 4.4
Headings
8
SECTION 4.5
Counterparts
8
SECTION 4.6
Amendment.
9
SECTION 4.7
Waivers
10
SECTION 4.8
Entire Agreement
11
SECTION 4.9
Severability of Provisions
11
SECTION 4.10
Binding Effect
11
SECTION 4.11
Acknowledgment and Agreement
11
SECTION 4.12
Cumulative Remedies
11
i
COPAR 2026-1 Sale Agreement
TABLE OF CONTENTS
SECTION 4.13
Nonpetition Covenant
11
SECTION 4.14
Submission to Jurisdiction; Waiver of Jury Trial
11
SECTION 4.15
Limitation of Liability of Owner Trustee
12
SECTION 4.16
Third-Party Beneficiaries
12
EXHIBITS
Exhibit A
Form of Assignment Pursuant to Sale Agreement
Schedule I
Notice Addresses
Schedule II
Perfection Representations, Warranties and Covenants
Appendix A
Definitions
ii
COPAR 2026-1 Sale Agreement
THIS SALE AGREEMENT is made and entered into as of September 17, 2026 (as amended,
restated, supplemented or otherwise modified and in effect from time to time, this “
Agreement
”) by CAPITAL ONE AUTO RECEIVABLES, LLC, a Delaware limited liability company (the “
Seller
”), and CAPITAL ONE PRIME
AUTO RECEIVABLES TRUST
2026-1,
a Delaware statutory trust (the “
Issuer
”).
WITNESSETH:
WHEREAS, the Issuer
desires to purchase from the Seller a portfolio of motor vehicle receivables, including motor vehicle retail installment sale contracts and/or installment loans that are secured by new and used automobiles, light-duty trucks, SUVs and vans; and
WHEREAS, the Seller is willing to sell such portfolio of motor vehicle receivables and related property to the Issuer on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
SECTION
1.1
Definitions
. Except as otherwise defined herein or as the context may otherwise require, capitalized terms used but not otherwise defined herein are defined in
Appendix
A
hereto, which also contains rules as to
usage that are applicable herein.
SECTION 1.2
Other Interpretive Provisions
. For purposes of this Agreement, unless the context
otherwise requires: (a) accounting terms not otherwise defined in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under GAAP (
provided
,
that, to the extent that the definitions in this Agreement and GAAP conflict, the definitions in this Agreement shall control); (b) terms defined in Article 9 of the UCC as in effect in the relevant jurisdiction and not otherwise defined in this
Agreement are used as defined in that Article; (c) the words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this
Agreement; (d) references to any Article, Section, Schedule, Appendix or Exhibit are references to Articles, Sections, Schedules, Appendices and Exhibits in or to this Agreement and references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (e) the term “including” and all variations thereof means “including without
limitation”; (f) except as otherwise expressly provided herein, references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (g) references to any Person
include that Person’s successors and assigns; and (h) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
COPAR 2026-1 Sale Agreement
ARTICLE II
PURCHASE
SECTION 2.1
Conveyance of Transferred Assets
. In consideration of the Issuer’s sale and delivery to, or upon the order of, the Seller of (i) all of the Notes and (ii) the Certificates on the Closing Date, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Issuer without recourse (subject to the obligations herein) on the Closing Date all of its right, title, interest, claims and demands, whether now owned or hereafter acquired, in, to and under
the Transferred Assets, as evidenced by an assignment substantially in the form of
Exhibit A
(the “
Assignment
”) delivered on the Closing Date. The sale, transfer, assignment and conveyance made hereunder does not constitute
and is not intended to result in an assumption by the Issuer of any obligation of the Seller or the Originator to the Obligors, the Dealers, insurers or any other Person in connection with the Receivables or the other assets and properties conveyed
hereunder or any agreement, document or instrument related thereto.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.1
Representations and Warranties of the Seller
. The Seller makes the following representations and warranties as of the
Closing Date on which the Issuer will be deemed to have relied in acquiring the Transferred Assets:
(a)
Existence and Power
. The
Seller is a limited liability company validly existing and in good standing under the laws of the State of Delaware and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Seller has obtained
all necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or affect the enforceability or collectability of
the Receivables or any other part of the Transferred Assets.
(b)
Authorization and No Contravention
. The execution, delivery and
performance by the Seller of this Agreement (i) have been duly authorized by all necessary limited liability company action on the part of the Seller and (ii) do not contravene or constitute a default under (A) any applicable order,
law, rule or regulation, (B) its organizational documents or (C) any material agreement, contract, order or other instrument to which it is a party or its property is subject (other than violations which do not affect the legality,
validity or enforceability of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Seller’s ability to perform its obligations under, this Agreement).
(c)
No Consent Required
. No approval or authorization by, or filing with, any Governmental Authority is required in connection
with the execution, delivery and performance by the Seller of this Agreement other than (i) UCC filings, (ii) approvals and authorizations that have previously been obtained and filings that have previously been made and
(iii) approvals, authorizations or filings which, if not obtained or made, would not have a material adverse effect on the enforceability or collectability of the Receivables or any other part of the Transferred Assets
-2-
COPAR 2026-1 Sale Agreement
or would not materially and adversely affect the ability of the Seller to perform its obligations under this Agreement.
(d)
Binding Effect
. This Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in
accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws affecting the enforcement of creditors’ rights
generally and, if applicable, the rights of creditors of limited liability companies from time to time in effect or by general principles of equity.
(e)
No Proceedings
. There are no Proceedings pending or, to the knowledge of the Seller, threatened against the Seller before or by any
Governmental Authority that (i) assert the invalidity or unenforceability of this Agreement or (ii) seek any determination or ruling that would materially and adversely affect the performance by the Seller of its obligations under this
Agreement.
(f)
Lien Filings
. The Seller is not aware of any material judgment, ERISA or tax lien filings against the Seller.
SECTION 3.2
Representations and Warranties of the Seller Regarding the Transferred Assets
. On the date hereof, the Seller hereby makes
the following representations and warranties to the Issuer, on which the Issuer will be deemed to have relied in acquiring the Transferred Assets:
(a) The Receivables and the other Transferred Assets have been validly assigned by the Seller to the Issuer.
(b) The Seller has not authorized the filing of and is not aware of any financing statements against the Seller that includes a description of
collateral covering any Receivable other than any financing statement relating to security interests granted under the Transaction Documents or that have been or, prior to the assignment of such Receivables hereunder, will be terminated, amended or
released. This Agreement creates a valid and continuing security interest in the Receivables (other than the Related Security with respect thereto, to the extent that an ownership interest therein cannot be perfected by the filing of a financing
statement) in favor of the Issuer which security interest is prior to all other Liens created by the Seller (other than Permitted Liens) and is enforceable as such against all other creditors of and purchasers and assignees from the Seller.
(c) The representations and warranties regarding creation, perfection and priority of security interests in the Transferred Assets, which are
attached to this Agreement as
Schedule II
, are true and correct.
SECTION 3.3
Liability of the Seller
.
(a) The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller under this
Agreement.
(b) The Seller shall indemnify, defend, and hold harmless the Issuer, the Owner Trustee and the Indenture Trustee from and
against any loss, liability or expense (including reasonable
-3-
COPAR 2026-1 Sale Agreement
attorneys’ fees and expenses and court costs and any losses incurred in connection with a successful defense, in whole or part, of any claim that the Indenture Trustee breached its standard
of care and legal fees and expenses incurred in actions against the indemnifying party) incurred by reason of the Seller’s violation of federal or State securities laws in connection with the registration or the sale of the Notes.
(c) Indemnification under this
Section
3.3
will survive the resignation or removal of the Owner Trustee or the
Indenture Trustee and the termination or assignment of this Agreement and will include, without limitation, reasonable fees and expenses of counsel and expenses of litigation including those incurred in connection with the enforcement of the
Indenture Trustee’s rights (including indemnification rights) under the Transaction Documents. If the Seller has made any indemnity payments pursuant to this
Section
3.3
and the Person to or on behalf of whom such
payments are made thereafter collects any of such amounts from others, such Person will promptly repay such amounts to the Seller, without interest.
(d) The Seller’s obligations under this Agreement and the other Transaction Documents are obligations solely of the Seller and will not
constitute a claim against the Seller to the extent that the Seller does not have funds sufficient to make payment of such obligations. In furtherance of and not in derogation of the foregoing, the Issuer, the Servicer, the Indenture Trustee and the
Owner Trustee, by entering into or accepting this Agreement, acknowledge and agree that they have no right, title or interest in or to the Other Assets of the Seller. To the extent that, notwithstanding the agreements and provisions contained in the
preceding sentence, the Issuer, the Servicer, the Indenture Trustee or the Owner Trustee either (i) asserts an interest in, claim to or benefit in or from Other Assets or (ii) is deemed to have any such interest in, claim to or benefit in
or from Other Assets, whether by operation of law, legal process, pursuant to applicable provisions of insolvency laws or otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code or any successor provision having similar effect
under the Bankruptcy Code), then the Issuer, the Servicer, the Indenture Trustee or the Owner Trustee further acknowledges and agrees that any such interest in, claim to or benefit in or from Other Assets is and will be expressly subordinated to the
indefeasible payment in full of the other obligations and liabilities which, under the terms of the relevant documents relating to the securitization or conveyance of such Other Assets, are entitled to be paid from, entitled to the benefits of, or
otherwise secured by such Other Assets (whether or not any such entitlement or security interest is legally perfected or otherwise entitled to a priority of distributions or application under applicable law, including insolvency laws, and whether or
not asserted against the Seller), including the payment of post-petition interest on such other obligations and liabilities. This subordination agreement will be deemed a subordination agreement within the meaning of Section 510(a) of the
Bankruptcy Code. The Issuer, the Servicer, the Indenture Trustee and the Owner Trustee each further acknowledges and agrees that no adequate remedy at law exists for a breach of this
Section
3.3(d)
and the terms of this
Section
3.3(d)
may be enforced by an action for specific performance. The provisions of this
Section
3.3(d)
will be for the third-party benefit of those entitled to rely thereon and will survive
the termination of or the assignment of this Agreement, and the resignation or removal of any indemnified party. Any amounts payable to the Indenture Trustee pursuant to this
Section
3.3(d)
, to the extent not paid by the
Seller, shall be paid by the Issuer in accordance with
Section
8.5(a)
of the Indenture.
-4-
COPAR 2026-1 Sale Agreement
SECTION 3.4
Merger or Consolidation of, or Assumption of the Obligations of, Seller
.
Any Person (i) into which the Seller may be merged or converted or with which it may be consolidated, to which it may sell or transfer its business and assets as a whole or substantially as a whole, (ii) resulting from any merger, sale,
transfer, conversion, or consolidation to which the Seller shall be a party, (iii) succeeding to the business of the Seller, or (iv) more than 50% of the voting stock or voting power and 50% or more of the economic equity of which is owned
directly or indirectly by Capital One Financial Corporation, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Seller under this Agreement, will be the successor to the Seller under
this Agreement without the execution or filing of any document or any further act on the part of any of the parties to this Agreement anything herein to the contrary notwithstanding. The Seller shall provide notice of any merger, conversion,
consolidation or succession pursuant to this
Section
3.4
to the Administrator. Notwithstanding the foregoing, if the Seller enters into any of the foregoing transactions and is not the surviving entity, the Seller will
deliver to the Indenture Trustee and the Owner Trustee an Opinion of Counsel either (A) stating that, in the opinion of such counsel, all financing statements and continuation statements and amendments thereto have been executed and filed that
are necessary to preserve and protect the interest of the Issuer and, if the Notes are Outstanding, the Indenture Trustee for the benefit of the Noteholders, respectively, in the Receivables, or (B) stating that, in the opinion of such counsel,
no such action is necessary to preserve and protect such interest.
SECTION 3.5
Seller May Own Notes and Certificates
. The Seller,
and any Affiliate of the Seller, may in its individual or any other capacity become the owner or pledgee of Notes and Certificates with the same rights as it would have if it were not the Seller or an Affiliate thereof, except as otherwise expressly
provided herein or in the other Transaction Documents. Except as set forth herein or in the other Transaction Documents, Notes and Certificates so owned by the Seller or any such Affiliate will have an equal and proportionate benefit under the
provisions of this Agreement and the other Transaction Documents, without preference, priority, or distinction as among all of the Notes and Certificates.
SECTION 3.6
Compliance with Organizational Documents
. The Seller shall comply with its limited liability company agreement and other
organizational documents.
SECTION 3.7
Protection of Title
.
(a) The Seller shall authorize and file such financing statements and cause to be authorized and filed such continuation and other financing
statements, all in such manner and in such places as may be required by law fully to preserve, maintain and protect the interest of the Issuer under this Agreement in the Purchased Assets (to the extent that the interest of the Issuer therein can be
perfected by the filing of a financing statement). The Seller shall deliver (or cause to be delivered) to the Issuer file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing.
(b) The Seller shall notify the Issuer in writing within ten (10) days following the occurrence of (i) any change in the
Seller’s organizational structure as a limited liability company, (ii) any change in the Seller’s “location” (within the meaning of
Section 9-307
of the UCC) and
(iii) any change in the Seller’s name, and shall take all action prior to making such change (or shall have made arrangements to take such action substantially simultaneously with such change, if it is
-5-
COPAR 2026-1 Sale Agreement
not practicable to take such action in advance) reasonably necessary or advisable in the opinion of the Issuer to amend all previously filed financing statements or continuation statements
described in
paragraph (a)
above. The Seller will at all times maintain its “location” within the United States.
(c) The Seller shall maintain (or shall cause the Servicer to maintain) its computer systems so that, from time to time after the conveyance
under this Agreement of the Receivables, the master computer records (including any backup archives) that refer to a Receivable shall indicate clearly the interest of the Issuer (or any subsequent assignee of the Issuer) in such Receivable and that
such Receivable is owned by such Person. Indication of such Person’s interest in a Receivable shall not be deleted from or modified on such computer systems until, and only until, the related Receivable shall have been paid in full or
repurchased.
(d) If at any time the Seller shall propose to sell, grant a security interest in or otherwise transfer any interest in
motor vehicle receivables to any prospective purchaser, lender or other transferee, the Seller shall give to such prospective purchaser, lender or other transferee computer tapes, records or printouts (including any restored from backup archives)
that, if they shall refer in any manner whatsoever to any Receivable, shall indicate clearly that such Receivable has been sold and is owned by the Issuer (or any subsequent assignee of the Issuer).
SECTION 3.8
Other Liens or Interests
. Except for the conveyances and grants of security interests pursuant to this Agreement and the
other Transaction Documents, the Seller shall not sell, pledge, assign or transfer the Receivables or other property transferred to the Issuer to any other Person, or grant, create, incur, assume or suffer to exist any Lien (other than Permitted
Liens) on any interest therein, and the Seller shall defend the right, title and interest of the Issuer in, to and under such Receivables or other property transferred to the Issuer against all claims of third parties claiming through or under the
Seller.
SECTION 3.9
Exchange Act Filings
. The Issuer hereby authorizes the Seller to prepare, sign, certify and file any and all
reports, statements and information respecting the Issuer and/or the Notes required to be filed pursuant to the Exchange Act, and the rules thereunder.
SECTION 3.10
Sarbanes-Oxley Act Requirements
. To the extent any documents are required to be filed or any certification is required to
be made with respect to the Issuer or the Notes pursuant to the Sarbanes-Oxley Act, the Issuer hereby authorizes the Seller to prepare, sign, certify and file any such documents or certifications on behalf of the Issuer.
SECTION 3.11
Compliance with the FDIC Rule
. The Seller (i) shall perform the covenants set forth in
Article XII
of the
Indenture applicable to it and (ii) shall facilitate compliance with
Article XII
of the Indenture by the Capital One Parties.
SECTION 3.12
Noteholder Communication
. A Noteholder (if the Notes are represented by Definitive Notes) or a Note Owner (if the Notes
are represented by Book-Entry Notes) may send a request to the Seller at any time notifying the Seller that such Noteholder or Note Owner, as applicable, would like to communicate with other Noteholders or Note Owners, as applicable, with respect to
an exercise of their rights under the terms of the Transaction Documents. If the requesting party is not a Noteholder as reflected on the Note Register, the Seller may require that the requesting party provide Verification Documents. Each request
must include (i) the name of
-6-
COPAR 2026-1 Sale Agreement
the requesting Noteholder or Note Owner, as applicable and (ii) a description of the method by which other Noteholders or Note Owners, as applicable, may contact the requesting Noteholder or
Note Owner. A Noteholder or Note Owner, as applicable, that delivers a request under this
Section
3.12
will be deemed to have certified to the Issuer, the Seller and the Bank that its request to communicate with other
Noteholders or Note Owners, as applicable, relates solely to a possible exercise of rights under the Indenture or the other Transaction Documents, and will not be used for other purposes. In each monthly distribution report on Form
10-D
under the Exchange Act with respect to the Issuer, the Seller shall include disclosure regarding any request that complies with the requirements of this
Section
3.12
received during
the related Collection Period from a Noteholder or Note Owner to communicate with other Noteholders or Note Owners, as applicable, related to the Noteholders or Note Owners exercising their rights under the terms of the Transaction Documents. The
disclosure in such Form
10-D
regarding the request to communicate shall include (w) the name of the investor making the request, (x) the date the request was received, (y) a statement to the
effect that the Seller has received a request from such Noteholder or Note Owner, as applicable, stating that such Noteholder or Note Owner, as applicable, is interested in communicating with other Noteholders or Note Owners, as applicable, with
regard to the possible exercise of rights under the Transaction Documents, and (z) a description of the method other Noteholders or Note Owners, as applicable, may use to contact the requesting Noteholder or Note Owner. The Seller and the
Servicer will be responsible for any expenses incurred in connection with the filing of such disclosure and the reimbursement of any costs incurred by the Indenture Trustee in connection with the preparation thereof.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1
Transfers Intended as Sale; Security Interest
.
(a) Each of the parties hereto expressly intends and agrees that the transfers contemplated and effected under this Agreement are complete and
absolute sales, transfers and assignments rather than pledges or assignments of only a security interest and shall be given effect as such for all purposes. It is further the intention of the parties hereto that the Receivables and the related
Transferred Assets shall not be part of the Seller’s estate in the event of a bankruptcy or insolvency of the Seller. The sales and transfers by the Seller of the Receivables and related Transferred Assets hereunder are and shall be without
recourse to, or representation or warranty (express or implied) by, the Seller, except as otherwise specifically provided herein. The limited rights of recourse specified herein against the Seller are intended to provide a remedy for breach of
representations and warranties relating to the condition of the property sold, rather than to the collectibility of the Receivables.
(b)
Notwithstanding the foregoing, in the event that the Receivables and other Transferred Assets are held to be property of the Seller, or if for any reason this Agreement is held or deemed to create indebtedness or a security interest in the
Receivables and other Transferred Assets, then it is intended that:
(i) This Agreement shall be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the New York UCC and the UCC of any other applicable jurisdiction;
-7-
COPAR 2026-1 Sale Agreement
(ii) The conveyance provided for in
Section
2.1
shall be deemed to
be a grant by the Seller of, and the Seller hereby grants to the Issuer, a security interest in all of its right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the Receivables
and other Transferred Assets, to secure such indebtedness and the performance of the obligations of the Seller hereunder;
(iii) The
possession by the Issuer or its agent of the Receivable Files and any other property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by the
purchaser or a Person designated by such purchaser, for purposes of perfecting such security interest pursuant to the New York UCC and the UCC of any other applicable jurisdiction; and
(iv) Notifications to Persons holding such property, and acknowledgments, receipts or confirmations from Persons holding such property, shall
be deemed to be notifications to, or acknowledgments, receipts or confirmations from, bailees or agents (as applicable) of the Issuer for the purpose of perfecting such security interest under applicable law.
SECTION 4.2
Notices, Etc
.
All demands, notices and communications hereunder shall be in writing and shall be delivered or mailed
by registered or certified
first-class
United States mail, postage prepaid, hand delivery, prepaid courier service, or by
e-mail
(if an applicable
e-mail
address is provided on
Schedule I
hereto), and addressed in each case as specified on
Schedule I
, or at such other address as shall be designated by any of the specified addressees in a written
notice to the other parties hereto. Any notice required or permitted to be mailed to a Noteholder or Certificateholder shall be given by first-class mail, postage prepaid, at the address of such Noteholder or Certificateholder as shown in the Note
Register. Delivery shall occur only upon receipt or reported tender of such communication by an officer of the recipient entitled to receive such notices located at the address of such recipient for notices hereunder;
provided
,
however
, that any notice to a Noteholder or Certificateholder mailed within the time and manner prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Noteholder or Certificateholder shall
receive such notice.
SECTION 4.3
Choice of Law
.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO CONFLICTS OF LAW, OTHER THAN SECTIONS
5-1401
AND
5-1402
OF THE NEW
YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 4.4
Headings
. The section headings hereof have been inserted for convenience only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
SECTION 4.5
Counterparts
. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, regardless of whether delivered in physical or electronic form, but all of such counterparts shall together constitute but one and the same instrument.
-8-
COPAR 2026-1 Sale Agreement
SECTION 4.6
Amendment
.
(a) Any term or provision of this Agreement (including
Appendix A
hereto) may be amended by the Seller without the consent of the
Indenture Trustee, any Noteholder, the Owner Trustee or any other Person subject to the satisfaction of one of the following conditions:
(i) The Seller delivers an Opinion of Counsel or an Officer’s Certificate to the Indenture Trustee to the effect that
such amendment will not materially and adversely affect the interests of the Noteholders; or
(ii) The Rating Agency
Condition is satisfied with respect to such amendment and the Seller notifies the Indenture Trustee in writing that the Rating Agency Condition is satisfied with respect to such amendment.
(b) This Agreement (including
Appendix A
) may also be amended from time to time by the Issuer and the Seller, with the consent of the
Holders of Notes evidencing not less than a majority of the Outstanding Note Balance of the Controlling Class, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the Certificateholders. It will not be necessary for the consent of Noteholders or Certificateholders to approve the particular form of any proposed amendment or consent, but it will be
sufficient if such consent approves the substance thereof. The manner of obtaining such consents (and any other consents of Noteholders and Certificateholders provided for in this Agreement) and of evidencing the authorization of the execution
thereof by Noteholders and Certificateholders will be subject to such reasonable requirements as the Indenture Trustee and Owner Trustee may prescribe, including the establishment of record dates pursuant to the Depository Agreement. For purposes of
this
Section
4.6
, if the Bank and/or its Affiliates is the Holder of Notes representing 100% of the Note Balance of the Outstanding Notes, such Person (or Persons) may consent to such amendment on behalf of the Noteholders.
In determining whether the Bank and/or its Affiliates is the Holder of Notes representing 100% of the Note Balance of the Outstanding Notes for purposes of the preceding sentence, any party shall be entitled to rely on an Officer’s Certificate
or similar certification of the Bank or any Affiliate thereof to such effect.
(c) Prior to the execution of any amendment pursuant to
this
Section
4.6
, the Seller shall provide written notification of the substance of such amendment to each Rating Agency; and promptly after the execution of any such amendment, the Seller shall furnish a copy of such
amendment to each Rating Agency, the Issuer, the Owner Trustee and the Indenture Trustee;
provided
, that no amendment pursuant to this
Section
4.6
shall be effective which materially and adversely affects the rights,
protections or duties of the Indenture Trustee or the Owner Trustee without the prior written consent of such Person.
(d) Prior to the
execution of any amendment to this Agreement, the Owner Trustee and the Indenture Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this
Agreement and an Officer’s Certificate of the Seller or the Administrator that all conditions precedent to the execution and delivery of such amendment have been satisfied.
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COPAR 2026-1 Sale Agreement
(e) Notwithstanding
subsections (a)
and
(b)
of this
Section
4.6
, this Agreement may only be amended by the Seller if (i) the Majority Certificateholders or, if 100% of the aggregate Percentage Interests is then beneficially owned by the Bank and/or its Affiliates, such
Person (or Persons), consent to such amendment or (ii) such amendment shall not, as evidenced by an Officer’s Certificate of the Seller or an Opinion of Counsel delivered to the Indenture Trustee and the Owner Trustee, materially and
adversely affect the interests of the Certificateholders. In determining whether 100% of the aggregate Percentage Interests is then beneficially owned by the Bank and/or its Affiliates for purposes of clause (i), any party shall be entitled to rely
on an Officer’s Certificate or similar certification of the Bank or any Affiliate thereof to such effect.
(f) Notwithstanding
anything herein to the contrary, for purposes of classifying the Issuer as a grantor trust under the Code, no amendment shall be made to this Agreement that would (i) result in a variation of the investment of the beneficial owners of the
Certificates for purposes of the United States Treasury Regulation section
301.7701-4(c)
without the consent of Noteholders evidencing at least a majority of the Outstanding Note Balance of the Controlling
Class and the Majority Certificateholders or (ii) cause the Issuer (or any part thereof) to be classified as other than a grantor trust under subtitle A, chapter 1, subchapter J, part I, subpart E of the Code without the consent of all of
the Noteholders and all of the Certificateholders.
(g) Notwithstanding anything under this
Section
4.6
or in
any other Transaction Document to the contrary, to the extent permitted by the TIA, this Agreement may be amended by the Seller without the consent of any Noteholder or any other Person, and without satisfying any other provisions of this Agreement
related to amendments thereto or in any other Transaction Document, solely in connection with any SOFR Adjustment Conforming Changes or, following the determination of a Benchmark Replacement, any Benchmark Replacement Conforming Changes to be made
by the Administrator;
provided
, that the Issuer has delivered notice of such amendment to the Rating Agencies and the Indenture Trustee on or prior to the date such amendment is executed;
provided
, further, that any such SOFR
Adjustment Conforming Changes or any such Benchmark Replacement Conforming Changes will not affect the Indenture Trustee’s or the Owner Trustee’s rights, indemnities or obligations without the Indenture Trustee’s or the Owner
Trustee’s consent, respectively. For the avoidance of doubt, any SOFR Adjustment Conforming Changes or any Benchmark Replacement Conforming Changes in any amendment to this Agreement may be retroactive (including retroactive to the Benchmark
Replacement Date) and this Agreement may be amended more than once in connection with any SOFR Adjustment Conforming Changes or any Benchmark Replacement Conforming Changes.
SECTION 4.7
Waivers
. No failure or delay on the part of the Seller, the Issuer or the Indenture Trustee in exercising any power or
right hereunder (to the extent such Person has any power or right hereunder) shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on the Issuer or the Seller in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by either party under this Agreement shall, except as may
otherwise be stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval under this Agreement shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder.
-10-
COPAR 2026-1 Sale Agreement
SECTION 4.8
Entire Agreement
. The Transaction Documents contain a final and complete
integration of all prior expressions by the parties hereto with respect to the subject matter thereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter thereof, superseding all prior oral or
written understandings. There are no unwritten agreements among the parties.
SECTION 4.9
Severability of Provisions
. If any one or
more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.
SECTION 4.10
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until such time as the parties hereto shall agree.
SECTION 4.11
Acknowledgment and Agreement
. By execution below, the Seller expressly acknowledges and consents to the Grant of a
security interest in the Receivables and the other Transferred Assets by the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the Noteholders. In addition, the Seller hereby acknowledges and agrees that for so long as the
Notes are outstanding, the Indenture Trustee will have, pursuant to the Transaction Documents, the right to exercise all powers, privileges and claims of the Issuer under this Agreement in the event that the Issuer shall fail to exercise the same.
SECTION 4.12
Cumulative Remedies
. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 4.13
Nonpetition Covenant
. Each party hereto agrees that, prior to the date which is one year and one day after payment in
full of all obligations of each Bankruptcy Remote Party in respect of all securities issued by any Bankruptcy Remote Party (i) such party shall not authorize any Bankruptcy Remote Party to commence a voluntary
winding-up
or other voluntary case or other Proceeding seeking liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian or other similar official with respect to such Bankruptcy Remote Party or any substantial part of
its property or to consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other Proceeding commenced against such Bankruptcy Remote Party, or to make a general assignment for the
benefit of its creditors generally, any party hereto or any other creditor of such Bankruptcy Remote Party, and (ii) such party shall not commence or join with any other Person in commencing any Proceeding against such Bankruptcy Remote Party
under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction. This Section shall survive the termination of this Agreement.
SECTION 4.14
Submission to Jurisdiction; Waiver of Jury Trial
. Each of the parties hereto hereby irrevocably and unconditionally:
-11-
COPAR 2026-1 Sale Agreement
(a) submits for itself and its property in any Proceeding relating to this Agreement or any
documents executed and delivered in connection herewith, or for recognition and enforcement of any judgment in respect thereof, to the nonexclusive general jurisdiction of the courts of the State of New York, the courts of the United States of
America for the Southern District of New York and appellate courts from any thereof;
(b) consents that any such Proceeding may be
brought in such courts and waives any objection that it may now or hereafter have to the venue of such Proceeding in any such court or that such Proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such Proceeding may be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its address determined in accordance with
Section
4.2
of this Agreement;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e)
to the extent permitted by applicable law, each party hereto irrevocably waives all
right of trial by jury in any Proceeding or counterclaim based on, or arising out of, under or in connection with this Agreement, any other Transaction Document, or any matter arising hereunder or thereunder.
SECTION 4.15
Limitation of Liability of Owner Trustee
. It is expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by BNY Mellon Trust of Delaware, not individually or personally but solely as Owner Trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it under the Trust Agreement,
(b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, undertakings and agreements by BNY Mellon Trust of Delaware, but is made and intended for
the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on BNY Mellon Trust of Delaware, individually or personally, to perform any covenant, either express or implied, contained herein,
all such liability, if any, being expressly waived by the parties hereto and any Person claiming by, through or under the parties hereto, (d) BNY Mellon Trust of Delaware has made no investigation as to the accuracy or completeness of any
representations and warranties made by the Issuer in this Agreement, and (e) under no circumstances shall BNY Mellon Trust of Delaware be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Agreement or the other related documents.
SECTION 4.16
Third-Party Beneficiaries
. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns, and the Indenture Trustee and the Owner Trustee shall be express third-party beneficiaries hereof and may enforce the provisions hereof as if it were a party hereto. Except as otherwise provided in this
Section, no other Person will have any right hereunder.
[Remainder of Page Intentionally Left Blank]
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COPAR 2026-1 Sale Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first written above.
CAPITAL ONE AUTO RECEIVABLES, LLC
By:
Name:
Title:
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
By:
BNY MELLON TRUST OF DELAWARE,
not in its individual capacity
but solely as Owner Trustee
By:
Name:
Title:
S-1
COPAR 2026-1 Sale Agreement
EXHIBIT A
FORM OF
ASSIGNMENT
PURSUANT TO SALE AGREEMENT
September 17, 2026
For value received, in accordance with the Sale Agreement, dated as of September 17, 2026 (the “
Agreement
”), between
Capital One Auto Receivables, LLC, a Delaware limited liability company (“
the Seller
”), and Capital One Prime Auto Receivables Trust
2026-1,
a Delaware statutory trust (the
“
Issuer
”), on the terms and subject to the conditions set forth in the Agreement, the Seller does hereby sell, transfer, assign, set over, and otherwise convey to the Issuer without recourse (subject to the obligations in the
Agreement), all right, title, interest, claims and demands, whether now owned or hereafter acquired, in, to and under the Transferred Assets.
The foregoing sale does not constitute and is not intended to result in any assumption by the Issuer of any obligation of the undersigned or
the Originator to the Obligors, the Dealers, insurers or any other Person in connection with the Receivables, or the other assets and properties conveyed hereunder or any agreement, document or instrument related thereto.
This assignment is made pursuant to and upon the representations, warranties and agreements on the part of the undersigned contained in the
Agreement and is governed by the Agreement.
Capitalized terms used herein and not otherwise defined shall have the meaning assigned to
them in the Agreement.
[Remainder of page intentionally left blank]
A-1
COPAR 2026-1 Sale Agreement
IN WITNESS WHEREOF, the undersigned has caused this assignment to be duly executed as of the
date first above written.
CAPITAL ONE AUTO RECEIVABLES, LLC
By:
Name:
Title:
A-2
COPAR 2026-1 Sale Agreement
SCHEDULE I
NOTICE ADDRESSES
If to the Issuer
:
Capital One Prime Auto Receivables Trust
2026-1
BNY Mellon Trust of Delaware
as Owner Trustee of Capital One
Prime Auto Receivables Trust
2026-1
301 Bellevue Parkway, 3rd Floor
Wilmington, Delaware 19809
with copies to the Administrator and
the Indenture Trustee
If to the Bank, the Servicer or the Administrator
:
Capital One, National Association
1680 Capital One Drive
McLean, Virginia 22102
Attention: Vice President, Treasury
Strategy & Execution
with a copy to:
Capital One,
National Association
1680 Capital One Drive
McLean,
Virginia 22102
Attention: Vice President, Senior Associate General Counsel, Capital Markets Legal
If to the Seller
:
Capital One Auto Receivables, LLC
1600 Capital One Drive
Room 27907B
McLean, Virginia 22102
Attention: Assistant Vice President,
Treasurer
with a copy to:
Capital One, National
Association
1680 Capital One Drive
McLean, Virginia 22102
Attention: Vice President, Senior Associate General Counsel, Capital Markets Legal
If to the Indenture Trustee
:
Wilmington Trust, National
Association
Rodney Square North
1100 North Market Street
Schedule I-1
COPAR 2026-1 Sale Agreement
Wilmington, Delaware 19890-0001
Facsimile: (302)
636-4140
Attention: Corporate Trust Administration – Capital One Prime Auto Receivables Trust
2026-1
If to the Owner Trustee
:
BNY Mellon Trust of Delaware
as Owner Trustee of Capital One Prime Auto Receivables Trust
2026-1
301 Bellevue Parkway, 3rd Floor
Wilmington, Delaware 19809
If to Moody’s
:
Moody’s Investors Service,
Inc.
7 World Trade Center
250 Greenwich Street
New York, New York 10007
If to S&P
:
S&P Global Ratings
55 Water Street
New York, New York 10041
Attention: Asset Backed Surveillance
Department
If to the Asset Representations Reviewer:
Clayton Fixed Income Services LLC
Email: ARRNotices@clayton.com
with a copy to:
Clayton Fixed Income Services LLC
720 S. Colorado Blvd., Suite 200
Glendale, Colorado 80246
Attention: Legal Department
Email: Legal@covius.com
Schedule I-2
COPAR 2026-1 Sale Agreement
SCHEDULE II
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in the Agreement, the Seller hereby represents, warrants, and covenants
to the Issuer as follows on the Closing Date:
General
1. This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Receivables and the other Transferred Assets in
favor of the Issuer, which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from the Seller.
2. The Receivables constitute “chattel paper” (including “electronic chattel paper” or “tangible chattel paper”),
“accounts”, “instruments”, “promissory notes”, “payment intangibles” or “general intangibles”, within the meaning of the applicable UCC. If a Receivable constitutes “electronic
chattel paper,” the Servicer has “control” of such electronic chattel paper within the meaning of Section 9-105 of the applicable UCC.
3. Immediately prior to the sale, transfer, contribution, assignment and/or conveyance of a Receivable, such Receivable is secured by a first priority validly
perfected and enforceable security interest in the related Financed Vehicle in favor of the Originator (or its assignee), as secured party, or all necessary actions with respect to such Receivable have been taken or will be taken to perfect a first
priority security interest in the related Financed Vehicle in favor of the Originator (or its assignee), as secured party, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization, liquidation or other similar laws and
equitable principles relating to or affecting the enforcement of creditors’ rights generally.
Creation
4. Immediately prior to the sale, transfer, contribution, assignment and/or conveyance of a Receivable by the Seller to the Issuer, the Seller owned and had
good and marketable title to such Receivable free and clear of any Lien created by the Seller (other than any Liens in favor of the Issuer) and immediately after the sale, transfer, assignment and conveyance of such Receivable to the Issuer, the
Issuer will have good and marketable title to such Receivable free and clear of any Lien created by the Seller.
5. The Seller has received all consents
and approvals to the sale of the Receivables hereunder to the Issuer required by the terms of the Receivables that constitute instruments.
Perfection
6. The Seller has
submitted or will have caused to be submitted, on the effective date of this Agreement, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the sale
of the Receivables from the Seller to the Issuer and the security interest in the Receivables granted to the Issuer hereunder; and the Servicer, in its capacity as custodian, has in its possession the original copies of such instruments or tangible
chattel paper that constitute or evidence the Receivables, and all financing
Schedule II-1
COPAR 2026-1 Sale Agreement
statements referred to in this paragraph contain a statement that: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the
Secured Party/Purchaser”.
7. With respect to Receivables that constitute an instrument or tangible chattel paper, either:
(i) Such instruments or tangible chattel paper are in the possession of the Servicer and the Indenture Trustee has received a written
acknowledgment from the Servicer that the Servicer (in its capacity as custodian) is holding such instruments or tangible chattel paper solely on behalf and for the benefit of the Indenture Trustee, as pledgee of the Issuer; or
(ii) The Servicer received possession of such instruments or tangible chattel paper after the Indenture Trustee received a written
acknowledgment from the Servicer that the Servicer is acting solely as agent of the Indenture Trustee, as pledgee of the Issuer.
Priority
8. The Seller has not
authorized the filing of, and is not aware of any financing statements against the Seller that include a description of collateral covering the Receivables other than any financing statement (i) relating to the conveyance of the Receivables by
the Bank to the Seller under the Purchase Agreement, (ii) relating to the conveyance of the Receivables by the Seller to the Issuer under the Sale Agreement, (iii) relating to the security interest granted to the Indenture Trustee under
the Indenture or (iv) that has been terminated.
9. The Seller is not aware of any material judgment, ERISA or tax lien filings against the Seller.
10. Neither the Seller nor a custodian or vaulting agent thereof holding any Receivable that is electronic chattel paper has communicated an
“authoritative copy” (as such term is used in
Section 9-105
of the UCC) of any loan agreement that constitutes or evidences such Receivable to any Person other than the Servicer.
11. None of the instruments, electronic chattel paper or tangible chattel paper that constitutes or evidences the Receivables has any marks or notations
indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Seller, the Issuer or the Indenture Trustee.
Survival of Perfection Representations
12. Notwithstanding any other provision of the Agreement, the perfection representations, warranties and covenants contained in this
Schedule II
shall
be continuing, and remain in full force and effect until such time as all obligations under the Notes have been finally and fully paid and performed.
Schedule II-2
COPAR 2026-1 Sale Agreement
APPENDIX A
DEFINITIONS
(see
attached)
Appendix A
COPAR 2026-1 Sale Agreement
APPENDIX A
DEFINITIONS
The
following terms have the meanings set forth, or referred to, below:
“
144A Notes
” means the
Class A-1
Notes and any Note retained by the Depositor or an Affiliate thereof on the Closing Date.
“
60-Day
Delinquent Receivables
” means, as of any date of determination, all
Receivables (other than Repurchased Receivables and Defaulted Receivables) that are sixty (60) or more days delinquent as of such date (or, if such date is not the last day of a Collection Period, as of the last day of the Collection Period
immediately preceding such date), as determined in accordance with the Servicer’s Customary Servicing Practices.
“
Accrued
Class
A Note Interest
” means, with respect to any Payment Date, the sum of the Class A Noteholders’ Monthly Accrued Interest for such Payment Date and the Class A Noteholders’ Interest Carryover
Shortfall for such Payment Date.
“
Accrued Class
B Note Interest
” means, with respect to any Payment
Date, the sum of the Class B Noteholders’ Monthly Accrued Interest for such Payment Date and the Class B Noteholders’ Interest Carryover Shortfall for such Payment Date.
“
Accrued Class
C Note Interest
” means, with respect to any Payment Date, the sum of the Class C
Noteholders’ Monthly Accrued Interest for such Payment Date and the Class C Noteholders’ Interest Carryover Shortfall for such Payment Date.
“
Accrued Class
D Note Interest
” means, with respect to any Payment Date, the sum of the Class D
Noteholders’ Monthly Accrued Interest for such Payment Date and the Class D Noteholders’ Interest Carryover Shortfall for such Payment Date.
“
Act
” has the meaning set forth in
Section
11.3(a)
of the Indenture.
“
Adjusted Pool Balance
” means, as of any date of determination, the Net Pool Balance as of that date minus the YSOC Amount
as of that date.
“
Administration Agreement
” means the Administration Agreement, dated as of the Closing Date, between
the Administrator, the Issuer and the Indenture Trustee, as the same may be amended and supplemented from time to time.
“
Administrator
” means the Bank, or any successor Administrator under the Administration Agreement.
“
Affiliate
” means, for any specified Person, any other Person which, directly or indirectly, controls, is controlled by or
is under common control with such specified Person and “affiliated” has a meaning correlative to the foregoing. For purposes of this definition, “control” means the power, directly or indirectly, to cause the direction of the
management and policies of a Person.
Appendix A
COPAR 2026-1
“
Applicable Tax State
”
means, as of any date, each State as to
which any of the following is then applicable: (a) a State in which the Owner Trustee maintains its Corporate Trust Office, (b) a State in which the Owner Trustee maintains its principal executive offices, and (c) the States of
Virginia and Texas.
“
Asset Representations Review Agreement
” means the Asset Representations Review Agreement, dated
as of the Closing Date, between the Issuer, the Servicer and the Asset Representations Reviewer.
“
Asset Representations
Reviewer
” means Clayton Fixed Income Services LLC, a Delaware limited liability company, or any successor Asset Representations Reviewer under the Asset Representations Review Agreement.
“
Asset Review
” has the meaning assigned to such term in the Asset Representations Review Agreement.
“
Authenticating Agent
” means any Person appointed by the Indenture Trustee at the direction of the Issuer to act on behalf
of the Indenture Trustee to authenticate and deliver the Notes.
“
Authorized Newspaper
” means a newspaper of general
circulation in the City of New York, printed in the English language and customarily published on each Business Day, whether or not published on Saturdays, Sundays and holidays.
“
Authorized Officer
” means: (a) with respect to the Issuer, (i) any officer of the Owner Trustee who is
authorized to act for the Owner Trustee in matters relating to the Issuer and who is identified on the list of Authorized Officers delivered by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter) or (ii) so long as the Administration Agreement is in effect, any officer of the Administrator who is authorized to act for the Administrator in matters relating to the Issuer pursuant to the
Administration Agreement and who is identified on the list of Authorized Officers delivered by the Administrator to the Owner Trustee and the Indenture Trustee on the Closing Date (as such list may be modified or supplemented from time to time
thereafter); and (b) with respect to the Owner Trustee, the Indenture Trustee, the Note Registrar and the Servicer, any officer of the Owner Trustee, the Indenture Trustee, the Note Registrar or the Servicer, as applicable, who is authorized to
act for the Owner Trustee, the Indenture Trustee, the Note Registrar or the Servicer, as applicable, in matters relating to the Owner Trustee, the Indenture Trustee, the Note Registrar or the Servicer and who is identified on the list of
Authorized Officers delivered by each of the Owner Trustee, the Indenture Trustee and the Servicer to the Indenture Trustee on the Closing Date or by the Note Registrar on the date of its appointment as such (as such list may be modified or
supplemented from time to time thereafter).
“
Available Funds
” means, for any Payment Date and the related Collection
Period, an amount equal to the sum of the following amounts: (i) all Collections on deposit in the Collection Account received by the Servicer during such Collection Period; (ii) the sum of the Repurchase Prices deposited into the
Collection Account with respect to each Receivable that is to become a Repurchased Receivable during the related Collection Period; (iii) the Optional Purchase Price
A-2
Appendix A
COPAR 2026-1
deposited into the Collection Account in connection with the exercise of the Optional Purchase; and (iv) the Reserve Account Excess Amount for such Payment Date.
“
Available Funds Shortfall Amount
” means, as of any Payment Date, the amount by which the sum of the amounts required to be
paid pursuant to clauses
first
through
ninth
of
Section
8.5(a)
of the Indenture exceeds the Available Funds for such Payment Date.
“
Bank
” means Capital One, National Association, a national banking association, and its successors and assigns.
“
Bankruptcy Code
” means the United States Bankruptcy Code, 11 U.S.C. 101 et seq., as amended.
“
Bankruptcy Event
” means, with respect to any Person, (i) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of such Person in an involuntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of such Person, or ordering the
winding-up
or liquidation of such Person’s affairs, and such decree or order shall remain unstayed and in effect for a period of
ninety (90) consecutive days or (ii) the commencement by such Person of a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such Person to the
entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person,
or the making by such Person of any general assignment for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due, or the taking of action by such Person in furtherance of any of the foregoing.
“
Bankruptcy Remote Party
” means each of the Depositor, the Issuer, any other trust created by the Depositor or any
limited liability company or corporation wholly-owned by the Depositor.
“
Benchmark
” means, initially, the SOFR Rate;
provided that if the Administrator determines prior to the relevant Reference Time that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the SOFR Rate or the then-current Benchmark, then
“Benchmark” means the applicable Benchmark Replacement.
“
Benchmark Administrator
” means the administrator
of the Benchmark.
“
Benchmark Replacement
” means the first alternative set forth in the order below that can be
determined by the Administrator as of the Benchmark Replacement Date;
(1) the sum of: (a) the alternate rate of
interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark and (b) the Benchmark Replacement Adjustment;
(2) the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; or
A-3
Appendix A
COPAR 2026-1
(3) the sum of: (a) the alternate rate of interest that has been
selected by the Administrator as the replacement for the then-current Benchmark giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated floating rate securities
at such time and (b) the Benchmark Replacement Adjustment.
“
Benchmark Replacement Adjustment
” means the first
alternative set forth in the order below that can be determined by the Administrator as of the Benchmark Replacement Date:
(1) the spread adjustment (which may be a positive or negative value or zero), or method for calculating or determining such
spread adjustment, that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement;
(2) if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, the ISDA Fallback Adjustment;
or
(3) the spread adjustment (which may be a positive or negative value or zero) that has been selected by the
Administrator giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark
Replacement for U.S. dollar-denominated floating rate securities at such time.
“
Benchmark Replacement Conforming
Changes
” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the interest period, timing and frequency of determining rates and making payments of interest, rounding
of amounts or tenors, and other administrative matters) that the Administrator decides may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Administrator
decides that adoption of any portion of such market practice is not administratively feasible or if the Administrator determines that no market practice for use of the Benchmark Replacement exists, in such other manner as the Administrator
determines is reasonably necessary).
“
Benchmark Replacement Date
” means the earliest to occur of the following events
with respect to the then-current Benchmark (including the daily published component used in the calculation thereof):
(1)
in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the Benchmark
Administrator permanently or indefinitely ceases to provide the Benchmark (or such component); or
(2) in the case of
clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.
For the avoidance of doubt, if the event that gives rise to the Benchmark Replacement Date occurs on the same day as, but
earlier than, the Reference Time in
A-4
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COPAR 2026-1
respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
“
Benchmark Transition Event
” means the occurrence of one or more of the following events with respect to the then-current
Benchmark (including the daily published component used in the calculation thereof):
(1) a public statement or publication
of information by or on behalf of the Benchmark Administrator (or such component) announcing that such Benchmark Administrator has ceased or will cease to provide the Benchmark (or such component), permanently or indefinitely, provided that, at the
time of such statement or publication, there is no successor Benchmark Administrator that will continue to provide the Benchmark (or such component); or
(2) a public statement or publication of information by the regulatory supervisor for the Benchmark Administrator (or such
component), the central bank for the currency of the Benchmark (or such component), an insolvency official with jurisdiction over the Benchmark Administrator (or such component), a resolution authority with jurisdiction over the Benchmark
Administrator (or such component) or a court or an entity with similar insolvency or resolution authority over the Benchmark Administrator, which states that the Benchmark Administrator (or such component) has ceased or will cease to provide the
Benchmark (or such component) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor Benchmark Administrator that will continue to provide the Benchmark (or such component); or
(3) a public statement or publication of information by the regulatory supervisor for the Benchmark Administrator announcing
that the Benchmark is no longer representative.
“
Benefit Plan
” means (i) any “employee benefit plan”
as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (ii) a “plan” as defined in Section 4975 of the Code, that is subject to Section 4975 of the Code or (iii) any entity or account deemed to
hold the plan assets of any of the foregoing.
“
Book-Entry Certificates
” means the Certificates held by a Clearing
Agency or its nominee and with respect to which beneficial ownership and transfers thereof shall be made through book entries by a Clearing Agency as described in
Section
3.3
of the Trust Agreement.
“
Book-Entry Notes
” means a beneficial interest in the Notes, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in
Section
2.10
of the Indenture.
“
Business Day
”
means any day other than a Saturday, a Sunday or any day which is a federal holiday or any day on which banking institutions or trust companies are authorized or obligated by law, regulation or executive order to remain closed.
“
Capital One Parties
” means collectively, the Bank, the Depositor and the Issuer.
A-5
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COPAR 2026-1
“
Certificate
” means a certificate substantially in the form of
Exhibit
A
to the Trust Agreement evidencing a beneficial interest in the Issuer. For the avoidance of doubt, the references in the Transaction Documents to a “Certificate” or a “Certificateholder”, unless the context otherwise
requires, shall be deemed to be references to “Certificates” or “Certificateholders” if more than one Certificate has been issued.
“
Certificate Distribution Account
” means the account designated as such, established and maintained pursuant to
Section
8.2(a)(iv)
of the Indenture.
“
Certificate Investor Representation Letter
” means a
certificate investor representation letter, substantially in the form of
Exhibit B
to the Trust Agreement.
“
Certificate
of Title
” means, with respect to any Financed Vehicle, the certificate of title or other documentary evidence of ownership of such Financed Vehicle as issued by the department, agency or official of the jurisdiction (whether in paper or
electronic form) in which such Financed Vehicle is titled and which is responsible for accepting applications for, and maintaining records regarding, certificates of title and liens thereon.
“
Certificate of Trust
” means the certificate of trust for the Issuer filed on July 24, 2026, pursuant to the Statutory
Trust Statute.
“
Certificate Owner
” means, with respect to a Book-Entry Certificate, the Person who is the beneficial
owner of such Book-Entry Certificate, as reflected on the books of the Clearing Agency or a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
“
Certificate Paying Agent
” means Wilmington Trust, National Association or
any other Person appointed as the successor Certificate Paying Agent pursuant to
Section
3.9
of the Trust Agreement.
“
Certificate Register
” has the meaning set forth in
Section
3.6
of the Trust Agreement.
“
Certificate Registrar
” has the meaning set forth in
Section
3.6
of the Trust Agreement.
“
Certificateholder
” means, as of any date, the Person in whose name a Certificate is registered on the Certificate Register
on such date.
“
Class
” means a group of Notes whose form is identical except for variation in denomination, principal
amount or owner, and references to “each Class” thus mean each of the
Class A-1
Notes, the
Class A-2-A
Notes, the
Class A-2-B
Notes, the
Class A-3
Notes, the
Class A-4
Notes,
the Class B Notes, the Class C Notes and the Class D Notes.
“
Class
A Noteholders
”
means, collectively, the
Class A-1
Noteholders, the
Class A-2-A
Noteholders, the
Class A-2-B
Noteholders, the
Class A-3
Noteholders and the
Class A-4
Noteholders.
A-6
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COPAR 2026-1
“
Class
A Noteholders’ Interest Carryover
Shortfall
” means, with respect to any Payment Date, the excess of (A) the sum of (i) the Class A Noteholders’ Monthly Accrued Interest for the preceding Payment Date and (ii) any Class A Noteholders’
Interest Carryover Shortfall for the preceding Payment Date, over (B) the amount in respect of interest that was actually paid to Noteholders of Class A Notes on such preceding Payment Date, plus interest on the amount of interest due but
not paid to Noteholders of Class A Notes on the preceding Payment Date, to the extent permitted by law, at the respective Interest Rates borne by such Class A Notes for the related Interest Period.
“
Class
A Noteholders’ Monthly Accrued Interest
” means, with respect to any Payment Date, the
aggregate interest accrued for the related Interest Period on the
Class A-1
Notes, the
Class A-2-A
Notes, the
Class A-2-B
Notes, the
Class A-3
Notes and the
Class A-4
Notes at the respective
Interest Rate for such Class on the Note Balance of the Notes of each such Class as of the immediately preceding Payment Date or the Closing Date, as the case may be, after giving effect to all payments of principal to the Noteholders of
the Notes of such Class on or prior to such preceding Payment Date.
“
Class
A Notes
” means,
collectively, the
Class A-1
Notes, the
Class A-2-A
Notes, the
Class A-2-B
Notes, the
Class A-3
Notes and the
Class A-4
Notes.
“
Class
A-1
Final Scheduled Payment Date
” means the Payment Date
occurring in September 2027.
“
Class
A-1
Interest Rate
” means 4.002% per
annum (computed on the basis of the actual number of days elapsed during the applicable Interest Period, but assuming a
360-day
year).
“
Class
A-1
Note Balance
” means, at any time, the Initial
Class A-1
Note Balance reduced by all payments of principal made prior to such time on the
Class A-1
Notes.
“
Class
A-1
Noteholder
” means the Person in whose name a
Class A-1
Note is registered on the Note Register.
“
Class
A-1
Notes
” means the Class of Auto Loan Asset Backed Notes designated as
Class A-1
Notes, issued in accordance with the Indenture.
“
Class
A-2-A
Final Scheduled
Payment Date
” means the Payment Date occurring in September 2029.
“
Class
A-2-A
Interest
Rate
” means 4.48% per annum (computed on the basis of a
360-day
year of twelve
30-day
months).
“
Class
A-2-A
Note
Balance
” means, at any time, the Initial
Class A-2-A
Note Balance reduced by all payments of principal made prior to such time on the
Class A-2-A
Notes.
“
Class
A-2-A
Noteholder
” means the Person in whose name a
Class A-2-A
Note is
registered on the Note Register.
“
Class
A-2-A
Notes
”
means the Class of Auto Loan Asset Backed Notes designated as
Class A-2-A
Notes, issued in accordance with the Indenture.
A-7
Appendix A
COPAR 2026-1
“
Class
A-2-B
Final Scheduled
Payment Date
” means the Payment Date occurring in September 2029.
“
Class
A-2-B
Interest
Rate
” means the Benchmark, which initially will be the SOFR Rate, + 0.37% per annum (computed on the basis of the actual number of days elapsed during the relevant Interest Period and a
360-day
year); provided that, if the Benchmark + 0.37% is less than 0.00% for any Interest Period, then the
Class A-2-B
Interest Rate for such Interest Period will be
deemed to be 0.00%.
“
Class
A-2-B
Note
Balance
” means, at any time, the Initial
Class A-2-B
Note Balance reduced by all payments of principal made prior to such time on the
Class A-2-B
Notes.
“
Class
A-2-B
Noteholder
” means the Person in whose name a
Class A-2-B
Note is
registered on the Note Register.
“
Class
A-2-B
Notes
”
means the Class of Auto Loan Asset Backed Notes designated as
Class A-2-B
Notes, issued in accordance with the Indenture.
“
Class
A-3
Final Scheduled Payment Date
” means the Payment Date
occurring in July 2031.
“
Class
A-3
Interest Rate
” means
4.77% per annum (computed on the basis of a
360-day
year of twelve
30-day
months).
“
Class
A-3
Note Balance
” means, at any time, the Initial
Class A-3
Note Balance reduced by all payments of principal made prior to such time on the
Class A-3
Notes.
“
Class
A-3
Noteholder
” means the Person in whose name a
Class A-3
Note is registered on the Note Register.
“
Class
A-3
Notes
” means the Class of Auto Loan Asset Backed Notes designated as
Class A-3
Notes, issued in accordance with the Indenture.
“
Class
A-4
Final Scheduled Payment Date
” means the Payment Date
occurring in February 2032.
“
Class
A-4
Interest Rate
” means
4.88% per annum (computed on the basis of a
360-day
year of twelve 30 day months).
“
Class
A-4
Note Balance
” means, at any time, the Initial
Class A-4
Note Balance reduced by all payments of principal made prior to such time on the
Class A-4
Notes.
“
Class
A-4
Noteholder
” means the Person in whose name a
Class A-4
Note is registered on the Note Register.
“
Class
A-4
Notes
” means the Class of Auto Loan Asset Backed Notes designated as
Class A-4
Notes, issued in accordance with the Indenture.
A-8
Appendix A
COPAR 2026-1
“
Class
B Final Scheduled Payment Date
” means the
Payment Date occurring in March 2032.
“
Class
B Interest Rate
” means 5.06% per annum (computed on
the basis of a
360-day
year of twelve
30-day
months).
“
Class
B Note Balance
” means, at any time, the Initial Class B Note Balance reduced by all payments
of principal made prior to such time on the Class B Notes.
“
Class
B Noteholder
” means the
Person in whose name a Class B Note is registered on the Note Register.
“
Class
B Noteholders’
Interest Carryover Shortfall
” means, with respect to any Payment Date, the excess of (A) the sum of (i) the Class B Noteholders’ Monthly Accrued Interest for the preceding Payment Date and (ii) any Class B
Noteholders’ Interest Carryover Shortfall for the preceding Payment Date, over (B) the amount in respect of interest that was actually paid to Noteholders of Class B Notes on such preceding Payment Date, plus interest on the amount
of interest due but not paid to Noteholders of Class B Notes on the preceding Payment Date, to the extent permitted by law, at the Interest Rate borne by such Class B Notes for the related Interest Period.
“
Class
B Noteholders’ Monthly Accrued Interest
” means, with respect to any Payment Date, the
aggregate interest accrued for the related Interest Period on the Class B Notes at the Class B Interest Rate on the Class B Note Balance on the immediately preceding Payment Date or the Closing Date, as the case may be, after giving
effect to all payments of principal to the Class B Noteholders on or prior to such preceding Payment Date.
“
Class
B Notes
” means the Class of Auto Loan Asset Backed Notes designated as Class B Notes,
issued in accordance with the Indenture.
“
Class
C Final Scheduled Payment Date
” means the Payment
Date occurring in April 2032.
“
Class
C Interest Rate
” means 5.21% per annum (computed on the basis
of a
360-day
year of twelve
30-day
months).
“
Class
C Note Balance
” means, at any time, the Initial Class C Note Balance reduced by all payments
of principal made prior to such time on the Class C Notes.
“
Class
C Noteholder
” means the
Person in whose name a Class C Note is registered on the Note Register.
A-9
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COPAR 2026-1
“
Class
C Noteholders’ Interest Carryover
Shortfall
” means, with respect to any Payment Date, the excess of (A) the sum of (i) the Class C Noteholders’ Monthly Accrued Interest for the preceding Payment Date and (ii) any Class C Noteholders’
Interest Carryover Shortfall for the preceding Payment Date, over (B) the amount in respect of interest that was actually paid to Noteholders of Class C Notes on such preceding Payment Date, plus interest on the amount of interest due but
not paid to Noteholders of Class C Notes on the preceding Payment Date, to the extent permitted by law, at the Interest Rate borne by such Class C Notes for the related Interest Period.
“
Class
C Noteholders’ Monthly Accrued Interest
” means, with respect to any Payment Date, the
aggregate interest accrued for the related Interest Period on the Class C Notes at the Class C Interest Rate on the Class C Note Balance on the immediately preceding Payment Date or the Closing Date, as the case may be, after giving
effect to all payments of principal to the Class C Noteholders on or prior to such preceding Payment Date.
“
Class
C Notes
” means the Class of Auto Loan Asset Backed Notes designated as Class C Notes,
issued in accordance with the Indenture.
“
Class
D Final Scheduled Payment Date
” means the Payment
Date occurring in September 2033.
“
Class
D Interest Rate
” means 5.70% per annum (computed on the
basis of a
360-day
year of twelve
30-day
months).
“
Class
D Note Balance
” means, at any time, the Initial Class D Note Balance reduced by all payments
of principal made prior to such time on the Class D Notes.
“
Class
D Noteholder
” means the
Person in whose name a Class D Note is registered on the Note Register.
“
Class
D Noteholders’
Interest Carryover Shortfall
” means, with respect to any Payment Date, the excess of (A) the sum of (i) the Class D Noteholders’ Monthly Accrued Interest for the preceding Payment Date and (ii) any Class D
Noteholders’ Interest Carryover Shortfall for the preceding Payment Date, over (B) the amount in respect of interest that was actually paid to Noteholders of Class D Notes on such preceding Payment Date, plus interest on the amount
of interest due but not paid to Noteholders of Class D Notes on the preceding Payment Date, to the extent permitted by law, at the Interest Rate borne by such Class D Notes for the related Interest Period.
“
Class
D Noteholders’ Monthly Accrued Interest
” means, with respect to any Payment Date, the
aggregate interest accrued for the related Interest Period on the Class D Notes at the Class D Interest Rate on the Class D Note Balance on the immediately preceding Payment Date or the Closing Date, as the case may be, after giving
effect to all payments of principal to the Class D Noteholders on or prior to such preceding Payment Date.
“
Class
D Notes
” means the Class of Auto Loan Asset Backed Notes designated as Class D Notes,
issued in accordance with the Indenture.
A-10
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COPAR 2026-1
“
Clearing Agency
” means an organization registered as a “clearing
agency” pursuant to Section 17A of the Exchange Act and shall initially be DTC.
“
Clearing Agency
Participant
” means a broker, dealer, bank or other financial institution or other Person for which from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.
“
Closing Dat
e” means September 17, 2026.
“
Code
” means the Internal Revenue Code of 1986, as amended, modified or supplemented from time to time, and any successor
law thereto, and the regulations promulgated and the rulings issued thereunder.
“
Collateral
” has the meaning set forth
in the Granting Clause of the Indenture.
“
Collection Account
” means the trust account established and maintained
pursuant to
Section
8.2(a)(i)
of the Indenture.
“
Collection Period
” means the period
commencing on the first day of each calendar month and ending on the last day of such calendar month (or, in the case of the initial Collection Period, the period commencing on the close of business on the
Cut-Off
Date and ending on September 30, 2026). As used herein, the “related” Collection Period with respect to any date of determination or a Payment Date shall be deemed to be the Collection
Period which precedes that date of determination or such Payment Date.
“
Collections
”
means, with respect to the
Receivables and to the extent received by the Servicer after the
Cut-Off
Date, the sum of (i) any monthly payment by or on behalf of the Obligors thereunder or any other amounts received by the Servicer
which, in accordance with the Customary Servicing Practices, would customarily be applied to the payment of accrued interest or to reduce the Outstanding Principal Balance of a Receivable, (ii) any full or partial prepayment of such Receivables
and (iii) all Liquidation Proceeds;
provided
,
however
, that the term “
Collections
”
in no event will include (1) for any Payment Date, any amounts in respect of any Receivable the Repurchase Price of
which has been included in the Available Funds on a prior Payment Date, (2) any Supplemental Servicing Fees and Reimbursements or (3) premiums with respect to any Insurance Policy, rebates of premiums with respect to the cancellation or
termination of any Insurance Policy, extended warranty or service contract that was not financed by, or is not included in the Outstanding Principal Balance of, any Receivable.
“
Commission
” means the U.S. Securities and Exchange Commission.
“
Compounded SOFR
” with respect to any U.S. Government Securities Business Day, means:
(1) the applicable compounded average of SOFR for a tenor of 30 days as published on such U.S. Government Securities Business
Day at the SOFR Determination Time; or
(2) if the rate specified in (1) above does not so appear, the applicable
A-11
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COPAR 2026-1
compounded average of SOFR for a tenor of 30 days as published in respect of the first preceding U.S. Government Securities Business Day for which such rate appeared on the FRBNY’s Website.
“
Computation Agent
” means the Person appointed by a majority of the Noteholders evidencing at least a majority of the
Outstanding Note Balance (or, if no Notes are Outstanding, by the Majority Certificateholders) to fulfill the role of Computation Agent pursuant to
Section
12.4
of the Indenture. For the avoidance of doubt, the Indenture
Trustee or Owner Trustee may (but are not required to) serve in this role, and the Indenture Trustee acting as Computation Agent will be entitled to a fee for such service pursuant to
Section
6.7
of the Indenture, and the
Owner Trustee acting as Computation Agent will be entitled to a fee for such service pursuant to
Section
8.1
of the Trust Agreement.
“
Contract
” means, with respect to any Receivable, the motor vehicle retail installment sale contract and/or the installment
loan, any amendments thereto and any related documentary draft, if applicable, evidencing such Receivable.
“
Contract
Rate
” means, with respect to a Receivable, the rate per annum at which interest accrues under the Contract evidencing such Receivable. Such rate may be less than the “Annual Percentage Rate” disclosed in the Receivable.
“
Controlling Class
” means, with respect to any Notes Outstanding, the Class A Notes (voting together as a single
Class) as long as any Class A Notes are Outstanding, and thereafter the Class B Notes as long as any Class B Notes are Outstanding, and thereafter the Class C Notes as long as any Class C Notes are Outstanding and thereafter
the Class D Notes as long as any Class D Notes are Outstanding, excluding, in each case, Notes held by the Servicer, the Administrator, the Issuer, any Certificateholder or any of their respective Affiliates.
“
Corporate Trust Office
” means:
(a) as used with respect to the Indenture Trustee, the principal office of the Indenture Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date of the execution of the Indenture is located at Wilmington Trust, National Association, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate
Trust Administration – Capital One Prime Auto Receivables Trust
2026-1,
or at such other address as the Indenture Trustee may designate from time to time by notice to the Noteholders, the Administrator,
the Servicer and the Issuer, or the principal corporate trust office of any successor Indenture Trustee (the address of which the successor Indenture Trustee will notify the Noteholders, the Administrator, the Servicer and the Owner Trustee); and
(b) as used with respect to Owner Trustee, the corporate trust office of the Owner Trustee located at BNY Mellon Trust of Delaware, 103
Bellevue Parkway, Wilmington, Delaware 19809, Attention: Capital One Prime Auto Receivables Trust
2026-1,
with a copy to BNY Mellon, 240 Greenwich Street, 7th Floor, New York, New York 10286, Attention:
Structured Finance – ABS New York, or at such other address as the Owner Trustee may designate by notice to the Certificateholder and the Depositor, or the principal corporate trust office of any successor Owner Trustee (the address of which
the successor Owner Trustee will notify the Certificateholder and the Depositor).
A-12
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“
Cumulative Net Loss Ratio
” means, as of any Payment Date, the ratio
(expressed as a percentage) of (a) the aggregate Outstanding Principal Balance of Receivables that became Defaulted Receivables which occurred during the period from the
Cut-Off
Date through the end of
the related Collection Period reduced by the amount of Liquidation Proceeds with respect to Defaulted Receivables received since the
Cut-Off
Date to (b) the aggregate Outstanding Principal Balance of the
Receivables as of the
Cut-Off
Date.
“
Customary Servicing Practices
” means the
customary servicing practices of the Servicer or any
Sub-Servicer
with respect to all comparable motor vehicle receivables that the Servicer or such
Sub-Servicer,
as
applicable, services for itself or others (which includes, or is modified with respect to the Receivables to include, that no modification to any Receivable is permitted other than a Permitted Modification), as such practices may be changed from
time to time (except to the extent any such change could result in the Issuer being treated as other than a fixed investment trust described in Treasury Regulation section
301.7701-4(c)
that is treated as a
grantor trust under subtitle A, chapter 1, subchapter J, part I, subpart E of the Code), it being understood that the Servicer and the
Sub-Servicers
may not have the same “
Customary Servicing
Practices
”.
“
Cut-Off
Date
” means July 31, 2026.
“
Dealer
” means a motor vehicle dealership.
“
Default
” means any occurrence that is, or with notice or lapse of time or both would become, an Event of Default.
“
Defaulted Receivable
” means a Receivable (other than a Repurchased Receivable) that the Servicer has
charged-off
(in whole or in part) in accordance with its Customary Servicing Practices.
“
Definitive Certificates
” has the meaning set forth in
Section
3.3
of the Trust Agreement.
“
Definitive Note
” has the meaning set forth in
Section
2.10
of the Indenture.
“
Delinquency Percentage
” means, for any Payment Date and the related Collection Period, an amount equal to the ratio
(expressed as a percentage) of (i) the aggregate Outstanding Principal Balance of all
60-Day
Delinquent Receivables as of the last day of such Collection Period to (ii) the Net Pool Balance as of the
last day of such Collection Period.
“
Delinquency Trigger
” means, for any Payment Date and the related Collection
Period, 4.50%.
“
Delivery
” when used with respect to Trust Account Property means:
(a) with respect to bankers’ acceptances, commercial paper, negotiable certificates of deposit and other obligations that
constitute “instruments” as defined in
Section 9-102(a)(47)
of the UCC and are susceptible of physical delivery, transfer of actual possession thereof to the Indenture Trustee or its nominee
or custodian by physical delivery to the Indenture Trustee or its nominee or custodian endorsed to the Indenture Trustee or its nominee or custodian or endorsed in blank;
A-13
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COPAR 2026-1
(b) with respect to a “certificated security” (as defined in
Section 8-102(a)(4)
of the UCC) transfer of actual possession thereof (i) by physical delivery of such certificated security to the Indenture Trustee or its nominee or custodian endorsed to, or registered
in the name of, the Indenture Trustee or its nominee or custodian or endorsed in blank, or to another person, other than a “securities intermediary” (as defined in
Section 8-102(a)(14)
of the
UCC), who acquires possession of the certificated security on behalf of the Indenture Trustee or its nominee or custodian or, having previously acquired possession of the certificate, acknowledges that it holds for the Indenture Trustee or its
nominee or custodian or (ii) if such certificated security is in registered form, by delivery thereof to a “securities intermediary”, endorsed to or registered in the name of the Indenture Trustee or its nominee or custodian, and
the making by such “securities intermediary” of entries on its books and records identifying such certificated securities as belonging to the Indenture Trustee or its nominee or custodian and the sending by such “securities
intermediary” of a confirmation of the purchase of such certificated security by the Indenture Trustee or its nominee or custodian (all of the foregoing, “
Physical Property
”), and, in any event, any such Physical Property in
registered form shall be in the name of the Indenture Trustee or its nominee or custodian; and such additional or alternative procedures as may hereafter become appropriate to effect the complete transfer of ownership of any such Trust Account
Property to the Indenture Trustee or its nominee or custodian, consistent with changes in applicable law or regulations or the interpretation thereof;
(c) with respect to any securities issued by the U.S. Treasury, the Federal Home Loan Mortgage Corporation, the Federal
National Mortgage Association or the other government agencies, instrumentalities and establishments of the United States identified in Appendix A to Federal Reserve Bank Operating Circular No. 7 as in effect from time to time that is a
“book-entry security” (as such term is defined in Federal Reserve Bank Operating Circular No. 7) held in a securities account and eligible for transfer through the Fedwire
®
Securities Service operated by the Federal Reserve System pursuant to Federal book-entry regulations, the following procedures, all in accordance with applicable law, including applicable Federal regulations and Articles 8 and 9 of the UCC:
book-entry registration of such Trust Account Property to an appropriate securities account maintained with a Federal Reserve Bank by a “participant” (as such term is defined in Federal Reserve Bank Operating Circular No. 7) that is
a “depository institution” (as defined in Section 19(b)(1)(A) of the Federal Reserve Act) pursuant to applicable Federal regulations, and issuance by such depository institution of a deposit notice or other written confirmation of
such book-entry registration to the Indenture Trustee or its nominee or custodian of the purchase by the Indenture Trustee or its nominee or custodian of such book-entry securities; the making by such depository institution of entries in its books
and records identifying such book entry security held through the Federal Reserve System pursuant to Federal book-entry regulations or a security entitlement thereto as belonging to the Indenture Trustee or its nominee or custodian and indicating
that such depository institution holds such Trust Account Property solely as agent for the Indenture Trustee or its nominee or custodian; and such additional or alternative procedures as may hereafter become appropriate to effect complete transfer
of ownership of any such Trust Account Property to the Indenture Trustee or its nominee or custodian, consistent with changes in applicable law or regulations or the interpretation thereof; and
A-14
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COPAR 2026-1
(d) with respect to any item of Trust Account Property that is an
“uncertificated security” (as defined in
Section 8-102(a)(18)
of the UCC) and that is not governed by
clause (b)
above, (i) registration on the books and records of the issuer
thereof in the name of the Indenture Trustee or its nominee or custodian, or (ii) registration on the books and records of the issuer thereof in the name of another person, other than a securities intermediary, who acknowledges that it holds
such uncertificated security for the benefit of the Indenture Trustee or its nominee or custodian.
“
Depositor
” means
Capital One Auto Receivables, LLC, a Delaware limited liability company.
“
Depository Agreement
” means the agreement,
dated as of the Closing Date, executed by the Issuer in favor of DTC, as initial Clearing Agency, relating to the Notes and the Book-Entry Certificates, if any, as the same may be amended or supplemented from time to time.
“
Determination Date
” means, for any Collection Period, the third Business Day preceding the related Payment Date, beginning
October 9, 2026.
“
Disqualified Transferee
” has the meaning set forth in
Section
3.7
of the
Trust Agreement.
“
Dollar
” and “
$
” mean lawful currency of the United States of America.
“
Domestic Corporation
” means an entity that is treated as a corporation for United States federal income tax purposes and
is a U.S. Tax Person.
“
DTC
” means The Depository Trust Company, and its successors.
“
Eligible Account
” means either (a) a segregated account with an Eligible Institution or (b) a segregated trust
account with the corporate trust department of a depository institution organized under the laws of the United States of America or any one of the states thereof or the District of Columbia (or any domestic branch of a foreign bank), having
corporate trust powers and acting as trustee for funds deposited in such account, so long as the long-term unsecured debt of such depository institution shall have a credit rating from (i) S&P of at least “BBB” and (ii) Moody’s
of at least “Baa3”. Any such trust account may be maintained with the Owner Trustee, the Indenture Trustee or any of their respective Affiliates, if such accounts meet the requirements described in
clause (b)
of the preceding
sentence.
“
Eligible Institution
” means a depository institution or trust company (other than any Affiliate of Capital
One Financial Corporation) (which may be the Owner Trustee or any of its Affiliates) organized under the laws of the United States of America or any one of the states thereof or the District of Columbia (or any domestic branch of a foreign
bank) (i) which at all times has either (A) a long-term senior unsecured debt rating of “A2” or better by Moody’s and “A” or better by S&P, or such other rating that is acceptable to each Rating Agency, as
evidenced by a letter from such Rating Agency to the Issuer or the Indenture Trustee or (B) a certificate of deposit rating of
“P-1”
by Moody’s and
“A-1”
by S&P, or (C) such other rating that is acceptable to each Rating
A-15
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COPAR 2026-1
Agency, as evidenced by a letter from such Rating Agency to the Issuer or the Indenture Trustee and (ii) whose deposits are insured by the Federal Deposit Insurance Corporation.
“
Eligible Receivable
” means a Receivable meeting all of the criteria set forth on
Schedule
II
of
the Purchase Agreement as of the Closing Date.
“
ERISA
” means the Employee Retirement Income Security Act of 1974, as
amended.
“
EU Securitization Regulation
” means Regulation (EU) 2017/2402 of the European Parliament and of the Council
of December 12, 2017, as amended.
“
EU SR Rules
” means the EU Securitization Regulation, together with all
relevant implementing regulations in relation thereto and, in each case, any relevant guidance published in relation thereto by the European Banking Authority, the European Securities and Markets Authority and the European Insurance and Occupational
Pensions Authority (or in each case, any predecessor or any other applicable regulatory authority) or by the European Commission.
“
Event of Default
” has the meaning set forth in
Section
5.1
of the Indenture.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
“
Exchange Act Reports
” means any reports on Form
10-D,
Form
8-K
and Form
10-K
filed or to be filed by the Seller with respect to the Issuer under the Exchange Act.
“
FATCA
” means Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations
thereunder or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, any published intergovernmental agreement entered into in connection with the implementation of the foregoing and any
fiscal or regulatory legislation, rules or official practices adopted pursuant to such published intergovernmental agreement.
“
FATCA Withholding Tax
” means any withholding or deduction required pursuant to FATCA.
“
FDIC
” means the Federal Deposit Insurance Corporation.
“
FDIC Rule
” means the FDIC’s rule regarding the treatment by the FDIC, as receiver or conservator of an insured
depository institution, of financial assets transferred by the institution in connection with a securitization or participation (12 C.F.R. § 360.6).
“
Final Scheduled Payment Date
” means, with respect to (i) the
Class A-1
Notes, the
Class A-1
Final Scheduled Payment Date, (ii) the
Class A-2-A
Notes, the
Class A-2-A
Final Scheduled Payment Date, (iii) the
Class A-2-B
Notes, the
Class A-2-B
Final Scheduled Payment Date, (iv) the
Class A-3
Notes, the
Class A-3
Final Scheduled Payment Date, (v) the
Class A-4
Notes, the
Class A-4
Final Scheduled Payment Date,
(vi) the Class B Notes, the Class B Final Scheduled Payment Date, (vii) the Class C Notes, the Class C Final Scheduled Payment Date, and (viii) the Class D Notes, the Class D Final Scheduled Payment Date.
A-16
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COPAR 2026-1
“
Financed Vehicle
” means a new or used automobile, light-duty truck, SUV
or van, together with all accessions thereto, securing an Obligor’s indebtedness under the applicable Receivable.
“
First
Allocation of Principal
”
means, for any Payment Date, an amount not less than zero equal to the excess, if any, of (a) the Note Balance of the Class A Notes as of such Payment Date (before giving effect to any principal
payments made on the Class A Notes on such Payment Date) over (b) the Adjusted Pool Balance as of the last day of the related Collection Period;
provided
,
further
, that the “
First Allocation of Principal
”
for any Payment Date on and after the Final Scheduled Payment Date for any Class of Class A Notes shall not be less than the amount that is necessary to reduce the Note Balance of that Class of Class A Notes to zero.
“
Fitch
” means Fitch Ratings, Inc. or any successor that is a nationally recognized statistical rating organization.
“
Form
10-D
Disclosure Item
” means, with respect to any Person, (a) any legal
proceedings pending against such Person or of which any property of such Person is then subject, or (b) any proceedings known to be contemplated by governmental authorities against such Person or of which any property of such Person would be
subject, in each case that would be material to the Noteholders.
“
Fourth Allocation of Principal
” means, for any
Payment Date, an amount not less than zero equal to the excess, if any, of (a) the sum of the Note Balance of the Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes minus the sum of the First
Allocation of Principal, the Second Allocation of Principal and the Third Allocation of Principal for that Payment Date as of such Payment Date (before giving effect to any principal payments made on the Notes on such Payment Date) over (b) the
Adjusted Pool Balance as of the last day of the related Collection Period;
provided
,
however
, that the “Fourth Allocation of Principal” on and after the Final Scheduled Payment Date for the Class D Notes shall not be
less than the amount that is necessary to reduce the Note Balance of the Class D Notes to zero (after the application of the First Allocation of Principal, Second Allocation of Principal and Third Allocation of Principal).
“
FRBNY
” means the Federal Reserve Bank of New York.
“
FRBNY’s Website
” means the website of the FRBNY, currently at
https://www.newyorkfed.org/markets/reference-rates/sofr-averages-and-index
or at such other page as may replace such page on the FRBNY’s website.
“
GAAP
” means generally accepted accounting principles in the USA, applied on a materially consistent basis.
“
Governmental Authority
” means any (a) Federal, state, municipal, foreign or other governmental entity, board, bureau,
agency or instrumentality, (b) administrative or regulatory authority (including any central bank or similar authority) or (c) court or judicial authority.
“
Grant
” means mortgage, pledge, bargain, sell, warrant, alienate, remise, release, convey, assign, transfer, create, grant
a Lien upon and a security interest in and right of
set-off
against, deposit, set over and confirm pursuant to the Indenture. A Grant of the Collateral or of any other
A-17
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COPAR 2026-1
agreement or instrument shall include all rights, powers and options (but none of the obligations) of the Granting party thereunder, including the immediate and continuing right to claim for,
collect, receive and give receipt for principal and interest payments in respect of the Collateral and all other moneys payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all
rights and options, to bring proceedings in the name of the Granting party or otherwise and generally to do and receive anything that the Granting party is or may be entitled to do or receive thereunder or with respect thereto. Other forms of the
verb “to Grant” shall have correlative meanings.
“
Holder
” means, as the context may require, a
Certificateholder or a Noteholder or both.
“
Indenture
” means the Indenture, dated as of the Closing Date, between the
Issuer and Indenture Trustee, as the same may be amended and supplemented from time to time.
“
Indenture Trustee
” means
Wilmington Trust, National Association, a national banking association, not in its individual capacity but as indenture trustee under the Indenture, or any successor trustee under the Indenture.
“
Independent
” means, when used with respect to any specified Person, that such Person (i) is in fact independent of
the Issuer, any other obligor upon the Notes, the Administrator and any Affiliate of any of the foregoing Persons, (ii) does not have any direct financial interest or any material indirect financial interest in the Issuer, any such other
obligor upon the Notes, the Administrator or any Affiliate of any of the foregoing Persons and (iii) is not connected with the Issuer, any such other obligor upon the Notes, the Administrator or any Affiliate of any of the foregoing Persons as
an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions.
“
Independent
Certificate
” means a certificate or opinion to be delivered to the Indenture Trustee under the circumstances described in, and otherwise complying with, the applicable requirements of
Section
11.1
of the
Indenture, made by an independent appraiser or other expert appointed by an Issuer Order, and such opinion or certificate shall state that the signer has read the definition of “Independent” in this
Appendix A
and that the signer
is Independent within the meaning thereof.
“
Initial Certificate Transfer Opinion
” means an Opinion of Counsel rendered
by nationally recognized tax counsel (i) upon the initial transfer by the Depositor of a Certificate that results in the Issuer not being wholly owned by the Depositor and (ii) while any Note retained by the Issuer or a Person that is
considered the same Person as the Issuer for United States federal income tax purposes is outstanding that (x) such Note will be debt for United States federal income tax purposes and (y) the transfer by the Depositor of such Certificate
will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation, or to be treated as other than a grantor trust for United States federal income tax purposes.
“
Initial Class
A
-1
Note Balance
” means $336,400,000.
“
Initial Class
A-2-A
Note
Balance
” means $572,380,000.
“
Initial Class
A-2-B
Note Balance
” means $157,900,000.
A-18
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COPAR 2026-1
“
Initial Class
A-3
Note
Balance
” means $730,280,000.
“
Initial Class
A
-4
Note
Balance
” means $118,410,000.
“
Initial
C
lass
B Note Balance
” means $19,740,000.
“
Initial
C
lass
C Note Balance
” means $19,740,000.
“
Initial
C
lass
D Note Balance
” means $19,740,000.
“
Initial Note Balance
” means, for any Class, the Initial
Class A-1
Note
Balance, the Initial
Class A-2-A
Note Balance, the Initial
Class A-2-B
Note
Balance, the Initial
Class A-3
Note Balance, the Initial
Class A-4
Note Balance, the Initial Class B Note Balance, the Initial Class C Note Balance
and the Initial Class D Note Balance, as applicable, or with respect to the Notes generally, the sum of the foregoing.
“
Initial Reserve Account Deposit Amount
” means an amount equal to $4,936,493.86.
“
Instituting Noteholders
” has the meaning set forth in
Section
7.6(a)
of the Indenture.
“
Insurance Policy
” means (i) any theft and physical damage insurance policy maintained by or on behalf of the Obligor
under a Receivable, providing coverage against loss or damage to or theft of the related Financed Vehicle, (ii) any credit life or credit disability insurance maintained by or on behalf of an Obligor in connection with any Receivable and
(iii) any vendor’s single interest policy provided by an Affiliate of the Bank in connection with any Receivable.
“
Interest Period
” means with respect to any Payment Date, (a) with respect to the
Class A-1
Notes and the
Class A-2-B
Notes, from and including the Closing Date (in the case of the first Payment Date)
or from and including the most recent Payment Date to but excluding that Payment Date (for example, for a Payment Date in June, the Interest Period is from and including the Payment Date in May to but excluding the Payment Date in June) and
(b) for the
Class A-2-A
Notes, the
Class A-3
Notes, the
Class A-4
Notes, the Class B Notes, the Class C Notes and the Class D Notes, from and including the 15
th
day of the calendar month preceding such Payment Date (or from and including the
Closing Date in the case of the first Payment Date) to but excluding the 15
th
day of the month in which such Payment Date occurs.
“
Interest Rate
” means (a) with respect to the
Class A-1
Notes, the
Class A-1
Interest Rate, (b) with respect to the
Class A-2-A
Notes, the
Class A-2-A
Interest Rate, (c) with respect to the
Class A-2-B
Notes, the
Class A-2-B
Interest Rate, (d) with respect to the
Class A-3
Notes, the
Class A-3
Interest Rate,
(e) with respect to the
Class A-4
Notes, the
Class A-4
Interest Rate, (f) with respect to the Class B Notes, the Class B Interest Rate,
(g) with respect to the Class C Notes, the Class C Interest Rate or (h) with respect to the Class D Notes, the Class D Interest Rate.
“
Investment Company Act
” means the Investment Company Act of 1940, as amended.
“
ISDA Definitions
” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc.
or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from
A-19
Appendix A
COPAR 2026-1
time to time.
“
ISDA Fallback Adjustment
” means the spread
adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark.
“
ISDA Fallback Rate
” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be
effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
“
Issuer
” means Capital One Prime Auto Receivables Trust
2026-1,
a Delaware
statutory trust established pursuant to the Trust Agreement and the filing of the Certificate of Trust, until a successor replaces it and, thereafter, means such successor.
“
Issuer Order
” and “
Issuer Request
” means a written order or request of the Issuer signed in the name of
the Issuer by any one of its Authorized Officers and delivered to the Indenture Trustee.
“
Item 1119 Party
” means the
Depositor, the Bank, the Servicer, the Indenture Trustee, the Owner Trustee, the Asset Representations Reviewer, any underwriter of the Notes and any other material transaction party identified by the Depositor, the Bank or to the Indenture Trustee
and the Owner Trustee in writing.
“
Lien
” means, for any asset or property of a Person, a lien, security interest,
mortgage, pledge or encumbrance in, of or on such asset or property in favor of any other Person, except any Permitted Lien.
“
Liquidation Expenses
” means auction, painting, repair or refurbishment expenses in respect of the disposition of a
Financed Vehicle and any payments required by law to be remitted to the Obligor.
“
Liquidation Proceeds
” means, with
respect to any Defaulted Receivable, (a) insurance proceeds received by the Servicer with respect to the Insurance Policies, (b) amounts received by the Servicer in connection with such Receivable pursuant to the exercise of rights under
that Receivable and (c) the monies collected by the Servicer (from whatever source, including proceeds of a sale of a Financed Vehicle, a deficiency balance recovered from the Obligor after the
charge-off
of such Receivable or as a result of any recourse against the related Dealer, if any) on such Receivable, in the case of each of the foregoing
clauses (a)
through
(c)
, net of any outstanding related Liquidation Expenses and any
payments required by law to be remitted to the Obligor;
provided
,
however
, that the Repurchase Price for any Receivable shall not constitute “Liquidation Proceeds”.
“
Majority Certificateholders
” means Certificateholders holding in the aggregate more than 50% of the Percentage Interests.
A-20
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COPAR 2026-1
“
Moody’s
” means Moody’s Investors Service, Inc., or any
successor that is a nationally recognized statistical rating organization.
“
Net Pool Balance
” means, as of any date,
the aggregate Outstanding Principal Balance of all Receivables (other than Defaulted Receivables) of the Issuer on such date.
“
Note
” means a
Class A-1
Note,
Class A-2-A
Note,
Class A-2-B
Note,
Class A-3
Note,
Class A-4
Note, Class B Note, Class C Note or Class D Note, in each case substantially in the forms of
Exhibit A
to the Indenture.
“
Note Balance
” means, with respect to any date of determination, for any Class, the
Class A-1
Note Balance, the
Class A-2-A
Note Balance, the
Class A-2-B
Note Balance, the
Class A-3
Note Balance, the
Class A-4
Note Balance, the Class B Note Balance,
the Class C Note Balance or the Class D Note Balance, as applicable, or with respect to the Notes generally, the sum of all of the foregoing.
“
Note Factor
” means, with respect to the Notes or any Class of Notes on any Payment Date, a
six-digit
decimal figure equal to the Note Balance of the Notes or such Class of Notes, as applicable, as of the end of the preceding Collection Period divided by the Note Balance of the Notes or such
Class of Notes, as applicable, as of the Closing Date. The Note Factor will be 1.000000 as of the Closing Date; thereafter, the Note Factor will decline to reflect reductions in the Note Balance of the Notes or such Class of Notes, as
applicable.
“
Noteholder
” means, as of any date, the Person in whose name a Note is registered on the Note Register on
such date.
“Noteholder Direction”
has the meaning set forth in
Section
7.6(a)
of the
Indenture.
“
Note Owner
” means, with respect to a Book-Entry Note, the Person who is the beneficial owner of such
Book-Entry Note, as reflected on the books of the Clearing Agency or a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of
such Clearing Agency).
“
Note Register
” and “
Note Registrar
” have the respective meanings set forth
in
Section
2.4
of the Indenture.
“
Obligor
” means, for any Receivable, each Person obligated
to pay such Receivable.
“
Officer’s Certificate
” means (i) with respect to the Issuer, a certificate signed
by any Authorized Officer of the Issuer and (ii) with respect to the Depositor or the Servicer, a certificate signed by any Responsible Officer thereof.
“
Opinion of Counsel
” means one or more written opinions of counsel who may, except as otherwise expressly provided in the
Indenture or any other applicable Transaction Document, be employees of or counsel to the Issuer, the Servicer, the Depositor or the Administrator, and which opinion or opinions comply with any applicable requirements of the Transaction Documents
and are in form and substance reasonably satisfactory to the recipient(s). Opinions of Counsel need
A-21
Appendix A
COPAR 2026-1
address matters of law only and may be based upon stated assumptions as to relevant matters of fact.
“
Optional Purchase
” has the meaning set forth in
Section
7.1
of the Servicing Agreement.
“
Optional Purchase Price
” has the meaning set forth in
Section
7.1
of the Servicing Agreement.
“
Originator
” means Capital One, National Association.
“
Other Assets
” means any assets (or interests therein) (other than the Trust Estate) conveyed or purported to be conveyed
by the Depositor to another Person or Persons other than the Issuer, whether by way of a sale, capital contribution or by virtue of the granting of a lien.
“
Outstandin
g” means, as of any date, all Notes (or all Notes of an applicable Class) theretofore authenticated and
delivered under the Indenture except:
(i) Notes (or Notes of an applicable Class) theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes (or Notes of an applicable Class) or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent in trust for the related Noteholders (
provided
,
however
, that if such Notes are to be redeemed, notice of such redemption has
been duly given pursuant to the Indenture or provision therefor, satisfactory to the Indenture Trustee, has been made); and
(iii) Notes
(or Notes of an applicable Class) in exchange for or in lieu of other Notes (or Notes of such Class) that have been authenticated and delivered pursuant to the Indenture unless proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a bona fide purchaser;
provided
, that in determining whether Noteholders holding the requisite Note Balance have given any
request, demand, authorization, direction, notice, consent, vote or waiver hereunder or under any Transaction Document, Notes owned by the Issuer, the Depositor, any Certificateholder, the Servicer, the Administrator, the Asset Representations
Reviewer or any of their respective Affiliates shall be disregarded and deemed not to be Outstanding unless all of the Notes are then owned by the Issuer, the Depositor, any Certificateholder, the Servicer, the Administrator, the Asset
Representations Reviewer or any of their respective Affiliates, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, vote or waiver, only
Notes that a Responsible Officer of the Indenture Trustee knows to be so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee thereof establishes to the satisfaction of
the Indenture Trustee such pledgee’s right so to act with respect to such Notes and that such pledgee is not the Issuer, the Depositor, any Certificateholder, the Seller, the Servicer, the Administrator, the Asset Representations Reviewer or
any of their respective Affiliates.
A-22
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COPAR 2026-1
“
Outstanding Principal Balance
” means, with respect to any Receivable as
of any date, the outstanding principal balance of such Receivable calculated in accordance with the Customary Servicing Practices.
“
Owner Trustee
” means BNY Mellon Trust of Delaware, a Delaware banking corporation, not in its individual capacity but
solely as owner trustee under the Trust Agreement, and any successor Owner Trustee thereunder.
“
Paying Agent
” means
(i) prior to the payment in full of principal and interest on the Notes, the Indenture Trustee or any other Person that meets the eligibility standards for the Indenture Trustee set forth in
Section
6.11
of the
Indenture and is authorized by the Issuer to make the payments to and distributions from the Collection Account and the Principal Distribution Account, including the payment of principal of or interest on the Notes on behalf of the Issuer and
(ii) following the payment in full of principal and interest on the Notes, the Certificate Paying Agent or any other Person appointed as the successor Certificate Paying Agent pursuant to
Section
3.9
of the Trust
Agreement.
“
Payment Date
” means the 15
th
day of each calendar
month beginning October 15, 2026;
provided
,
however
, whenever a Payment Date would otherwise be a day that is not a Business Day, the Payment Date shall be the immediately succeeding Business Day. As used herein, the
“related” Payment Date with respect to a Collection Period shall be deemed to be the Payment Date which immediately follows such Collection Period.
“
Payment Default
” has the meaning set forth in
Section
5.4(a)
of the Indenture.
“
Percentage Interest
” means, with respect to a Certificate, the individual percentage interest of such Certificate, which
shall be specified on the face thereof and which shall represent the percentage of certain distributions of the Issuer beneficially owned by such Certificateholder. The sum of the Percentage Interests for all of the Certificates shall be 100%.
“
Permitted Investments”
means any one or more of the following types of investments:
(a) direct obligations of, and obligations fully guaranteed as to timely payment by, the United States of America;
(b) demand deposits, money market deposit accounts, time deposits or certificates of deposit of any depository institution (including, the
Servicer, the Indenture Trustee or the Owner Trustee or any of their respective Affiliates) or trust company incorporated under the laws of the United States of America or any state thereof or the District of Columbia (or any domestic branch of a
foreign bank) and subject to supervision and examination by Federal or state banking or depository institution authorities (including depository receipts issued by any such institution or trust company as custodian with respect to any obligation
referred to in clause (a) above or a portion of such obligation for the benefit of the holders of such depository receipts); provided that at the time of the investment or contractual commitment to invest therein (which shall be deemed to be
made again each time funds are reinvested following each Payment Date), the commercial paper or other short-term senior unsecured debt obligations (other than such obligations the rating of which is based on the credit of a Person other than
such depository institution or trust company)
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COPAR 2026-1
of such depository institution or trust company shall have a credit rating from Moody’s of at least
“P-1”
and from S&P of at least
“A-1”;
(c) commercial paper (including commercial paper of any Affiliate of the Seller,
the Servicer, the Bank, the Indenture Trustee or the Owner Trustee or any of their respective Affiliates) having, at the time of the investment or contractual commitment to invest therein, a rating from Moody’s of at least
“P-1”
and from S&P of at least
“A-1”;
(d) investments in money market funds (including funds for which the Seller, the Servicer, the Bank, the Indenture Trustee or Owner Trustee or
any of their respective Affiliates is investment manager or advisor) having a credit rating in the highest rating category from each of Fitch, if rated by Fitch, Moody’s and S&P; and
(e) bankers’ acceptances issued by any depository institution or trust company referred to in clause (b) above;
provided
that, in each case, no withholding tax would be imposed if acquired directly by a person not described in Section 7701(a)(30) of the Code
assuming such person delivered a properly completed and executed IRS Form
W-8BEN
or
W-8BEN-E
(as applicable).
Each of the Permitted Investments may be purchased from the Indenture Trustee or through an Affiliate of the Indenture Trustee. Each Permitted
Investment must mature or be liquidated on the Business Day immediately preceding the next Payment Date.
“
Permitted
Liens
” means: (a) any liens created by the Transaction Documents; (b) any liens for taxes not yet due and payable or the amount of which is being contested in good faith by appropriate Proceedings; and (c) any liens of
mechanics, suppliers, vendors, materialmen, laborers, employees, repairmen and other like liens securing obligations which are not due and payable or the amount or validity of which is being contested in good faith by appropriate Proceedings.
“
Permitted Modification
” has the meaning set forth in
Section
3.2
of the Servicing Agreement.
“
Person
” means any individual, corporation, limited liability company, estate, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof), unincorporated organization or government or any agency or political subdivision thereof.
“
Physical Property
” has the meaning specified in the definition of “
Delivery
” above.
“
Plan
” means: (i) any “employee benefit plan” as defined in Section 3(3) of ERISA, whether or not
subject to ERISA; (ii) a “plan” as defined in Section 4975 of the Code, whether or not subject to Section 4975 of the Code; or (iii) any entity or account deemed to hold the plan assets of any of the foregoing.
“
Pool Factor
” on a Payment Date means a
six-digit
decimal figure equal to the Net
Pool Balance as of the end of the preceding Collection Period divided by the aggregate Outstanding Principal Balance of the Receivables as of the
Cut-Off
Date. The Pool Factor will be 1.000000 as
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of the
Cut-Off
Date; thereafter, the Pool Factor will decline to reflect reductions in the Net Pool Balance.
“
PRASR
” has the meaning set forth in the definition of “UK Securitization Framework.”
“
Predecessor Note
” means, with respect to any particular Note, every previous Note evidencing all or a portion of the same
debt as that evidenced by such particular Note;
provided
,
however
, for the purpose of this definition, any Note authenticated and delivered under
Section
2.5
of the Indenture in lieu of a mutilated, destroyed,
lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
“
Principal
Distribution Account
” means the account by that name established and maintained pursuant to
Section
8.2(a)(ii)
of the Indenture.
“
Proceeding
” means any suit in equity, action at law or other judicial or administrative proceeding.
“
Purchase Agreement
” means the Purchase Agreement, dated as of the Closing Date, between the Bank and the Depositor, as
amended, modified or supplemented from time to time.
“
Purchased Assets
” has the meaning set forth in
Section
2.1
of the Purchase Agreement.
“Qualified Dispute Resolution Professional”
means an
attorney or retired judge that is independent, impartial, knowledgeable about and experienced with the laws of the State of New York, specializing in commercial litigation with at least fifteen (15) years of experience and whose name is on a
list of neutral parties maintained by the AAA.
“
Qualified Institutional Buyer
” means a “qualified institutional
buyer” as defined in Rule 144A.
“
Rating Agency
” means either or each of Moody’s and S&P, as
indicated by the context.
“
Rating Agency Condition
” means, with respect to any event or circumstance and each Rating
Agency, either (a) written confirmation (which may be in the form of a letter, press release or other publication, or a change in such Rating Agency’s published ratings criteria to this effect) by such Rating Agency that the occurrence of
such event or circumstance will not cause it to downgrade, qualify or withdraw its rating assigned to any of the Notes or (b) that such Rating Agency shall have been given notice of such event or circumstance at least ten (10) days prior
to the occurrence of such event or circumstance (or, if ten (10) days’ advance notice is impracticable, as much advance notice as is practicable) and such Rating Agency shall not have issued any written notice that the occurrence of
such event or circumstance will cause it to downgrade, qualify or withdraw its rating assigned to the Notes.
“
Receivable
” means any Contract with respect to a new or used automobile, light-duty truck, SUV or van, which shall appear
on the Schedule of Receivables and all Related Security in connection therewith which has not been released from the lien of the Indenture.
“
Receivable Files
” has the meaning set forth in
Section
2.1(a)
of the Servicing Agreement.
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COPAR 2026-1
“
Record Date
” means, unless otherwise specified in any Transaction
Document, with respect to any Payment Date or Redemption Date, (i) for any Definitive Notes and for any Definitive Certificates, the close of business on the last Business Day of the calendar month immediately preceding the calendar month in
which such Payment Date or Redemption Date occurs and (ii) for any Book-Entry Notes and for any Book-Entry Certificates, the close of business on the Business Day immediately preceding such Payment Date or Redemption Date.
“
Records
” means, for any Receivable, all contracts, books, records and other documents or information (including computer
programs, tapes, disks, software and related property and rights, to the extent legally transferable) relating to such Receivable or the related Obligor.
“
Redemption Date
” means in the case of a redemption of the Notes pursuant to
Section
10.1
of the
Indenture, the Payment Date specified by the Administrator or the Issuer pursuant to
Section
10.1
of the Indenture.
“
Redemption Price
” means an amount equal to the sum of (a) the unpaid Note Balance of all Notes redeemed
plus
(b) accrued and unpaid interest thereon at the applicable Interest Rate for the Notes being so redeemed through the Redemption Date.
“
Reference Time
” means, with respect to any setting of the then-current Benchmark, the time determined by the
Administrator.
“
Regular Principal Distribution Amount
” means, for any Payment Date, an amount not less than zero equal
to the excess of (a) the excess of (A) the sum of the aggregate Note Balance of the Notes as of such Payment Date (before giving effect to any principal payments made on the Notes on such Payment Date) over (B) the Adjusted Pool
Balance as of the last day of the related Collection Period minus the Target Overcollateralization Amount over (b) the sum of the First Allocation of Principal, the Second Allocation of Principal, the Third Allocation of Principal and the
Fourth Allocation of Principal for that Payment Date;
provided
,
however
, that the “Regular Principal Distribution Amount” on and after the Final Scheduled Payment Date for any Class of Notes will not be less than the
amount that is necessary to reduce the Note Balance of that Class to zero (after the application of the First Allocation of Principal, the Second Allocation of Principal, the Third Allocation of Principal and the Fourth Allocation of
Principal).
“
Regulation AB
” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1125,
as such regulation may be amended from time to time and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release
No. 33-8518.
70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff of the Commission, or as may be provided in writing by the Commission or its staff from
time to time.
“
Related Security
” means, for any Receivable: (i) the security interest in the related Financed
Vehicle; (ii) all rights of the Originator to proceeds from claims on any Insurance Policy; (iii) any other property securing the Receivables; (iv) all rights of the Originator to refunds in connection with extended service
agreements relating to Receivables which became Defaulted Receivables; and (v) all proceeds of the foregoing.
“
Relevant
Governmental Body
” means the Federal Reserve Board and/or the FRBNY, or a
A-26
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committee officially endorsed or convened by the Federal Reserve Board and/or the FRBNY or any successor thereto.
“
Relevant Trustee
” means (i) prior to the payment in full of principal of and interest on the Notes, the Indenture
Trustee and (ii) following the payment in full of principal of and interest on the Notes, the Owner Trustee;
provided
,
however
, that with respect to any property that is under the joint or separate control of a
co-trustee
or separate trustee under the Trust Agreement or the Indenture, respectively, “Relevant Trustee” shall refer to either or both of the Owner Trustee and such
co-trustee
or separate trustee or to either or both of the Indenture Trustee and such
co-trustee
or separate trustee, as the case may be.
“
Reportable Event
” means any event required to be reported on Form
8-K,
and in any
event, the following:
(a) entry into a material definitive agreement related to the Issuer, the Notes, the Receivables or
an amendment to a Transaction Document, even if the Seller is not a party to such agreement (e.g., a servicing agreement with a servicer contemplated by Item 1108(a)(2) of Regulation AB);
(b) termination of a Transaction Document (other than by expiration of the agreement on its stated termination date or as
a result of all parties completing their obligations under such agreement), even if the Seller is not a party to such agreement (e.g., a servicing agreement with a servicer contemplated by Item 1108(a)(3) of Regulation AB);
(c) with respect to the Servicer only, the occurrence of a Servicer Replacement Event;
(d) an Event of Default;
(e) the resignation, removal, replacement or substitution of the Indenture Trustee or the Owner Trustee; and
(f) with respect to the Indenture Trustee only, a required distribution to Holders of the Notes is not made as of the required
Payment Date under the Indenture.
“
Repurchase Price
” means, with respect to any Repurchased Receivable, a price equal
to the Outstanding Principal Balance of such Receivable plus any unpaid accrued interest related to such Receivable accrued to and including the earlier of (a) the end of the Collection Period preceding the date that such Repurchased Receivable
was purchased by the Bank or the Servicer, as applicable or (b) the end of the Collection Period preceding the date that such Repurchased Receivable was
charged-off
(in whole or in part) by the Servicer
in accordance with its Customary Servicing Practices.
“
Repurchased Receivable
” means a Receivable purchased by the
Bank pursuant to
Section
3.4
of the Purchase Agreement or by the Servicer pursuant to
Section
3.6
of the Servicing Agreement.
“
Requesting Investor
” has the meaning set forth in
Section
7.5(a)
of the Indenture.
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“Requesting Party”
has the meaning set forth in
Section
3.11(a)
of the Purchase Agreement.
“
Reserve Account
” means the account designated as
such, established and maintained pursuant to
Section
8.2(a)(iii)
of the Indenture.
“
Reserve Account
Draw Amount
” means, for any Payment Date, the amount withdrawn from the Reserve Account, equal to the lesser of (a) the Available Funds Shortfall Amount, if any, for such Payment Date and (b) the amount on deposit in the Reserve
Account on the Business Day prior to such Payment Date. In addition, if the sum of the amounts in the Reserve Account and the remaining Available Funds after the payments under clauses
first
through
ninth
and
eleventh
of
Section
8.5(a)
of the Indenture would be sufficient to pay in full the aggregate unpaid Note Balance of all of the outstanding Classes of Notes, then the Reserve Account Draw Amount will, if so specified in the
Servicer’s Report, include such additional amount as may be necessary to pay all Outstanding Notes in full.
“
Reserve
Account Excess Amount
” means, with respect to any Payment Date, an amount equal to the excess, if any, of (a) the amount of cash or other immediately available funds in the Reserve Account on the Business Day prior to that
Payment Date, after giving effect to all deposits to and withdrawals from the Reserve Account relating to that Payment Date, over (b) the Specified Reserve Account Balance with respect to that Payment Date;
provided
,
however
, that
if such Payment Date is the Redemption Date, the “
Reserve Account Excess Amount
” shall mean an amount equal to the amount of cash or other immediately available funds in the Reserve Account on that Payment Date after giving
effect to all deposits to and withdrawals from the Reserve Account relating to that Payment Date.
“
Responsible
Officer
” means: (a) with respect to the Indenture Trustee, any officer within the corporate trust department of the Indenture Trustee, including any vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Indenture Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter
is referred because of such person’s knowledge of and familiarity with the particular subject and who, in each case, shall have direct responsibility for the administration of the Indenture; (b) with respect to the Owner Trustee, any
officer within the Corporate Trust Office of the Owner Trustee and having direct responsibility for the administration of the Issuer, including any vice president, assistant vice president, assistant treasurer, assistant secretary, associate,
trust officer or financial services officer, or any other officer customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer’s knowledge of and familiarity with the particular subject; (c) with respect to the Servicer, the Bank, the Seller or the Administrator, any officer of such Person having direct
responsibility for the transactions contemplated by the Transaction Documents, including the president, treasurer, secretary or assistant secretary, controller, vice president of capital markets funding, or any other officer customarily
performing functions similar to those performed by any of the above designated officers for any such entities and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge
of and familiarity with the particular subject; and (d) with respect to the Depositor, any officer of such Person having direct responsibility for the transactions
A-28
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COPAR 2026-1
contemplated by the Transaction Documents, including the president, treasurer, secretary or assistant secretary, deputy controller, assistant vice president, or any other officer customarily
performing functions similar to those performed by any of the above designated officers for the Depositor and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of
and familiarity with the particular subject.
“
Retained Certificate
” means any Certificate beneficially owned by the
Depositor or an Affiliate thereof.
“Review Notice”
is defined in
Section
7.6(b)
of the
Indenture.
“
Review Report
” has the meaning assigned to such term in
Section
1.01
of the
Asset Representations Review Agreement.
“
Review Satisfaction Date
” means, with respect to any Asset Review, the first
date on which (a) the Delinquency Percentage for any Payment Date exceeds the Delinquency Trigger and (b) a Noteholder Direction with respect to such Asset Review has occurred.
“
Rule 144A
” means Rule 144A under the Securities Act and any successor rule thereto.
“
Rule 144A Information
” means the information specified pursuant to Rule 144A(d)(4) of the Securities Act (or any successor
provision thereto).
“Rules”
has the meaning set forth in
Section
3.11(b)
of the Purchase
Agreement.
“
S&P
” means S&P Global Ratings, or any successor that is a nationally recognized statistical rating
organization.
“
Sale Agreement
” means the Sale Agreement, dated as of the Closing Date, between the Seller and the
Issuer, as amended, modified or supplemented from time to time.
“
Sarbanes Certification
” has the meaning set forth in
Section
8.19(b)(iii)
of the Servicing Agreement.
“
Sarbanes-Oxley Act
” means the
Sarbanes-Oxley Act of 2002, as amended, modified or supplemented from time to time, and any successor law thereto.
“
Schedule of
Receivables
” means the electronic data file of the schedule of Receivables transferred to the Issuer on the Closing Date.
“
SECN
” has the meaning set forth in the definition of “UK Securitization Framework.”
“
Second Allocation of Principal
”
means, for any Payment Date, an amount not less than zero equal to the excess, if
any, of (a) the sum of the Note Balance of the Class A Notes and the Class B Notes as of such Payment Date (before giving effect to any principal payments made on such Payment Date) minus the First Allocation of Principal for that
Payment Date over (b) the Adjusted Pool Balance as of the last day of the related Collection Period;
provided
,
however
, that the “Second Allocation of Principal” on and after the Final Scheduled Payment Date for the
Class
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COPAR 2026-1
B Notes shall not be less than the amount that is necessary to reduce the Note Balance of the Class B Notes to zero (after the application of the First Allocation of Principal).
“
Section
385 Certificateholder
” means a holder of a Certificate (or interest therein) that is (1) a
Domestic Corporation, (2) an entity (foreign or domestic) that (i) is treated as a partnership for United States federal income tax purposes and 80 percent or more of its ownership interests are controlled, directly or indirectly, by
an “expanded group,” within the meaning of Treasury Regulation
Section 1.385-1(c)(4)
and (ii) has an expanded group partner (as defined in Treasury Regulation
Section 1.385-3(g)(12))
that is a Domestic Corporation or (3) a disregarded entity or grantor trust of an entity described in clause (1) or (2).
“
Section
385 Controlled Partnership
” has the meaning set forth in Treasury Regulation
Section 1.385-1(c)(1)
for a “controlled partnership”.
“
Securities
Act
” means the Securities Act of 1933, as amended.
“
Seller
” means Capital One Auto Receivables, LLC, a
Delaware limited liability company.
“
Servicer
” means the Bank, initially, and any replacement Servicer appointed
pursuant to the Servicing Agreement.
“
Servicer Replacement Event
” means any one or more of the following that shall
have occurred and be continuing:
(a) any failure by the Servicer to deliver or cause to be delivered any required payment to the
Indenture Trustee or the Owner Trustee for deposit into the Collection Account, which failure continues unremedied for five (5) Business Days after discovery thereof by a Responsible Officer of the Servicer or receipt by a Responsible
Officer of the Servicer of written notice thereof from the Indenture Trustee or Noteholders evidencing at least a majority of the Note Balance (or, if no Notes are Outstanding, from the Majority Certificateholders);
(b) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the Servicing
Agreement (other than
Section
3.15
of the Servicing Agreement), which failure materially and adversely affects the rights of the Issuer, the Noteholders or the Certificateholders, and which continues unremedied for ninety
(90) days after discovery thereof by a Responsible Officer of the Servicer or receipt by the Servicer of written notice thereof from the Indenture Trustee or Noteholders evidencing at least a majority of the Note Balance (or, if no Notes are
Outstanding, from the Majority Certificateholders) (it being understood that no Servicer Replacement Event will result from a breach by the Servicer of any covenant for which the repurchase of the affected Receivable is specified as the sole remedy
pursuant to
Section
3.6
of the Servicing Agreement); or
(c) the Servicer suffers a Bankruptcy Event;
provided,
that (A) if any delay or failure of performance referred to in
clause (a)
above shall have been caused by force majeure or
other similar occurrence, the five (5) Business Day grace period referred to in such
clause (a)
shall be extended for an additional sixty (60) days and (B) if any delay or failure of performance referred to in
clause
(b)
above shall have been caused by force
A-30
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COPAR 2026-1
majeure or other similar occurrence, the ninety (90) day grace period referred to in
clause (b)
shall be extended for an additional sixty (60) days. The existence or
occurrence of any “material instance of noncompliance” (within the meaning of Item 1122 of Regulation AB) shall not create any presumption that any event in
clauses (a),
or
(b)
above has occurred.
“
Servicing Agreement
” means the Servicing Agreement, dated as of the Closing Date, among the Issuer, the Servicer and
the Indenture Trustee, as the same may be amended, modified or supplemented from time to time.
“
Servicing Criteria
”
means the “servicing criteria” set forth in Item 1122(d) of Regulation AB.
“
Servicing Fee
” means, for any
Payment Date, the product of
(A) one-twelfth
(or, in the case of the first Payment Date,
one-sixth),
(B) the Servicing Fee Rate and (C) the Net Pool Balance as
of the first day of the related Collection Period (or, in the case of the first Payment Date, as of the
Cut-Off
Date).
“
Servicing Fee Rate
” means 1.00% per annum.
“
Servicer’s Report”
means the Servicer’s Report delivered pursuant to
Section
3.9(a)
of the Servicing Agreement.
“
Severely Distressed Receivable
” means, as of any date of determination, a Receivable
(other than a Repurchased Receivable) (i) that is sixty (60) or more days delinquent or, if less than 60 days delinquent, the related Obligor has experienced a hardship and, in the judgment of the Servicer in accordance with its Customary
Servicing Practices, it is reasonably foreseeable that the Obligor will be unable to pay the Principal Balance of, and accrued and unpaid interest and fees on, such Receivable in accordance with its terms, (ii) that is a Defaulted Receivable,
(iii) for which the Obligor is the subject of a bankruptcy or other insolvency proceeding, (iv) for which the related Financed Vehicle has been repossessed (or for which the Servicer has initiated repossession proceedings) or (v) for
which the related Financed Vehicle has been subject to theft or suffered destruction or damage that would be determined to be beyond repair in accordance with Customary Servicing Practices.
“
Similar Law
” means any federal, state, local or other law that is substantially similar to Title I of ERISA or
Section 4975 of the Code.
“
Simple Interest Method
” means the method of calculating interest due on a motor
vehicle receivable on a daily basis based on the actual outstanding principal balance of the receivable on that date.
“
Simple
Interest Receivable
” means any motor vehicle receivable pursuant to which the payments due from the Obligors during any month are allocated between interest, principal and other charges based on the actual date on which a payment is
received and for which interest is calculated using the Simple Interest Method.
“
SOFR
” means the secured overnight
financing rate published for any day by the FRBNY on the FRBNY’s website, or by a successor Administrator of such benchmark rate on such
A-31
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successor’s website.
“
SOFR Adjustment Conforming Changes
”
means, with respect to any SOFR Rate, any technical, administrative or operational changes (including changes to the interest period, timing and frequency of determining rates and making payments of interest, rounding of amounts or tenors, and other
administrative matters) that the Administrator decides, from time to time, may be appropriate to adjust such SOFR Rate in a manner substantially consistent with or conforming to market practice (or, if the Administrator decides that adoption of any
portion of such market practice is not administratively feasible or if the Administrator determines that no market practice exists, in such other manner as the Administrator determines is reasonably necessary).
“
SOFR Adjustment Date
” means, for each interest period, the second U.S. Government Securities Business Day before the first
day of such interest period.
“
SOFR Determination Time
” means 3:00 p.m. (New York time) on such U.S. Government
Securities Business Day, at which time Compounded SOFR is published on the FRBNY’s Website.
“
SOFR Rate
” means,
with respect to the
Class A-2-B
Notes as of any SOFR Adjustment Date, a rate equal to Compounded SOFR; provided, that, the Administrator will have the right, in its
sole discretion, to make applicable SOFR Adjustment Conforming Changes.
“
Specified Reserve Account Balance
” means, for
any Payment Date while the Notes are Outstanding, 0.25% of the Adjusted Pool Balance as of the
Cut-Off
Date;
provided,
that on any Payment Date after the Notes are no longer Outstanding following
payment in full of the principal and interest on the Notes, the “Specified Reserve Account Balance” shall be $0.
“
SR
Rules
” means the EU SR Rules together with the UK SR Rules.
“
Statutory Trust Statute
” means Chapter 38 of
Title 12 of the Delaware Code, 12 Del. Code § 3801 et seq.
“
Sub-Servicer
”
means any Affiliate of the Servicer or any
sub-contractor
to whom any or all duties of the Servicer (including, without limitation, its duties as custodian) under the Transaction Documents have been delegated
in accordance with
Section
6.1
of the Servicing Agreement.
“
Supplemental Servicing Fees and
Reimbursements
” means any and all (i) late fees, (ii) extension fees,
(iii) non-sufficient
funds charges, (iv) prepayment fees, (v) any and all other administrative fees or
similar charges allowed by applicable law with respect to any Receivable and (vi) repossession fees and expenses, legal fees and expenses and similar
out-of-pocket
fees and expenses incurred by the Servicer and reimbursed to the Servicer with respect to any Receivable.
“
Target
Overcollateralization Amount
” means, for any Payment Date, 0.25% of the Adjusted Pool Balance as of the
Cut-Off
Date.
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“
Tax Information
” means information and/or properly completed and signed
tax certifications (e.g., Form
W-9
or
W-8)
sufficient to eliminate the imposition of or determine the amount of any withholding of tax, including backup withholding and
FATCA Withholding Tax.
“
Third Allocation of Principal
”
means, for any Payment Date, an amount not less than
zero equal to the excess, if any, of (a) the sum of the Note Balance of the Class A Notes, the Class B Notes and the Class C Notes minus the sum of the First Allocation of Principal and Second Allocation of Principal for that
Payment Date as of such Payment Date (before giving effect to any principal payments made on the Notes on such Payment Date) over (b) the Adjusted Pool Balance as of the last day of the related Collection Period;
provided, however
, that
the Third Allocation of Principal for any Payment Date on and after the Final Scheduled Payment Date for the Class C Notes shall not be less than the amount that is necessary to reduce the Note Balance of the Class C Notes to zero
(after the application of the First Allocation of Principal and the Second Allocation of Principal).
“
TIA
” or
“
Trust Indenture Act
” means the Trust Indenture Act of 1939, as amended and as in force on the date hereof, unless otherwise specifically provided.
“
Transaction Documents
” means the Indenture, the Notes, the Depository Agreement, the Sale Agreement, the Servicing
Agreement, the Purchase Agreement, the Asset Representations Review Agreement, the Administration Agreement and the Trust Agreement, as the same may be amended or modified from time to time.
“
Transferred Assets
” means (a) the Purchased Assets, (b) all of the Depositor’s rights under the Purchase
Agreement and (c) all proceeds of the foregoing.
“
Trust Account Property
” means the Trust Accounts, all amounts
and investments held from time to time in any Trust Account (whether in the form of deposit accounts, book-entry securities, uncertificated securities or otherwise), and all proceeds of the foregoing.
“
Trust Accounts
” has the meaning set forth in
Section
8.2(a)(iii)
of the Indenture.
“
Trust Agreement
” means the Amended and Restated Trust Agreement, dated as of the Closing Date, between the Depositor and
the Owner Trustee, as the same may be amended and supplemented from time to time.
“
Trust Estate
” means all money,
accounts, chattel paper, general intangibles, goods, instruments, investment property and other property of the Issuer, including without limitation (i) the Receivables acquired by the Issuer under the Sale Agreement, the Related Security
relating thereto and Collections thereon after the
Cut-Off
Date, (ii) the Receivable Files, (iii) the rights of the Issuer to the funds on deposit from time to time in the Trust Accounts and any
other account or accounts (other than the Certificate Distribution Account) established pursuant to the Indenture or Servicing Agreement and all cash, investment property and other property from time to time credited thereto and all proceeds
thereof, (iv) the rights of the Seller, as buyer, under the Purchase Agreement (including the representations and warranties of the Bank therein) and the assignment executed by the Bank pursuant to the Purchase Agreement, (v) the rights of
the Issuer under the Sale Agreement, the assignment executed by the Depositor pursuant to the Sale Agreement
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and the Servicing Agreement, (vi) the rights of the Issuer under the Administration Agreement and (vii) all proceeds of the foregoing.
“
UCC
” means, unless the context otherwise requires, the Uniform Commercial Code as in effect in the relevant jurisdiction,
as amended from time to time.
“
UK Securitization Framework
” means, collectively, the Securitization Regulations 2024,
together with (i) the securitisation sourcebook of the handbook of rules and guidance adopted by the Financial Conduct Authority of the United Kingdom (the “
SECN
”), (ii) the Securitisation Part of the rulebook of published
policy of the Prudential Regulation Authority of the Bank of England (the “
PRASR
”) and (iii) relevant provisions of the Financial Services and Markets Act 2000.
“
UK SR Rules
” means the UK Securitization Framework, together with (i) all relevant guidance, policy statements and
directions relating to the application of the UK Securitization Framework published by the Financial Conduct Authority and/or the Prudential Regulation Authority (or their successors) and/or The Pensions Regulator, (ii) any guidelines relating
to the application of the EU Securitization Regulation which are applicable in the UK, and (iii) any other applicable laws, acts, statutory instruments, rules, guidance or policy statements published or enacted relating to the UK Securitization
Framework, in each case as amended from time to time.
“
Unadjusted Benchmark Replacement
” means the Benchmark
Replacement excluding the Benchmark Replacement Adjustment.
“
Underwriter
” or “
Underwriters
” means,
collectively, J.P. Morgan Securities LLC, BofA Securities, Inc., RBC Capital Markets, LLC, Academy Securities, Inc., Cabrera Capital Markets LLC, CastleOak Securities, L.P. and Siebert Williams Shank & Co., LLC.
“
Underwriting Agreement
” means the Underwriting Agreement, dated as of September 9, 2026, among J.P. Morgan Securities
LLC, BofA Securities, Inc. and RBC Capital Markets, LLC, each on its own behalf and as a representative of the several underwriters named therein, the Bank and the Depositor.
“
United States
” or “
USA
” means the United States of America (including all states, the District of
Columbia and political subdivisions thereof).
“
Unrelated Amounts
” means (a) amounts deposited by the Servicer
into the Collection Account but later determined by the Servicer to be mistaken or returned deposits or postings and (b) amounts deposited by the Servicer into the Collection Account as Collections but which were later determined by the
Servicer to not constitute Collections with respect to the Receivables.
“
U.S. Government Securities Business Day
”
means any day except for a Saturday, a Sunday or a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S.
government securities.
“
U.S. Tax Person
” means a Person that is a “United States person” as defined in
Section 7701(a)(30) of the Code, generally including:
A-34
Appendix A
COPAR 2026-1
(a) a citizen or resident of the United States;
(b) a corporation or partnership organized in or under the laws of the United States, any State or the District of Columbia;
(c) an estate, the income of which is includible in gross income for United States tax purposes, regardless of its source;
or
(d) a trust if a U.S. court is able to exercise primary supervision over the administration of the trust and one or
more U.S. Tax Persons have the authority to control all substantial decisions of the trust or a trust that has elected to be treated as a U.S. Tax Person.
“
Verification Documents
” means, with respect to any Note Owner, a certification from such Note Owner certifying that such
Person is in fact, a Note Owner, as well as one additional piece of documentation reasonably satisfactory to the recipient, such as a trade confirmation, account statement, letter from a broker or dealer or other similar document.
“
YSOC Amount
” means, with respect to each Payment Date, an amount equal to the dollar amount set forth next to such Payment
Date on
Exhibit D
to the Servicing Agreement.
The foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms. Unless otherwise inconsistent with the terms of this Agreement, all accounting terms used herein shall be interpreted, and all accounting determinations hereunder shall be made, in accordance with GAAP. Amounts to
be calculated hereunder shall be continuously recalculated at the time any information relevant to such calculation changes.
A-35
Appendix A
COPAR 2026-1

----- d117449dex104.htm -----
EX-10.4
7
d117449dex104.htm
EX-10.4
EX-10.4
Exhibit 10.4
SERVICING AGREEMENT
by and between
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST 2026-1,
as Issuer
CAPITAL ONE,
NATIONAL ASSOCIATION,
as Servicer
and
WILMINGTON TRUST,
NATIONAL ASSOCIATION,
as Indenture Trustee
Dated as of September 17, 2026
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND USAGE
1
SECTION 1.1
Definitions
1
SECTION 1.2
Other Interpretive Provisions
1
ARTICLE II SERVICER AS CUSTODIAN
2
SECTION 2.1
Custody of Receivable Files
2
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES AND TRUST PROPERTY
4
SECTION 3.1
Duties of Servicer
4
SECTION 3.2
Collection of Receivable Payments
5
SECTION 3.3
Realization Upon Receivables
8
SECTION 3.4
Maintenance of Security Interests in Financed Vehicles
8
SECTION 3.5
Covenants of Servicer
9
SECTION 3.6
Purchase of Receivables Upon Breach
9
SECTION 3.7
Servicing Fee
9
SECTION 3.8
Administrator’s Fee
10
SECTION 3.9
Servicer’s Report
10
SECTION 3.10
Annual Officer’s Certificate; Notice of Servicer Replacement Event
10
SECTION 3.11
Servicer Expenses
11
SECTION 3.12
Annual Registered Public Accounting Firm Attestation Report
11
SECTION 3.13
Exchange Act Filings
11
SECTION 3.14
Sarbanes-Oxley Act Requirements
11
SECTION 3.15
Compliance with the FDIC Rule
12
ARTICLE IV DISTRIBUTIONS; ACCOUNTS
12
SECTION 4.1
Establishment of Accounts
12
SECTION 4.2
Remittances
12
SECTION 4.3
Additional Deposits and Payments
12
ARTICLE V THE SERVICER
13
SECTION 5.1
Representations and Warranties of the Servicer
13
SECTION 5.2
Indemnities of Servicer
14
SECTION 5.3
Merger or Consolidation of, or Assumption of the Obligations of, Servicer
15
SECTION 5.4
Limitation on Liability of Servicer and Others
15
i
TABLE OF CONTENTS
(continued)
SECTION 5.5
Delegation of Duties
16
SECTION 5.6
The Bank Not to Resign as Servicer
16
SECTION 5.7
Servicer May Own Notes and Certificates
16
ARTICLE VI REPLACEMENT OF SERVICER
16
SECTION 6.1
Replacement of Servicer
16
SECTION 6.2
Notification to Noteholders and Certificateholders
18
ARTICLE VII OPTIONAL PURCHASE
18
SECTION 7.1
Optional Purchase of Trust Estate
18
ARTICLE VIII MISCELLANEOUS PROVISIONS
19
SECTION 8.1
Amendment
19
SECTION 8.2
Protection of Title
20
SECTION 8.3
Notices, Etc.
21
SECTION 8.4
Choice of Law
21
SECTION 8.5
Headings
21
SECTION 8.6
Counterparts
21
SECTION 8.7
Waivers
22
SECTION 8.8
Entire Agreement
22
SECTION 8.9
Severability of Provisions
22
SECTION 8.10
Binding Effect
22
SECTION 8.11
Not Applicable to the Bank in Other Capacities
22
SECTION 8.12
Cumulative Remedies
22
SECTION 8.13
Nonpetition Covenant
22
SECTION 8.14
Submission to Jurisdiction; Waiver of Jury Trial
23
SECTION 8.15
Limitation of Liability.
23
SECTION 8.16
Third-Party Beneficiaries
24
SECTION 8.17
Information Requests
24
SECTION 8.18
Compliance with Regulation AB
24
SECTION 8.19
Information to Be Provided by the Indenture Trustee
24
SECTION 8.20
Form
8-K
Filings
26
SECTION 8.21
Cooperation with Voting
26
SECTION 8.22
EU and UK Risk Retention
26
ii
TABLE OF CONTENTS
(continued)
Exhibit A
SERVICING CRITERIA TO BE ADDRESSED IN INDENTURE TRUSTEE’S ASSESSMENT OF COMPLIANCE
Exhibit B
FORM OF INDENTURE TRUSTEE’S ANNUAL CERTIFICATION
Exhibit C
FORM OF INDENTURE TRUSTEE’S ANNUAL CERTIFICATION REGARDING ITEM 1117 AND ITEM 1119 OF REGULATION AB
Exhibit D
YSOC AMOUNT
iii
This SERVICING AGREEMENT, dated as of September 17, 2026 (together with all exhibits,
schedules and appendices hereto and as amended, supplemented or otherwise modified and in effect from time to time, this “
Agreement
”), by and among CAPITAL ONE PRIME AUTO RECEIVABLES TRUST 2026-1, a Delaware statutory trust (the
“
Issuer
”), CAPITAL ONE, NATIONAL ASSOCIATION, a national banking association (the “
Bank
”), as servicer (in such capacity, the “
Servicer
”), and Wilmington Trust, National Association, a
national banking association, as indenture trustee (the “
Indenture Trustee
”).
WHEREAS, the Issuer has acquired a
portfolio of motor vehicle receivables, including motor vehicle retail installment sales contracts and/or installment loans that are secured by new and used automobiles, light-duty trucks, SUVs and vans; and
WHEREAS, the Bank is willing to service such motor vehicle receivables and related property on behalf of the Issuer;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
SECTION 1.1
Definitions
. Except as otherwise specified herein or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in
Appendix
A
to the Sale Agreement, dated as of the date hereof (as amended, supplemented, or otherwise modified and in effect from time to time, the “
Sale
Agreement
”), between the Issuer and Capital One Auto Receivables, LLC, which also contains rules as to usage that are applicable herein.
SECTION 1.2
Other Interpretive Provisions
. For purposes of this Agreement, unless the context otherwise requires: (a) accounting
terms not otherwise defined in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under GAAP (
provided
, that, to the extent that the definitions in
this Agreement and GAAP conflict, the definitions in this Agreement shall control); (b) terms defined in Article 9 of the UCC as in effect in the relevant jurisdiction and not otherwise defined in this Agreement are used as defined in that Article;
(c) the words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) references to any Article,
Section, Schedule, Appendix or Exhibit are references to Articles, Sections, Schedules, Appendices and Exhibits in or to this Agreement and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or definition; (e) the term “including” and all variations thereof means “including without limitation”; (f) except as otherwise expressly
provided herein, references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (g) references to any Person include that Person’s successors and assigns; and
(h)
COPAR 2026-1 Servicing Agreement
headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision herein.
ARTICLE II
SERVICER AS CUSTODIAN
SECTION 2.1
Custody of Receivable Files
.
(a)
Custody
. The Issuer and the Indenture Trustee, upon the execution and delivery of this Agreement, hereby appoint the Servicer, for
which appointment the Indenture Trustee has no liability, and the Servicer hereby accepts such appointment, to act solely on behalf of and for the benefit of the Issuer and the Indenture Trustee as custodian of the following documents or instruments
with respect to each Receivable (but only to the extent applicable to such Receivable and only to the extent held in tangible paper or electronic form) (the “
Receivable Files
”):
(i)
the fully executed original, electronically authenticated original or authoritative copy of the Contract (in
each case, within the meaning of the UCC) related to such Receivable, including any written amendments or extensions thereto;
(ii)
the original credit application or a photocopy thereof to the extent held in paper form;
(iii)
the original Certificate of Title or, if not yet received, evidence that an application therefor has been
submitted with the appropriate authority, a guaranty of title from a Dealer or such other document (electronic or otherwise, as used in the applicable jurisdiction) that the Servicer keeps on file, in accordance with its Customary Servicing
Practices, evidencing the security interest of the Originator in the Financed Vehicle;
provided
,
however
, that in lieu of being held in the Receivable File, the Certificate of Title may be held by a third party service provider engaged
by the Servicer to obtain or hold Certificates of Title;
and
(iv)
any and all other documents that the Servicer keeps on file, in accordance with its Customary Servicing
Practices, relating to a Receivable, an Obligor or a Financed Vehicle (but only to the extent applicable to such Receivable and only to the extent held in tangible paper form or electronic form).
(b)
Safekeeping
. The Servicer, in its capacity as custodian, shall hold the Receivable Files for the benefit of the Issuer and the
Indenture Trustee, as pledgee of the Issuer. In performing its duties as custodian, the Servicer shall act in accordance with its Customary Servicing Practices. Nothing herein will be deemed to require an initial review or any periodic review by the
Issuer or the Indenture Trustee of the Receivable Files. The Servicer may, in accordance with its Customary Servicing Practices: (i) maintain all or a portion of the Receivable Files in electronic form and (ii) maintain custody of all or
any portion of the Receivable Files with one or more of its agents or designees.
2
COPAR 2026-1 Servicing Agreement
(c)
Maintenance of and Access to Records
. The Servicer will maintain all tangible
documents or instruments included in each Receivable File in the United States (it being understood that the Receivable Files, or any part thereof, may be maintained at the offices of any Person to whom the Servicer has delegated responsibilities in
accordance with
Section
5.5
). The Servicer will make available to the Issuer and the Indenture Trustee or their duly authorized representatives, attorneys or auditors a list of locations of the Receivable Files held in
tangible form upon request. The Servicer will provide access to the Receivable Files, and the related accounts, records and computer systems maintained by the Servicer at such times as the Issuer or the Indenture Trustee direct, but only upon
reasonable notice and during the normal business hours, which do not unreasonably interfere with the Servicer’s normal operations, at the respective offices of the Servicer;
provided
,
however
, that in the case of this
clause
(c)
, an officer of the Bank must be present during any such visit or discussion.
(d)
Release of Documents
. Upon written
instructions from the Indenture Trustee, the Servicer will release or cause to be released any document in the Receivable Files to the Indenture Trustee, the Indenture Trustee’s agent or the Indenture Trustee’s designee, as the case may
be, at such place or places as the Indenture Trustee may designate, as soon thereafter as is practicable, to the extent it does not unreasonably interfere with the Servicer’s normal operations. Any document so released will be handled by the
Indenture Trustee with reasonable care and returned to the Servicer for safekeeping as soon as the Indenture Trustee or its agent or designee, as the case may be, has no further need therefor. The Servicer shall not be responsible for any loss
occasioned by the failure of the Indenture Trustee or its agent or designee to return any document or any delay in doing so.
(e)
Instructions; Authority to Act
. All instructions from the Indenture Trustee will be in writing and signed by an Authorized Officer of the Indenture Trustee, and the Servicer will be deemed to have received proper instructions with respect to
the Receivable Files upon its receipt of such written instructions.
(f)
Custodian’s Indemnification
. Subject to
Section
5.2
, the Servicer as custodian will indemnify the Issuer and the Indenture Trustee for any and all liabilities, obligations, losses, compensatory damages, payments, costs or expenses (including reasonable legal fees
and expenses) of any kind whatsoever that may be imposed on, incurred by or asserted against the Issuer or the Indenture Trustee as the result of any improper act or omission in any way relating to the maintenance and custody by the Servicer as
custodian of the Receivable Files including those incurred in connection with any action, claim or suit brought to enforce the Indenture Trustee’s right to indemnification;
provided
,
however
, that the Servicer as custodian will
not be liable (i) to the Indenture Trustee or to the Issuer for any portion of any such amount resulting from the willful misconduct, bad faith or negligence of the Indenture Trustee or the Issuer, respectively, or (ii) to the Indenture
Trustee for any portion of any such amount resulting from the failure of the Indenture Trustee, the Indenture Trustee’s agent or the Indenture Trustee’s designee to handle with reasonable care any Certificate of Title or other document
released to the Indenture Trustee, the Indenture Trustee’s agent or the Indenture Trustee’s designee pursuant to
Section
2.1(d)
. The provisions of this
Section
2.1(f)
shall survive the
termination or assignment of this Agreement and the resignation or removal of the Indenture Trustee or Servicer, in its capacity as custodian. Any amount payable to the Indenture Trustee pursuant to this
Section
2.1(f)
, to
the extent not paid by the Servicer, shall be paid by the Issuer in accordance with
Section
8.5(a)
of the Indenture.
3
COPAR 2026-1 Servicing Agreement
(g)
Effective Period and Termination
. The Servicer’s appointment as custodian
will become effective as of the
Cut-Off
Date and will continue in full force and effect until terminated pursuant to this Section. If the Bank resigns as Servicer in accordance with the provisions of this
Agreement or if all of the rights and obligations of the Servicer have been terminated under
Section
6.1
, the appointment of the Servicer as custodian hereunder may be terminated by the Indenture Trustee pursuant to the
Transaction Documents, or by the Noteholders evidencing not less than a majority of the Outstanding Note Balance of the Controlling Class (or, if the Notes are no longer Outstanding, by the Majority Certificateholders), in the same manner as the
Relevant Trustee or such Noteholders (or Certificateholders) may terminate the rights and obligations of the Servicer under
Section
6.1
. As soon as practicable after any termination of such appointment, the Servicer will
deliver to the successor custodian the Receivable Files and the related accounts and records maintained by the Servicer at such place or places as the successor custodian may reasonably designate;
provided
,
however
, that with respect
to authoritative copies of the Receivables constituting electronic chattel paper, the Servicer, in its sole discretion, shall either (i) continue to hold any such authoritative copies on behalf of the Issuer and the Indenture Trustee or the
Indenture Trustee’s agent (provided that the Servicer has not been terminated in accordance with the provisions of this
Section
2.1(g)
) or (ii) deliver copies of such authoritative copies and destroy the
authoritative copies maintained by the Servicer prior to its termination such that the copy delivered to the Indenture Trustee or the Indenture Trustee’s agent becomes the authoritative copy of the Receivable constituting electronic chattel
paper. No such termination or resignation shall be given effect until a successor custodian has assumed the duties as custodian hereunder and in the Transaction Documents.
(h)
Liability of Indenture Trustee
. The Indenture Trustee shall not be liable for the acts or omissions of the Servicer, in its
capacity as custodian of the Receivable Files.
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND TRUST PROPERTY
SECTION 3.1
Duties of Servicer
.
(a) The Servicer is hereby appointed and authorized by the Issuer to act as agent for the Issuer and in such capacity shall manage, service,
administer and make collections on the Receivables in accordance with its Customary Servicing Practices, subject to the provisions herein, using the degree of skill and care that the Servicer exercises with respect to all comparable motor vehicle
receivables that it services for itself or others. The Servicer’s duties will include collection and posting of all payments, responding to inquiries of Obligors on such Receivables, pursuing delinquencies, providing invoices or other payment
information (which may be in electronic form) to Obligors, reporting any required tax information to Obligors and accounting for Collections. The Servicer is not required under the Transaction Documents to make any disbursements via wire transfer or
otherwise on behalf of an Obligor. There are no requirements under the Receivables or the Transaction Documents for funds to be, and funds shall not be, held in trust for an Obligor. There are no requirements under the Receivables or the Transaction
Documents for payments or disbursements to be made by the Servicer on behalf of the Obligor. The Servicer hereby accepts
4
COPAR 2026-1 Servicing Agreement
such appointment and authorization and agrees to perform the duties of Servicer with respect to the Receivables set forth herein.
(b) Subject to the provisions of
Section
3.2
and any other provision in this Agreement restricting the Servicer or
specifying obligations different from the Customary Servicing Practices, the Servicer will follow its Customary Servicing Practices and will have full power and authority to do any and all things in connection with such managing, servicing,
administration and collection that it may deem necessary or desirable as long as such activities will not result or cause the Issuer to be treated, for United States federal income tax purposes, as an association (or a publicly traded partnership)
taxable as a corporation or as other than a fixed investment trust described in Treasury Regulation section
301.7701-4(c)
that is treated as a grantor trust for United States federal income tax purposes. The
Servicer is hereby authorized and empowered to execute and deliver, on behalf of itself, the Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders, the Certificateholders, or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other comparable instruments, with respect to such Receivables or to the Financed Vehicles securing such Receivables. The Servicer is hereby authorized to commence, in its own name or in
the name of the Issuer, a Proceeding to enforce a Receivable or an Insurance Policy or to commence or participate in any other Proceeding (including a bankruptcy Proceeding) relating to or involving a Receivable, an Obligor, a Financed Vehicle or an
Insurance Policy. If the Servicer commences a Proceeding to enforce a Receivable, the Issuer will thereupon be deemed to have automatically assigned such Receivable or its rights under such Insurance Policy to the Servicer solely for purposes of
commencing or participating in any such Proceeding as a party or claimant, and the Servicer is authorized and empowered by the Issuer to execute and deliver in the Servicer’s name any notices, demands, claims, complaints, responses, affidavits
or other documents or instruments in connection with any such Proceeding. If in any Proceeding it is held that the Servicer may not enforce a Receivable or Insurance Policy on the ground that it is not a real party in interest or a holder entitled
to enforce the Receivable or Insurance Policy, the Issuer will, at the Servicer’s expense and direction, take steps to enforce the Receivable or Insurance Policy, including bringing suit in its name or the name of the Indenture Trustee. The
Issuer will furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder. The Servicer, at its expense, will obtain on
behalf of the Issuer all licenses, if any, reasonably requested by the Seller to be held by the Issuer in connection with ownership of the Receivables, and will make all filings and pay all fees as may be required in connection therewith during the
term hereof.
(c) The Servicer hereby agrees that upon its resignation and the appointment of a successor Servicer hereunder, the Servicer
will terminate its activities as Servicer hereunder in accordance with
Section
6.1
, and, in any case, in a manner which the successor Servicer reasonably determines will facilitate the transition of the performance of such
activities to such successor Servicer, and the Servicer shall cooperate with and assist such successor Servicer.
(d) The Servicer shall
not be required to maintain a fidelity bond or error and omissions policy or to monitor whether Obligors maintain an Insurance Policy on the Financed Vehicles.
SECTION 3.2
Collection of Receivable Payments
. (a) The Servicer will make reasonable efforts to collect all payments called for
under the terms and provisions of the
5
COPAR 2026-1 Servicing Agreement
Receivables as and when the same become due in accordance with its Customary Servicing Practices. The Servicer may grant Permitted Modifications, but not any other extension, deferral, amendment,
modification, alteration, temporary reduction in payments or adjustment, with respect to any Receivable in accordance with its Customary Servicing Practices;
provided
,
however
, that if the Servicer (i) extends the date for final
payment by the Obligor of any Receivable beyond the last day of the Collection Period preceding the latest Final Scheduled Payment Date of any Notes issued under the Indenture or (ii) reduces the Contract Rate or Outstanding Principal Balance
with respect to any Receivable, in either case of (i) or (ii) other than (A) as required by law or court order, at the direction of a regulatory authority, in accordance with regulatory guidance or in accordance with the Servicer’s
compliance procedures for complying with the Servicemembers Civil Relief Act and any similar applicable state law, (B) in connection with a modification, adjustment or settlement in the event the Receivable becomes a Severely Distressed
Receivable or (C) in connection with a Permitted Modification, it will promptly purchase such Receivable in the manner provided in
Section
3.6
;
provided
,
further
, that the Servicer shall not make a
modification described in the preceding clause (i) or (ii) that would trigger a purchase pursuant to
Section
3.6
for the sole purpose of enabling the Servicer to purchase a Receivable from the Issuer. The Servicer may
in its discretion waive any late payment charge or any other fees that constitute Supplemental Servicing Fees and Reimbursements that may be collected in the ordinary course of servicing a Receivable. The Servicer is not required to make any
advances of funds or guarantees regarding collections, cash flows or distributions. Without limiting the foregoing, the Servicer and its Affiliates (each in its individual capacity and not on behalf of the Issuer) may engage in any marketing
practice or promotion or any sale of any products, goods or services, including Insurance Policy, to Obligors with respect to the Receivables so long as such practices, promotions or sales are offered to obligors of comparable motor vehicle
receivables serviced by the Servicer for itself and others, whether or not such practices, promotions or sales might result in a decrease in the aggregate amount of payments on the Receivables, prepayments or faster or slower timing of the payment
of the Receivables.
“
Permitted Modification
” means an extension, deferral, alteration, amendment, modification, temporary reduction in
payment or adjustment to the terms of, or with respect to, any Receivable with respect to which at least one of the following conditions has been satisfied:
(i)
any amendment, modification, alteration or adjustment, individually and collectively with any other amendment,
modification, alteration or adjustment proposed to be made with respect to the Receivable, is ministerial in nature (including, without limitation, any change to the due date for monthly payments that is not classified by the Servicer as an
extension);
(ii)
any amendment, modification, alteration or adjustment, individually and collectively with any other amendment,
modification, alteration or adjustment that (A) is required by law, or (B) (i) is in accordance with the Servicer’s Customary Servicing Practices and (ii) is intended by the Servicer to comply with or respond to a law,
government regulation or government enforcement activity pertaining to the Receivables or classes of loans similar to the Receivables;
6
COPAR 2026-1 Servicing Agreement
(iii)
in the case of any extension or deferral, (A) the Obligor’s address is within a geographic area
determined by the President of the United States or the Governor of the applicable state to warrant individual, or individual and public, assistance from the federal government under the Robert T. Stafford Disaster Relief and Emergency Assistance
Act or similar state law, as the case may be, or (B) the Obligor is a United States federal or state government employee that is furloughed on account of a shutdown of such government occurring as a result of a lapse in annual appropriations;
(iv)
any amendment, modification, alteration or adjustment where (A) the Obligor is in payment default, the
Receivable is a Severely Distressed Receivable or in the judgment of the Servicer, in accordance with the Servicer’s Customary Servicing Practices, it is reasonably foreseeable that the Obligor will default (it being understood that the
Servicer may proactively contact any Obligor whom the Servicer believes may be at higher risk of a payment default under the related Receivable, and it being further understood that if the Obligor has notified the Servicer that the Obligor has been
materially and adversely impacted by a natural disaster or public terror attack, then the Servicer may reasonably conclude that it is reasonably foreseeable that such Obligor will default) and (B) the Servicer believes that such amendment,
modification, alteration or adjustment is appropriate or necessary to preserve the value of the Receivable and to prevent the Receivable from going into default (or, where the Receivable is already in default, to prevent the Receivable from becoming
further impaired); or
(v)
any other extension, deferral, amendment, modification, alteration, temporary reduction in payment, or
adjustment is (A) in accordance with the Servicer’s Customary Servicing Practices and (B) the Servicer has delivered an opinion to the Issuer and the Administrator to the effect that such extension, deferral, amendment, modification,
alteration, temporary reduction in payment or adjustment will not cause the Issuer to be treated, for United States federal income tax purposes, as an association (or a publicly traded partnership) taxable as a corporation or as other than a grantor
trust for United States federal income tax purposes.
(b) Notwithstanding anything in this Agreement to the contrary,
the Servicer may refinance any Receivable at the request of the Obligor by making a new loan to the related Obligor and depositing the full Outstanding Principal Balance of such Receivable into the Collection Account. The receivable created by such
refinancing shall not be the property of the Issuer. The Outstanding Principal Balance shall be treated for all purposes, including for United States federal income tax purposes, as a payoff of all amounts owed by the related Obligor with respect to
such Receivable.
(c) Nothing in any section of this Agreement shall be construed to prevent the Servicer from implementing new programs,
whether on an intermediate, pilot or permanent basis, or on a regional or nationwide basis, or from modifying its standards, policies and procedures as long as,
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COPAR 2026-1 Servicing Agreement
in each case, such programs or modifications (i) would be consistent with its Customary Servicing Practices and (ii) would not cause the Issuer to be treated, for United States federal
income tax purposes, as an association (or a publicly traded partnership) taxable as a corporation or as other than a grantor trust for United States federal income tax purposes.
SECTION 3.3
Realization Upon Receivables
. On behalf of the Issuer, the Servicer will use commercially reasonable efforts, consistent
with its Customary Servicing Practices, to repossess or otherwise convert the ownership of the Financed Vehicle securing any Receivable as to which the Servicer has determined eventual payment in full is unlikely, unless it determines in its sole
discretion that repossession will not increase the Liquidation Proceeds by an amount greater than the expense of such repossession, that the proceeds ultimately recoverable with respect to such Receivable would be increased by forbearance or that
repossessing such Financed Vehicle would otherwise not be consistent with the Servicer’s Customary Servicing Practices. The Servicer will follow such Customary Servicing Practices as it deems necessary or advisable, which may include
reasonable efforts to realize upon any recourse to any Dealer and selling the Financed Vehicle at public or private sale. The foregoing will be subject to the provision that, in any case in which the Financed Vehicle has suffered damage, the
Servicer shall not be required to expend funds in connection with the repair or the repossession of such Financed Vehicle. In addition, the Servicer may from time to time (but is not required to) sell any deficiency balance in accordance with its
Customary Servicing Practices;
provided
,
however
, that (i) each sale must be made at a price equal to the fair market value of such deficiency balance in cash in immediately available funds and (ii) such sale must be without
recourse, representation or warranty by the Issuer (other than any representation or warranty regarding the absence of Liens, that the Issuer has good title to the deficiency balance, or similar representation or warranty). To facilitate any such
sale the Servicer may, in accordance with its Customary Servicing Practices, purchase from the Issuer such Receivable’s deficiency balance for a purchase price equal to the proceeds received by the Servicer from a third party for the sale of
such Receivable’s deficiency balance. Net proceeds of any such sale allocable to the Receivable will constitute Liquidation Proceeds, and the sole right of the Issuer and the Indenture Trustee with respect to any such sold Receivables will be
to receive such Liquidation Proceeds. Upon such sale, the Servicer will mark its computer records indicating that any such receivable sold is no longer a Receivable. The Servicer is authorized to take any and all actions necessary or appropriate on
behalf of the Issuer to evidence the sale of the Financed Vehicle at a public or private sale or the sale of the Receivable to the Servicer to facilitate a deficiency balance sale pursuant to the provisions of this paragraph, in each case, free from
any Lien or other interest of the Issuer or the Indenture Trustee.
SECTION 3.4
Maintenance of Security Interests in Financed
Vehicles
. The Servicer will, in accordance with its Customary Servicing Practices, take such steps as are necessary to maintain perfection of the security interest created by each Receivable in the related Financed Vehicle. The provisions set
forth in this Section are the sole requirements under the Transaction Documents with respect to the maintenance of collateral or security for the Receivables. It is understood that the Financed Vehicles are the collateral and security for the
Receivables, but that the Certificate of Title with respect to a Financed Vehicle does not constitute collateral for that Receivable and merely evidences such security interest. The Issuer hereby authorizes the Servicer to take such steps as are
necessary to
re-perfect
such security interest created by the Receivable in the event of the relocation of a Financed Vehicle or for any other reason.
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COPAR 2026-1 Servicing Agreement
SECTION 3.5
Covenants of Servicer
. Unless required by law or court order, at the
direction of a regulatory authority or in accordance with regulatory guidance, the Servicer will not release the Financed Vehicle securing each such Receivable from the security interest granted by such Receivable in whole or in part except
(a) in the event of payment in full by or on behalf of the Obligor thereunder or payment in full less a deficiency which the Servicer would not attempt to collect in accordance with its Customary Servicing Practices, (b) in connection with
repossession or (c) as may be required by an insurer in order to receive proceeds from any Insurance Policy covering such Financed Vehicle.
SECTION 3.6
Purchase of Receivables Upon Breach
. Upon discovery by any party hereto of a breach of any of the covenants set forth in
Section
3.2
,
3.3
,
3.4
or
3.5
with respect to any Receivable which materially and adversely affects the interests of the Issuer, the Certificateholders or the Noteholders, the party discovering or
receiving written notice of such breach shall give prompt written notice thereof to the other parties hereto;
provided,
that (i) delivery of a Servicer’s Report which identifies that Receivables are being or have been purchased
pursuant to this
Section
3.6
shall be deemed to constitute prompt notice by the Servicer and the Issuer of such breach and (ii) the Servicer or the Indenture Trustee shall be deemed to have knowledge of such breach
only if a Responsible Officer has actual knowledge thereof, including without limitation upon receipt of written notice;
provided
,
further
, that the failure to give such notice shall not affect any obligation of the Servicer hereunder.
If the breach materially and adversely affects the interests of the Issuer, the Certificateholders or the Noteholders or if the Servicer is required to purchase a Receivable pursuant to
Section
3.2
, then the Servicer shall
either (a) correct or cure such breach, if applicable, or (b) purchase such Receivable from the Issuer, in either case on or before the Payment Date following the end of the Collection Period which includes the sixtieth (60
th
) day (or, if the Servicer elects, an earlier date) after the date that the Servicer became aware or was notified of such breach or obligation to repurchase, as applicable. Any such breach or failure
will be deemed not to have a material and adverse effect if such breach or failure has not affected the ability of the Issuer to receive and retain timely payment in full on such Receivable. Any such purchase by the Servicer shall be at a price
equal to the Repurchase Price. In consideration for such purchase, the Servicer shall make (or shall cause to be made) a payment to the Issuer equal to the Repurchase Price by depositing such amount into the Collection Account prior to 11:00 a.m.,
New York City time on the date of such purchase, if such date is not a Payment Date or, if such date is a Payment Date, then prior to the close of business on the Business Day prior to such date. Upon payment of such Repurchase Price by the
Servicer, the Issuer and the Indenture Trustee, on behalf of the Noteholders, shall release and shall execute and deliver such instruments of release, transfer or assignment, in each case without recourse or representation and as prepared by and at
the expense of the Servicer, as shall be reasonably necessary to vest in the Servicer or its designee any Receivable and the related Transferred Assets purchased pursuant hereto. It is understood and agreed that the obligation of the Servicer to
purchase any Receivable as described above shall constitute the sole remedy respecting such breach available to the Issuer and the Indenture Trustee.
SECTION 3.7
Servicing Fee
. On each Payment Date, the Issuer shall pay to the Servicer the Servicing Fee in accordance with
Section
8.5
of the Indenture for the immediately preceding Collection Period as compensation for its services. In addition, the Servicer will be entitled to retain all Supplemental Servicing Fees and Reimbursements. The
Servicer also will be
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COPAR 2026-1 Servicing Agreement
entitled to receive investment earnings (net of investment losses and expenses) on funds deposited in the Collection Account during each Collection Period.
SECTION 3.8
Administrator
’
s Fee
. The Servicer shall pay the fees and expenses of the Administrator described in
Section
3
of the Administration Agreement.
SECTION 3.9
Servicer
’
s Report
.
(a) On or before the Determination Date preceding each Payment Date, the Servicer shall deliver to the Owner Trustee, the Indenture Trustee
and each Paying Agent, with a copy to each of the Rating Agencies, a Servicer’s Report containing all information necessary to make the payments, transfers and distributions pursuant to
Section
4.3
hereof and
Sections 8.2
,
8.4
and
8.5
of the Indenture, together with the information to be made available by the Indenture Trustee pursuant to
Section
7.4
of the Indenture, in each case, on such Payment Date, and
any information reasonably requested by the Owner Trustee for it to prepare the reports pursuant to
Section
5.3
of the Trust Agreement. At the sole option of the Servicer, each Servicer’s Report may be delivered in
electronic or hard copy format.
(b) No disbursements shall be made directly by the Servicer to a Noteholder or a Certificateholder, and
the Servicer shall not be required to maintain any investor record relating to the posting of disbursements or otherwise.
SECTION 3.10
Annual Officer
’
s Certificate; Notice of Servicer Replacement Event
.
(a) The Servicer will deliver to the
Issuer, with a copy to the Indenture Trustee and the Owner Trustee, on or before March 30
th
of each year, beginning on March 30, 2027, an Officer’s Certificate (with appropriate
insertions) providing such information as is required under Item 1123 of Regulation AB.
(b) The Servicer will deliver to the Issuer, with
a copy to the Indenture Trustee and the Owner Trustee promptly after having obtained knowledge thereof written notice in an Officer’s Certificate of any event which has occurred and is continuing, with the giving of notice or lapse of time or
both, would become a Servicer Replacement Event. Except to the extent set forth in this
Section
3.10(b)
,
Section
6.2
and
Section
8.20
of this Agreement and
Section
3.12
and
Section
6.5
of the Indenture, the Transaction Documents do not require any policies or procedures to monitor any performance or other triggers and events of default.
(c) The Servicer will deliver to the Issuer on or before March 30
th
of each year,
beginning on March 30, 2027, a report regarding the Servicer’s assessment of compliance with the Servicing Criteria during the immediately preceding calendar year, including disclosure of any material instance of
non-compliance
identified by the Servicer, as required under paragraph (b) of Rule
13a-18
and Rule
15d-18
of the Exchange Act and
Item 1122 of Regulation AB.
(d) If a Servicer Replacement Event occurs and is continuing and if it is either actually known by a
Responsible Officer of the Indenture Trustee or written notice of the existence thereof has been delivered to a Responsible Officer of the Indenture Trustee, the Indenture Trustee shall provide the Owner Trustee and the Administrator written notice
of such Servicer Replacement Event.
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COPAR 2026-1 Servicing Agreement
SECTION 3.11
Servicer Expenses
. The Servicer shall pay all expenses (other than
Liquidation Expenses) incurred by it in connection with its activities hereunder, including fees and disbursements of independent accountants, taxes imposed on the Servicer and expenses incurred in connection with distributions and reports to the
Noteholders and the Certificateholders. The Servicer shall also pay all fees, expenses, and indemnities of the Indenture Trustee (as described in, and pursuant to the limitations set forth in,
Section
6.7
of the Indenture)
and the Owner Trustee (as described in, and pursuant to the limitations set forth in,
Sections 8.1
and
8.2
of the Trust Agreement). The Servicer will not be entitled to reimbursement of such expenses except for Liquidation Expenses and
fees and expenses included in Supplemental Servicing Fees and Reimbursements paid to the Servicer as reimbursements.
SECTION 3.12
Annual Registered Public Accounting Firm Attestation Report
.
(a) On or before the ninetieth (90
th
) day following the end of each fiscal year, beginning with the fiscal year ending December 31, 2026, the Servicer shall cause a firm of independent registered public accountants (who may also
render other services to the Servicer, the Seller or their respective Affiliates) to furnish to the Issuer, with a copy to the Indenture Trustee, the Bank, the Servicer and the Seller each attestation report on assessments of compliance with the
Servicing Criteria with respect to the Servicer or any Affiliate thereof during the related fiscal year delivered by such accountants pursuant to paragraph (c) of Rule
13a-18
or Rule
15d-18
of the Exchange Act and Item 1122 of Regulation AB. The certification required by this paragraph may be replaced by any similar certification using other procedures or attestation standards which are now or
in the future in use by servicers of comparable assets, or which otherwise comply with any rule, regulation, “no action” letter or similar guidance promulgated by the Commission.
(b) Notwithstanding
Section
3.10(a)
, the Servicer, however, shall not be obligated to add as an addressee or
reliance party with respect to any report described above any Person who does not comply with or agree to the required procedures of such firm of independent certified public accountants, including but not limited to execution of engagement letters
or access letters regarding such reports.
(c) The Indenture Trustee shall not be liable for any claims, liabilities or expenses relating
to such accountants’ engagement or any report issued in connection with such engagement.
SECTION 3.13
Exchange Act Filings
.
The Issuer hereby authorizes the Servicer to prepare, sign, certify and file or furnish any and all reports, statements and information respecting the Issuer and/or the Notes required to be filed pursuant to the Exchange Act, and the rules
thereunder.
SECTION 3.14
Sarbanes-Oxley Act Requirements
. To the extent any documents are required to be filed or any
certification is required to be made with respect to the Issuer or the Notes pursuant to the Sarbanes-Oxley Act, the Issuer hereby authorizes the Servicer to prepare, sign, certify and file any such documents or certifications on behalf of the
Issuer.
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COPAR 2026-1 Servicing Agreement
SECTION 3.15
Compliance with the FDIC Rule
. The Servicer (i) shall perform the
covenants set forth in
Article XII
of the Indenture applicable to it and (ii) shall facilitate compliance with
Article XII
of the Indenture by the Capital One Parties.
ARTICLE IV
DISTRIBUTIONS;
ACCOUNTS
SECTION 4.1
Establishment of Accounts
. (a) The Servicer shall cause to be established the Trust Accounts and the
Certificate Distribution Account in the manner set forth in
Section
8.2(a)
of the Indenture. If the Certificate Distribution Account ceases to be an Eligible Account, the Servicer, on behalf of the Owner Trustee, shall
comply with
Section
5.4
of the Trust Agreement if the Certificate Distribution Account is not then held by the Owner Trustee or an Affiliate thereof. If any Trust Account ceases to be an Eligible Account, the Servicer shall
comply with
Section
8.3(b)
of the Indenture.
(b) The Servicer may, but shall not be obligated to, select
Permitted Investments with respect to funds on deposit in the Collection Account in accordance with
Section
8.3
of the Indenture. The Servicer acknowledges that upon its written request and at no additional cost, it has the
right to receive notification after the completion of each purchase and sale of Permitted Investments or the Indenture Trustee’s receipt of a broker’s confirmation. The Servicer agrees that such notifications shall not be provided by the
Indenture Trustee hereunder, and the Indenture Trustee shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity.
SECTION 4.2
Remittances
. The Servicer shall deposit an amount equal to all Collections into the Collection Account within the time, not
to exceed two (2) Business Days after its receipt thereof, necessary for the Servicer to clear any payments of Collections received;
provided
,
however
, that the Servicer may deduct from such Collections all Unrelated Amounts to
the extent such Unrelated Amounts have not been previously reimbursed to the Servicer. Pending deposit in the Collection Account, Collections may be used by the Servicer at its own risk and are not required to be segregated from its own funds.
SECTION 4.3
Additional Deposits and Payments
. On the date specified in
Section
3.6
of this Agreement, the
Servicer will deposit into the Collection Account the aggregate Repurchase Price with respect to Repurchased Receivables purchased by the Servicer pursuant to
Section
3.6
on such date and the Servicer will deposit into the
Collection Account all amounts, if any, to be paid under
Section
7.1
in connection with the Optional Purchase. All such deposits with respect to any such date which is a Payment Date will be made, in immediately available
funds by the close of business on the Business Day prior to such Payment Date related to such Collection Period.
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COPAR 2026-1 Servicing Agreement
ARTICLE V
THE SERVICER
SECTION 5.1
Representations and Warranties of the Servicer
. The Servicer makes the following representations and warranties as of the Closing Date on which the Issuer will be deemed to have relied in acquiring the Transferred Assets and which will
survive the conveyance of the Transferred Assets to the Issuer and the pledge thereof by the Issuer to the Indenture Trustee pursuant to the Indenture:
(a)
Existence and Power
. The Servicer is a national banking association validly existing under the laws of the United States of America
and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Servicer has obtained all necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely
affect the ability of the Servicer to perform its obligations under this Agreement or affect the enforceability or collectability of the Receivables or any other part of the Transferred Assets.
(b)
Authorization and No Contravention
. The execution, delivery and performance by the Servicer of this Agreement (i) have been
duly authorized by all necessary action on the part of the Servicer and (ii) do not contravene or constitute a default under (A) any applicable order, law, rule or regulation, (B) its organizational documents or (C) any material
agreement, contract, order or other instrument to which it is a party or its property is subject (other than violations of such laws, rules, regulations, indentures or agreements which do not affect the legality, validity or enforceability of any of
such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Servicer’s ability to perform its obligations under, this Agreement).
(c)
No Consent Required
. No approval or authorization by, or filing with, any Governmental Authority is required in connection with the
execution, delivery and performance by the Servicer of this Agreement other than (i) UCC filings, (ii) approvals and authorizations that have previously been obtained and filings that have previously been made and (iii) approvals,
authorizations or filings which, if not obtained or made, would not have a material adverse effect on the enforceability or collectability of the Receivables or would not materially and adversely affect the ability of the Servicer to perform its
obligations under this Agreement.
(d)
Binding Effect
. This Agreement constitutes the legal, valid and binding obligation of the
Servicer enforceable against the Servicer in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws affecting the
enforcement of creditors’ rights generally and, if applicable, the rights of creditors of corporations from time to time in effect or by general principles of equity.
(e)
No Proceedings
. There are no Proceedings pending or, to the knowledge of the Servicer, threatened against the Servicer before or by
any Governmental Authority that (i) assert the invalidity or unenforceability of this Agreement or (ii) seek any determination or ruling that
13
COPAR 2026-1 Servicing Agreement
would materially and adversely affect the performance by the Servicer of its obligations under this Agreement.
SECTION 5.2
Indemnities of Servicer
. The Servicer will be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer under this Agreement, and hereby agrees to the following:
(a) The Servicer will defend, indemnify
and hold harmless the Issuer, the Owner Trustee, the Indenture Trustee and the Seller from and against any and all costs, expenses, losses, damages, claims and liabilities, arising out of or resulting from the use, ownership or operation by the
Servicer or any Affiliate thereof of a Financed Vehicle. The Servicer will compensate and indemnify the Administrator to the extent and subject to the conditions set forth in
Section
3
of the Administration Agreement.
(b) The Servicer will indemnify, defend and hold harmless the Issuer, the Owner Trustee and the Indenture Trustee from and against any taxes
that may at any time be asserted against any such Person with respect to the transactions contemplated herein or in the other Transaction Documents, if any, including, without limitation, any sales, gross receipts, general corporation, tangible
personal property, privilege, or license taxes (but, in the case of the Issuer, not including any taxes asserted with respect to, and as of the date of, the conveyance of the Receivables to the Issuer or the issuance and original sales of the Notes,
or asserted with respect to ownership of the Receivables, or United States federal or other Applicable Tax State income taxes arising out of the transactions contemplated by this Agreement and the other Transaction Documents) and costs and expenses
in defending against the same. For the avoidance of doubt, the Servicer will not indemnify for any costs, expenses, losses, claims, damages or liabilities due to the credit risk of the Obligors and for which reimbursement would constitute recourse
for uncollectible Receivables. Any amounts payable to the Indenture Trustee pursuant to this Section 5.2(b), to the extent not paid by the Servicer, shall be paid by the Issuer in accordance with Section 8.5(a) of the Indenture.
(c) The Servicer will indemnify, defend and hold harmless the Issuer, the Owner Trustee, the Indenture Trustee and the Seller 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 negligence, willful misfeasance, or bad
faith (other than errors in judgment) of the Servicer in the performance of its duties under this Agreement or any other Transaction Document to which it is a party, or by reason of its failure to perform its obligations or of reckless disregard of
its obligations and duties under this Agreement or any other Transaction Document to which it is a party;
provided
,
however
, that the Servicer will not indemnify for any costs, expenses, losses, claims, damages or liabilities arising
from its breach of any covenant for which the repurchase of the affected Receivables is specified as the sole remedy pursuant to
Section
3.6
.
(d) The Servicer will compensate and indemnify the Owner Trustee to the extent and subject to the conditions set forth in
Sections 8.1
and
8.2
of the Trust Agreement. The Servicer will compensate and indemnify the Indenture Trustee to the extent and subject to the conditions set forth in
Section
6.7
of the Indenture, except to the extent that any
cost, expense, loss, claim,
14
COPAR 2026-1 Servicing Agreement
damage or liability arises out of or is incurred in connection with the performance by the Indenture Trustee of the duties of a successor Servicer hereunder.
(e) Indemnification under this
Section
5.2
by the Bank (or any successor thereto pursuant to
Section
6.1
), as Servicer, with respect to the period such Person was the Servicer, will survive the termination of such Person as Servicer or a resignation by such Person as Servicer as well as the termination or
assignment of this Agreement and the Trust Agreement or the resignation or removal of the Owner Trustee or the Indenture Trustee and will include reasonable fees and expenses of counsel and expenses of litigation and those amounts incurred in
connection with any action, claim or suit brought by the Indenture Trustee or the Owner Trustee to enforce its right to indemnification. If the Servicer has made any indemnity payments pursuant to this
Section
5.2
and the
Person to or on behalf of whom such payments are made thereafter collects any of such amounts from others, such Person will promptly repay such amounts to the Servicer, without interest.
SECTION 5.3
Merger or Consolidation of, or Assumption of the Obligations of, Servicer
. Any Person (i) into which the Servicer may
be merged or converted or with which it may be consolidated, to which it may sell or transfer its business and assets as a whole or substantially as a whole, (ii) resulting from any merger, sale, transfer conversion or consolidation to which
the Servicer shall be a party, (iii) succeeding to the business of the Servicer or (iv) more than 50% of the voting stock or voting power and 50% or more of the economic equity of which is owned directly or indirectly by Capital One
Financial Corporation, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Servicer under this Agreement, will be the successor to the Servicer under this Agreement without the execution
or filing of any document or any further act on the part of any of the parties to this Agreement anything herein to the contrary notwithstanding. The Servicer shall provide prior notice of the effective date of any merger, conversion, consolidation
or succession pursuant to this
Section
5.3
to the Issuer, the Indenture Trustee, the Owner Trustee and the Seller. The Servicer shall provide the Seller in writing such information as reasonably requested by the Seller to
comply with its Exchange Act reporting obligations with respect to a successor Servicer.
SECTION 5.4
Limitation on Liability of
Servicer and Others
. (a) Neither the Servicer nor any of the directors or officers or employees or agents of the Servicer will be under any liability to the Issuer, the Indenture Trustee, the Owner Trustee, the Noteholders or the
Certificateholders, except as provided in
Section
5.2
of this Agreement and as otherwise provided under this Agreement, for any action taken or for refraining from the taking of any action pursuant to this Agreement or for
errors in judgment;
provided
,
however
, that this provision will not protect the Servicer or any such Person against any liability that would otherwise be imposed by reason of willful misfeasance or bad faith in the performance of
duties or by reason of its failure to perform its obligations or of reckless disregard of obligations and duties under this Agreement, or by reason of negligence in the performance of its duties under this Agreement (except for errors in judgment).
The Servicer and any director, officer or employee or agent of the Servicer may rely in good faith on any Opinion of Counsel or on any Officer’s Certificate of the Seller or certificate of auditors believed to be genuine and to have been
signed by the proper party in respect of any matters arising under this Agreement.
15
COPAR 2026-1 Servicing Agreement
(b) Except as provided in this Agreement, the Servicer will not be under any obligation to
appear in, prosecute or defend any legal action that is not incidental to its duties to service the Receivables in accordance with this Agreement, and that in its opinion may involve it in any expense or liability;
provided
,
however
,
that the Servicer may undertake any reasonable action that it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties to this Agreement and the interests of the Noteholders and the Certificateholders
under this Agreement. In such event, the legal expenses and costs of such action and any liability resulting therefrom will be expenses, costs and liabilities of the Servicer.
SECTION 5.5
Delegation of Duties
. The Servicer may, at any time without notice or consent, delegate (a) any or all of its duties
(including, without limitation, its duties as custodian) under the Transaction Documents to any of its Affiliates or (b) specific duties (including, without limitation, its duties as custodian) to
sub-contractors
who are in the business of performing such duties;
provided
, that no such delegation shall relieve the Servicer of its responsibility with respect to such duties and the Servicer shall
remain obligated and liable to the Issuer and the Indenture Trustee for its duties hereunder as if the Servicer alone were performing such duties.
SECTION 5.6
The Bank Not to Resign as Servicer
. Subject to the provisions of
Sections 5.3
and
5.5
, the Bank will not
resign from the obligations and duties hereby imposed on it as Servicer under this Agreement except upon determination that the performance of its duties under this Agreement is no longer permissible under applicable law. Notice of any such
determination permitting the resignation of the Bank will be communicated to the Issuer, the Indenture Trustee and Owner Trustee at the earliest practicable time (and, if such communication is not in writing, will be confirmed in writing at the
earliest practicable time) and any such determination will be evidenced by an Opinion of Counsel to such effect delivered to the Issuer, the Indenture Trustee and Owner Trustee concurrently with or promptly after such notice. No such resignation
will become effective until a successor Servicer has (i) assumed the responsibilities and obligations of the Bank as Servicer and (ii) provided in writing the information reasonably requested by the Seller to comply with its reporting
obligations under the Exchange Act with respect to a replacement Servicer.
SECTION 5.7
Servicer May Own Notes and Certificates
.
The Servicer, and any Affiliate of the Servicer, may, in its individual or any other capacity, become the owner or pledgee of Notes and Certificates with the same rights as it would have if it were not the Servicer or an Affiliate thereof, except as
otherwise expressly provided herein or in the other Transaction Documents. Except as set forth herein or in the other Transaction Documents, Notes and Certificates so owned by or pledged to the Servicer or such Affiliate will have an equal and
proportionate benefit under the provisions of this Agreement, without preference, priority or distinction as among all of the Noteholders and Certificateholders.
ARTICLE VI
REPLACEMENT OF
SERVICER
SECTION 6.1
Replacement of Servicer
.
16
COPAR 2026-1 Servicing Agreement
(a) If a Servicer Replacement Event shall have occurred and be continuing, the Relevant
Trustee shall, at the direction of 66
2
⁄
3
% of the Outstanding Note Balance of the Controlling Class (or, if no Notes are Outstanding, the Majority
Certificateholders), by notice given to the Servicer, the Owner Trustee, the Issuer, the Administrator, the Certificateholders and the Noteholders, terminate the rights and obligations of the Servicer under this Agreement with respect to the
Receivables. In the event the Servicer is removed or resigns as Servicer with respect to servicing the Receivables, the Indenture Trustee, acting at the direction of
66
2
⁄
3
% of the Outstanding Note Balance of the Controlling Class (or, if no Notes are Outstanding, the Majority Certificateholders), shall appoint a successor
Servicer. Upon the Servicer’s receipt of notice of termination the predecessor Servicer will continue to perform its functions as Servicer under this Agreement only until the date specified in such termination notice or, if no such date is
specified in such termination notice, until receipt of such notice. If a successor Servicer has not been appointed at the time when the predecessor Servicer ceases to act as Servicer in accordance with this Section, the Indenture Trustee without
further action will automatically be appointed the successor Servicer. Notwithstanding the above, the Indenture Trustee, if it is legally unable or is unwilling to so act in its sole discretion, will appoint, or petition a court of competent
jurisdiction to appoint, a successor Servicer. Any successor Servicer shall be an established institution having a net worth of not less than $100,000,000 and whose regular business includes the servicing of comparable motor vehicle receivables
having an aggregate outstanding principal amount of not less than $50,000,000.
(b) Noteholders holding not less than a majority of the
Outstanding Note Balance of the Controlling Class (or, if no Notes are Outstanding, the Majority Certificateholders) may waive any Servicer Replacement Event. Upon any such waiver, such Servicer Replacement Event shall cease to exist and be deemed
to have been cured and not to have occurred and any Servicer Replacement Event arising therefrom shall be deemed not to have occurred for every purpose of this Agreement, but no such waiver shall extend to any prior, subsequent or other Servicer
Replacement Event or impair any right consequent thereto.
(c) If replaced, the Servicer agrees that it will use commercially reasonable
efforts to effect the orderly and efficient transfer of the servicing of the Receivables to a successor Servicer. All reasonable costs and expenses incurred in connection with transferring the Receivable Files to the successor Servicer and all other
reasonable costs and expenses incurred in connection with the transfer to the successor Servicer related to the performance by the Servicer hereunder will be paid by the predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses.
(d) Upon the effectiveness of the assumption by the successor Servicer of its duties pursuant to this
Section
6.1
, the successor Servicer shall be the successor in all respects to the Servicer in its capacity as Servicer under this Agreement with respect to the Receivables, and shall be subject to all the responsibilities,
duties and liabilities relating thereto, except with respect to the obligations of the predecessor Servicer that survive its termination as Servicer, including indemnification obligations as set forth in
Section
5.2(e)
. In
such event, the Indenture Trustee and the Owner Trustee are hereby authorized and empowered (but not obligated) to execute and deliver, on behalf of the predecessor 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 termination and replacement of the Servicer, whether to
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COPAR 2026-1 Servicing Agreement
complete the transfer and endorsement of the Receivables and related documents, or otherwise. No Servicer shall resign or be relieved of its duties under this Agreement, as Servicer of the
Receivables, until a newly appointed Servicer for the Receivables shall have assumed the responsibilities and obligations of the resigning or terminated Servicer under this Agreement.
(e) In connection with such appointment, the Issuer may make such arrangements for the compensation of the successor Servicer out of Available
Funds as it and such successor Servicer will agree;
provided, however,
that no such compensation will be in excess of the amount paid to the predecessor Servicer under this Agreement.
SECTION 6.2
Notification to Noteholders and Certificateholders
. Upon any termination of, or appointment of a successor to, the Servicer
pursuant to this
Article VI
, the Indenture Trustee will give prompt (but in no case later than five (5) Business Days after such occurrence) written notice thereof to the Owner Trustee, the Issuer and the Administrator, the Asset
Representations Reviewer and to the Noteholders and Certificateholders at their respective addresses of record.
ARTICLE VII
OPTIONAL PURCHASE
SECTION 7.1
Optional Purchase of Trust Estate
. The Servicer shall have the right at its option (the “
Optional Purchase
”) to purchase (and/or to designate one or more other Persons to purchase) the Trust Estate (other than the Reserve
Account) from the Issuer on any Payment Date if both of the following conditions are satisfied: (a) as of the last day of the related Collection Period, the Net Pool Balance has declined to 10% or less of the Net Pool Balance as of the
Cut-Off
Date; and (b) the sum of the Optional Purchase Price and Available Funds for such Payment Date would be sufficient to pay (x) the amounts required to be paid under
clauses first
through
ninth
and
eleventh
of
Section
8.5(a)
of the Indenture (assuming that such Payment Date is not a Redemption Date) and (y) the Outstanding Note Balance (after giving effect to the
payments described in the preceding clause (x)). The purchase price for the Trust Estate (other than the Reserve Account) (the “
Optional Purchase Price
”) shall equal the Net Pool Balance plus accrued and unpaid interest on the
Receivables as of the last day of the Collection Period immediately preceding the Redemption Date, which amount (net of any Collections deposited into the Collection Account after the last day of the Collection Period immediately preceding the
Redemption Date) shall be deposited by the Servicer (or its designee) into the Collection Account on or prior to noon, New York City time, on the Redemption Date. If the Servicer (or its designee) exercises the Optional Purchase, the Notes shall be
redeemed and in each case in whole but not in part on the related Payment Date for the Redemption Price.
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COPAR 2026-1 Servicing Agreement
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1
Amendment
.
(a) Any term or provision of this Agreement may be amended by the Servicer without the consent of the Indenture Trustee, the Issuer, any
Noteholder, the Owner Trustee or any other Person subject to the satisfaction of one of the following conditions:
(i)
The Servicer delivers an Opinion of Counsel or an Officer’s Certificate to the Indenture Trustee to the
effect that such amendment will not materially and adversely affect the interests of the Noteholders; or
(ii)
The Rating Agency Condition is satisfied with respect to such amendment and the Servicer notifies the Indenture
Trustee in writing that the Rating Agency Condition is satisfied with respect to such amendment.
(b) This Agreement may
also be amended from time to time by the Servicer, with the consent of the Holders of Notes evidencing not less than a majority of the Outstanding Note Balance of the Controlling Class, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders. It will not be necessary for the consent of Noteholders or Certificateholders to approve the
particular form of any proposed amendment or consent, but it will be sufficient if such consent approves the substance thereof. The manner of obtaining such consents (and any other consents of Noteholders and Certificateholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof by Noteholders and Certificateholders will be subject to such reasonable requirements as the Indenture Trustee and Owner Trustee may prescribe, including the establishment of
record dates pursuant to the Note Depository Agreement. For purposes of this
Section
8.1
, if the Bank and/or its Affiliates is the Holder of Notes representing 100% of the Note Balance of the Outstanding Notes, such Person
(or Persons) may consent to such amendment on behalf of the Noteholders. In determining whether the Bank and/or its Affiliates is the Holder of Notes representing 100% of the Note Balance of the Outstanding Notes for purposes of the preceding
sentence, any party shall be entitled to rely on an Officer’s Certificate or similar certification of the Bank or any Affiliate thereof to such effect.
(c) Prior to the execution of any amendment pursuant to this
Section
8.1
, the Issuer shall provide written
notification of the substance of such amendment to each Rating Agency; and promptly after the execution of any such amendment, the Servicer shall furnish a copy of such amendment to each Rating Agency, the Issuer, the Owner Trustee and the Indenture
Trustee;
provided
, that no amendment pursuant to this
Section
8.1
shall be effective which materially and adversely affects the rights, protections or duties of the Indenture Trustee or the Owner Trustee without the
prior written consent of such Person.
(d) Prior to the execution of any amendment to this Agreement, the Owner Trustee and the Indenture
Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and an
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COPAR 2026-1 Servicing Agreement
Officer’s Certificate of the Seller or the Administrator that all conditions precedent to the execution and delivery of such amendment have been satisfied. The Owner Trustee and the
Indenture Trustee may, but shall not be obligated to, enter into any such amendment which materially and adversely affects the Owner Trustee’s or the Indenture Trustee’s, as applicable, own rights, privileges, indemnities, duties or
obligations under this Agreement, the Transaction Documents or otherwise.
(e) Notwithstanding subsections (a) and (b) of this
Section
8.1
, this Agreement may only be amended by the Servicer if (i) the Majority Certificateholders or, if 100% of the aggregate Percentage Interests is then beneficially owned by the Bank and/or its Affiliates,
such Person (or Persons), consent to such amendment or (ii) such amendment shall not, as evidenced by an Officer’s Certificate of the Servicer or an Opinion of Counsel delivered to the Indenture Trustee and the Owner Trustee, materially
and adversely affect the interests of the Certificateholders. In determining whether 100% of the aggregate Percentage Interests is then beneficially owned by the Bank and/or its Affiliates for purposes of clause (i), any party shall be entitled to
rely on an Officer’s Certificate or similar certification of the Bank or any Affiliate thereof to such effect.
(f) Notwithstanding
anything herein to the contrary, for purposes of classifying the Issuer as a grantor trust under the Code, no amendment shall be made to this Agreement that would (i) result in a variation of the investment of the beneficial owners of the
Certificates for purposes of the United States Treasury Regulation section
301.7701-4(c)
without the consent of Noteholders evidencing at least a majority of the Outstanding Note Balance of the Controlling
Class and the Majority Certificateholders or (ii) cause the Issuer (or any part thereof) to be classified as other than a grantor trust for United States federal income tax purposes.
SECTION 8.2
Protection of Title
.
(a) The Servicer shall maintain (or shall cause its
Sub-Servicer
to maintain) in accordance with its
Customary Servicing Practices accounts and records as to each Receivable accurately and in sufficient detail to permit (i) the reader thereof to know at any time the status of such Receivable, including payments and recoveries made and payments
owing (and the nature of each) and (ii) reconciliation between payments or recoveries on (or with respect to) each Receivable and the amounts from time to time deposited in the Collection Account in respect of such Receivable.
(b) The Servicer shall maintain (or shall cause its
Sub-Servicer
to maintain) its computer systems so
that, from time to time after the conveyance under this Agreement of the Receivables, the master computer records (including any backup archives) that refer to a Receivable shall indicate clearly the interest of the Issuer in such Receivable and
that such Receivable is owned by the Issuer and has been pledged to the Indenture Trustee on behalf of the Noteholders pursuant to the Indenture. Indication of the Issuer’s interest in a Receivable shall not be deleted from or modified on such
computer systems until, and only until, the related Receivable shall have been paid in full, repurchased by the Bank pursuant to
Section
3.4
of the Purchase Agreement or purchased by the Servicer pursuant to either
Section
3.6
or
7.1
of this Agreement.
(c) If at any time the Servicer shall propose to sell, grant a
security interest in or otherwise transfer any interest in motor vehicle receivables to any prospective purchaser, lender or other transferee, the Servicer shall give to such prospective purchaser, lender or other transferee
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COPAR 2026-1 Servicing Agreement
computer tapes, records or printouts (including any restored from backup archives) that, if they shall refer in any manner whatsoever to any Receivable, shall indicate clearly that such
Receivable has been sold and is owned by the Issuer and has been pledged to the Indenture Trustee on behalf of the Noteholders.
(d) The
Servicer, upon receipt of reasonable prior notice, shall permit the Indenture Trustee, the Owner Trustee and their respective agents at any time during normal business hours, to the extent it does not unreasonably interfere with the Servicer’s
normal operations, to inspect, audit and, to the extent permitted by applicable law, make copies of and abstracts from Servicer’s (or any
Sub-Servicer’s)
records regarding any Receivable.
(e) Upon request, the Servicer shall furnish to the Issuer or to the Indenture Trustee, within thirty (30) Business Days, a list of all
Receivables then owned by the Issuer, together with a reconciliation of such list to each of the Servicer’s Reports furnished before such request indicating removal of Receivables from the Issuer.
SECTION 8.3
Notices, Etc
.
All demands, notices and communications hereunder shall be in writing and shall be delivered or mailed
by registered or certified
first-class
United States mail, postage prepaid, hand delivery, prepaid courier service, or by
e-mail
(if an applicable
e-mail
address is provided on
Schedule I
to the Sale Agreement), and addressed in each case as specified on
Schedule I
to the Sale Agreement, or at such other address as shall be designated by any of
the specified addressees in a written notice to the other parties hereto. Any notice required or permitted to be mailed to a Noteholder or Certificateholder shall be given by first class mail, postage prepaid, at the address of such Noteholder or
Certificateholder as shown in the Note Register. Delivery shall occur only upon receipt or reported tender of such communication by an officer of the recipient entitled to receive such notices located at the address of such recipient for notices
hereunder;
provided
,
however
, that any notice to a Noteholder or Certificateholder mailed within the time and manner prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the
Noteholder or Certificateholder shall receive such notice.
SECTION 8.4
Choice of Law
.
THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO CONFLICTS OF LAW, OTHER THAN SECTIONS
5-1401
AND
5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 8.5
Headings
. The section headings hereof have been inserted for convenience of reference only and shall not be construed to
affect the meaning, construction or effect of this Agreement.
SECTION 8.6
Counterparts
. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an original, regardless of whether delivered in physical or electronic form, but all of such counterparts shall together constitute but one and the same instrument.
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COPAR 2026-1 Servicing Agreement
SECTION 8.7
Waivers
. No failure or delay on the part of the Servicer, the Issuer or
the Indenture Trustee in exercising any power or right hereunder (to the extent such Person has any power or right hereunder) shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other
or further exercise thereof or the exercise of any other power or right. No notice to or demand on any party hereto in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by any party hereto
under this Agreement shall, except as may otherwise be stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval under this Agreement shall require any similar or dissimilar waiver or approval thereafter to
be granted hereunder.
SECTION 8.8
Entire Agreement
. The Transaction Documents contain a final and complete integration of all
prior expressions by the parties hereto with respect to the subject matter thereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter thereof, superseding all prior oral or written understandings.
There are no unwritten agreements among the parties.
SECTION 8.9
Severability of Provisions
. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.
SECTION 8.10
Binding
Effect
. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until such time as the parties hereto shall agree.
SECTION 8.11
Not Applicable to the Bank in Other Capacities
. Nothing in this Agreement shall affect any obligation the Bank may have in any other capacity.
SECTION 8.12
Cumulative Remedies
. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.13
Nonpetition Covenant
. Each party hereto agrees that, prior to the date which is one year and one day after payment in full
of all obligations of each Bankruptcy Remote Party in respect of all securities issued by any Bankruptcy Remote Party (i) such party shall not authorize any Bankruptcy Remote Party to commence a voluntary
winding-up
or other voluntary case or other Proceeding seeking liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian or other similar official with respect to such Bankruptcy Remote Party or any substantial part of
its property or to consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other Proceeding commenced against such Bankruptcy Remote Party, or to make a general assignment for the
benefit of, its creditors generally, any party hereto or any other creditor of such Bankruptcy Remote Party, and (ii) such party shall not commence or join with any other Person in commencing any Proceeding against such Bankruptcy Remote Party
under any bankruptcy, reorganization, liquidation or
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COPAR 2026-1 Servicing Agreement
insolvency law or statute now or hereafter in effect in any jurisdiction. This Section shall survive the termination of this Agreement.
SECTION 8.14
Submission to Jurisdiction; Waiver of Jury Trial
. Each of the parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any Proceeding relating to this Agreement or any documents executed and delivered in connection
herewith, or for recognition and enforcement of any judgment in respect thereof, to the nonexclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York and
appellate courts from any thereof;
(b) consents that any such Proceeding may be brought in such courts and waives any objection that it
may now or hereafter have to the venue of such action or Proceeding in any such court or that such action or Proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such Proceeding may be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its address determined in accordance with
Section
8.3
;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e)
to the extent permitted by applicable law, each party hereto irrevocably waives all
right of trial by jury in any action, Proceeding or counterclaim based on, or arising out of, under or in connection with this Agreement, any other Transaction Document, or any matter arising hereunder or thereunder.
SECTION 8.15
Limitation of Liability
.
(a) It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by BNY Mellon Trust of
Delaware, not individually or personally but solely as Owner Trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it under the Trust Agreement, (b) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as personal representations, undertakings and agreements by BNY Mellon Trust of Delaware, but is made and intended for the purpose for binding only the Issuer, (c) nothing herein
contained shall be construed as creating any liability on BNY Mellon Trust of Delaware, individually or personally, to perform any covenant, either express or implied, contained herein, all such liability, if any, being expressly waived by the
parties hereto and any Person claiming by, through or under the parties hereto, (d) BNY Mellon Trust of Delaware has made no investigation as to the accuracy or completeness of any representations and warranties made by the Issuer in this
Agreement and (e) under no circumstances shall BNY Mellon Trust of Delaware be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Issuer under this Agreement or the other related documents.
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COPAR 2026-1 Servicing Agreement
(b) Notwithstanding anything contained herein to the contrary, this Agreement has been
executed and delivered by Wilmington Trust, National Association, not in its individual capacity but solely as Indenture Trustee, and in no event shall it have any liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer under the Notes or any of the other Transaction Documents or in any of the certificates, notices or agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer;
provided
that the Indenture Trustee shall be responsible for its actions as Indenture Trustee hereunder and under the Indenture. Under no circumstances shall the Indenture Trustee be personally liable for the payment of any indebtedness or
expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement, in the performance of its
duties or obligations hereunder, the Indenture Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of
Article VI
of the Indenture.
SECTION 8.16
Third-Party Beneficiaries
. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns and (i) the Owner Trustee shall be an express third party beneficiary hereof and may enforce the provisions hereof as if it were a party hereto and (ii) the Seller shall be an express third party
beneficiary of
Sections 8.18
,
8.19
,
8.20
and
8.21
and may enforce such provisions as if it were a party hereto. Except as otherwise provided in this Section, no other Person will have any right hereunder.
SECTION 8.17
Information Requests
.
(a) The parties hereto shall provide any information reasonably requested by the Servicer, the Issuer, the Seller or any of their Affiliates,
in order to comply with or obtain more favorable treatment under any current or future law, rule, regulation, accounting rule or principle.
(b) The Servicer shall furnish to the Indenture Trustee from time to time information (which is in the possession of the Servicer and is
freely deliverable) related to the transactions contemplated by the Transaction Documents as the Indenture Trustee shall reasonably request.
SECTION 8.18
Compliance with Regulation AB
. The Servicer shall cooperate fully with the Seller to deliver to the Seller (including any
of its assignees or designees) any and all statements, reports, certifications, records and any other information necessary in the good faith determination of the Seller to permit the Seller to comply with the provisions of Regulation AB and its
reporting obligations under the Exchange Act, together with such disclosures relating to the Servicer and the Receivables, or the servicing of the Receivables, reasonably believed by the Seller to be necessary in order to effect such compliance.
SECTION 8.19
Information to Be Provided by the Indenture Trustee
.
(a) The Indenture Trustee shall (i) on or before the fifth (5
th
) Business Day of
each month, notify the Seller, in writing, of any Form
10-D
Disclosure Item with respect to the Indenture Trustee, together with a description of any such Form
10-D
Disclosure Item in form and substance reasonably satisfactory to the Seller;
provided
,
however
, that, the Indenture Trustee shall not be required to provide such information in the event that there has been no change to the information
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COPAR 2026-1 Servicing Agreement
previously provided by the Indenture Trustee to Seller, and (ii) as promptly as practicable following notice to or actual knowledge by a Responsible Officer of the Indenture Trustee of any
changes to such information, provide to the Seller, in writing, such updated information.
(b) As soon as available but no later than
March 1
st
of each calendar year for so long as the Seller is filing reports with respect to the Issuer under the Exchange Act, commencing on March 1, 2027, the Indenture Trustee shall:
i.
deliver to the Seller a report regarding the Indenture Trustee’s assessment of compliance with the
Servicing Criteria during the immediately preceding calendar year, as required under paragraph (b) of Rule
13a-18,
Rule
15d-18
of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be signed by an authorized officer of the Indenture Trustee, and shall address each of the Servicing Criteria specified in
Exhibit A
as applicable to the Indenture Trustee or such other criteria as mutually
agreed upon by the Seller and the Indenture Trustee;
ii.
cause a firm of registered public accountants that is qualified and independent within the meaning of Rule
2-01
of Regulation
S-X
under the Securities Act to deliver to the Seller a report for inclusion in the Seller’s filing of Exchange Act Form
10-K
with respect to the Issuer that attests to, and reports on, the assessment of compliance made by the Indenture Trustee and delivered to the Seller pursuant to the preceding paragraph. Such attestation shall be
in accordance with Rules
1-02(a)(3)
and
2-02(g)
of Regulation
S-X
under the Securities Act and the Exchange Act;
iii.
deliver to the Seller and any other Person that will be responsible for signing the certification (a
“
Sarbanes Certification
”) required by Rules
13a-14(d)
and
15d-14(d)
under the Exchange Act (pursuant to Section 302 of the Sarbanes-Oxley Act) on
behalf of the Issuer or the Seller, a
back-up
certification substantially in the form attached hereto as
Exhibit B
or such form as mutually agreed upon by the Seller and the Indenture Trustee; and
iv.
deliver to the Seller the certification substantially in the form attached hereto as
Exhibit C
or such
other form as is mutually agreed upon by the Seller and the Indenture Trustee regarding any affiliations or relationships (as described in Item 1119 of Regulation AB) between the Indenture Trustee and any Item 1119 Party and any Form
10-D
Disclosure Item.
The Indenture Trustee acknowledges that the parties identified in
clause
(iii)
above may rely on the certification provided by the Indenture Trustee pursuant to such clause in signing a Sarbanes Certification and filing such with the Commission. The Indenture Trustee further acknowledges that interpretations of
the requirements of Regulation AB may change over time, whether due to
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COPAR 2026-1 Servicing Agreement
interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to cooperate with
the Seller to deliver to the Seller and the Servicer such information necessary in the good faith determination of the Seller or the Servicer to permit the Seller or the Servicer, as applicable, to comply with the provisions of Regulation AB.
(c) The Indenture Trustee shall provide the Seller and the Servicer (each, a “
Transaction Party
” and, collectively, the
“
Transaction Parties
”) with (i) notification, as soon as practicable and in any event within ten (10) Business Days of all demands communicated to the Indenture Trustee for the repurchase or replacement of any Receivable
pursuant to the Transaction Documents and (ii) promptly upon request by a Transaction Party, any other information reasonably requested by a Transaction Party to facilitate compliance by the Transaction Parties with Rule
15Ga-1
under the Exchange Act and Items 1104(e) and 1121(c) of Regulation AB. In no event shall the Indenture Trustee be deemed to be a “securitizer” as defined in Section 15G(a) of the
Exchange Act nor shall it have any responsibility for making any filing to be made by a securitizer under the Exchange Act or Regulation AB. The Transaction Parties hereby acknowledge and agree that the Indenture Trustee’s reporting is limited
to information that it has received or acquired solely in its capacity as indenture trustee under this Agreement and the Indenture and not in any other capacity. The Transaction Parties further hereby acknowledge and agree that, other than any
express duties or responsibilities as trustee under the Transaction Documents, the Indenture Trustee has no duty or obligation to undertake any investigation or inquiry related to repurchase demand activity in connection with any Transaction
Documents, and no obligations or duties are otherwise implied by this section.
SECTION 8.20
Form
8-K
Filings
. The Indenture Trustee shall promptly notify the Seller, but in no event later than one (1) Business Day after its occurrence, of any Reportable Event of which a Responsible Officer of the
Indenture Trustee has actual knowledge (other than a Reportable Event described in
clause (a)
or
(b)
of the definition thereof as to which the Servicer has actual knowledge). The Indenture Trustee shall be deemed to have actual
knowledge of any such event to the extent that it relates to the Indenture Trustee or any action or failure to act by the Indenture Trustee.
SECTION 8.21
Cooperation with Voting
. Each of the Servicer and the Issuer hereby acknowledges and agrees that it shall cooperate with
the Indenture Trustee to facilitate any vote by the Instituting Noteholders pursuant to the terms of
Section
7.6
of the Indenture.
SECTION 8.22
EU
and UK
Risk Retention
. The Bank hereby covenants and agrees, in connection with the EU Securitization
Regulation and the UK Securitization Framework, in each case as in effect and applicable on the Closing Date, on an ongoing basis, so long as any Notes remain Outstanding:
(a) The Bank, as “originator” (as such term is defined for the purposes of the EU Securitization Regulation and the UK
Securitization Framework), will retain, upon issuance of the Notes and on an ongoing basis a material net economic interest (the “
Retained Interest
”) of not less than 5% in the securitization transaction described in the
Prospectus, in the form of retention of at least 5% of the nominal value of each of the tranches sold or transferred to investors in accordance with (i) option (a) of Article 6(3) of the EU Securitization Regulation and (ii) paragraph
(1)(a) of SECN 5.2.8R and paragraph (a) of Article 6(3) of Chapter 2 of the PRASR,
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COPAR 2026-1 Servicing Agreement
by holding (i) at least 5% of the nominal value of each Class of Notes and (ii) all the membership interest in the Seller (or one or more other wholly-owned special purpose
subsidiaries of the Bank), which in turn will hold at least 5% of the nominal value of the Certificates;
(b) The Bank will not (and will
not permit the Seller or any of its other affiliates to) hedge or otherwise mitigate its credit risk under or associated with the Retained Interest, or sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising
from the Retained Interest, except, in each case, to the extent permitted by the SR Rules;
(c) The Bank will not change the manner or
form in which it retains the Retained Interest while any of the Notes are outstanding, except as permitted by the SR Rules; and
(d) The
Bank will provide ongoing confirmation of its continued compliance with its obligations described in the foregoing
clauses (a)
,
(b)
and
(c)
, in or concurrently with the delivery of each Servicer’s Report.
[Signatures Follow]
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COPAR 2026-1 Servicing Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the day and year first above written.
CAPITAL ONE, NATIONAL ASSOCIATION
,
as Servicer
By:
Name:
Title:
S-1
COPAR 2026-1 Servicing Agreement
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
By:
BNY MELLON TRUST OF DELAWARE
,
not in its individual capacity
but solely as Owner Trustee
By:
Name:
Title:
S-2
COPAR 2026-1 Servicing Agreement
WILMINGTON TRUST, NATIONAL ASSOCIATION
,
not in its individual capacity
but solely as Indenture Trustee
By:
Name:
Title:
S-3
COPAR 2026-1 Servicing Agreement
EXHIBIT A
SERVICING CRITERIA TO BE ADDRESSED IN
INDENTURE TRUSTEE’S ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Indenture Trustee shall address, at a minimum, the criteria identified below as
“
Applicable Servicing Criteria
”:
Servicing Criteria
Applicable
Servicing Criteria
Reference
Criteria
General Servicing Considerations
1122(d)(1)(i)
Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements.
1122(d)(1)(ii)
If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities.
1122(d)(1)(iii)
Any requirements in the transaction agreements to maintain a
back-up
servicer for the pool assets are maintained.
1122(d)(1)(iv)
A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of
the transaction agreements.
1122(d)(1)(v)
Aggregation of information, as applicable, is mathematically
accurate and the information conveyed accurately reflects
the
information.
Cash Collection and Administration
1122(d)(2)(i)
Payments on pool assets are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction
agreements.
1122(d)(2)(ii)
Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel.
X
1122(d)(2)(iii)
Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements.
1122(d)(2)(iv)
The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the
transaction agreements.
X
1122(d)(2)(v)
Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a
foreign financial institution means a foreign financial institution that meets the requirements of Rule
13k-1(b)(1)
of the Securities Exchange Act.
X
1122(d)(2)(vi)
Unissued checks are safeguarded so as to prevent unauthorized access.
1122(d)(2)(vii)
Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation;
and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements.
A-1
Exhibit A to the
Servicing Agreement
Servicing Criteria
Applicable
Servicing Criteria
Reference
Criteria
Investor Remittances and Reporting
1122(d)(3)(i)
Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by
its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of pool assets serviced by the Servicer.
1122(d)(3)(ii)
Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements.
X
(
1
)
1122(d)(3)(iii)
Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements.
X
1122(d)(3)(iv)
Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements.
X
Pool Asset Administration
1122(d)(4)(i)
Collateral or security on pool assets is maintained as required by the transaction agreements or related asset pool documents.
1122(d)(4)(ii)
Pool assets and related documents are safeguarded as required by the transaction agreements
1122(d)(4)(iii)
Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements.
1122(d)(4)(iv)
Payments on pool assets, including any payoffs, made in accordance with the related pool asset documents are posted to the Servicer’s obligor records maintained no more than two business days after receipt, or such other
number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related asset pool documents.
1122(d)(4)(v)
The Servicer’s records regarding the accounts and the accounts agree with the Servicer’s records with respect to an obligor’s unpaid principal balance.
1122(d)(4)(vi)
Changes with respect to the terms or status of an obligor’s account (e.g., loan modifications or
re-agings)
are made, reviewed and approved by authorized personnel in accordance with the
transaction agreements and related pool asset documents.
1122(d)(4)(vii)
Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or
other requirements established by the transaction agreements.
1122(d)(4)(viii)
Records documenting collection efforts are maintained during the period a pool asset is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent pool assets including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
1122(d)(4)(ix)
Adjustments to interest rates or rates of return for pool assets with variable rates are computed based on the related pool asset documents.
(1)
With respect to the Servicing Criteria 1122(d)(3)(ii), the Indenture Trustee is responsible for assessing
compliance with this Servicing Criteria solely with respect to the information provided by it in connection with the preparation of remittances. With respect to all activities other than those detailed hereinabove in respect of Servicing Criteria
1122(d)(3)(ii), such activities are performed by the Bank.
A-2
Exhibit A to the
Servicing Agreement
Servicing Criteria
Applicable
Servicing Criteria
Reference
Criteria
1122(d)(4)(x)
Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s Account documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable Account documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment
of the related Accounts, or such other number of days specified in the transaction agreements.
1122(d)(4)(xi)
Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support
has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements.
1122(d)(4)(xii)
Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or
omission.
1122(d)(4)(xiii)
Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements.
1122(d)(4)(xiv)
Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements.
1122(d)(4)(xv)
Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.
A-3
Exhibit A to the
Servicing Agreement
EXHIBIT B
FORM OF INDENTURE TRUSTEE’S ANNUAL CERTIFICATION
Re:
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST 2026-1
I, [    ], the [    ] of [NAME OF COMPANY] (the “
Company
”), certify to the
Seller, and its officers, with the knowledge and intent that they will rely upon this certification, that:
(i)
I have reviewed the report on assessment of the Company’s compliance provided in accordance with Rules
13a-18
and
15d-18
under the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), and Item 1122 of Regulation AB (the
“
Servicing Assessment
”), the registered public accounting firm’s attestation report provided in accordance with
Rules 13a-18
and
15d-18
under the Exchange Act and Item 1122(b) of Regulation AB (the “Attestation Report”), and any other information provided in furtherance of Item 1122(c) of Regulation AB pursuant to
Section
8.19
of
the Agreement (the “
Servicing Assessment Supplemental Information
”), that were delivered by the Company to the Seller pursuant to the Agreement (collectively, the “
Company Information
”);
(ii)
To the best of my knowledge, the Servicing Assessment and any Servicing Assessment Supplemental Information,
taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in the light of the circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Servicing Assessment;
(iii)
To the best of my knowledge, all of the Company Information required to be provided by the Company under the
Agreement has been provided to the Seller; and
(iv)
To the best of my knowledge, except as disclosed in the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement and the other Transaction Documents (as defined in the Agreement).
Date:
By:
Name:
Title:
B-1
Exhibit B to the
Servicing Agreement
EXHIBIT C
FORM OF INDENTURE TRUSTEE’S ANNUAL CERTIFICATION
REGARDING ITEM 1117 AND ITEM 1119 OF REGULATION AB
Reference is made to the Form 10-K of Capital One Prime Auto Receivables Trust 2026-1 (the “
Form 10-K
”) for the [reporting
period] ended December 31, 20[ ]. Capitalized terms used but not otherwise defined herein shall have the respective meanings given to them in the Form 10-K.
Wilmington Trust, National Association, a national banking association (“
Wilmington Trust
”), does hereby certify to the
Bank, the Seller and the Issuing Entity that:
1. As of the date of the Form 10-K, there are no pending legal Proceedings against
Wilmington Trust or Proceedings known to be contemplated by governmental authorities against Wilmington Trust that would be material to the investors in the Notes.
2. As of the date of the Form 10-K, there are the following affiliations, as contemplated by Item 1119 of Regulation AB, between
Wilmington Trust and any of Capital One, National Association (in its capacity as Originator, Servicer and Administrator), Capital One Auto Receivables, LLC, the Owner Trustee and the Issuing Entity, or any affiliates of such parties:
[__________]
IN WITNESS WHEREOF, Wilmington Trust has caused this certificate to be executed in its corporate name by an officer
thereunto duly authorized.
Dated: ____________, 20[ ]
Wilmington Trust, National Association, as Indenture Trustee
By:
Name:
Title:
C-1
Exhibit C to the
Servicing Agreement
EXHIBIT D
YSOC Amount
With respect to any
Payment Date, the “YSOC Amount” is the dollar amount specified below with respect to such Payment Date:
Payment Date
Yield Supplement
Overcollateralization
Amount
Closing Date
$
92,390,048.46
October 15, 2026
$
86,867,315.80
November 15, 2026
$
84,156,933.00
December 15, 2026
$
81,481,194.06
January 15, 2027
$
78,840,595.96
February 15, 2027
$
76,235,640.38
March 15, 2027
$
73,666,833.74
April 15, 2027
$
71,134,687.27
May 15, 2027
$
68,639,714.78
June 15, 2027
$
66,182,434.92
July 15, 2027
$
63,763,363.46
August 15, 2027
$
61,383,020.04
September 15, 2027
$
59,041,918.50
October 15, 2027
$
56,740,588.20
November 15, 2027
$
54,479,559.89
December 15, 2027
$
52,259,374.17
January 15, 2028
$
50,080,569.83
February 15, 2028
$
47,943,687.50
March 15, 2028
$
45,849,266.34
April 15, 2028
$
43,797,851.61
May 15, 2028
$
41,789,984.53
June 15, 2028
$
39,826,163.41
July 15, 2028
$
37,906,853.79
August 15, 2028
$
36,032,507.18
September 15, 2028
$
34,203,573.66
October 15, 2028
$
32,420,456.51
November 15, 2028
$
30,683,577.71
December 15, 2028
$
28,993,341.52
January 15, 2029
$
27,350,127.43
February 15, 2029
$
25,754,255.38
March 15, 2029
$
24,206,022.29
April 15, 2029
$
22,705,722.54
May 15, 2029
$
21,253,782.54
June 15, 2029
$
19,850,624.17
D-1
Exhibit D to the
Servicing Agreement
Payment Date
Yield Supplement
Overcollateralization
Amount
July 15, 2029
$
18,496,605.33
August 15, 2029
$
17,192,065.91
September 15, 2029
$
15,937,365.94
October 15, 2029
$
14,732,818.92
November 15, 2029
$
13,578,628.99
December 15, 2029
$
12,474,976.77
January 15, 2030
$
11,422,055.56
February 15, 2030
$
10,419,864.75
March 15, 2030
$
9,468,507.52
April 15, 2030
$
8,568,046.94
May 15, 2030
$
7,718,566.18
June 15, 2030
$
6,919,951.39
July 15, 2030
$
6,171,848.45
August 15, 2030
$
5,473,779.17
September 15, 2030
$
4,825,192.21
October 15, 2030
$
4,225,337.89
November 15, 2030
$
3,673,287.09
December 15, 2030
$
3,168,037.95
January 15, 2031
$
2,708,403.22
February 15, 2031
$
2,292,901.18
March 15, 2031
$
1,919,946.92
April 15, 2031
$
1,587,729.96
May 15, 2031
$
1,295,255.47
June 15, 2031
$
1,041,425.05
July 15, 2031
$
824,474.51
August 15, 2031
$
642,252.54
September 15, 2031
$
492,040.58
October 15, 2031
$
370,786.69
November 15, 2031
$
275,333.10
December 15, 2031
$
202,574.35
January 15, 2032
$
148,952.76
February 15, 2032
$
110,394.48
March 15, 2032
$
83,090.41
April 15, 2032
$
62,781.24
May 15, 2032
$
47,048.27
June 15, 2032
$
34,893.83
July 15, 2032
$
25,194.53
August 15, 2032
$
17,390.64
September 15, 2032
$
11,324.03
October 15, 2032
$
6,813.03
D-2
Exhibit D to the
Servicing Agreement
Payment Date
Yield Supplement
Overcollateralization
Amount
November 15, 2032
$
3,658.68
December 15, 2032
$
1,660.46
January 15, 2033
$
572.38
February 15, 2033
$
97.53
March 15, 2033
$
0.00
D-3
Exhibit D to the
Servicing Agreement

----- d117449dex105.htm -----
EX-10.5
8
d117449dex105.htm
EX-10.5
EX-10.5
Exhibit 10.5
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
AMENDED AND RESTATED
TRUST AGREEMENT
between
CAPITAL ONE AUTO RECEIVABLES, LLC,
as the Depositor
and
BNY MELLON TRUST OF DELAWARE,
as the Owner Trustee
Dated as of September 17, 2026
COPAR 2026-1
Amended and
Restated
Trust Agreement
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1
SECTION 1.1. Capitalized Terms
1
SECTION 1.2. Other Interpretive Provisions
1
ARTICLE II ORGANIZATION
2
SECTION 2.1. Name
2
SECTION 2.2. Office
2
SECTION 2.3. Purposes and Powers
2
SECTION 2.4. Appointment of the Owner Trustee
3
SECTION 2.5. Initial Capital Contribution of Trust Estate
3
SECTION 2.6. Declaration of Trust
3
SECTION 2.7. Organizational Expenses; Liabilities of the Holders
4
SECTION 2.8. Title to the Trust Estate
4
SECTION 2.9. Representations and Warranties of the Depositor
5
SECTION 2.10. Situs of Issuer
6
SECTION 2.11. Covenants of the Certificateholders
6
ARTICLE III CERTIFICATES AND TRANSFER OF CERTIFICATES
6
SECTION 3.1. Initial Ownership
6
SECTION 3.2. Authorization of the Certificates
6
SECTION 3.3. The Certificates.
6
SECTION 3.4. Notices to Clearing Agency
8
SECTION 3.5. Definitive Certificates
8
SECTION 3.6. Registration of the Certificates
10
SECTION 3.7. Transfer of the Certificates
10
SECTION 3.8. Lost, Stolen, Mutilated or Destroyed Certificates
17
SECTION 3.9. Appointment of the Certificate Paying Agent
17
SECTION 3.10. Maintenance of Office or Agency
18
ARTICLE IV ACTIONS BY OWNER TRUSTEE
19
SECTION 4.1. Prior Notice to Certificateholders with Respect to Certain Matters
19
SECTION 4.2. Action by Certificateholders with Respect to Certain Matters
19
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy
19
SECTION 4.4. Restrictions on Certificateholders’ Power
19
-i-
COPAR 2026-1
Amended and Restated
Trust
Agreement
TABLE OF CONTENTS
(continued)
Page
SECTION 4.5. Acts of Certificateholders; Majority Control
20
SECTION 4.6. Compliance with the FDIC Rule
20
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
20
SECTION 5.1. Application of Trust Funds
20
SECTION 5.2. Method of Payment
21
SECTION 5.3. Reports by Owner Trustee to Certificateholders
21
SECTION 5.4. Certificate Distribution Account
22
SECTION 5.5. Withholding
22
SECTION 5.6. No Reinvestment
22
SECTION 5.7. Sarbanes-Oxley Act
22
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE
23
SECTION 6.1. General Authority
23
SECTION 6.2. General Duties
23
SECTION 6.3. Action upon Instruction
23
SECTION 6.4. No Duties Except as Specified in this Agreement or in Instructions
24
SECTION 6.5. No Action Except under Specified Documents or Instructions
25
SECTION 6.6. Restrictions
25
SECTION 6.7. Relevant Trustee
25
ARTICLE VII CONCERNING OWNER TRUSTEE
26
SECTION 7.1. Acceptance of Trusts and Duties
26
SECTION 7.2. Furnishing of Documents
27
SECTION 7.3. Preservation of Information; Communications to Certificateholders
28
SECTION 7.4. Statements to Certificateholders.
28
SECTION 7.5. Notice of Events of Default and Servicer Replacement Event
29
SECTION 7.6. Representations and Warranties
29
SECTION 7.7. Reliance; Advice of Counsel
30
SECTION 7.8. Not Acting in Individual Capacity
30
SECTION 7.9. The Owner Trustee May Own Notes
30
SECTION 7.10. Rule 144A Information
30
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE
31
SECTION 8.1. The Owner Trustee’s Compensation
31
-ii-
COPAR 2026-1
Amended and Restated
Trust
Agreement
TABLE OF CONTENTS
(continued)
Page
SECTION 8.2. Indemnification
31
SECTION 8.3. Payments to the Owner Trustee
32
SECTION 8.4. Rights, Protections, Immunities and Indemnities of the Relevant Trustee
32
ARTICLE IX TERMINATION OF TRUST AGREEMENT
32
SECTION 9.1. Dissolution of Issuer
32
SECTION 9.2. Termination of Trust Agreement
33
SECTION 9.3. Limitations on Termination
33
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
33
SECTION 10.1. Eligibility Requirements for the Owner Trustee
33
SECTION 10.2. Resignation or Removal of the Owner Trustee
34
SECTION 10.3. Successor Owner Trustee
34
SECTION 10.4. Merger or Consolidation of the Owner Trustee
35
SECTION 10.5. Appointment of
Co-Trustee
or Separate
Trustee
35
ARTICLE XI MISCELLANEOUS
37
SECTION 11.1. Amendments
37
SECTION 11.2. No Legal Title to Trust Estate in Certificateholders
38
SECTION 11.3. Limitations on Rights of Others
38
SECTION 11.4. Notices
39
SECTION 11.5. Severability
39
SECTION 11.6. Separate Counterparts
39
SECTION 11.7. Successors and Assigns
39
SECTION 11.8. No Petition
39
SECTION 11.9. Information Request
41
SECTION 11.10. Headings
41
SECTION 11.11. GOVERNING LAW
41
SECTION 11.12. Waiver of Jury Trial
41
SECTION 11.13. Information to Be Provided by the Owner Trustee
41
SECTION 11.14. Form
10-D
Filings, Item 1117 and Item 1119
of Regulation AB
41
SECTION 11.15. Form
8-K
Filings
42
-iii-
COPAR 2026-1
Amended and Restated
Trust
Agreement
TABLE OF CONTENTS
(continued)
Page
SECTION 11.16. Foreign Certificateholder Voting Restrictions
42
SECTION 11.17. Corporate Transparency Act
42
EXHIBIT A
Form of Certificate
EXHIBIT B
Form of Certificate Investor Representation Letter
EXHIBIT C
Form of Notice of Requests to Repurchase Receivables
EXHIBIT D
Form of Registration of Definitive Certificate Transfer Direction Letter Pursuant to the Trust Agreement
EXHIBIT E
Form of Owner Trustee’s Monthly Certification Regarding Item 1117 and Item 1119 of Regulation AB
-iv-
COPAR 2026-1
Amended and Restated
Trust
Agreement
This
AMENDED AND RESTATED TRUST AGREEMENT
is made as of September 17, 2026 (as
amended, supplemented or otherwise modified and in effect from time to time, this “
Agreement
” or this “
Trust Agreement
”) between CAPITAL ONE AUTO RECEIVABLES, LLC, a Delaware limited liability company, as the
depositor (the “
Depositor
”), and BNY MELLON TRUST OF DELAWARE, a Delaware banking corporation, as the owner trustee (in such capacity, the “
Owner Trustee
”).
RECITALS
WHEREAS, the
Depositor and the Owner Trustee entered into that certain trust agreement dated as of July 24, 2026 (the “
Original Trust Agreement
”) and filed a certificate of trust with the Secretary of State of the State of Delaware
pursuant to which the Issuer (as defined below) was created; and
WHEREAS, the parties have agreed to amend and restate the Original Trust
Agreement;
NOW THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1.
Capitalized Terms
. Except as otherwise defined herein or as the context may otherwise require, capitalized terms used but not otherwise defined herein are defined in
Appendix
A
to the Sale Agreement, dated as of the
date hereof (as amended, supplemented, or otherwise modified and in effect from time to time, the “
Sale Agreement
”), between the Issuer and the Depositor, which also contains rules as to usage that are applicable herein.
SECTION 1.2.
Other Interpretive Provisions
. All terms defined in this Agreement shall have the defined meanings when used in any
certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Agreement and all such certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise
defined in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under GAAP (
provided
, that, to the extent that the definitions in this Agreement and
GAAP conflict, the definitions in this Agreement shall control); (b) terms defined in Article 9 of the UCC as in effect in the State of Delaware and not otherwise defined in this Agreement are used as defined in that Article; (c) the words
“hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) references to any Article, Section, Schedule or
Exhibit are references to Articles, Sections, Schedules and Exhibits in or to this Agreement, and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or
other subdivision of such Section or definition; (e) the term “including” and all variations thereof means “including without limitation”; (f) references to any law or regulation refer to that law or regulation as
amended from time to time
COPAR 2026-1
Amended and Restated
Trust
Agreement
and include any successor law or regulation; (g) references to any Person include that Person’s successors and assigns; and (h) headings are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision hereof.
ARTICLE II
ORGANIZATION
SECTION
2.1.
Name
. The trust created under the Original Trust Agreement is known as “Capital One Prime Auto Receivables Trust
2026-1”
(the “
Issuer
”), in which name the Owner
Trustee, the Administrator or the Servicer (to the extent set forth in the Transaction Documents) may conduct the business of such trust, make and execute contracts and other instruments on behalf of such trust and sue and be sued.
SECTION 2.2.
Office
. The office of the Issuer shall be in care of the Owner Trustee at the Corporate Trust Office or at such other
address as the Owner Trustee may designate by written notice to each Certificateholder, the Depositor and the Administrator.
SECTION 2.3.
Purposes and Powers
. The purpose of the Issuer is, and the Issuer shall have the power and authority, to engage in the following activities:
(a) to issue the Notes pursuant to the Indenture and the Certificates pursuant to this Agreement, and to sell, transfer and
exchange the Notes and the Certificates and to pay interest on and principal of the Notes to the Noteholders and to make distributions to the Certificateholders;
(b) to acquire the property and assets set forth in the Sale Agreement from the Depositor pursuant to the terms thereof, to
make deposits to and withdrawals from the Collection Account, the Principal Distribution Account, the Certificate Distribution Account and the Reserve Account and to pay the organizational,
start-up
and
transactional expenses of the Issuer;
(c) to assign, Grant, transfer, pledge, mortgage and convey the Trust Estate
pursuant to the Indenture and to hold, manage and distribute to the Certificateholders any portion of the Trust Estate released from the Lien of, and remitted to the Issuer pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Transaction Documents to which it is a party;
(e) to engage in those activities, including entering into agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
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(f) subject to compliance with the Transaction Documents, to engage in such
other activities as may be required in connection with conservation of the Trust Estate and the making of distributions to the Certificateholders and payments to the Noteholders.
Each of the Owner Trustee and the Administrator, as applicable, is hereby authorized to engage in the foregoing activities on behalf of the
Issuer. Neither the Issuer nor any Person acting on behalf of the Issuer shall engage in any activity other than in connection with the foregoing or other than as required or authorized by the terms of this Agreement or the other Transaction
Documents.
Notwithstanding anything to the contrary in the Transaction Documents or in any other document, neither the Issuer nor the
Owner Trustee (nor any agent of either person) shall be authorized or empowered to acquire any other investments, reinvest any proceeds of the Issuer or engage in activities other than the foregoing, and, in particular neither the Issuer nor the
Owner Trustee (nor any agent of either person) shall be authorized or empowered to do anything that would cause the Issuer to fail to qualify as a grantor trust for United States federal income tax purposes.
SECTION 2.4.
Appointment of the Owner Trustee
. The Depositor hereby appoints the Owner Trustee as trustee of the Issuer effective as of
the date hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5.
Initial Capital Contribution of Trust
Estate
.
As of the date of the Original Trust Agreement, the Depositor sold, assigned, transferred, conveyed and set over to the Owner Trustee the sum of $1. The Owner Trustee hereby acknowledges receipt in trust from the Depositor, as of
such date, of the foregoing contribution, which shall constitute the initial Trust Estate and shall be deposited in the Collection Account.
SECTION 2.6.
Declaration of Trust
. The Owner Trustee hereby declares that it will hold the Trust Estate in trust upon and subject to
the conditions set forth herein for the use and benefit of the Certificateholders, subject to the obligations of the Issuer under the Transaction Documents. It is the intention of the parties hereto that the Issuer constitute a statutory trust under
the Statutory Trust Statute and that (i) this Agreement constitute the governing instrument of such statutory trust and (ii) for United States federal, state and local income and franchise tax purposes, the Issuer shall be treated as a
grantor trust for United States federal income tax purposes, with the assets of the Issuer constituting the Receivables and other assets held by the Issuer, and the Notes constituting
non-recourse
debt of the
Certificateholder(s), provided that if it is successfully asserted by the appropriate tax authorities that the Issuer is not properly characterized as a grantor trust for United States federal income tax purposes, the Issuer shall be treated, for
United States federal, state and local income and franchise tax purposes, as (A) a disregarded entity if there is only one beneficial owner for United States federal income tax purposes of the Certificates and any Notes that are treated as
equity in the Issuer, or (B) a partnership (other than an association or publicly traded partnership taxable as a corporation) if there is more than one beneficial owner for United States federal income tax purposes of the Certificates and any
Notes that are treated as equity for United States federal income tax purposes in the Issuer, with the assets of the partnership being the Receivables and other assets held by the Issuer, the partners of the partnership being the
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Certificateholders and the holders of the Notes that are treated as equity in the Issuer for United States federal income tax purposes, and the remaining Notes constituting indebtedness of the
partnership. The parties hereto and each Certificateholder, by acceptance of a Certificate, agree to treat the Issuer in accordance with the intention that the Issuer be characterized as a grantor trust for United States federal income tax purposes
and, unless otherwise required by appropriate taxing authorities or by law, not to take any action or, direct any other party to take any action, inconsistent therewith, including, but not limited to, modifying, or directing any other party to
modify, the terms of a Receivable unless the modification is a Permitted Modification. In furtherance of the foregoing, (i) the purpose of the Issuer shall be to protect and conserve the assets of the Issuer, and the Issuer shall not at any
time engage in or carry on any kind of business for United States federal income tax purposes or any kind of commercial activity and (ii) the Issuer and Owner Trustee (upon direction from the Certificateholders) (and any agent of either person)
shall take, or refrain from taking, all such action as is necessary to maintain the status of the Issuer as a grantor trust for United States federal income tax purposes. Notwithstanding anything to the contrary in this Agreement or otherwise,
neither the Issuer nor the Owner Trustee (nor any agent of either person) shall (1) acquire any assets or dispose of any portion of the Issuer other than pursuant to the specific provisions of this Agreement, (2) vary the investment of the
Issuer within the meaning of Treasury Regulation section
301.7701-4(c)
or (3) substitute new investments or reinvest so as to enable the Issuer to take advantage of variations in the market to improve the
investment of any Certificateholder. The provisions of this Trust Agreement shall be interpreted consistently with and to further this intention of the parties. The parties agree that, unless otherwise required by appropriate tax authorities, the
Issuer will file or cause to be filed annual or other necessary tax returns, reports and other forms consistent with the foregoing characterization of the Issuer for United States federal, state and local income and franchise tax purposes. No
election will be made by or on behalf of the Issuer to be classified as an association taxable as a corporation for United States federal income tax purposes. Effective as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and, to the extent not inconsistent herewith, in the Statutory Trust Statute with respect to accomplishing the purposes of the Issuer. The Owner Trustee has heretofore filed the Certificate of Trust with the Secretary of
State of the State of Delaware as required by Section 3810(a) of the Statutory Trust Statute, such filing hereby being ratified and approved in all respects. Notwithstanding anything herein or in the Statutory Trust Statute to the contrary, it
is the intention of the parties hereto that the Issuer constitute a “business trust” within the meaning of Section 101(9)(A)(v) of the Bankruptcy Code.
SECTION 2.7.
Organizational Expenses; Liabilities of the Holders
.
(a) The Servicer shall pay organizational expenses of the Issuer as they may arise.
(b) No Certificateholder (including the Depositor if the Depositor becomes a Certificateholder) shall have any personal
liability for any liability or obligation of the Issuer.
SECTION 2.8.
Title to the Trust Estate
. Legal title to all of the Trust
Estate shall be vested at all times in the Issuer as a separate legal entity.
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SECTION 2.9.
Representations and Warranties of the Depositor
. The Depositor hereby
represents and warrants to the Owner Trustee that:
(a)
Existence and Power
. The Depositor is a limited liability
company validly existing and in good standing under the laws of the State of Delaware and has, in all material respects, all power and authority required to carry on its business as it is now conducted. The Depositor has obtained all necessary
licenses and approvals in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Depositor to perform its obligations under the Transaction Documents.
(b)
Authorization and No Contravention
. The execution, delivery and performance by the Depositor of the Transaction
Documents to which it is a party (i) have been duly authorized by all necessary limited liability company action on the part of the Depositor and (ii) do not contravene or constitute a default under (A) any applicable law, rule or
regulation, (B) its organizational documents or (C) any material indenture or material agreement or other instrument to which it is a party or its property is subject (other than violations which do not affect the legality, validity or
enforceability of any of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Depositor’s ability to perform its obligations under, the Transaction
Documents to which it is a party).
(c)
No Consent Required
. No approval or authorization by, or filing with, any
Governmental Authority is required in connection with the execution, delivery and performance by the Depositor of any Transaction Document other than (i) UCC filings, (ii) approvals and authorizations that have previously been obtained and
filings that have previously been made and (iii) approvals, authorizations or filings which, if not obtained or made, would not have a material adverse effect on the ability of the Depositor to perform its obligations under the Transaction
Documents to which it is a party.
(d)
Binding Effect
. Each Transaction Document to which the Depositor is a party
constitutes the legal, valid and binding obligation of the Depositor enforceable against the Depositor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
receivership, conservatorship or other similar laws affecting creditors’ rights generally and, if applicable, the rights of creditors of limited liability companies from time to time in effect or by general principles of equity or other
similar laws of general application relating to or affecting the enforcement of creditors’ rights generally and subject to general principles of equity.
(e)
No Proceedings
. There are no Proceedings pending or, to the knowledge of the Depositor, threatened against the
Depositor before or by any Governmental Authority that (i) assert the invalidity or unenforceability of this Agreement or any of the other Transaction Documents, (ii) seek to prevent the issuance of the Notes or the consummation of any of
the transactions contemplated by this Agreement or any of the other Transaction Documents or (iii) seek any determination or ruling that would materially and adversely affect the performance by the Depositor of its obligations under this
Agreement or any of the other Transaction Documents.
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SECTION 2.10.
Situs of Issuer
. The Issuer shall be located in the State of Delaware
(it being understood that the Issuer may have bank accounts located and maintained outside of Delaware).
SECTION 2.11.
Covenants of
the Certificateholders
. Each Certificateholder, by becoming an owner of a Certificate and beneficial owner of the Issuer, hereby acknowledges and agrees (a) that the Certificateholder is subject to the terms, provisions and conditions of
this Agreement, to which the Certificateholder agrees to be bound; and (b) that it shall not take any position in such Certificateholder’s tax returns inconsistent with
Section
2.6
herein and
Section
2.15
of the Indenture.
ARTICLE III
CERTIFICATES AND TRANSFER OF CERTIFICATES
SECTION 3.1.
Initial Ownership
. Upon the formation of the Issuer and until the issuance of the Certificates, the Depositor shall be the
sole beneficiary of the Issuer and, upon the issuance of the Certificates, the Depositor will no longer be a beneficiary of the Issuer, except to the extent that the Depositor is a Certificateholder.
SECTION 3.2.
Authorization of the Certificates
. Concurrently with the sale of the Transferred Assets to the Issuer pursuant to the Sale
Agreement, at the direction of the Depositor, (a) one or more Book-Entry Certificates substantially in the form of
Exhibit A
hereto shall be executed by the Owner Trustee on behalf of the Issuer and authenticated and delivered by the
Certificate Registrar in the name of Cede & Co. or (b) one or more Definitive Certificates substantially in the form of
Exhibit A
hereto shall be executed by the Owner Trustee on behalf of the Issuer and authenticated and
delivered by the Certificate Registrar to or upon the written order of the Depositor. The Certificates shall, in the aggregate, represent 100% of the Percentage Interest in the Issuer and shall be fully paid and nonassessable.
SECTION 3.3.
The Certificates
.
(a) To the extent Book-Entry Certificates have been issued, such Certificates will be issued substantially in the form of
Exhibit A
hereto, representing the Certificates to be delivered to the Certificate Registrar, as initial agent for the Clearing Agency, by, or on behalf of, the Issuer. The Retained Certificate will be delivered by the Certificate Registrar
to or upon the written order of the Depositor. The Certificates will be issued in an aggregate nominal principal amount of $100,000 (which shall be deemed to be the equivalent of 100,000 units), and all beneficial interests in the Book-Entry
Certificates shall be owned, in the minimum principal amount of $2,000 and integral multiples of $1 in excess thereof. The Issuer shall not issue any Certificate that would cause the aggregate nominal principal amount of all Certificates to exceed
$100,000, or 100,000 units, without the prior written consent of all Certificateholders. No distributions of moneys to the Certificateholders under the Transaction Documents shall be deemed to reduce the nominal principal amount of any Certificate
prior to payment in full of all Notes;
provided, however
, that the final aggregate $100,000 distributed to the Certificateholders
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under the Transaction Documents upon final distribution of the Trust Estate and termination of the Issuer pursuant to
Sections 9.1
and
9.2
shall be deemed to repay the aggregate
nominal principal amount of the Certificates in full;
provided, further
, that any failure to pay in full the nominal principal amount of a Certificate on such final distribution date shall not result in any recourse to, claim against or
liability of any Person for such shortfall. Any amounts payable to the Certificateholders on or in respect of the Certificates under the Transaction Documents shall be paid and allocated to the various Certificateholders ratably based on their
respective Percentage Interests. To the extent Book-Entry Certificates have been issued, unless the Seller directs otherwise pursuant to
Section
3.2
, such Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of DTC as the initial Clearing Agency, and no Certificateholder of a Book-Entry Certificate will receive a Definitive Certificate representing such Certificateholder’s interest in such
Certificate, except as provided in
Section
3.5
. Except with respect to the Retained Certificate, unless and until definitive, fully registered Certificates (the “
Definitive Certificates
”) have been issued
to the applicable Certificateholders pursuant to
Section
3.2
or
3.5
:
(i) the provisions
of this Section shall be in full force and effect;
(ii) the Certificate Registrar, the Certificate Paying Agent, the
Indenture Trustee and the Owner Trustee shall be entitled to deal with the Clearing Agency for all purposes of this Agreement (including the payment of amounts payable under the Transaction Documents and the giving of instructions or directions
hereunder) as the sole Certificateholders, and shall have no obligation to the Certificate Owners;
(iii) to the extent
that the provisions of this Section conflict with any other provisions of this Agreement, the provisions of this Section shall control;
(iv) the rights of Certificate Owners shall be exercised only through the Clearing Agency and shall be limited to those
established by law and/or agreement between or among such Certificate Owners and the Clearing Agency and/or the Clearing Agency Participants or Persons acting through Clearing Agency Participants. Pursuant to the Depository Agreement, unless and
until Definitive Certificates (other than the Retained Certificate) are issued pursuant to
Section
3.5
, the initial Clearing Agency shall make book-entry transfers among the Clearing Agency Participants and receive and
transmit payments due under the Transaction Documents with regard to the Certificates to such Clearing Agency Participants;
(v) whenever this Agreement requires or permits actions to be taken based upon instructions or directions of
Certificateholders evidencing a specified percentage of the Percentage Interest, the Clearing Agency shall deliver instructions to the Owner Trustee only to the extent that it has received instructions to such effect from Certificate Owners and/or
Clearing Agency
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Participants or Persons acting through Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Certificates;
(vi) owners of a beneficial interest in a Book-Entry Certificate will not be entitled to have any portion of a Book-Entry
Certificate registered in their names and will not be considered to be the Certificate Owners or Certificateholders of any Certificates under this Agreement; and
(vii) payments on a Book-Entry Certificate will be made to the Clearing Agency, or its nominee, as the registered owner
thereof, and none of the Issuer, the Owner Trustee, the Indenture Trustee or the Certificate Paying Agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership
interests in a Book-Entry Certificate or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
(b) Notwithstanding any provision to the contrary herein, so long as a Book-Entry Certificate remains outstanding and is held
by or on behalf of the Clearing Agency, transfers of a Book-Entry Certificate, in whole or in part, shall only be made in accordance with
Section
3.3(a)
. Subject to
clauses (i)
through
(iii)
of
Section
3.3(a)
, transfers of a Book-Entry Certificate shall be limited to transfers of such Book-Entry Certificate in whole, but not in part, to a nominee of the Clearing Agency or to a successor of the Clearing Agency or
such successor’s nominee.
In the event that a Book-Entry Certificate is exchanged for one or more Definitive
Certificates pursuant to
Section
3.5
, such Certificates may be exchanged for one another only in accordance with the provisions of this Agreement and with such procedures as may be from time to time adopted by the Issuer
and the Owner Trustee.
SECTION 3.4.
Notices to Clearing Agency
. Whenever a notice or other communication to the Certificateholders
is required under this Agreement, except with respect to the Retained Certificate, and otherwise, unless and until Definitive Certificates shall have been issued to Certificate Owners pursuant to
Section
3.5
, the Owner
Trustee shall give all such notices and communications specified herein to be given to the Certificateholders to the Clearing Agency, and shall have no obligation to the Certificate Owners.
SECTION 3.5.
Definitive Certificates
.
(a) Except with respect to the Retained Certificate (which will be originally issued as a Definitive Certificate), if
(i) the Depositor advises the Owner Trustee in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Certificates, and the Depositor is unable to locate a qualified
successor or (ii) the Depositor at its option advises the Owner Trustee in writing that it elects to terminate the book-entry system through the Clearing Agency, then the Clearing Agency shall notify all Certificate Owners and the Owner Trustee
of the occurrence of any such
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event and of the availability of Definitive Certificates representing the Certificates to Certificate Owners requesting the same. Upon surrender to the Owner Trustee of the typewritten
Certificate or Certificates representing the Book-Entry Certificates by the Clearing Agency, accompanied by
re-registration
instructions, the Issuer shall execute and the Certificate Registrar shall
authenticate the Definitive Certificates representing the Certificates in accordance with the instructions of the Clearing Agency. None of the Issuer, the Certificate Registrar or the Owner Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates representing the Certificates, the Owner Trustee shall recognize such Holders of the Definitive
Certificates as the applicable Certificateholders.
(b) Subject to the transfer restrictions contained herein and in the
Certificates, any Holder of a Definitive Certificate may transfer all or any portion of the Percentage Interest (subject to the requirements set forth in
Sections 3.3
and
3.7
) evidenced by such Certificate upon surrender thereof to the
Certificate Registrar accompanied by the documents required by this
Section
3.5
. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon surrender of the
Certificate to the Certificate Registrar accompanied by (a) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as
Exhibit A
and with such signature guarantees
and evidence of authority of the Persons signing the instrument of transfer as the Certificate Registrar may reasonably require, (b) an executed direction letter regarding registration of such transfer in the form attached hereto as
Exhibit
D
, and (c) the documents required by
Section
3.7(c)
hereof. Promptly upon the receipt of such documents and receipt by the Certificate Registrar of the transferor’s Certificate, the Certificate Registrar
shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and the Owner Trustee shall execute, and the Certificate Registrar shall authenticate and deliver to such Certificateholder, a
Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such
transferor, a new Certificate evidencing such transferor’s new Percentage Interest and the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferee, a new Certificate evidencing
such transferee’s Percentage Interest. Subsequent to each transfer of a beneficial interest and upon the issuance of the new Certificate or Certificates, the Certificate Registrar shall cancel and destroy in accordance with its customary
practices the Certificate surrendered to it in connection with such transfer. The Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat, for all purposes whatsoever (other than as required by
Section
3.7
or under applicable law), the Person in whose name any Certificate is registered as the owner of the Percentage Interest evidenced by such Certificate without regard to any notice to the contrary.
Definitive Certificates will not be eligible for clearing or settlement through DTC, Euroclear or Clearstream.
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SECTION 3.6.
Registration of the Certificates
. The Indenture Trustee, as an agent of
the Issuer, in its capacity as “Certificate Registrar” (the “
Certificate Registrar
”) shall maintain at its Corporate Trust Office, or at the office of any agent appointed by it and approved in writing by the
Certificateholders at the time of such appointment, a register (the “
Certificate Register
”) for the registration and transfer of any Certificate. Prior to the due presentment for registration of transfer of any Certificate, the
Owner Trustee, the Indenture Trustee and the Certificate Registrar or any agent of the Owner Trustee, the Indenture Trustee or the Certificate Registrar shall treat the Person in whose name any Certificate is registered (as of the applicable Record
Date) as the owner of such Certificate for the purpose of receiving distributions on such Certificate and for all other purposes whatsoever. For the avoidance of doubt, a Certificate is not negotiable and the records maintained by the Certificate
Registrar in the Certificate Register with respect to each Certificate and its related registered owner are intended to cause the Certificates to be issued in registered form, within the meaning of Treasury Regulation section
5f.103-1(c),
and shall record (a) the Percentage Interest evidenced by each Certificate and (b) all distributions made to each Certificateholder with respect to the Issuer’s assets.
SECTION 3.7.
Transfer of the Certificates
.
(a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related
Certificate. Each purchaser and transferee of a Definitive Certificate (other than the Retained Certificate), and any fiduciary acting on behalf of a purchaser or transferee of a Definitive Certificate (other than the Retained Certificate), will be
required to provide a Certificate Investor Representation Letter substantially in the form of
Exhibit B
and each purchaser and transferee of a beneficial interest in a Book-Entry Certificate shall be deemed to represent and warrant:
(i) (a) such transferee is either an Affiliate of the Depositor or (b) (1) is a Qualified Institutional Buyer,
(2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Depositor or any of its Affiliates as part of the initial distribution or any redistribution of the Certificates by the Depositor or any of its
Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and
as to each of which the owner exercises sole investment discretion or for resale pursuant to Rule 144A;
(ii) such
transferee understands that the Certificates will bear the applicable legends substantially as set forth in
Section
3.7(g)
;
(iii) such transferee understands that the Certificates are being offered only in a transaction not involving any public
offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer
the Certificates, such Certificates may be offered, resold, pledged or otherwise transferred solely in accordance with this Agreement and the applicable legend or legends on such Certificates. The
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transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of
the Certificates;
(iv) such transferee understands that an investment in the Certificates involves certain risks,
including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or
appropriate in order to make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the transferee is capable of evaluating the merits
and risks of its investment in the Certificates, and the transferee and any accounts for which it is acting are each able to bear the economic risk of such investment;
(v) such transferee will not make any general solicitation by means of general advertising or in any other manner, or take any
other action that would constitute a distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or
require registration pursuant thereto, and will not authorize any Person to act on its behalf, in such manner with respect to the Certificates;
(vi) such transferee is not acquiring the Certificates with a view to the resale, distribution or other disposition thereof in
violation of the Securities Act;
(vii) such transferee will provide notice to each Person to whom it proposes to transfer
any interest in the Certificates of the transfer restrictions and representations set forth in this Agreement, including the Exhibits hereto;
(viii) such transferee is not acquiring and will not hold such Certificate (or any interest therein) on behalf of or with any
assets of (i) a Benefit Plan, or (ii) any Plan that is subject to Similar Law;
(ix) such transferee acknowledges
that the Issuer, the Owner Trustee, the Depositor and others will rely upon the truth and accuracy of the acknowledgements, representations, warranties and agreements in this
Section
3.7
and agrees that if any of the
acknowledgements, representations, warranties or agreements made by it in connection with its purchase of the Certificates are no longer accurate, the transferee will promptly notify the Issuer, the Owner Trustee and the Depositor;
(x) such transferee acknowledges that in connection with the transfer of the Certificates: (a) none of the Issuer, the
Servicer, the Depositor or the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee; (b) the transferee is not relying (for purposes of making any investment decision or
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otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Depositor or the Owner Trustee other than in the most current private placement
memorandum for such Certificates and any representations expressly set forth in a written agreement with such party; (c) none of the Issuer, the Servicer, the Depositor or the Owner Trustee has given to the transferee (directly or indirectly
through any other Person, in any documentation for the Certificates or otherwise) any assurance, guarantee or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence or
benefit (including legal, regulatory, tax, financial, accounting or otherwise) of its purchase of the Certificates; (d) the transferee has consulted with its own legal, regulatory, tax, business, investment, financial, and accounting advisers
to the extent it has deemed necessary and it has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to or contemplated by this Agreement) based upon its own judgment and upon any advice from
such advisers as it has deemed necessary and not upon any view expressed by the Issuer, the Servicer, the Depositor or the Owner Trustee; (e) the transferee has determined that the rates, prices or amounts and other terms of the purchase and
sale of the applicable Certificates reflect those in the relevant market for similar transactions; (f) the transferee is purchasing the Certificates with a full understanding of all of the terms, conditions and risks thereof (economic and
otherwise), and is capable of assuming and willing to assume (financially and otherwise) these risks; and (g) the transferee is a sophisticated investor familiar with transactions similar to its investment in the Certificates;
(xi) no transfers shall be permitted if such transfer is effected through an established securities market or secondary market
(or the substantial equivalent thereof) within the meaning of the Code Section 7704 and any proposed, temporary or final Treasury regulations thereunder;
(xii) no transfers shall be permitted unless such transfer is of a Certificate with a Percentage Interest of at least 5% or, if
the Certificates are Book-Entry Certificates, in the minimum principal amount of $2,000 (or of an interest in a Certificate representing a Percentage Interest of at least 5% or a minimum principal amount of $2,000, as applicable); and
(xiii) if such transferee (and any Person for which such transferee holds Certificates as agent or nominee) is a partnership,
Subchapter S corporation or grantor trust for United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing), it is not being used with a principal purpose of the arrangement involving such
entity’s beneficial interest in any Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section
1.7704-1(h)(1)(ii)
necessary for such partnership not to be
classified as a publicly traded partnership under the Code.
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By accepting and holding a Certificate (or any interest therein), the Holder, and any
fiduciary acting on behalf of a Holder, shall be deemed to have represented and warranted that it is not acquiring and will not hold, the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any Plan that is
subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificates, any Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof to the Owner
Trustee accompanied by the documents required by this Section. Such transfer may be made by the registered Certificateholder in person or by his attorney duly authorized in writing upon surrender of the Certificate to the Owner Trustee accompanied
by: (a) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate (attached hereto as
Exhibit A
) and with such signature guarantees and evidence of authority of the Persons signing
the instrument of transfer as the Owner Trustee may reasonably require;
provided
,
however
, that the Owner Trustee shall not require the signature of the Depositor to be medallion guaranteed for the transfers from the Depositor to the
applicable transferees on the date hereof; (b) an executed direction letter regarding registration of such transfer in the form attached hereto as
Exhibit D
; (c) the documents required by
Section
3.7(c)
;
and (d) a Certificate Investor Representation Letter substantially in the form attached hereto as
Exhibit
B
. Promptly upon the receipt of such documents and receipt by the Owner Trustee of the transferor’s
Certificate, the Owner Trustee shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and issue, execute and deliver to such Certificateholder a Certificate evidencing such Percentage
Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall issue, execute and deliver to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent
to a transfer of a Percentage Interest and upon the related issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided in
this
Section
3.7
or under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this
Section
3.7
, the Owner
Trustee may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer.
(c) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate that is a U.S. Tax Person
shall deliver to the Owner Trustee, the Administrator and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form
W-9
(or applicable successor
form) certifying that it is not subject to backup withholding and that it is a U.S. Tax Person. Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate that is not a U.S. Tax Person shall deliver to the
Owner Trustee, the Administrator and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form
W-8BEN
(Certification of Foreign Status of Beneficial
Owner for United States Tax Withholding and Reporting (Individuals)), U.S. Internal Revenue Service Form
W-8BEN-E
(Certificate of Status of Beneficial Owner for United
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States Tax Withholding and Reporting (Entities)) or U.S. Internal Revenue Service Form
W-8IMY
(Certificate of Foreign Intermediary, Foreign Flow-Through
Entity, or Certain U.S. Branches for United States Tax Withholding and Reporting), or any applicable successors to such U.S. Internal Revenue Service forms or other reasonable information or certification requested by the Owner Trustee, the
Administrator or the Certificate Paying Agent (i) to permit the Owner Trustee, the Administrator and the Certificate Paying Agent to make payments to the registered owner of, and if different, each owner of a beneficial interest in, a
Certificate without withholding or deduction (including any FATCA Withholding Tax), (ii) to enable the Issuer to qualify for a reduced rate of withholding in any jurisdiction from or through which the Issuer receives payments on its assets, or
(iii) to enable the Owner Trustee, the Administrator and the Certificate Paying Agent to satisfy any reporting or other obligations under any applicable tax law (including FATCA), and will update or replace such form, certification or other
information as necessary in accordance with its terms or its subsequent amendments. The applicable U.S. Internal Revenue Service forms and information required to be delivered, as described above, shall be delivered on or prior to the date on which
a Certificateholder and, if different, a Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter as prescribed by applicable law or upon the request of the Certificate Paying Agent.
For the avoidance of doubt, in no case shall any Certificateholder or Certificate Owner provide IRS Form
W-8ECI
or IRS Form
W-8IMY
with an attached Form
W-8ECI.
(d) Each registered owner of, and, if different, each owner of a beneficial
interest in, a Certificate represents to the Issuer and Owner Trustee by acceptance of a Certificate or interest therein that it is not and will not become subject to any FATCA Withholding. In the case of a Certificateholder that is not a U.S. Tax
Person and provides a U.S. Internal Revenue Service Form
W-8BEN
or U.S. Internal Revenue Service Form
W-8BEN-E
under
Section
3.7(c)
in order to claim the benefits of the exemption for portfolio interest under sections 871 or 881 of the Code (instead of, for example, claiming the benefits of an income tax treaty to which the United States
is a party), such Certificateholder (or in the case of a Certificateholder providing U.S. Internal Revenue Service Form
W-8IMY,
the beneficial owner of the Certificate) hereby represents that it is not
(i) a “bank” within the meaning of Code section 881(c)(3), (ii) a “10 percent shareholder” of an obligor on a Receivable within the meaning of Code section 871(h) or 881(c)(3) (as the case may be) or (iii) a
“controlled foreign corporation” with respect to such an obligor described in Code section 881(c)(3).
(e) Each
registered owner of, and, if different, each owner of a beneficial interest in, a Certificate represents to the Issuer and Owner Trustee by acceptance of this Certificate or interest therein that it is not and will not become subject to any FATCA
Withholding Tax.
(f) Each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein
will be required or deemed to acknowledge that the Issuer may provide such information and any other information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and
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subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner
of an interest in a Certificate that fails to comply with the foregoing requirements.
(g) Each Certificate shall bear a
legend in substantially the following form, unless the Depositor determines otherwise in accordance with applicable law:
THIS CERTIFICATE
OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE DEPOSITOR OR ANY OF ITS AFFILIATES AND BY THE DEPOSITOR OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE DEPOSITOR OR
ANY OF ITS AFFILIATES AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH
IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID
AB INITIO
, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE
ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET
FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED
BY THE ISSUER.
BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER AND TRANSFEREE, AND ANY FIDUCIARY ACTING ON BEHALF OF A PURCHASER OR
TRANSFEREE, WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING AND WILL NOT HOLD THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF A PLAN THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR
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SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A PLAN THAT IS SUBJECT TO A LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE
CODE. FOR PURPOSES OF THE FOREGOING, “PLAN” MEANS AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA WHETHER OR NOT SUBJECT TO TITLE I OF ERISA, A “PLAN” AS DEFINED IN SECTION 4975 OF THE CODE, OR AN
ENTITY OR ACCOUNT DEEMED TO HOLD THE PLAN ASSETS OF ANY OF THE FOREGOING.
(h) If a Responsible Officer of the Owner
Trustee has actual knowledge that (1) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this
Section
3.7
on the basis of a
materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Definitive Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter substantially in the form of
Exhibit B
hereto or (3) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such
Certificateholder, the Owner Trustee will direct the Certificate Registrar not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate
to transfer any rights to the purported transferee (such purported transferee, a “
Disqualified Transferee
”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be
restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(i) After the Closing Date, a Certificate (or beneficial interest therein) may not be sold or transferred to a Person that
beneficially owns a Note (or interest therein) if such sale or transfer will result in such Person beneficially owning more than 99% of the Certificates of the Issuer (and any other interest in the Issuer treated as equity for United States federal
income tax purposes);
provided, however
, that such sale or transfer shall be permitted if such Person covenants and agrees in writing, in form and substance satisfactory to the Issuer and Indenture Trustee, that it will not transfer its
Certificates or Notes except upon prior delivery to the Indenture Trustee of an Opinion of Counsel substantially to the effect described in
Section
2.17(a)
of the Indenture and subject to any tracking conditions that may be
imposed by the Administrator with respect to such Notes pursuant to
Section
2.17(a)
.
(j) In the
case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for United States federal income tax purposes, the Seller shall be entitled to request an Initial Certificate Transfer
Opinion.
(k) Unless the Depositor has received an opinion from a nationally recognized tax counsel that the restriction on
the proposed acquisition or ownership of a Certificate (or interest therein) described by this paragraph is no longer necessary to conclude that any such acquisition (and subsequent resale of the applicable Notes described below) will not
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cause the Treasury Regulations under Code section 385 to apply to the applicable Notes described below in a manner that could cause a material adverse effect on the Issuer or the Issuer to be
treated as other than a grantor trust for U.S. federal income tax purposes, (A) a Section 385 Certificateholder cannot acquire or hold a Certificate (or interest therein) if (i) a member of any “expanded group” (as defined
in Treasury Regulation
Section 1.385-1(c)(4))
that includes the Section 385 Certificateholder owns any Notes or (ii) a Section 385 Controlled Partnership of such expanded group owns any
Notes and (B) a Section 385 Certificateholder cannot hold a Certificate (or interest therein) if (i) a member of any “expanded group” (as defined in Treasury Regulation
Section 1.385-1(c)(4))
that includes the Section 385 Certificateholder acquires any Notes from the Issuer or any Affiliate of the Issuer or through the marketplace or (ii) a Section 385
Controlled Partnership of such expanded group acquires any Notes from the Issuer or any Affiliate of the Issuer or through the marketplace. The preceding sentence shall not apply if the holder or potential holder of the applicable Notes is a U.S.
corporate member of the same U.S. corporate affiliated group (as defined in Section 1504 of the Code) filing a consolidated federal income tax return that includes each of any applicable related Section 385 Certificateholders (including in
the case of a partnership, the relevant “expanded group partner” (as defined in Treasury Regulation
Section 1.385-3(g)(12))).
If a Certificateholder (or Certificate Owner) fails to comply with
the requirements of this paragraph, the Issuer or Depositor is authorized, at its discretion, to compel such Certificateholder (or Certificate Owner) to sell its Certificate (or interest therein) to a Person whose ownership does not result in a
failure to comply with this paragraph so long as such sale does not otherwise cause a material adverse effect on the Issuer or the Issuer to be treated as other than a grantor trust for U.S. federal income tax purposes.
SECTION 3.8.
Lost, Stolen, Mutilated or Destroyed Certificates
. If (i) any mutilated Certificate is surrendered to the Owner
Trustee, or (ii) the Owner Trustee receives evidence to its satisfaction that any Certificate has been destroyed, lost or stolen, and upon proof of ownership satisfactory to the Owner Trustee together with such security or indemnity as may be
requested by the Owner Trustee to save it and the Issuer harmless, the Owner Trustee shall execute and deliver a new Certificate for the same Percentage Interest as the Certificate so mutilated, destroyed, lost or stolen, of like tenor and bearing a
different issue number, with such notations, if any, as the Owner Trustee shall determine. Upon the issuance of any new Certificate under this
Section
3.8
, the Issuer or Owner Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of the Certificate and any other reasonable expenses (including the reasonable fees and expenses of the Issuer and the Owner
Trustee) connected therewith. Any duplicate Certificate issued pursuant to this
Section
3.8
shall constitute complete and indefeasible evidence of ownership in the Issuer, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time. The provisions of this
Section
3.8
are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, defaced, destroyed, lost or stolen Certificates.
SECTION 3.9.
Appointment of the Certificate Paying Agent
. To the
extent Definitive Certificates have been issued, the Certificate Paying Agent shall make distributions to
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Certificateholders pursuant to
Section
5.1
and shall report the amounts of such distributions to the Owner Trustee and the Servicer;
provided
,
however
,
that no such reports shall be required so long as the Depositor or an affiliate of the Depositor is the sole Certificateholder. Any Certificate Paying Agent shall have the revocable power to withdraw funds from the Certificate Distribution Account
for the purpose of making the distributions referred to above. The Issuer may revoke such power and remove the Certificate Paying Agent if the Issuer determines in its sole discretion that the Certificate Paying Agent shall have failed to perform
its obligations under this Agreement in any material respect. The Certificate Paying Agent shall initially be the Indenture Trustee and any
co-paying
agent chosen by the Certificate Paying Agent. The Indenture
Trustee shall be permitted to resign as Certificate Paying Agent upon thirty (30) days’ written notice to the Administrator. If the Indenture Trustee shall no longer be the Certificate Paying Agent, the Administrator shall appoint a
successor to act as Certificate Paying Agent (which shall be a bank or trust company). The Administrator shall cause such successor Certificate Paying Agent or any additional Certificate Paying Agent appointed by the Administrator to execute and
deliver a written agreement in which such successor Certificate Paying Agent or additional Certificate Paying Agent shall agree with the Issuer that, as Certificate Paying Agent, such successor Certificate Paying Agent or additional Certificate
Paying Agent shall hold all sums, if any, held by it for payment to the Certificateholders in trust for the benefit of the Certificateholders entitled thereto until such sums shall be paid to such Certificateholders. Subject to applicable laws with
respect to the escheat of funds, the Certificate Paying Agent shall return all funds that have remained unclaimed by a Certificateholder for two years to the Owner Trustee and, upon removal of a Certificate Paying Agent, such Certificate Paying
Agent shall also return all funds (including any unclaimed funds) in its possession to the Owner Trustee. The rights, protections, indemnities and immunities of the Indenture Trustee under the Indenture and the Servicing Agreement shall apply to the
Indenture Trustee also in its role as Certificate Paying Agent or Certificate Registrar for so long as the Indenture Trustee shall act as Certificate Paying Agent or Certificate Registrar and, to the extent applicable, to any other paying agent,
certificate registrar or authenticating agent appointed hereunder. Any reference in this Agreement to the Certificate Paying Agent shall include any
co-paying
agent unless the context requires otherwise.
SECTION 3.10.
Maintenance of Office or Agency
. As long as any of the Certificates remain outstanding, the Issuer shall maintain an
office or agency where Certificates may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Issuer in respect of the Certificates and this Agreement may be served. The Issuer hereby initially
designates the Corporate Trust Office of the Certificate Registrar for the foregoing purposes. The Issuer shall give prompt written notice to the Owner Trustee and the Indenture Trustee of the location, and of any change in the location, of any such
office or agency. If at any time the Issuer shall fail to maintain any such office or agency or shall fail to furnish the Owner Trustee and the Indenture Trustee with the address thereof, such surrenders, notices and demands may be made or served at
the applicable Corporate Trust Office, and the Issuer hereby appoints the Owner Trustee as its agent to receive all such surrenders, notices and demands.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1.
Prior Notice to Certificateholders
with Respect to Certain Matters
.
With respect to the following matters,
unless the Administrator provides written notice to the Owner Trustee that the relevant Transaction Document provides that the consent of the Certificateholders shall not be required, the Owner Trustee shall not take action unless, at least ten
(10) Business Days before the taking of such action (or if ten (10) Business Days’ advance notice is impracticable, as much advance notice as is practicable), the Owner Trustee shall have notified the Certificateholders in writing of
the proposed action and no Certificateholder shall have notified the Owner Trustee in writing within such notice period that such Certificateholder has withheld consent or provided alternative direction:
(a) the appointment pursuant to the Indenture of a successor Indenture Trustee;
(b) the appointment pursuant to the Servicing Agreement of a successor Servicer; or
(c) the consent to the assignment by the Note Registrar or the Indenture Trustee of its obligations under the Indenture or this
Agreement.
SECTION 4.2.
Action by
Certificateholders
with Respect to Certain Matters
. The Owner Trustee shall not
have the power, except upon the direction of the Majority Certificateholders, to (a) except as expressly provided in the Transaction Documents, sell the Collateral after the termination of the Indenture in accordance with its terms,
(b) remove the Administrator under the Administration Agreement pursuant to
Section
8
thereof or (c) appoint a successor Administrator pursuant to
Section
8
of the Administration
Agreement. The Owner Trustee shall take the actions referred to in the preceding sentence only upon written instructions signed by the Majority Certificateholders.
SECTION 4.3.
Action by
Certificateholders
with Respect to Bankruptcy
.
(a) The Owner Trustee shall not have the power to commence a voluntary Proceeding in bankruptcy relating to the Issuer until
one year and one day after the Note Balance of all Notes has been reduced to zero without the prior written approval of each Certificateholder and the delivery to the Owner Trustee by each Certificateholder of a certificate certifying that such
Certificateholder reasonably believes that the Issuer is insolvent.
(b) The parties hereto stipulate and agree that no
Certificateholder has the power to commence any Bankruptcy Event on the part of the Issuer.
SECTION 4.4.
Restrictions on
Certificateholders
’
Power
. The Certificateholders shall not direct the Owner Trustee to take or refrain from taking any action if such action or inaction would be contrary to any obligation of the Issuer or the Owner
Trustee under this Agreement or
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any of the Transaction Documents or would be contrary to
Section
2.3
, nor shall the Owner Trustee be obligated to follow any such direction, if given.
SECTION 4.5.
Acts of Certificateholders; Majority Control
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be
given or taken by Certificateholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Certificateholders in person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or instruments are delivered to the Owner Trustee, and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the “
Act
” of the Certificateholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Agreement and (subject to
Article VI
) conclusive in favor of the Owner Trustee and the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such instrument or writing may be proved in any manner that the
Owner Trustee deems sufficient.
(c) The ownership of Certificates shall be proved by the Certificate Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by any Certificateholder shall bind
the Holder of every Certificate issued upon the registration thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Owner Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
(e) Except as otherwise provided herein, to the extent that there
is more than one Certificateholder, any action which may be taken or consent or instructions which may be given by the Certificateholder under this Agreement may be taken by the Majority Certificateholders at the time of such action.
SECTION 4.6.
Compliance with the FDIC Rule
.
The Owner Trustee shall (i) perform the covenants set forth in Article XII of
the Indenture applicable to it and (ii) use reasonable efforts to comply with any request of the Depositor or the Servicer to facilitate compliance with Article XII of the Indenture by the Capital One Parties.
ARTICLE V
APPLICATION
OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1.
Application of Trust Funds
. Deposits into the Certificate Distribution Account
shall be made in accordance with the provisions of the Indenture and this Agreement. On each Payment Date to the extent Definitive Certificates have been issued, the Certificate Paying
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Agent shall withdraw from the Certificate Distribution Account and distribute to the Certificateholders, pro rata based on the Percentage Interest of each Certificateholder (or in the case of the
Retained Certificate, deposit directly to the Certificate Distribution Account), all funds received in accordance with the provisions of the Indenture and this Agreement. Subject to the Lien of the Indenture and
Section
5.5
of this Agreement, the Certificate Paying Agent shall promptly distribute to the Certificateholders all other amounts (if any) received by the Certificate Paying Agent on behalf of the Issuer in respect of the Trust Estate (pro rata based on the
Percentage Interest of each such Certificateholder). After the termination of the Indenture in accordance with its terms, the Certificate Paying Agent shall distribute all amounts received (if any) by the Issuer and the Owner Trustee in respect of
the Trust Estate at the direction of the Certificateholders.
SECTION 5.2.
Method of Payment
. Subject to the Indenture,
distributions required to be made to the Certificateholders on any Payment Date and all amounts received by the Issuer or the Owner Trustee on any other date that are payable to the Certificateholders pursuant to this Agreement or any other
Transaction Document shall be made to the Certificateholders by wire transfer, in immediately available funds, to the account of each Certificateholder designated by such Certificateholder to the Owner Trustee and Indenture Trustee in writing.
SECTION 5.3.
Reports by Owner Trustee to Certificateholders
.
(a) The Owner Trustee shall prepare (or cause to be prepared) and shall sign pursuant to the power granted thereto pursuant to
Section
2.4
, on behalf of the Issuer, the Issuer’s tax returns, if any, unless applicable law requires a Certificateholder to sign such documents.
(b) The Owner Trustee shall: (a) maintain (or cause to be maintained) the books of the Issuer on a calendar year basis and
the accrual method of accounting; (b) deliver (or cause to be delivered) to each Certificateholder such information in its possession hereunder that is customarily provided to a Certificateholder to enable such Holder to prepare its United
States federal and state income tax returns and any further information reasonably requested by such Certificateholder to the extent such information is reasonably obtainable, and may be required to enable each Certificateholder to prepare its
United States federal and state income tax returns; (c) prepare (or cause to be prepared), file (or cause to be filed) such tax returns relating to the Issuer (including, if applicable, a trust return U.S. Internal Revenue Service Form 1041,
U.S. Internal Revenue Service Form 1099, or reporting for widely held fixed investment trusts under Treasury Regulations
Section 1.671-5);
(d) upon direction from the Certificateholders (or any agent of
such persons) make such elections as from time to time may be required or appropriate under any applicable state or federal statute or any rule or regulation thereunder so as to maintain the Issuer’s tax characterization as described in
Section
2.6
hereof; and (e) collect or cause to be collected any withholding tax as described in
Section
5.5
and in accordance with
Section
5.1
with respect to income
or distributions to Certificateholders.
(c) The Depositor shall cause to be provided to the Owner Trustee upon its
reasonable request from time to time such information and documentation as may be
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available to the Depositor (including without limitation Servicer’s Reports) to enable the Owner Trustee to perform its obligations under this
Section
5.3
.
SECTION 5.4.
Certificate Distribution Account
. The Certificate Distribution Account shall be established pursuant to
Section
8.2
of the Indenture if any Definitive Certificates are issued and outstanding. If a Certificate Distribution Account is established, the Certificateholders shall possess all beneficial right, title and interest in
and to all funds on deposit from time to time in the Certificate Distribution Account and all proceeds thereof. Except as otherwise provided herein or in the Indenture, the Certificate Distribution Account shall be under the sole dominion and
control of the Certificate Paying Agent for the benefit of the Certificateholders. Except as otherwise provided herein or in the Indenture, if, at any time, the Certificate Distribution Account ceases to be an Eligible Account, the Servicer shall
within ten (10) Business Days establish a new Certificate Distribution Account as an Eligible Account and shall cause the transfer of any cash then on deposit in the Certificate Distribution Account to such new Certificate Distribution Account.
For the avoidance of doubt, distributions payable to the Depositor, as holder of the Retained Certificate, shall be made to the Certificate Distribution Account.
SECTION 5.5.
Withholding
. In the event that any withholding tax is imposed on the Issuer’s payment (or allocations of income) to
a Certificateholder, such tax shall reduce the amount otherwise distributable to the Certificateholder. The Owner Trustee and Certificate Paying Agent are hereby authorized and directed, and the Indenture Trustee is authorized pursuant to
Section
3.3(c)
of the Indenture, to retain from amounts otherwise distributable to the Certificateholders sufficient funds for the payment of any tax that is legally payable by the Issuer (but such authorization shall not
prevent the Owner Trustee or Certificate Paying Agent from contesting any such tax in an appropriate Proceeding and withholding payment of such tax, if permitted by law, pending the outcome of such Proceeding). The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as cash distributed to such Certificateholder at the time it is withheld by the Issuer and remitted to the appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to any distribution (such as any distribution to a
non-U.S.
Tax Person), the Owner Trustee or Certificate Paying Agent may in its sole discretion withhold such amounts in accordance with
this
Section
5.5
and the Indenture Trustee may withhold such amounts in accordance with
Section
3.3(c)
of the Indenture.
SECTION 5.6.
No Reinvestment
. The Certificate Paying Agent shall distribute all amounts collected in respect of the assets of the
Issuer and neither the Certificate Paying Agent nor the Owner Trustee shall apply any such amounts toward the purchase of additional assets on behalf of the Issuer;
provided
,
however
, that such amounts may be invested in Permitted
Investments selected in writing by the Servicer but only until the next Payment Date (and only where such investments mature on or prior to such Payment Date without a disposition thereof prior to maturity), when they shall be distributed.
SECTION 5.7.
Sarbanes-Oxley Act
.
Notwithstanding anything to the contrary
herein or in any Transaction Document, the Owner Trustee shall not be required to execute, deliver or certify in accordance with the provisions of the Sarbanes-Oxley Act on behalf of the Issuer or any other
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Person, any periodic reports filed pursuant to the Exchange Act, or any other documents pursuant to the Sarbanes-Oxley Act.
ARTICLE VI
AUTHORITY
AND DUTIES OF OWNER TRUSTEE
SECTION 6.1.
General Authority
. The Owner Trustee is authorized and directed to execute and
deliver (i) the Transaction Documents to which the Issuer is named as a party and (ii) each certificate or other document attached as an exhibit to or contemplated by the Transaction Documents to which the Issuer or the Owner Trustee is
named as a party and any amendment thereto, in each case, in such form as the Depositor shall approve, as evidenced conclusively by the Owner Trustee’s execution thereof, and at the written direction of the Depositor, to execute on behalf of
the Issuer and to direct the Indenture Trustee to authenticate and deliver Notes in the aggregate principal amount of $1,974,590,000. In addition to the foregoing, the Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Issuer pursuant to the Transaction Documents. The Owner Trustee is further authorized from time to time to take such action as the Depositor, the Administrator or the Majority Certificateholders recommend or direct in writing with
respect to the Transaction Documents, except to the extent that this Agreement expressly requires the consent of each Certificateholder for such action.
SECTION 6.2.
General Duties
. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the other Transaction Documents and to administer the Issuer in the interest of the Certificateholders, subject to Transaction Documents, and in accordance with the provisions of this
Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the Transaction Documents to the extent the Administrator has agreed in the Administration Agreement
to perform any act or to discharge any duty of the Issuer or the Owner Trustee hereunder or under any Transaction Document, and the Owner Trustee shall not be liable for the default or failure of the Administrator to carry out its obligations under
the Administration Agreement and shall have no duty to monitor or supervise the performance of the Administrator or any other Person under the Administration Agreement or any other document. The Owner Trustee shall have no obligation to administer,
service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivables. For the avoidance of doubt, the Owner Trustee shall not be required to perform any of the obligations
of the Issuer under any Transaction Document that are required to be performed by the Sponsor, the Servicer, the Depositor, the Administrator or the Indenture Trustee.
SECTION 6.3.
Action upon Instruction
.
(a) Subject to
Article IV
, and in accordance with the Transaction Documents, each of the Certificateholders and the
Administrator may, by written instruction, direct the Owner Trustee in the management of the Issuer. Such direction may be exercised at any time by written instruction of the Certificateholders pursuant to
Article IV
. Further, with respect to
provisions hereunder that provide for instruction by the Certificateholders, for
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so long as all outstanding Certificates are Book-Entry Certificates, if the Owner Trustee shall have notified the Certificateholders in writing of a proposed action and within fifteen
(15) days of such notice none of the Certificateholders shall have notified the Owner Trustee in writing that such Certificateholder has withheld consent or provided alternative instruction, the Owner Trustee, in the place of Certificateholder
instruction hereunder, may accept and rely on written instruction of the Administrator. If subsequently the Owner Trustee receives alternative written instruction from the Certificateholders, such instruction shall control.
(b) Subject to
Section
7.1
, the Owner Trustee shall not be required to take any action hereunder or
under any Transaction Document if the Owner Trustee shall have reasonably determined or been advised by counsel that such action is likely to result in liability on the part of the Owner Trustee or is contrary to the terms hereof or of any
Transaction Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this Agreement or any Transaction Document or is unsure as to the application of any provision of this Agreement or any Transaction Document or any such provision is ambiguous as to
its application, or is, or appears to be, in conflict with any other applicable provision, or in the event that this Agreement permits any determination by the Owner Trustee or is silent or is incomplete as to the course of action that the Owner
Trustee is required to take with respect to a particular set of facts, the Owner Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Certificateholders or the Administrator requesting instruction
as to the course of action to be adopted or application of such provision, and to the extent the Owner Trustee acts or refrains from acting in good faith in accordance with any written instruction of the Majority Certificateholders or the
Administrator (or, if specifically required hereunder, all Certificateholders) received, the Owner Trustee shall not be liable on account of such action or inaction to any Person. If the Owner Trustee shall not have received appropriate instruction
within ten (10) Business Days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking
such action, not inconsistent with this Agreement or the Transaction Documents, as it shall deem to be in the best interests of the Certificateholders, and shall have no liability to any Person for such action or inaction.
(d) The Owner Trustee shall not be personally liable for any distribution made in accordance with the provisions set forth in
Section
9.1(b)
.
SECTION 6.4.
No Duties Except as Specified in this Agreement or in Instructions
. The
Owner Trustee shall not have any duty or obligation to manage, make any payment with respect to, register, record, sell, dispose of, or otherwise deal with the Trust Estate, or to otherwise take or refrain from taking any action under, or in
connection with, any document contemplated hereby to which the Issuer or the Owner Trustee is a party, except as expressly provided by the terms of this Agreement or in any document or written instruction received by the Owner Trustee pursuant to
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Section
6.3
; and no implied duties (including fiduciary duties existing at law or in equity) or obligations shall be read into this Agreement or any Transaction Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for filing any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or Lien granted
to it hereunder or to prepare or file any Commission filing (including any filings required under the Sarbanes-Oxley Act), for the Issuer or to record this Agreement or any Transaction Document. BNY Mellon Trust of Delaware nevertheless agrees that
it will, at its own cost and expense, promptly take all action as may be necessary to discharge any Liens on any part of the Trust Estate that result from actions by, or claims against, BNY Mellon Trust of Delaware that are not related to the
ownership or the administration of the Trust Estate. The Owner Trustee shall have no responsibility or liability for or with respect to the genuineness, value, sufficiency or validity of the Trust Estate.
Further, the Owner Trustee shall have no responsibility for or liability to determine or monitor the status or applicability of any benchmark,
index or other modifier applicable thereto, determine whether a substitute benchmark or index should or could be selected, determine the selection of any such substitute benchmark or index, or exercise any right related to the foregoing on behalf of
the Issuer or any other Person.
SECTION 6.5.
No Action Except under Specified Documents or Instructions
. The Owner Trustee shall
not manage, control, use, sell, dispose of or otherwise deal with any part of the Trust Estate except (i) in accordance with the powers granted to and the authority conferred upon the Owner Trustee pursuant to this Agreement, (ii) in
accordance with the Transaction Documents and (iii) in accordance with any document or instruction delivered to the Owner Trustee pursuant to
Section
6.3
.
SECTION 6.6.
Restrictions
. The Owner Trustee shall not take any action (a) that is inconsistent with the purposes of the Issuer
set forth in
Section
2.3
or (b) that, to the actual knowledge of a Responsible Officer of the Owner Trustee, would (i) affect the treatment of the Notes as indebtedness for United States federal income, state and
local income and franchise tax purposes, (ii) be deemed to cause a taxable exchange of the Notes for United States federal income or state income or franchise tax purposes or (iii) cause the Issuer or any portion thereof to be treated as
an association or publicly traded partnership taxable as a corporation for United States federal income, state and local income or franchise tax purposes or cause the Issuer to be treated as other than a grantor trust for United States federal
income tax purposes. Neither the Depositor, the Administrator nor any Certificateholder shall direct the Owner Trustee to take action that would violate the provisions of this Section.
SECTION 6.7.
Relevant Trustee
. Following the payment in full of principal and interest on the Notes, the Owner Trustee shall assume the
role of Relevant Trustee for purposes of
Section
6.1(a)
of the Servicing Agreement and
Section
7.4
and
Article VIII
of the Indenture (notwithstanding the satisfaction and discharge of the
Indenture following payment in full of principal and interest on the Notes), which are incorporated by reference into this Agreement;
provided
,
however
, that, for purposes of
Section
7.4
of the Indenture, the
Owner Trustee shall disseminate the Servicer’s Report in the manner set forth in
Section
7.4(b)
hereof.
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ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1.
Acceptance of Trusts and Duties
. The Owner Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all moneys actually received by it constituting part of the Trust Estate upon the terms of the Transaction Documents and this
Agreement. The Owner Trustee shall not be personally liable or accountable hereunder or under any Transaction Document under any circumstances notwithstanding anything herein or in the Transaction Documents to the contrary, except (i) for its
own willful misconduct, bad faith or gross negligence, (ii) in the case of the inaccuracy of any representation or warranty contained in
Section
7.6
expressly made by BNY Mellon Trust of Delaware in its individual
capacity, (iii) for liabilities arising from the failure of BNY Mellon Trust of Delaware to perform obligations expressly undertaken by it in the second to last sentence of
Section
6.4
, or (iv) for taxes, fees or
other charges on, based on or measured by, any fees, commissions or compensation received by the Owner Trustee. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence) of the foregoing:
(a) The Owner Trustee shall not be liable for any action it takes or omits to take in accordance with a direction received by
it from the Administrator or the required Certificateholders, as the case may be, in accordance with the Transaction Documents;
(b) No provision of this Agreement or any Transaction Document shall require the Owner Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder or under any Transaction Document or in the exercise of any of its rights or powers, if the Owner Trustee shall have reasonable grounds to believe that
repayment of such funds or indemnity reasonably satisfactory to the Owner Trustee against such risk or liability is not reasonably assured to it;
(c) The Owner Trustee shall not be liable solely for any action or inaction of the Issuer, the Depositor or the
Certificateholders or any other party (or agent thereof) to any Transaction Document, and may assume compliance by such parties with their obligations under this Agreement or any other Transaction Document unless a Responsible Officer of the Owner
Trustee has actual knowledge of or has received written notice to the contrary;
(d) The Owner Trustee shall not be under
any obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any Transaction Document, at the request,
order or direction of any of the Certificateholders or the Administrator, unless such Certificateholders or the Administrator have offered to the Owner Trustee security or indemnity reasonably satisfactory to the Owner Trustee against the reasonable
costs, expenses and liabilities that may be incurred by it therein or thereby;
(e) The Owner Trustee shall not be
responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or
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indirectly, forces beyond its control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God; it being understood
that the Owner Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance of their respective obligations as soon as practicable under the circumstances;
(f) Notwithstanding anything to the contrary herein or otherwise, under no circumstances will the Owner Trustee be liable for
special, punitive, indirect or consequential loss or damage of any kind whatsoever (including lost profits);
(g) The Owner
Trustee shall not be deemed to have knowledge or notice of any event or information, including any Event of Default, or be required to act upon any event or information (including the sending of any notice), unless written notice of such event or
information is received by a Responsible Officer of the Owner Trustee and such notice references the event or information. Absent written notice in accordance with this Section or actual knowledge of such event or information by a Responsible
Officer of the Owner Trustee, the Owner Trustee may assume that no such event has occurred. The Owner Trustee shall not have any obligation to inquire into, or investigate as to, the occurrence of any such event (including any Event of Default). For
purposes of determining the Owner Trustee’s responsibility and liability hereunder, whenever reference is made in this Trust Agreement to any event (including, but not limited to, an Event of Default), such reference shall be construed to
refer only to such event of which the Owner Trustee has actual knowledge or has received written notice as described in this Section. Knowledge of the Owner Trustee shall not be attributed or imputed to BNY Mellon Trust of Delaware’s other
roles in the transaction (if any);
(h) Under no circumstances shall the Owner Trustee be personally liable for any
representation, warranty, covenant, obligation or indebtedness of the Issuer;
(i) The Owner Trustee shall not be
personally responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by any Person other than the Owner Trustee or for the form, character, genuineness, sufficiency, value or validity of the Trust
Estate, or for or in respect of the accuracy, validity or sufficiency of any statement of any other party in the Transaction Documents, the Certificates or any other document supplied to the Owner Trustee;
(j) The Owner Trustee shall not be personally liable for any error of judgment made in good faith by any of its officers or
employees unless it is proved that such Persons were negligent in ascertaining the pertinent facts; and
(k) The Owner
Trustee shall not be required to investigate any claims with respect to any breach of a representation or warranty under any of the Transaction Documents.
SECTION 7.2.
Furnishing of Documents
. The Owner Trustee shall furnish to the Certificateholders promptly upon receipt of a written
request therefor, duplicates or copies of all
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reports, notices, requests, demands, certificates, financial statements and any other instruments furnished to the Owner Trustee under the Transaction Documents.
SECTION 7.3.
Preservation of Information; Communications to Certificateholders
.
(a) The Certificate Registrar shall preserve, in as current a form as is reasonably practicable, the names and addresses of
Certificateholders received by the Indenture Trustee in its capacity as the Certificate Registrar;
provided, however,
that so long as the Indenture Trustee is the Certificate Registrar, no list separate from the Certificate Register shall be
required to be preserved or maintained.
(b) The Certificateholders may communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates. Upon receipt by the Certificate Registrar of any written request by three or more Certificateholders or by one or more Certificateholders holding in the aggregate more than 25%
of the Percentage Interests to receive a copy of the most current list of Certificateholders together with a copy of the communication that the applicant proposes to send, the Certificate Registrar shall distribute such list to the requesting
Certificateholders;
provided
, that the Certificate Registrar may elect not to afford the requesting Certificateholders access to the list of Certificateholders if it agrees to mail the desired communication or proxy, on behalf of and at the
expense of the requesting Certificateholders, to all Certificateholders. Each Certificateholder or Certificate Owner, by receiving and holding a Certificate or interest therein, shall be deemed to have agreed not to hold the Certificate
Registrar accountable by reason of the disclosure of its name and address, regardless of the source from which such information was derived.
SECTION 7.4.
Statements to Certificateholders
.
(a) The Owner Trustee shall promptly give notice to each Certificateholder of any change in the Indenture Trustee’s
website pursuant to which the Servicer’s Report is made available to the extent the Owner Trustee is notified of such change by the Administrator, the Servicer or the Indenture Trustee in writing.
(b) To the extent the Owner Trustee has assumed the role of Relevant Trustee pursuant to the terms of
Section
6.7
, the Owner Trustee may make all reports or notices required to be provided by the Owner Trustee under
Section
7.4
of the Indenture available via its website;
provided, however,
that the Owner Trustee shall, if requested by the Administrator, deliver any such reports or notices in writing or via email to the Administrator. Any information that is disseminated in accordance with the provisions of this
Section
7.4
shall not be required to be disseminated in any other form or manner. The Owner Trustee will make no representations or warranties as to the accuracy or completeness of such documents and will assume no
responsibility therefor.
(c) The Owner Trustee’s website shall be initially located at
https://GCTInvestorReporting.bnymellon.com or at such other address as shall be specified by the Owner Trustee from time to time in writing to the Certificateholders, the Servicer,
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the Issuer or any Paying Agent. In connection with providing access to the Owner Trustee’s website, the Owner Trustee may require registration and the acceptance of a disclaimer. The Owner
Trustee shall not be liable for the dissemination of information in accordance with this Agreement. The Owner Trustee shall notify Certificateholders in writing of any changes in the address or means of access to the website where the reports are
accessible. Assistance in access to the website can be obtained by calling the Owner Trustee’s customer service desk at
800-332-4550.
(d) Upon receipt by the Owner Trustee from the Depositor of any reports or general loan data, the Owner Trustee will make such
reports or data available to the Certificateholders via its website as specified pursuant to
clause (c)
above;
provided
, that the Owner Trustee shall not be required to forward any such reports to any Certificateholder who is the
Depositor or an Affiliate of the Depositor. The Owner Trustee shall have no duty or obligations to review, verify or confirm the reports or any information contained therein, and shall have no liability in connection therewith.
SECTION 7.5.
Notice of Events of Default and Servicer Replacement Event
. The Owner Trustee shall promptly give notice to each
Certificateholder of any (a) Default or Event of Default of which it has been provided notice pursuant to
Section
6.5
of the Indenture and (b) Servicer Replacement Event of which it has been provided notice
pursuant to
Section
6.1
of the Servicing Agreement.
SECTION 7.6.
Representations and Warranties
. The
Owner Trustee hereby represents and warrants to the Depositor for the benefit of the Certificateholders, that:
(a) It is a
Delaware banking corporation formed and validly existing in good standing under the laws of the State of Delaware and having its principal place of business within the State of Delaware. It has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver this Agreement on its behalf.
(c) This Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its terms, subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, conservatorship, receivership, liquidation and other similar laws affecting enforcement of the rights of creditors of banks
generally and to equitable limitations on the availability of specific remedies.
(d) Neither the execution nor the
delivery by it of this Agreement, nor the consummation by it of the transactions contemplated hereby nor compliance by it with any of the terms or provisions hereof will contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner
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Trustee or any judgment or order binding on it, or constitute any default under its charter documents or
by-laws.
SECTION 7.7.
Reliance; Advice of Counsel
.
(a) The Owner Trustee shall incur no personal liability to anyone in acting upon any signature, instrument, notice, resolution,
request, consent, order, certificate, report, opinion, bond or other document or paper believed by it to be genuine and believed by it to be signed by the proper party or parties. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer, secretary or other Authorized Officers of the relevant party, as
to such fact or matter, and such certificate shall constitute full protection to the Owner Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the performance of its duties and obligations under this
Agreement or the Transaction Documents, the Owner Trustee (i) may act directly or through its agents or attorneys pursuant to agreements entered into with any of them, but the Owner Trustee shall not be personally liable for the conduct or
misconduct of such agents, custodians, nominees (including Persons acting under a power of attorney) or attorneys selected in good faith and (ii) may consult with counsel, accountants and other skilled Persons knowledgeable in the relevant area
to be selected in good faith and employed by it at the expense of the Issuer. The Owner Trustee shall not be personally liable for anything done, suffered or omitted in good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such Persons.
SECTION 7.8.
Not Acting in Individual Capacity
. Except as provided in this
Article
VII
, in accepting the trusts hereby created, the Owner Trustee acts solely as the Owner Trustee hereunder and not in its individual capacity and all Persons having any claim against the Owner Trustee by reason of the transactions contemplated by
this Agreement or any Transaction Document shall look only to the Trust Estate for payment or satisfaction thereof.
SECTION 7.9.
The
Owner Trustee May Own Notes
. The Owner Trustee in its individual or any other capacity may become the owner or pledgee of Notes. The Owner Trustee may deal with the Depositor, the Indenture Trustee, the Administrator and their respective
Affiliates in banking transactions with the same rights as it would have if it were not the Owner Trustee, and the Depositor, the Indenture Trustee, the Administrator and their respective Affiliates may maintain normal commercial banking
relationships with the Owner Trustee and its Affiliates.
SECTION 7.10.
Rule 144A Information
. At any time when the Depositor is
not subject to Section 13 or 15(d) of the Exchange Act and is not exempt from reporting pursuant to Rule
12g3-2(b)
under the Exchange Act, upon the request of a Certificateholder in connection with the
sale
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or transfer of such Certificateholder’s Certificate, the Depositor shall promptly furnish or cause to be furnished Rule 144A Information to such Certificateholder, to a prospective
purchaser of such Certificate (as designated by such Certificateholder) or to the Owner Trustee for delivery (and the Owner Trustee shall deliver such Rule 144A Information) to such Certificateholder or such prospective purchaser, as the case may
be, in order to permit compliance by such Certificateholder with Rule 144A in connection with the resale of such Certificate by such Certificateholder.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1.
The Owner Trustee
’
s Compensation
. The Depositor shall cause the Servicer to agree to pay to the Owner
Trustee pursuant to
Section
3.11
of the Servicing Agreement from time to time compensation for all services rendered by the Owner Trustee under this Agreement pursuant to a fee letter between the Servicer and the Owner
Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust). The Servicer, pursuant to
Section
3.11
of the Servicing Agreement and the fee letter
between the Servicer and the Owner Trustee, shall reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of this Agreement
(including the reasonable compensation, expenses and disbursements of such agents, experts and counsel as the Owner Trustee may employ in connection with the exercise and performance of its rights and its duties hereunder), except any such expense
as may be attributable to its willful misconduct, gross negligence (other than an error in judgment) or bad faith. To the extent not paid by the Servicer, such fees and reasonable expenses shall be paid by the Issuer in accordance with
Sections
8.5
or
5.4(b)
of the Indenture, as applicable.
SECTION 8.2.
Indemnification
. The Depositor shall cause the Servicer to
agree to indemnify the Owner Trustee in its individual capacity and as Owner Trustee and its successors, assigns, directors, officers, employees and agents (the “
Indemnified Parties
”) from and against, any and all loss, liability,
expense, tax, penalty or claim (including reasonable legal fees and expenses, including legal fees and expenses in connection with enforcement of its rights to indemnity hereunder) of any kind and nature whatsoever which may at any time be imposed
on, incurred by, or asserted against the Owner Trustee in its individual capacity and as Owner Trustee or any Indemnified Party in any way relating to or arising out of this Agreement, the Transaction Documents, the Trust Estate, the administration
of the Trust Estate or the action or inaction of the Owner Trustee hereunder and those incurred in connection with any action, claim or suit brought to enforce the owner trustee’s right to indemnification;
provided
,
however
, that
neither the Depositor nor the Servicer shall be liable for or required to indemnify the Owner Trustee from and against any of the foregoing expenses or indemnities arising or resulting from (i) its own willful misconduct, gross negligence or
bad faith, (ii) the inaccuracy of any representation or warranty contained in
Section
7.6
expressly made by the Owner Trustee in its individual capacity, (iii) liabilities arising from the failure of the Owner
Trustee in its individual capacity to perform obligations expressly undertaken by it in the second to last sentence of
Section
6.4
or (iv) taxes, fees or other charges on, based on or measured by, any fees, commissions
or compensation
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received by the Owner Trustee in its individual capacity. To the extent not paid by the Servicer, such indemnification shall be paid by the Issuer in accordance with, and solely to the extent set
forth in
Sections 8.5
or
5.4(b)
of the Indenture, as applicable. The provisions of this
Section
8.2
shall survive the termination of this Agreement and the resignation or removal of the Owner Trustee.
SECTION 8.3.
Payments to the Owner Trustee
. Any amounts paid to the Owner Trustee pursuant to this
Article VIII
and the
Indenture shall be deemed not to be a part of the Trust Estate immediately after such payment.
SECTION 8.4.
Rights, Protections,
Immunities and Indemnities of the Relevant Trustee
. The rights, protections, immunities and indemnities of the Owner Trustee under this Agreement are hereby extended to the Owner Trustee as Relevant Trustee.
ARTICLE IX
TERMINATION
OF TRUST AGREEMENT
SECTION 9.1.
Dissolution of Issuer
. (a) The Issuer shall wind up and dissolve and this Agreement shall
terminate (other than provisions hereof which by their terms survive termination) upon the final distribution by the Issuer and the Certificate Paying Agent of all moneys or other property or proceeds of the Trust Estate in accordance with the terms
of the Indenture, the Servicing Agreement and
Article V
hereof. The bankruptcy, liquidation, dissolution, death or incapacity of a Certificateholder shall not (x) operate to terminate this Agreement or the Issuer, nor (y) entitle
any such Certificateholder’s legal representatives or heirs to claim an accounting or to take any Proceeding in any court for a partition or winding up of all or any part of the Issuer or Trust Estate nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Notice of any dissolution and termination of the Issuer, specifying
the Payment Date upon which Certificateholders shall surrender their Certificates to the Owner Trustee for payment of the final distribution and cancellation, shall be given by the Owner Trustee to Certificateholders, and if the Owner Trustee is
notified of a redemption of the Notes by the Administrator or the Issuer pursuant to
Section
10.1(c)
of the Indenture, such notice shall be mailed within five (5) Business Days of the Owner Trustee’s receipt of
such notice from the Issuer or Administrator. Each such notice to a Certificateholder shall state (i) the Payment Date upon or with respect to which final payment of the Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Owner Trustee therein designated, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such Payment Date is not applicable and that payments are being made only
upon presentation and surrender of the Certificates at the office of the Owner Trustee therein specified. The Owner Trustee shall give such notice to the Certificate Registrar (if other than the Owner Trustee) and the Certificate Paying Agent at the
time such notice is given to Certificateholders. Upon presentation and surrender of each Certificate, the Certificate Paying Agent shall cause to be distributed to such Certificateholders, subject to Section 3808 of the Statutory Trust Statute,
amounts distributable on such Payment Date pursuant to
Article V
.
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(c) In the event that any of the Certificateholders shall not surrender
their Certificates for cancellation within six (6) months after the date specified in the above mentioned written notice, the Owner Trustee shall give a second written notice to the remaining Certificateholders to surrender their Certificates
for cancellation and receive the final distribution with respect thereto. If within one year after the second notice any of the Certificates shall not have been surrendered for cancellation, the Owner Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining Certificateholders concerning surrender of their Certificates and the cost thereof shall be paid out of the funds and other assets that shall remain subject to this Agreement.
Subject to applicable escheat laws, any funds remaining in the Trust Estate after exhaustion of such remedies shall be distributed by the Certificate Paying Agent to the last Certificateholder of record identified in the Certificate Register for
each such remaining Certificate.
SECTION 9.2.
Termination of Trust Agreement
. Upon dissolution of the Issuer, the Owner Trustee
shall, at the direction of the Administrator, wind up the business and affairs of the Issuer as required by Section 3808 of the Statutory Trust Statute. Upon the satisfaction and discharge of the Indenture, and receipt of a certificate from the
Indenture Trustee stating that all Noteholders have been paid in full and that no Responsible Officer of the Indenture Trustee has actual knowledge or has received written notice of any claims remaining against the Issuer in respect of the Indenture
and the Notes, the Administrator, in the absence of actual knowledge of any other claim against the Issuer, shall be deemed to have made reasonable provision to pay all claims and obligations (including conditional, contingent or unmatured
obligations) for purposes of Section 3808(e) of the Statutory Trust Statute. The Certificate Paying Agent, upon surrender of the outstanding Certificates shall distribute the remaining Trust Estate (if any) in accordance with
Article V
hereof and, at the written direction and expense of the Administrator, the Owner Trustee shall cause the Certificate of Trust to be cancelled by filing a certificate of cancellation with the Delaware Secretary of State in accordance with the
provisions of Section 3810 of the Statutory Trust Statute, at which time the Issuer shall terminate and this Agreement (other than Article VIII) shall be of no further force or effect.
SECTION 9.3.
Limitations on Termination
. Except as provided in
Section
9.1
, neither the Depositor nor any
Certificateholders shall be entitled to revoke or terminate the Issuer.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES
SECTION
10.1.
Eligibility Requirements for the Owner Trustee
. The Owner Trustee shall at all times be a bank (i) authorized to exercise corporate trust powers, (ii) having a combined capital and surplus of at least $50,000,000 and
(iii) subject to supervision or examination by Federal or state authorities. If such bank shall publish reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for
the purpose of this Section, the combined capital and surplus of such corporation shall be
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deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in the manner and with the effect specified in
Section
10.2
.
SECTION 10.2.
Resignation or Removal of the Owner Trustee
. The Owner Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Administrator, the Servicer, the Indenture Trustee and each Certificateholder. Upon receiving such notice of resignation, the Depositor and the Administrator, acting jointly,
shall promptly appoint a successor Owner Trustee which satisfies the eligibility requirements set forth in
Section
10.1
by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner Trustee shall have been so appointed and have accepted appointment within thirty (30) days after the giving of such notice of resignation, the resigning Owner
Trustee may petition any court of competent jurisdiction for the appointment of a successor Owner Trustee;
provided
,
however
, that such right to appoint or to petition for the appointment of any such successor shall in no event relieve
the resigning Owner Trustee from any obligations otherwise imposed on it under the Transaction Documents until such successor has in fact assumed such appointment.
If at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of
Section
10.1
and
shall fail to resign after written request therefor by the Depositor or the Administrator, or if at any time the Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take charge or control of the Owner Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Depositor or the Administrator may remove the
Owner Trustee. If the Depositor or the Administrator shall remove the Owner Trustee under the authority of the immediately preceding sentence, the Depositor and the Administrator, acting jointly, shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be delivered to the outgoing Owner Trustee so removed and one copy to the successor Owner Trustee and shall pay all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor Owner Trustee pursuant to
Section
10.3
and payment of all fees and expenses owed to the outgoing Owner Trustee. The Depositor shall provide (or
shall cause to be provided) notice of such resignation or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 10.3.
Successor Owner Trustee
. Any successor Owner Trustee appointed pursuant to
Section
10.2
shall execute, acknowledge and deliver to the Depositor, the Administrator and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the resignation or removal of the predecessor Owner Trustee shall become effective and such successor Owner Trustee, without any further act, deed or
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conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as the Owner Trustee.
The predecessor Owner Trustee shall upon payment of its fees and expenses deliver to the successor Owner Trustee all documents and statements and monies held by it under this Agreement; and the Depositor and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to
Section
10.1
.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Depositor shall mail (or shall cause to be mailed) notice of the successor of such Owner Trustee to the Certificateholders, Indenture Trustee, the Noteholders and each of the Rating Agencies. If the Depositor shall fail
to mail (or cause to be mailed) such notice within ten (10) days after acceptance of appointment by the successor Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed at the expense of the Depositor. Any successor
Owner Trustee appointed pursuant to this
Section
10.3
shall promptly file an amendment to the Certificate of Trust with the Secretary of State identifying the name and the principal place of business of such successor Owner
Trustee in the State of Delaware.
SECTION 10.4.
Merger or Consolidation of the Owner Trustee
. Any Person into which the Owner
Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Owner Trustee shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of the Owner Trustee, shall, without the execution or filing of any instrument or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding, be the successor of the Owner
Trustee hereunder;
provided
that such Person shall be eligible pursuant to
Section
10.1
; and
provided
,
further
, that the Owner Trustee shall file an amendment to the Certificate of Trust of the Issuer,
if required by applicable law, and mail notice of such merger or consolidation to the Depositor and the Administrator.
SECTION 10.5.
Appointment of
Co-Trustee
or Separate Trustee
. Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Estate may at the time be located, the Depositor and the Owner Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by the Owner Trustee to act as
co-trustee,
jointly with the Owner Trustee, or separate trustee or separate trustees, of all or any part of the Trust Estate, and to vest in such Person, in such capacity, such title to the Trust Estate, or any part
thereof, and, subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Depositor and the Owner Trustee may consider necessary or desirable. If the Depositor shall not have joined in such appointment
within fifteen (15) days after the receipt by it of a request to do so, the Owner Trustee alone shall have the power to make such appointment. No
co-trustee
or separate trustee under this Agreement shall
be required to meet the terms of
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eligibility as a successor trustee pursuant to
Section
10.1
and no notice of the appointment of any
co-trustee
or separate
trustee shall be required pursuant to
Section
10.3
.
Each separate trustee and
co-trustee
shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate trustee or
co-trustee
jointly (it being understood that such separate trustee or
co-trustee
is not
authorized to act separately without the Owner Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed, the Owner Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Estate or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate
trustee or
co-trustee,
but solely at the direction of the Owner Trustee;
(ii) no
trustee under this Agreement shall be personally liable by reason of any act or omission of any other trustee under this Agreement; and
(iii) the Depositor and the Owner Trustee acting jointly may at any time accept the resignation of or remove any separate
trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees,
as effectively as if given to each of them. Every instrument appointing any separate trustee or
co-trustee
shall refer to this Agreement and the conditions of this Article. Each separate trustee and
co-trustee,
upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of appointment, either jointly with the Owner Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Owner Trustee. Each such instrument shall be filed with the Owner Trustee and copies thereof given to the Depositor and the Administrator.
Any separate trustee or
co-trustee
may at any time appoint the Owner Trustee, its agent or
attorney-in-fact
with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
If any separate trustee or
co-trustee
shall become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Owner Trustee, to
the extent permitted by law, without the appointment of a new or successor trustee. The Owner Trustee shall have no obligation to determine whether a
co-trustee
or separate trustee is legally required in any
jurisdiction in which any part of the Trust Estate may be located.
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ARTICLE XI
MISCELLANEOUS
SECTION
11.1.
Amendments
.
(a) Any term or provision of this Agreement may be amended by the Depositor and the Owner Trustee, at the
direction of the Administrator, without the consent of the Indenture Trustee, any Noteholder, any Certificateholder, the Issuer or any other Person subject to the satisfaction of one of the following conditions:
(i) The Depositor delivers an Opinion of Counsel or an Officer’s Certificate to the Indenture Trustee to the effect that
such amendment will not materially and adversely affect the interests of the Noteholders; or
(ii) The Rating Agency
Condition is satisfied with respect to such amendment and the Depositor notifies the Indenture Trustee in writing that the Rating Agency Condition is satisfied with respect to such amendment.
(b) This Agreement may also be amended from time to time by the Depositor and the Owner Trustee, with the consent of the
Holders of Notes evidencing not less than a majority of the Outstanding Note Balance of the Controlling Class, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the Certificateholders. It will not be necessary for the consent of Noteholders or Certificateholders to approve the particular form of any proposed amendment or consent, but it will be
sufficient if such consent approves the substance thereof. The manner of obtaining such consents (and any other consents of Noteholders and Certificateholders provided for in this Agreement) and of evidencing the authorization of the execution
thereof by Noteholders and Certificateholders will be subject to such reasonable requirements as the Indenture Trustee and Owner Trustee may prescribe, including the establishment of record dates pursuant to the Depository Agreement. For purposes of
this
Section
11.1
, if the Bank and/or its Affiliates is the Holder of Notes representing 100% of the Note Balance of the Outstanding Notes, such Person (or Persons) may consent to such amendment on behalf of the
Noteholders. In determining whether the Bank and/or its Affiliates is the Holder of Notes representing 100% of the Note Balance of the Outstanding Notes for purposes of the preceding sentence, any party shall be entitled to rely on an
Officer’s Certificate or similar certification of the Bank or any Affiliate thereof to such effect.
(c) Prior to the
execution of any amendment pursuant to this
Section
11.1
, the Depositor shall provide written notification of the substance of such amendment to each Rating Agency and the Owner Trustee; and promptly after the execution of
any such amendment, the Depositor shall furnish a copy of such amendment to each Rating Agency, the Owner Trustee, the Issuer and the Indenture Trustee;
provided
, that no amendment pursuant to this
Section
11.1
shall
be effective which materially and adversely affects the
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rights, protections or duties of the Indenture Trustee without the prior written consent of such Person.
(d) Prior to the execution of any amendment to this Agreement, the Owner Trustee shall be entitled to receive and conclusively
rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and an Officer’s Certificate from the Depositor or the Administrator stating that all conditions precedent to the
execution and delivery of such amendment have been satisfied. The Owner Trustee may, but shall not be obligated to, enter into any such amendment which materially and adversely affects the Owner Trustee’s own rights, duties or immunities under
this Agreement.
(e) Notwithstanding subsections (a) and (b) of this
Section
11.1
, this
Agreement may only be amended by the Depositor and the Owner Trustee at the direction of the Administrator if (i) the Majority Certificateholders or, if 100% of the aggregate Percentage Interests is then beneficially owned by the Bank and/or
its Affiliates, such Person (or Persons), consent to such amendment or (ii) such amendment shall not, as evidenced by an Officer’s Certificate of the Depositor or an Opinion of Counsel delivered to the Owner Trustee, materially and
adversely affect the interests of the Certificateholders. In determining whether 100% of the aggregate Percentage Interests is then beneficially owned by the Bank and/or its Affiliates for purposes of clause (i), any party shall be entitled to rely
on an Officer’s Certificate or similar certification of the Bank or any Affiliate thereof to such effect.
(f)
Notwithstanding anything herein to the contrary, for purposes of classifying the Issuer as a grantor trust under the Code, no amendment shall be made to this Agreement that would (i) result in a variation of the investment of the beneficial
owners of the Certificates for purposes of the United States Treasury Regulation section
301.7701-4(c)
without the consent of Noteholders evidencing at least a majority of the Outstanding Note Balance of the
Controlling Class and the Majority Certificateholders or (ii) cause the Issuer (or any part thereof) to be classified as other than a grantor trust for United States federal income tax purposes without the consent of all of the Noteholders
and all of the Certificateholders.
SECTION 11.2.
No Legal Title to Trust Estate in Certificateholders
. Neither the Depositor nor
any Certificateholder shall have legal title to any part of the Trust Estate. Each Certificateholder shall be entitled to receive distributions with respect to its undivided Percentage Interest therein only in accordance with
Articles V
and
IX
. No transfer, by operation of law or otherwise, of any right, title or interest of a Certificateholder to and in its ownership interest in the Trust Estate shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part of the Trust Estate.
SECTION 11.3.
Limitations on
Rights of Others
. The provisions of this Agreement are solely for the benefit of the Owner Trustee, the Depositor, the Administrator, the Certificateholders and, to the extent expressly provided herein, the Indenture Trustee and the Noteholders,
and nothing in this Agreement, whether express or implied, shall be construed to give to any other
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Person any legal or equitable right, remedy or claim in the Trust Estate or under or in respect of this Agreement or any covenants, conditions or provisions contained herein.
SECTION 11.4.
Notices
.
(a) Unless otherwise expressly specified or permitted by the terms hereof, all notices shall be in writing and shall be
delivered or mailed by registered or certified first-class United States mail, postage prepaid, hand delivery, prepaid courier service, by facsimile or, if so provided on
Schedule I
to the Sale Agreement, by electronic transmission, and
addressed in each case as specified on
Schedule I
to the Sale Agreement, or at such other address as shall be designated by any of the specified addressees in a written notice to the other parties hereto.
(b) Any notice required or permitted to be given to any Certificateholder shall be given by first-class mail, postage prepaid,
at the address shown in the Certificate Register. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not such Certificateholder receives such notice.
SECTION 11.5.
Severability
. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
SECTION 11.6.
Separate Counterparts
. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered shall be an original, regardless of whether delivered in physical or electronic form, but all such counterparts shall together constitute but one and the same instrument.
SECTION 11.7.
Successors and Assigns
. All covenants and agreements contained herein shall be binding upon, and inure to the
benefit of, the Depositor, the Owner Trustee and its successors and each Certificateholder and its successors and permitted assigns, all as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such Certificateholder.
SECTION 11.8.
No Petition
.
(a) To the fullest extent permitted by applicable law, each of the Owner Trustee (in its individual capacity and as the Owner
Trustee by entering into this Agreement), the Depositor, each Certificateholder, by accepting a Certificate, and the Indenture Trustee and each Noteholder or Note Owner by accepting the benefits of this Agreement, hereby covenants and agrees that
prior to the date which is one year and one day after payment in full of all obligations of each Bankruptcy Remote Party in respect of all securities issued by the Bankruptcy Remote Parties (i) such party shall not authorize any Bankruptcy
Remote Party to commence a voluntary
winding-up
or other voluntary case or other
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Proceeding seeking liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian or other similar official with respect to such Bankruptcy Remote Party or any substantial part of its property or to consent to any
such relief or to the appointment of or taking possession by any such official in an involuntary case or other Proceeding commenced against such Bankruptcy Remote Party, or to make a general assignment for the benefit of, its creditors generally,
any party hereto or any other creditor of such Bankruptcy Remote Party, and (ii) such party shall not commence, join or institute against, with any other Person, any Proceeding against such Bankruptcy Remote Party under any bankruptcy,
reorganization, arrangement, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction. Without limiting the foregoing, in no event shall the Owner Trustee authorize, institute or join in any bankruptcy or similar
Proceeding described in the preceding sentence other than in accordance with
Section
4.3
;
provided, however
, nothing in this Section shall prevent the Owner Trustee from (i) filing a proof of claim in any such
Proceeding or (ii) from commencing against the Issuer or any of its property any legal action which is not a bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation Proceeding.
(b) The Depositor’s obligations under this Agreement are obligations solely of the Depositor and will not constitute a
claim against the Depositor to the extent that the Depositor does not have funds sufficient to make payment of such obligations. In furtherance of and not in derogation of the foregoing, each of the Owner Trustee (in its individual capacity and as
the Owner Trustee), by entering into or accepting this Agreement, each Certificateholder, by accepting a Certificate, and the Indenture Trustee and each Noteholder or Note Owner, by accepting the benefits of this Agreement, hereby acknowledges and
agrees that such Person has no right, title or interest in or to the Other Assets of the Depositor. To the extent that, notwithstanding the agreements and provisions contained in the preceding sentence, each of the Owner Trustee, the Indenture
Trustee, each Noteholder or Note Owner and each Certificateholder either (i) asserts an interest or claim to, or benefit from, Other Assets, or (ii) is deemed to have any such interest, claim to, or benefit in or from Other Assets, whether
by operation of law, legal process, pursuant to applicable provisions of insolvency laws or otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code or any successor provision having similar effect under the Bankruptcy Code),
then such Person further acknowledges and agrees that any such interest, claim or benefit in or from Other Assets is and will be expressly subordinated to the indefeasible payment in full of the other obligations and liabilities, which, under the
terms of the relevant documents relating to the securitization or conveyance of such Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise secured by such Other Assets (whether or not any such entitlement or security
interest is legally perfected or otherwise entitled to a priority of distributions or application under applicable law, including insolvency laws, and whether or not asserted against the Depositor), including the payment of post-petition interest on
such other obligations and liabilities. This subordination agreement will be deemed a subordination agreement within the meaning of
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Section 510(a) of the Bankruptcy Code. Each of the Owner Trustee (in its individual capacity and as the Owner Trustee), by entering into or accepting this Agreement, each Certificateholder,
by accepting a Certificate, and the Indenture Trustee and each Noteholder or Note Owner, by accepting the benefits of this Agreement, hereby further acknowledges and agrees that no adequate remedy at law exists for a breach of this Section and the
terms of this Section may be enforced by an action for specific performance. The provisions of this Section will be for the third party benefit of those entitled to rely thereon and will survive the termination of this Agreement.
SECTION 11.9.
Information Request
. The Owner Trustee shall provide any information regarding the Issuer in its possession reasonably
requested by the Servicer, the Administrator, the Depositor or any of their Affiliates, in order to comply with or obtain more favorable treatment under any current or future law, rule, regulation, accounting rule or principle.
SECTION 11.10.
Headings
. The headings of the various Articles and Sections herein are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof.
SECTION 11.11.
GOVERNING LAW
.
THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12.
Waiver of Jury Trial
. To the extent permitted by applicable law, each party hereto irrevocably waives all right
of trial by jury in any Proceeding or counterclaim based on, or arising out of, under or in connection with this Agreement, any other Transaction Document, or any matter arising hereunder or thereunder.
SECTION 11.13.
Information to Be Provided by the Owner Trustee
. The Owner Trustee shall provide the Depositor, the Bank and the
Servicer (each, a “
Transaction Party
” and, collectively, the “
Transaction Parties
”) with (i) notification, as soon as practicable and in any event within ten (10) Business Days, of all demands
communicated to a Responsible Officer of the Owner Trustee for the purchase, repurchase or replacement of any Receivable pursuant to
Section
3.4
of the Purchase Agreement, and (ii) promptly upon reasonable request in
writing by a Transaction Party, any other information in the Owner Trustee’s possession reasonably requested by a Transaction Party to facilitate compliance by the Transaction Parties with Rule
15Ga-1
under the Exchange Act. In no event shall the Owner Trustee be deemed to be a “securitizer” as defined in Section 15G(a) of the Exchange Act with respect to the transactions contemplated by the Transaction Documents, nor shall it
have any responsibility for making any filing to be made by a securitizer under the Exchange Act with respect to the transactions contemplated by the Transaction Documents. Such notification to be substantially in the form of
Exhibit C
hereto.
SECTION 11.14.
Form
10-D
Filings, Item 1117 and Item 1119 of Regulation AB
.
So long as the Depositor is filing Exchange Act Reports with respect to the Issuer and until the Depositor notifies the Owner Trustee that such action is no longer required, on or before the 15
th
of each
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calendar month for so long as the Depositor is filing Exchange Act Reports with respect to the Issuer, commencing on October 15, 2026, the Owner Trustee shall deliver to the Depositor (but
only upon receipt of written direction from the Depositor to do so) the certification substantially in the form attached hereto as
Exhibit E
or such form as mutually agreed upon by the Depositor and the Owner Trustee regarding any
affiliations or relationships (as contemplated in Item 1119 of Regulation AB) between the Owner Trustee and any Item 1119 Party and any Form
10-D
Disclosure Item.
SECTION 11.15.
Form
8-K
Filings
. So long as the Depositor is filing Exchange Act Reports with
respect to the Issuer and until the Depositor notifies the Owner Trustee that such action is no longer required, the Owner Trustee shall promptly notify the Depositor, but in no event later than four (4) Business Days after its occurrence, of
any Reportable Event described in
clause (e)
of the definition thereof with respect to the Owner Trustee of which a Responsible Officer of the Owner Trustee has actual knowledge (other than a Reportable Event described in
clause
(e)
of the definition thereof as to which the Depositor or the Servicer has actual knowledge). The Owner Trustee shall be deemed to have actual knowledge of any such event to the extent that it relates to the Owner Trustee in its individual
capacity or any action by the Owner Trustee under this Agreement.
SECTION 11.16.
Foreign Certificateholder Voting
Restrictions
.
To the extent (i) a Certificateholder is a U.S. Tax Person and (ii) one or more Certificateholders that are not U.S. Tax Persons have 50% or more of the power to vote, direct, instruct or otherwise to make a
substantial decision regarding the Issuer (as described in Treasury Regulation
Section 301.7701-7(d),
and such power, “
Voting Power
”), the Certificateholders that are not U.S. Tax
Persons shall, in the aggregate, be limited with respect to any such substantial decision to no more than 49% of the overall Voting Power with such 49% Voting Power apportioned among such Certificateholders in accordance with each one’s
respective Percentage Interest, and the 51% remaining Voting Power apportioned among the Certificateholders that are U.S. Tax Persons in accordance with each one’s respective Percentage Interest. For purposes of exercising Voting Power
pursuant to this
Section
11.16
, the Certificateholder shall certify to the Administrator and the Owner Trustee as to whether it is a U.S. Tax Person.
SECTION 11.17.
Corporate Transparency Act
. The Administrator on behalf of the Trust and the Depositor shall be authorized to take such
actions necessary to cause the Trust to prepare and make any filings and to otherwise comply with the Trust’s obligations under the Corporate Transparency Act (31 U.S.C. § 5336) and its implementing regulations (collectively, the
“
CTA
”), if any. None of the Owner Trustee, the Indenture Trustee, the Certificate Paying Agent or the Certificate Registrar shall have responsibility to monitor or ensure compliance by the Trust with the CTA.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed
by their respective officers hereunto duly authorized as of the day and year first above written.
BNY MELLON TRUST OF DELAWARE
, as Owner Trustee
By:
Name:
Title:
CAPITAL ONE AUTO RECEIVABLES, LLC
By:
Name:
Title:
Acknowledged and Agreed:
WILMINGTON TRUST, NATIONAL ASSOCIATION
, as Certificate Registrar and Certificate Paying Agent
By:
Name:
Title:
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EXHIBIT A
FORM OF CERTIFICATE
NUMBER
Principal Amount of this Certificate: $[___________]
R-______
Aggregate Amount of all Certificates: $100,000 (which shall be
deemed to be the equivalent of 100,000 units)
Percentage Interest of this Certificate: [__]%
CUSIP NO. ____________
ISIN
____________
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
CERTIFICATE
[UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“
DTC
”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
(This Certificate does not represent an interest in or obligation of Capital One Auto Receivables, LLC, Capital One, National Association
or any of their respective Affiliates, except to the extent described below.)
THIS CERTIFICATE IS NOT NEGOTIABLE.
THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS
CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL
BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE DEPOSITOR OR ANY OF ITS AFFILIATES AND BY THE DEPOSITOR OR ANY
OF ITS AFFILIATES AS PART OF THE
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INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE DEPOSITOR OR ANY OF ITS AFFILIATES AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID
AB INITIO
, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE
HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE
OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER.
BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER AND TRANSFEREE, AND ANY FIDUCIARY ACTING ON BEHALF OF A PURCHASER OR TRANSFEREE, WILL BE DEEMED
TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING AND WILL NOT HOLD THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF A PLAN THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A PLAN THAT IS SUBJECT TO A LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE. FOR PURPOSES OF THE
FOREGOING, “PLAN” MEANS AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA WHETHER OR NOT SUBJECT TO TITLE I OF ERISA, A “PLAN” AS DEFINED IN SECTION 4975 OF THE CODE, OR AN ENTITY OR ACCOUNT DEEMED TO
HOLD THE PLAN ASSETS OF ANY OF THE FOREGOING.
THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF $2,000 AND INTEGRAL
MULTIPLES OF $1 IN EXCESS THEREOF. NO DISTRIBUTIONS OF MONEYS TO THE CERTIFICATEHOLDERS UNDER THE TRANSACTION DOCUMENTS SHALL BE DEEMED TO REDUCE THE NOMINAL PRINCIPAL AMOUNT OF ANY CERTIFICATE PRIOR TO PAYMENT IN FULL OF ALL OUTSTANDING NOTES;
PROVIDED, THAT THE FINAL AGGREGATE $100,000 DISTRIBUTED TO THE CERTIFICATEHOLDERS UNDER THE TRANSACTION DOCUMENTS UPON FINAL DISTRIBUTION OF THE TRUST ESTATE AND TERMINATION OF THE ISSUER SHALL BE DEEMED TO REPAY THE AGGREGATE NOMINAL PRINCIPAL
AMOUNT OF THE CERTIFICATES IN FULL; PROVIDED, FURTHER, THAT ANY FAILURE TO PAY IN FULL THE OUTSTANDING PRINCIPAL BALANCE OF A CERTIFICATE ON SUCH FINAL DISTRIBUTION DATE SHALL NOT RESULT IN ANY RECOURSE TO, CLAIM AGAINST OR LIABILITY OF ANY PERSON
FOR SUCH SHORTFALL.
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THIS CERTIFIES THAT _______________________________ is the registered owner of a ___%
nonassessable, fully-paid, Percentage Interest in CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1,
a Delaware statutory trust (the “
Issuer
”) formed by CAPITAL ONE AUTO RECEIVABLES, LLC, a
Delaware limited liability company, as depositor (the “
Depositor
”).
The Issuer was created pursuant to a Trust
Agreement dated as of July 24, 2026 (as amended and restated as of September 17, 2026, the “
Trust Agreement
”
), between the Depositor and BNY Mellon Trust of Delaware, as owner trustee (the
“
Owner
Trustee
”), a summary of certain of the pertinent provisions of which is set forth below. To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in Appendix A to the Sale Agreement,
dated as of September 17, 2026, between the Depositor and the Issuer, as the same may be amended or supplemented from time to time.
This Certificate is issued under and is subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. The provisions and conditions of the Trust Agreement are hereby incorporated by reference as though set forth in their entirety herein.
The Holder of this Certificate acknowledges and agrees that its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders as described in the Indenture and the Trust Agreement, as applicable.
THIS CERTIFICATE
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
By accepting this Certificate, the Certificateholder hereby covenants and agrees that prior to the date which is one year and one day
after payment in full of all obligations of each Bankruptcy Remote Party in respect of all securities issued by the Bankruptcy Remote Parties such Person shall not commence, join or institute against, with any other Person, any proceeding against
such Bankruptcy Remote Party under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction.
By accepting and holding this Certificate (or any interest herein), the holder hereof, and any fiduciary acting on behalf of a holder, shall
be deemed to have represented and warranted that it is not acquiring and will not hold this Certificate (or any interest herein) on behalf of or with any assets of, a Benefit Plan or a Plan that is subject to Similar Law.
It is the intention of the parties to the Trust Agreement that, for purposes of United States federal, state and local income and franchise
tax purposes, the Issuer will be treated as a grantor trust under subtitle A, chapter 1, subchapter J, part I, subpart E of the Code. By accepting this
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Certificate, the Certificateholder consents to and agrees to take no action inconsistent with, the foregoing intended tax treatment.
By accepting this Certificate, the Certificateholder acknowledges that this Certificate represents a Percentage Interest only and does not
represent interests in or obligations of the Depositor, the Servicer, the Administrator, the Owner Trustee, the Indenture Trustee or any of their respective Affiliates and no recourse may be had against such parties or their assets, except as
expressly set forth or contemplated in this Certificate, the Trust Agreement or any other Transaction Document.
Each Certificateholder,
by acceptance of this Certificate, acknowledges and agrees that the purpose of
Article XII
of the Indenture is to facilitate compliance with the FDIC Rule by the Bank, the Depositor, the Servicer and the Issuer (collectively, the
“
Capital One Parties
”) and that the interpretations of the requirements of the FDIC Rule may change over time, whether due to interpretive guidance provided by the FDIC or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agrees that the provisions set forth in
Article XII
of the Indenture shall have the effect and meanings that are appropriate under the FDIC Rule as such effect and meanings
change over time on the basis of evolving interpretations of the FDIC Rule.
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IN WITNESS WHEREOF, the Issuer has caused this Certificate to be duly executed.
CAPITAL ONE PRIME AUTO RECEIVABLES
TRUST
2026-1
By: BNY Mellon Trust of Delaware, not in its
individual capacity, but solely as Owner Trustee
Dated:
By:
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CERTIFICATE REGISTRAR’S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust Agreement.
Wilmington Trust, National Association, not in its individual capacity but solely as Certificate Registrar
By:
Authenticating Agent
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
[__________________]
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, (
Asset Backed Certificate No.
R-[__]
issued by CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1)
, and all rights
thereunder, hereby irrevocably constituting and appointing
Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of substitution in the premises
Dated: ___________________, 20[__]
[              ]
By:
Name:
Title:
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EXHIBIT B
FORM OF CERTIFICATE INVESTOR REPRESENTATION LETTER
[    ], 20__
CAPITAL
ONE PRIME AUTO RECEIVABLES TRUST
2026-1
[Address]
[____________],
[Address]
[Transferor]
[Address]
Attention:   CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
Re:
Transfer of CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
Certificates, (the “Certificates”)
Ladies and Gentlemen:
a.
This letter is delivered pursuant to
Section
3.7
of the Amended and Restated Trust
Agreement, dated as of September 17, 2026 (the “
Trust Agreement
”), between CAPITAL ONE AUTO RECEIVABLES, LLC, as Depositor (the “
Depositor
”), and BNY Mellon Trust of Delaware, as Owner Trustee (the
“
Owner Trustee
”), in connection with the transfer by _________________________ (the “
Transferor
”) to the undersigned (the “
Transferee
”) of [__]% Percentage Interest of the Certificates with a
nominal principal amount of $[ ]
1
. Capitalized terms used and not otherwise defined herein have the meanings assigned to such terms in the Trust Agreement.
In connection with such transfer, the undersigned hereby represents and warrants to you and the addressees hereof as follows:
(i) The Transferee is either (a) an Affiliate of the Depositor or (b) (1) is a Qualified Institutional Buyer,
(2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Depositor or any of its Affiliates as part of the initial distribution or any redistribution of the Certificates by the Depositor or any of its
Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or
1
In minimum denominations of $2,000 and integral multiples of $1 in excess thereof.
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for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion;
(ii) The Transferee understands that the Certificates will bear a legend to the following effect:
“THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY
ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED
INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE DEPOSITOR OR ANY OF ITS AFFILIATES AND BY THE
DEPOSITOR OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE DEPOSITOR OR ANY OF ITS AFFILIATES AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID
AB INITIO
, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE
HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE
OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER.
BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER AND TRANSFEREE, AND ANY FIDUCIARY ACTING ON BEHALF OF A PURCHASER OR TRANSFEREE, WILL BE DEEMED
TO REPRESENT
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AND WARRANT THAT IT IS NOT ACQUIRING AND WILL NOT HOLD THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF A PLAN THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A PLAN THAT IS SUBJECT TO A LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION
4975 OF THE CODE . FOR PURPOSES OF THE FOREGOING, “PLAN” MEANS AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA WHETHER OR NOT SUBJECT TO TITLE I OF ERISA, A “PLAN” AS DEFINED IN SECTION 4975 OF THE
CODE, OR AN ENTITY OR ACCOUNT DEEMED TO HOLD THE PLAN ASSETS OF ANY OF THE FOREGOING.”
(iii) The Transferee
understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be registered under the Securities
Act, and, if in the future the Transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with the Trust Agreement. The Transferee
acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates;
(iv) The Transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of
all or a substantial part of its investment under certain circumstances. The Transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to make an
informed investment decision with respect to its purchase of the Certificates. The Transferee has such knowledge and experience in financial and business matters that the Transferee is capable of evaluating the merits and risks of its investment in
the Certificates, and the transferee and any accounts for which it is acting are each able to bear the economic risk of its investment;
(v) The Transferee will not make any general solicitation by means of general advertising or in any other manner, or take any
other action that would constitute a distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or
require registration pursuant thereto, and will not authorize any Person to act on its behalf, in such manner with respect to the Certificates;
(vi) The Transferee is not acquiring the Certificates with a view to the resale, distribution or other disposition thereof in
violation of the Securities Act;
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(vii) The transferee will provide notice to each Person to whom it proposes
to transfer any interest in the Certificates of the transfer restrictions and representations set forth in the Trust Agreement, including the Exhibits thereto;
(viii) The Transferee agrees that it will not offer or sell, or otherwise transfer the Certificates to any person unless the
transferee of the Certificates has executed a Certificate Investor Representation Letter;
(ix) The Transferee is not
acquiring and will not hold the Certificates (or any interest therein) with the assets of a Benefit Plan or a Plan that is subject to Similar Law;
(x) The Transferee acknowledges that the Issuer, the Owner Trustee, the Depositor and others will rely upon the truth and
accuracy of the acknowledgements, representations, warranties and agreements herein and in the Trust Agreement and agrees that if any of the acknowledgements, representations, warranties or agreements made by it in connection with its purchase of
any Certificates are no longer accurate, the Transferee will promptly notify the Issuer, the Owner Trustee and the Depositor;
(xi) The Transferee understands that if a Responsible Officer of the Owner Trustee becomes aware that (a) a transfer or
attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of the Trust Agreement on the basis of a materially incorrect certification from the Transferor or purported transferee,
(b) a transferee failed to deliver to the Owner Trustee a Certificate Investor Representation Letter or (c) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in
any certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee will direct the Certificate Registrar not to register such attempted or purported transfer and, if a transfer has been registered, such transfer
shall be absolutely null and void
ab initio
and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “
Disqualified Transferee
”) and the last preceding Certificateholder of such
Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder;
(xii) The Transferee acknowledges and agrees that it has complied with the following representations, to the extent
applicable:
a. Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate that is
a U.S. Tax Person shall deliver to the Owner Trustee, the Administrator and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form
W-9
(or
applicable successor form) certifying that it is not subject to backup withholding and that it is a U.S. Tax Person. Each registered owner of and, if different, each owner of a beneficial interest in,
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a Certificate that is not a U.S. Tax Person shall deliver to the Owner Trustee, the Administrator and the Certificate Paying Agent two properly completed and duly executed originals of U.S.
Internal Revenue Service Form
W-8BEN
(Certification of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Individuals)), U.S. Internal Revenue Service Form
W-8BEN-E
(Certificate of Status of Beneficial Owner for United States Tax Withholding and Reporting (Entities)) or U.S. Internal Revenue Service Form
W-8IMY
(Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding and Reporting), or any applicable successors to such U.S. Internal Revenue Service
forms or other reasonable information or certification requested by the Owner Trustee, the Administrator or the Certificate Paying Agent (i) to permit the Owner Trustee, the Administrator and the Certificate Paying Agent to make payments to the
registered owner of, and if different, each owner of a beneficial interest in, a Certificate without withholding or deduction (including any FATCA Withholding Tax), (ii) to enable the Issuer to qualify for a reduced rate of withholding in any
jurisdiction from or through which the Issuer receives payments on its assets, or (iii) to enable the Owner Trustee, the Administrator and the Certificate Paying Agent to satisfy any reporting or other obligations under any applicable tax law
(including FATCA), and will update or replace such form, certification or other information as necessary in accordance with its terms or its subsequent amendments. The applicable U.S. Internal Revenue Service forms required to be delivered, as
described above, shall be delivered on or prior to the date on which a registered owner of, and, if different, each owner of a beneficial interest in, a Certificate becomes a holder of a Certificate and from time to time thereafter as prescribed by
applicable law or upon the request of the Certificate Paying Agent. For the avoidance of doubt, in no case shall any registered owner of or, if different, each owner of a beneficial interest in, a Certificate provide IRS Form
W-8ECI
or IRS Form
W-8IMY
with an attached Form
W-8ECI.
b.Each registered owner of, and, if different, each owner of a beneficial interest in, a Certificate represents to the Issuer
and Owner Trustee by acceptance of a Certificate or interest therein that it is not and will not become subject to any FATCA Withholding. In the case of a Certificateholder that is not a U.S. Tax Person and provides a U.S. Internal Revenue Service
Form
W-8BEN
or U.S. Internal Revenue Service Form
W-8BEN-E
under
Section
3.7(c)
in order to claim the
benefits of the exemption for portfolio interest under Sections 871 or 881 of the Code (instead of, for example, claiming the benefits of an income tax treaty to which the United States is a party), such Certificateholder (or in the case of a
Certificateholder providing U.S. Internal Revenue Service Form
W-8IMY,
the beneficial owner of the Certificate) hereby represents that it is not (i) a “bank” within the meaning of Code section
881(c)(3), (ii) a “10
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percent shareholder” of an obligor on a Receivable within the meaning of Code section 871(h) or 881(c)(3) (as the case may be) or (iii) a “controlled foreign corporation”
with respect to such an obligor described in Code section 881(c)(3).
c. Each registered owner of, and, if different, each
owner of a beneficial interest in, a Certificate represents to the Issuer and Owner Trustee by acceptance of this Certificate or interest therein that it is not and will not become subject to any FATCA Withholding Tax.
d. Each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or
deemed to acknowledge that the Issuer may provide such information and any other information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee
of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing
requirements.
(xiii) The Transferee acknowledges and agrees that no subsequent transfers shall be permitted unless such
transfer is of a Certificate with a Percentage Interest of at least 5% or, if the Certificates are Book-Entry Certificates, in the minimum principal amount of $2,000 (or of an interest in a Certificate representing a Percentage Interest of at least
5% or a minimum principal amount of $2,000, as applicable);
(xiv) If the Transferee (or any Person for which such
transferee holds Certificates as agent or nominee) is a partnership, Subchapter S corporation or grantor trust for United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing), it is not being
used with a principal purpose of the arrangement involving such entity’s beneficial interest in any Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section
1.7704-1(h)(1)(ii)
necessary for such partnership not to be classified as a publicly traded partnership under the Code;
(xv) The Transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the
Servicer, the Depositor nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice,
counsel or representations (whether written or oral) of the Issuer, the Servicer, the Depositor or the Owner Trustee other than in the most current private placement memorandum for such Certificates and any representations expressly set forth in a
written agreement with such party, (c) none of the Issuer, the Servicer, the Depositor or the Owner Trustee has given to the transferee (directly or indirectly through any other person) any assurance, guarantee or representation whatsoever as
to the expected or projected success, profitability,
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return, performance, result, effect, consequence or benefit (including legal, regulatory, tax, financial, accounting or otherwise) of its purchase or the documentation for the Certificates,
(d) the transferee has consulted with its own legal, regulatory, tax, business, investment, financial, and accounting advisers to the extent it has deemed necessary, and it has made its own investment decisions (including decisions regarding
the suitability of any transaction pursuant to the Trust Agreement) based upon its own judgment and upon any advice from such advisers as it has deemed necessary and not upon any view expressed by the Issuer, the Servicer, the Depositor or the Owner
Trustee, (e) the transferee has determined that the rates, prices or amounts and other terms of the purchase and sale of the Certificates reflect those in the relevant market for similar transactions, (f) the transferee is purchasing the
Certificates with a full understanding of all of the terms, conditions and risks thereof (economic and otherwise), and is capable of assuming and willing to assume (financially and otherwise) these risks, and (g) the transferee is a
sophisticated investor familiar with transactions similar to its investment in the Certificates; and
(xvi) No transfers
shall be permitted if such transfer is effected through an established securities market or secondary market (or the substantial equivalent thereof) within the meaning of the Code Section 7704 and any proposed, temporary or final Treasury
regulations thereunder.
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Any photocopy, facsimile or other copy of this letter shall be deemed of equal effect as a
signed original.
Executed by
Name of Transferee
By:
Name:
Title:
Transferee’s Address:
Telephone:
Facsimile:
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EXHIBIT C
FORM OF NOTICE OF REQUESTS TO REPURCHASE RECEIVABLES
[________], 20[ ]
[Depositor]
[Servicer]
Re:
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1–
Notice of
Requests to Repurchase Receivables
Reference is hereby made to the Amended and Restated Trust Agreement, dated as of
September 17, 2026 (the “
Trust Agreement
”), between CAPITAL ONE AUTO RECEIVABLES, LLC, as depositor (the “
Depositor
”), and BNY Mellon Trust of Delaware, as owner trustee (the “
Owner
Trustee
”). Capitalized terms used herein and not otherwise defined shall have the meanings assigned such terms in the Trust Agreement. This Notice is being delivered pursuant to Section 11.13 of the Trust Agreement.
The Owner Trustee hereby certifies as to the checked option below:
[ ] During the period from and including [_________] to but excluding [________], the Owner Trustee received no requests from the
holders of any of the Notes or Certificates outstanding during that period requesting that any Receivables be purchased, repurchased or replaced with respect to such Notes or Certificates.
[ ] During the period from and including [___________] to but excluding [_________], the Owner Trustee received one or more requests
from the holders of any of the Notes or Certificates outstanding during that period requesting that any Receivables be purchased, repurchased or replaced with respect to such Notes or Certificates. Copies of such requests received in writing are
attached hereto, and details of any such requests received orally are as set forth below:
Date of Request
Number of Receivables
Aggregate
Principal Balance of Receivables Subject to Request
[REMINDER OF PAGE INTENTIONALLY LEFT BLANK]
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BNY Mellon Trust of Delaware,
not
in its individual capacity
but solely as Owner Trustee
By:
Name:
Title:
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EXHIBIT D
FORM OF REGISTRATION OF DEFINITIVE CERTIFICATE TRANSFER DIRECTION LETTER PURSUANT TO THE TRUST AGREEMENT
[_______], 20[ ]
[____________],
[Address]
Reference is hereby made to the
Amended and Restated Trust Agreement, dated as of September 17, 2026 (the “
Trust Agreement
”), between CAPITAL ONE AUTO RECEIVABLES, LLC, as Depositor (the “
Depositor
”), and BNY MELLON TRUST OF DELAWARE, as
Owner Trustee (the “
Owner Trustee
”), governing CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
(the “
Issuer
”). Capitalized terms not defined herein shall have the meanings
assigned to such terms in the Trust Agreement.
You are hereby notified that [name of Transferor] (the “
Transferor
”)
has transferred its [__]% beneficial interest in the Issuer evidenced by Certificate No. ____. Enclosed, please find the following documentation as required by the Trust Agreement:
1.
Original Certificate No.
R-[__]
for cancellation;
2.
Written instrument of transfer executed by Transferor with signature medallion guaranteed;
2
3.
Incumbency certificate of Transferor certified by an officer of the Transferor;
4.
Certificate Investor Representation Letter executed by Transferee;
5.
[FormW-9][Form
W-8BEN][Form
W-8BEN-E][Form
W-8IMY][applicable
successor form] of Transferee.
You are hereby directed, as Owner Trustee and Certificate Registrar, to take the following actions to register the certificate transfer in the order
enumerated below:
(a)
cancel and dispose of, in accordance with the customary practices of the Owner Trustee, the Certificate
representing [___] Percentage Interest in the Issuer, bearing certificate number
R-__,
registered in the name of the Transferor;
(b)
execute and authenticate one or more Certificates, as specified in
Schedule A
hereto, representing the
relevant Percentage Interest in the Issuer specified in
Schedule A
hereto, bearing such appropriate certificate number as determined by the Certificate Registrar and to register said Certificate in
2
[Please use form of Assignment attached to the back of the Form of Certificate on Exhibit A of the Trust
Agreement.]
D-1
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Amended and Restated
Trust
Agreement
the name of the Transferee specified in the corresponding column on
Schedule A
hereto; and
(c)
to deliver said authenticated Certificates to the addresses specified in the corresponding column on
Schedule A
hereto.
The wire instructions of each Certificateholder are set forth on
Schedule A
hereto.
The undersigned Transferee hereby certifies to the Owner Trustee that (i) the transfer requested hereby does not violate any of the
transfer restrictions stated in the Trust Agreement, including but not limited to clauses (d) and (e) of
Section
3.5
thereof.
[Signature Page Follows]
D-2
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Trust
Agreement
[TRANSFEROR]
By:
Name:
Title:
[TRANSFEREE]
By:
Name:
Title:
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Amended and Restated
Trust
Agreement
SCHEDULE A
[To be updated]
Name of
Transferee
Tax ID
Number of
Transferee
Principal
Amount
3
Percentage
Interest
3
Delivery
Address
Wire
Instructions
3
Aggregate Percentage Interest and Principal Amount of new Certificates must match the Percentage Interest and
Principal Amount of the transferred Certificate being cancelled pursuant to (a) above.
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Amended and Restated
Trust
Agreement
EXHIBIT E
FORM OF OWNER TRUSTEE’S MONTHLY CERTIFICATION
REGARDING ITEM 1117 AND ITEM 1119 OF REGULATION AB
Reference is made to the Form
10-D
of CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
(the “
Form
10-D
”) for the month ended [ ], 20[ ]. Capitalized terms used but not otherwise defined herein shall have the respective meanings
given to them in the Form
10-D.
BNY Mellon Trust of Delaware, a Delaware banking corporation
(“
BNY Mellon
”), does hereby certify to the Sponsor, the Depositor and the Issuing Entity that:
1. As of the date of the
Form
10-D,
there are no pending legal Proceedings against BNY Mellon or Proceedings known to be contemplated by governmental authorities against BNY Mellon that would be material to the investors in the Notes.
2. As of the date of the Form
10-D,
there are no affiliations, as contemplated by Item 1119
of Regulation AB, between BNY Mellon and any of Capital One, National Association, Capital One Auto Receivables, LLC, Wilmington Trust, National Association (the “
Indenture Trustee
”) and the Issuing Entity, or any affiliates of
such parties.
IN WITNESS WHEREOF, BNY Mellon has caused this certificate to be executed in its corporate name by an officer thereunto
duly authorized.
Dated: ____________, 20[ ]
BNY MELLON TRUST OF DELAWARE
By:
Name:
Title:
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Agreement

----- d117449dex106.htm -----
EX-10.6
9
d117449dex106.htm
EX-10.6
EX-10.6
Exhibit 10.6
ADMINISTRATION AGREEMENT
between
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST 2026-1,
as Issuer,
CAPITAL ONE,
NATIONAL ASSOCIATION,
as Administrator,
and
WILMINGTON TRUST,
NATIONAL ASSOCIATION,
as Indenture Trustee
Dated as of September 17, 2026
Table of Contents
Page
1.
Duties of the Administrator
1
2.
Records
3
3.
Compensation; Payment of Fees and Expenses
3
4.
Independence of the Administrator
3
5.
No Joint Venture
4
6.
Other Activities of the Administrator
4
7.
Representations and Warranties of the Administrator
4
8.
Administrator Replacement Events; Termination of the Administrator
5
9.
Action upon Termination or Removal
6
10.
Liens
6
11.
Notices
6
12.
Amendments
6
13.
Governing Law; Submission to Jurisdiction; Waiver of Jury Trial
8
14.
Headings
9
15.
Counterparts
9
16.
Entire Agreement
9
17.
Severability of Provisions
9
18.
Not Applicable to the Bank in Other Capacities
9
19.
Benefits of the Administration Agreement
10
20.
Delegation of Duties
10
21.
Assignment
10
22.
Nonpetition Covenant
10
23.
Limitation of Liability
10
24.
Compliance with the FDIC Rule
11
i
COPAR 2026-1 Administration Agreement
THIS ADMINISTRATION AGREEMENT (as amended, supplemented or otherwise modified and in effect
from time to time, this “
Agreement
”), dated as of September 17, 2026, is between CAPITAL ONE PRIME AUTO RECEIVABLES TRUST 2026-1, a Delaware statutory trust (the “
Issuer
”), CAPITAL ONE, NATIONAL
ASSOCIATION, a national banking association, as administrator (the “
Bank
” or the “
Administrator
”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as indenture trustee (the
“
Indenture Trustee
”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned such terms in
Appendix A
to the Sale Agreement, dated as of the date hereof (as amended, supplemented or
otherwise modified and in effect from time to time, the “
Sale Agreement
”), between Capital One Auto Receivables, LLC (the “
Seller
”), and the Issuer, which contains rules as to usage and other interpretive
provisions that are applicable herein.
W I T N E S S E T H:
WHEREAS, the Seller and BNY Mellon Trust of Delaware (the “
Owner Trustee
”) have entered into the Amended and Restated Trust
Agreement dated as of the date hereof (as amended, supplemented or otherwise modified and in effect from time to time, the “
Trust Agreement
”);
WHEREAS, the Issuer has issued the Notes pursuant to the Indenture and the Certificates pursuant to the Trust Agreement and has entered into
certain agreements in connection therewith, including, (i) the Sale Agreement, (ii) the Servicing Agreement, (iii) the Indenture and (iv) the Depository Agreement (the Trust Agreement and each of the agreements referred to in
clauses (i)
through
(iv)
are referred to herein collectively as the “
Issuer Documents
”);
WHEREAS,
to secure payment of the Notes, the Issuer has pledged the Collateral to the Indenture Trustee for the benefit of the Noteholders pursuant to the Indenture;
WHEREAS, pursuant to the Issuer Documents, the Issuer is required to perform certain duties;
WHEREAS, the Issuer desires to have the Administrator administer the affairs of the Issuer and perform certain of the duties of the Issuer,
and to provide such additional services consistent with this Agreement and the Issuer Documents as the Issuer may from time to time request;
WHEREAS, the Administrator has the capacity to provide the services required hereby and is willing to perform such services for the Issuer on
the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants contained herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1.
Duties of the
Administrator
.
(a)
Duties with Respect to the Issuer Documents
. The Administrator shall perform all of its
duties as Administrator under this Agreement and the Issuer Documents and the duties and obligations of the Issuer under the Issuer Documents;
provided, however,
except as otherwise provided in the Issuer Documents, that the Administrator
shall have no obligation to make any payment required to be made by the Issuer under any Issuer
COPAR 2026-1 Administration Agreement
Document. In addition, the Administrator shall consult with the Issuer and the Owner Trustee regarding the Issuer’s duties and obligations under the Issuer Documents. The Administrator
shall monitor the performance of the Issuer and shall advise the Issuer when action is necessary to comply with the Issuer’s duties and obligations under the Issuer Documents. Other than such items to be performed by the Owner Trustee pursuant
to
Section
5.3
of the Trust Agreement and the Certificate Paying Agent pursuant to
Section
5.4
of the Trust Agreement and by the Paying Agent pursuant to
Section
6.6(a)
and
(b)
of the Indenture, the Administrator shall perform such calculations, and shall prepare for execution by the Issuer or shall cause the preparation by other appropriate Persons of all such documents, reports, filings, instruments,
certificates, notices and opinions as it shall be the duty of the Issuer to prepare, execute, file or deliver pursuant to the Issuer Documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of
the Issuer to take pursuant to the Issuer Documents, and shall prepare, execute, file and deliver on behalf of the Issuer all such documents, reports, filings, instruments, certificates, notices and opinions as it shall be the duty of the Issuer to
prepare, execute, file or deliver pursuant to the Issuer Documents or otherwise by law.
(b)
Notices to Rating
Agencies
. The Administrator, on behalf of the Issuer, shall give notice to each Rating Agency of (i) any material breach of the perfection representations, warranties and covenants contained in
Schedule I
of the Purchase Agreement,
Schedule II
of the Sale Agreement and
Schedule I
of the Indenture; (ii) the termination of, and/or appointment of a successor to, the Servicer pursuant to
Sections 6.1
and
6.2
of the Servicing Agreement;
(iii) any waiver of a Servicer Replacement Event pursuant to
Section
6.1(b)
of the Servicing Agreement; (iv) any amendment to the Servicing Agreement pursuant to
Section
8.1
of the
Servicing Agreement; (v) any Officer’s Certificate delivered pursuant to
Section
3.12
of the Indenture with respect to any Event of Default under the Indenture; (vi) any officer’s certificate of the
Issuer delivered pursuant to
Section
3.9
of the Indenture; (vii) any resignation or removal of the Indenture Trustee pursuant to
Section
6.8
of the Indenture; (viii) any merger or
consolidation of the Indenture Trustee pursuant to
Section
6.9
of the Indenture; (ix) any notice of Default pursuant to
Section
6.5
of the Indenture; (x) any supplemental indenture
pursuant to
Sections 9.1
or
9.2
of the Indenture; (xi) any notice of merger, consolidation or succession of the Servicer pursuant to
Section
5.3
of the Servicing Agreement; (xii) any amendment
pursuant to
Section
12
of this Agreement; and (xiii) any merger or consolidation of the Seller pursuant to
Section
3.4
of the Sale Agreement, which notice shall be given promptly upon the
Administrator being notified thereof by the Purchaser, the Owner Trustee (to the extent a Responsible Officer of the Owner Trustee has received written notice thereof), the Indenture Trustee (to the extent a Responsible Officer of the Indenture
Trustee has received written notice or has actual knowledge thereof) or the Servicer.
(c)
Dissolution of the
Issuer
. Upon dissolution of the Issuer, the Administrator shall wind up the business and affairs of the Issuer in accordance with
Section
9.2
of the Trust Agreement.
(d)
No Action by Administrator
. Notwithstanding anything to the contrary in this Agreement, the Administrator shall not
be obligated to, and shall not, take any action that the Issuer directs the Administrator not to take or which would result in a violation or
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COPAR 2026-1 Administration Agreement
breach of the Issuer’s covenants, agreements or obligations under any of the Issuer Documents.
(e)
Non-Ministerial
Matters; Exceptions to Administrator Duties
.
(i) Notwithstanding anything to the contrary in this Agreement, with respect to matters that in the reasonable judgment of the
Administrator are
non-ministerial,
the Administrator shall not take any action unless, within a reasonable time before the taking of such action, the Administrator shall have notified the Issuer of the
proposed action and the Issuer shall not have withheld consent or provided an alternative direction. For the purpose of the preceding sentence,
“non-ministerial
matters” shall include, without
limitation:
(A) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer;
(B) the appointment of successor Note Registrars, successor Paying Agents, successor
Indenture Trustees, successor Administrators or successor Servicers, or the consent to the assignment by the Note Registrar, the Paying Agent or the Indenture Trustee of its obligations under the Indenture; and
(C) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not,
(x) make any payments to the Noteholders or Certificateholders under the Transaction Documents, (y) except as provided in the Transaction Documents, sell the Trust Estate or (z) take any other action that the Issuer directs the
Administrator not to take on its behalf.
2.
Records
. The Administrator shall maintain appropriate books of account and records
relating to services performed hereunder, which books of account and records shall be accessible for inspection upon reasonable written request by the Issuer, the Seller and the Indenture Trustee at any time during normal business hours.
3.
Compensation; Payment of Fees and Expenses
. As compensation for the performance of the Administrator’s obligations under this
Agreement and as reimbursement for its expenses related thereto, the Administrator shall be entitled to receive $12,000 annually which shall be solely an obligation of the Servicer. The Administrator shall pay all expenses incurred by it in
connection with its activities hereunder.
4.
Independence of the Administrator
. For all purposes of this Agreement, the
Administrator shall be an independent contractor and shall not be subject to the supervision of the Issuer with respect to the manner in which it accomplishes the performance of its obligations hereunder. Unless expressly authorized by the Issuer,
the Administrator shall have no authority to act for or to represent the Issuer in any way (other than as permitted hereunder) and shall not otherwise be deemed an agent of the Issuer.
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COPAR 2026-1 Administration Agreement
5.
No Joint Venture
. Nothing contained in this Agreement (i) shall constitute
the Administrator and the Issuer as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (ii) shall be construed to impose any liability as such on the Administrator or the Issuer
or (iii) shall be deemed to confer on the Administrator or the Issuer any express, implied or apparent authority to incur any obligation or liability on behalf of the other.
6.
Other Activities of the Administrator
. Nothing herein shall prevent the Administrator or its Affiliates from engaging in other
businesses or, in its sole discretion, from acting in a similar capacity as an Administrator for any other Person even though such Person may engage in business activities similar to those of the Issuer, the Owner Trustee or the Indenture Trustee.
7.
Representations and Warranties of the Administrator
. The Administrator represents and warrants to the Issuer and the Indenture
Trustee as follows:
(a)
Existence and Power
. The Administrator is a national banking association validly subsisting
under the laws of the United States of America and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Administrator has obtained all necessary licenses and approvals in each jurisdiction where
the failure to do so would materially and adversely affect the ability of the Administrator to perform its obligations under the Transaction Documents or affect the enforceability or collectability of the Receivables or any other part of the
Collateral.
(b)
Authorization and No Contravention
.
The execution, delivery and performance by the
Administrator of the Transaction Documents to which it is a party (i) have been duly authorized by all necessary action on the part of the Administrator and (ii) do not contravene or constitute a default under (A) any applicable
order, law, rule or regulation, (B) its organizational documents or (C) any material indenture or material agreement, contract, order or other instrument to which it is a party or its property is subject (other than violations which do not
affect the legality, validity or enforceability of any of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Administrator’s ability to perform its
obligations under, the Transaction Documents).
(c)
No Consent Required
. No approval or authorization by, or filing
with, any Governmental Authority is required in connection with the execution, delivery and performance by the Administrator of any Transaction Document other than (i) UCC filings, (ii) approvals and authorizations that have previously
been obtained and filings that have previously been made and (iii) approvals, authorizations or filings which, if not obtained or made, would not have a material adverse effect on the enforceability or collectibility of the Receivables or any
other part of the Collateral or would not materially and adversely affect the ability of the Administrator to perform its obligations under the Transaction Documents.
(d)
Binding Effect
. Each Transaction Document to which the Administrator is a party constitutes the legal, valid and
binding obligation of the Administrator enforceable
4
COPAR 2026-1 Administration Agreement
against the Administrator in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship or other similar laws affecting the enforcement of creditors’ rights generally and, if applicable, the rights of creditors of banking corporations from time to time in effect or by general principles of equity.
(e)
No Proceedings
. There are no Proceedings pending or, to the knowledge of the Administrator, threatened against the
Administrator before or by any Governmental Authority that (i) assert the invalidity or unenforceability of this Agreement or (ii) seek any determination or ruling that would materially and adversely affect the performance by the
Administrator of its obligations under this Agreement.
8.
Administrator Replacement Events; Termination of the Administrator
.
(a) Subject to
clause (c)
below, the Administrator may resign from its duties hereunder by providing the Issuer
with at least sixty (60) days’ prior written notice.
(b) The occurrence of any one of the following events
(each, an “
Administrator Replacement Event
”) shall also entitle the Issuer, subject to
Section
21
hereof, to terminate and replace the Administrator:
(i) any failure by the Administrator to duly observe or perform in any material respect any other of its covenants or
agreements in this Agreement, which failure materially and adversely affects the rights of the Issuer, the Noteholders or the Certificateholders, and which continues unremedied for ninety (90) days after discovery thereof by a Responsible
Officer of the Administrator or receipt by the Administrator of written notice thereof from the Indenture Trustee (to the extent a Responsible Officer of the Indenture Trustee has actual knowledge or has received written notice thereof) or
Noteholders evidencing at least a majority of the Outstanding Note Balance (or, if no Notes are Outstanding, by the Majority Certificateholders); or
(ii) the Administrator suffers a Bankruptcy Event;
provided
,
however
, that if any delay or failure of performance referred to in
clause (b)(i)
above shall have been caused
by force majeure or other similar occurrence, the ninety (90) day grace period referred to in such
clause (b)(i)
shall be extended for an additional sixty (60) days.
(c) If an Administrator Replacement Event shall have occurred, the Issuer may, subject to
Section
21
hereof, by notice given to the Administrator and the Owner Trustee, terminate all or a portion of the rights and powers of the Administrator under this Agreement, including the rights of the Administrator to receive the annual fee for services
hereunder for all periods following such termination;
provided
,
however
, that such termination shall not become effective until such time as the Issuer, subject to
Section
21
hereof, shall have appointed a
successor Administrator in the manner set forth below. Upon any such termination or upon a resignation of the Administrator in accordance with
Section
8(a)
hereof, all rights, powers, duties and responsibilities of the
Administrator
5
COPAR 2026-1 Administration Agreement
under this Agreement shall vest in and be assumed by any successor Administrator appointed by the Issuer, subject to
Section
21
hereof, pursuant to a management or
administration agreement between the Issuer and such successor Administrator, containing substantially the same provisions as this Agreement (including with respect to the compensation of such successor Administrator), and the successor
Administrator is hereby irrevocably authorized and empowered to execute and deliver, on behalf of the Administrator, as
attorney-in-fact
or otherwise, all documents and
other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect such vesting and assumption. Further, in such event, the Administrator shall use its commercially reasonable efforts to effect the orderly and
efficient transfer of the administration of the Issuer to the new Administrator. No resignation or removal of the Administrator shall be effective until a successor Administrator shall have been appointed by the Issuer.
(d) The Issuer, subject to
Section
21
hereof, may waive in writing any Administrator Replacement
Event by the Administrator in the performance of its obligations hereunder and its consequences. Upon any such waiver of a past Administrator Replacement Event, such Administrator Replacement Event shall cease to exist, and any Administrator
Replacement Event arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other Administrator Replacement Event or impair any right consequent thereon.
9.
Action upon Termination or Removal
. Promptly upon the effective date of termination of this Agreement pursuant to
Section
8
, or the removal or resignation of the Administrator pursuant to
Section
8
, the Administrator shall be entitled to be paid by the Servicer all fees and reimbursable expenses accruing to it
to the date of such termination or removal.
10.
Liens
.
The Administrator will not directly or indirectly create, allow or
suffer to exist any Lien on the Collateral other than Permitted Liens.
11.
Notices
. All demands, notices and communications
hereunder shall be in writing and shall be delivered or mailed by registered or certified
first-class
United States mail, postage prepaid, hand delivery, prepaid courier service, or by facsimile or
e-mail
(if an applicable facsimile number or
e-mail
address is provided on
Schedule I
to the Sale Agreement), and addressed in each case as specified on
Schedule
I
to the Sale Agreement or at such other address as shall be designated by any of the specified addressees in a written notice to the other parties hereto. Delivery shall occur only upon receipt or reported tender of such communication by an
officer of the recipient entitled to receive such notices located at the address of such recipient for notices hereunder.
12.
Amendments
.
(a) Any term or provision of this Agreement may be amended by the Administrator without the consent of
the Indenture Trustee, any Noteholder, the Issuer, the Owner Trustee or any other Person subject to the satisfaction of one of the following conditions:
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COPAR 2026-1 Administration Agreement
(i) the Administrator delivers an Opinion of Counsel or an Officer’s
Certificate to the Indenture Trustee to the effect that such amendment will not materially and adversely affect the interests of the Noteholders; or
(ii) the Rating Agency Condition is satisfied with respect to such amendment and the Administrator notifies the Indenture
Trustee in writing that the Rating Agency Condition is satisfied with respect to such amendment.
(b) This Agreement may
also be amended from time to time by the Administrator and the Indenture Trustee, with the consent of the Holders of Notes evidencing not less than a majority of the Outstanding Note Balance of the Controlling Class, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders. It will not be necessary for the consent of Noteholders or
Certificateholders to approve the particular form of any proposed amendment or consent, but it will be sufficient if such consent approves the substance thereof. The manner of obtaining such consents (and any other consents of Noteholders and
Certificateholders provided for in this Agreement) and of evidencing the authorization of the execution thereof by Noteholders and Certificateholders will be subject to such reasonable requirements as the Indenture Trustee and Owner Trustee may
prescribe, including the establishment of record dates pursuant to the Depository Agreement. For purposes of this
Section
12
, if the Bank and/or its Affiliates is the Holder of Notes representing 100% of the Note Balance of
the Outstanding Notes, such Person (or Persons) may consent to such amendment on behalf of the Noteholders. In determining whether the Bank and/or its Affiliates is the Holder of Notes representing 100% of the Note Balance of the Outstanding Notes
for purposes of the preceding sentence, any party shall be entitled to rely on an Officer’s Certificate or similar certification of the Bank or any Affiliate thereof to such effect.
(c) Prior to the execution of any amendment pursuant to this
Section
12
, the Administrator shall
provide written notification of the substance of such amendment to each Rating Agency and the Owner Trustee; and promptly after the execution of any such amendment, the Administrator shall furnish a copy of such amendment to each Rating Agency, the
Owner Trustee and the Indenture Trustee;
provided
, that no amendment pursuant to this
Section
12
shall be effective which materially and adversely affects the rights, protections or duties of the Indenture Trustee or
the Owner Trustee without the prior written consent of such Person.
(d) Prior to the execution of any amendment to this
Agreement, the Owner Trustee and the Indenture Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and an Officer’s
Certificate of the Seller or the Administrator that all conditions precedent to the execution and delivery of such amendment have been satisfied. The Owner Trustee and the Indenture Trustee may, but shall not be obligated to, enter into any such
amendment which materially and adversely affects the Owner Trustee’s or the Indenture Trustee’s, as applicable, own rights, privileges, indemnities, duties or obligations under this Agreement, the Transaction Documents or otherwise.
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COPAR 2026-1 Administration Agreement
(e) Notwithstanding subsection (a) of this
Section
12
, this Agreement may only be amended by the Administrator if (i) the Majority Certificateholders or, if 100% of the aggregate Percentage Interests is then beneficially owned by the Bank and/or its Affiliates,
such Person (or Persons), consent to such amendment or (ii) such amendment shall not, as evidenced by an Officer’s Certificate of the Administrator or an Opinion of Counsel delivered to the Indenture Trustee and the Owner Trustee,
materially and adversely affect the interests of the Certificateholders. In determining whether 100% of the aggregate Percentage Interests is then beneficially owned by the Bank and/or its Affiliates for purposes of clause (i), any party shall be
entitled to rely on an Officer’s Certificate or similar certification of the Bank or any Affiliate thereof to such effect.
(f) Notwithstanding anything herein to the contrary, for purposes of classifying the Issuer as a grantor trust under the Code,
no amendment shall be made to this Agreement that would (i) result in a variation of the investment of the beneficial owners of the Certificates for purposes of the United States Treasury Regulation section
301.7701-4(c)
without the consent of Noteholders evidencing at least a majority of the Outstanding Note Balance of the Controlling Class and the Majority Certificateholders or (ii) cause the Issuer
(or any part thereof) to be classified as other than a grantor trust under subtitle A, chapter 1, subchapter J, part I, subpart E of the Code without the consent of all of the Noteholders and all of the Certificateholders.
13.
Governing Law;
Submission to Jurisdiction; Waiver of Jury Trial
.
(a)
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO CONFLICTS OF LAW, OTHER THAN SECTIONS
5-1401
AND
5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) Each
of the parties hereto hereby irrevocably and unconditionally:
(i) submits for itself and its property in any Proceeding
relating to this Agreement or any documents executed and delivered in connection herewith, or for recognition and enforcement of any judgment in respect thereof, to the nonexclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York and appellate courts from any thereof;
(ii)
consents that any such Proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of such Proceeding in any such court or that such Proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
8
COPAR 2026-1 Administration Agreement
(iii) agrees that service of process in any such Proceeding may be effected
by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person at its address determined in accordance with
Section
11
of this Agreement;
(iv) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction; and
(v) to the extent permitted by applicable law, each party
hereto irrevocably waives all right of trial by jury in any Proceeding or counterclaim based on, or arising out of, under or in connection with this Agreement, any other Transaction Document, or any matter arising hereunder or thereunder.
14.
Headings
.
The section headings hereof have been inserted for convenience of reference only and shall not be construed to
affect the meaning, construction or effect of this Agreement.
15.
Counterparts
. This Agreement may be executed in any number of
counterparts (including by way of electronic or facsimile transmission), each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument.
16.
Entire Agreement
. The Transaction Documents contain a final and complete integration of all prior expressions by the parties hereto
with respect to the subject matter thereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter thereof, superseding all prior oral or written understandings. There are no unwritten agreements among
the parties.
17.
Severability of Provisions
.
If any one or more of the covenants, agreements, provisions or terms of this
Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement.
18.
Not Applicable to the Bank in Other Capacities
.
(a) Nothing in this Agreement shall affect any obligation the Bank may have in any other capacity.
(b) Any entity (i) into which the Administrator may be merged or converted or with which it may be consolidated, to which
it may sell or transfer its business and assets as a whole or substantially as a whole or any entity resulting from any merger, sale, transfer, conversion or consolidation to which the Administrator shall be a party, or any entity succeeding to the
business of the Administrator or (ii) more than 50% of the voting stock or voting power and 50% or more of the economic equity of which is owned directly or indirectly by Capital One Financial Corporation and which executes an agreement of
assumption to perform every obligation of the Administrator under this Agreement, shall
9
COPAR 2026-1 Administration Agreement
be the successor to the Administrator under this Agreement, in each case, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding.
19.
Benefits of the Administration Agreement
.
Nothing in this Agreement, expressed or
implied, shall give to any Person other than the parties hereto and their successors hereunder, the Owner Trustee and any separate trustee or
co-trustee
appointed under
Section
6.10
of the Indenture any benefit or any legal or equitable right, remedy or claim under this Agreement. For the avoidance of doubt, the Owner Trustee is a third party beneficiary of this Agreement and is entitled to the rights and benefits hereunder and
may enforce the provisions hereof as if it were a party hereto.
20.
Delegation of Duties
. The Administrator may, at any time
without notice or consent, delegate (a) any or all of its duties under the Transaction Documents to any of its Affiliates or (b) specific duties to
sub-contractors
or other professional services
firms (including accountants, outside legal counsel or similar concerns) who are in the business of performing such duties;
provided
, that no such delegation shall relieve the Administrator of its responsibility with respect to such duties
and the Administrator shall remain obligated hereunder as if the Administrator alone were performing such duties.
21.
Assignment
.
Each party hereto hereby acknowledges and consents to the mortgage, pledge, assignment and Grant of a security interest by the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the Noteholders of
all of the Issuer’s rights under this Agreement. In addition, the Administrator hereby acknowledges and agrees that for so long as any Notes are outstanding, the Indenture Trustee will have, pursuant to the Transaction Documents, the right to
exercise all waivers and consents, rights, remedies, powers, privileges and claims of the Issuer under this Agreement in the event the Issuer shall fail to exercise the same.
22.
Nonpetition
Covenant
. Each party hereto agrees that, prior to the date which is one year and one day after payment in full
of all obligations of each Bankruptcy Remote Party in respect of all securities issued by any Bankruptcy Remote Party, (i) such party shall not authorize any Bankruptcy Remote Party to commence a voluntary
winding-up
or other voluntary case or other Proceeding seeking liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian or other similar official with respect to such Bankruptcy Remote Party or any substantial part of
its property or to consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other Proceeding commenced against such Bankruptcy Remote Party, or to make a general assignment for the
benefit of, its creditors generally, any party hereto or any other creditor of such Bankruptcy Remote Party, and (ii) such party shall not commence or join with any other Person in commencing any Proceeding against such Bankruptcy Remote Party
under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction.
23.
Limitation of Liability
. It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by BNY Mellon Trust of Delaware, not individually or personally but solely as Owner Trustee of the
Issuer, in the exercise of the powers
10
COPAR 2026-1 Administration Agreement
and authority conferred and vested in it under the Trust Agreement, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended
not as personal representations, undertakings and agreements by BNY Mellon Trust of Delaware, but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on
BNY Mellon Trust of Delaware, individually or personally, to perform any covenant, either express or implied, contained herein, all such liability, if any, being expressly waived by the parties hereto and any Person claiming by, through or under the
parties hereto, (d) BNY Mellon Trust of Delaware has made no investigation as to the accuracy or completeness of any representations and warranties made by the Issuer in this Agreement and (e) under no circumstances shall BNY Mellon Trust
of Delaware be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Agreement or
the other related documents.
24.
Compliance with the FDIC Rule
. The Administrator (i) shall perform the covenants set forth
in
Article XII
of the Indenture applicable to it and (ii) shall facilitate compliance with
Article XII
of the Indenture by the Capital One Parties.
[SIGNATURES ON NEXT PAGE]
11
COPAR 2026-1 Administration Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
as of the day and year first above written.
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
By: BNY Mellon Trust of Delaware, not in its individual capacity but solely as Owner Trustee
By:
Name:
Title:
S-1
COPAR 2026-1 Administration Agreement
CAPITAL ONE, NATIONAL ASSOCIATION,
as Administrator
By:
Name:
Title:
S-2
COPAR 2026-1 Administration Agreement
WILMINGTON TRUST, NATIONAL ASSOCIATION
, as Indenture Trustee
By:
Name:
Title:
S-3
COPAR 2026-1 Administration Agreement

----- d117449dex11.htm -----
EX-1.1
2
d117449dex11.htm
EX-1.1
EX-1.1
Exhibit 1.1
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
(Issuer)
CAPITAL ONE AUTO
RECEIVABLES, LLC
(Depositor)
CAPITAL ONE, NATIONAL ASSOCIATION
(Sponsor and Servicer)
Class A-2-A
4.48% Auto Loan Asset Backed Notes
Class A-2-B
SOFR Rate + 0.37% Auto Loan Asset Backed Notes
Class A-3
4.77% Auto Loan Asset Backed Notes
Class A-4
4.88% Auto Loan Asset Backed Notes
UNDERWRITING AGREEMENT
September 9, 2026
J.P. Morgan Securities
LLC,
as a Representative of the Several
Underwriters
383 Madison Avenue, 8th Floor
New York, New York 10179
Attention: Billy Wong
BofA Securities, Inc.,
as a Representative of
the Several
Underwriters
One Bryant Park,
11th Floor
New York, New York 10036
Attention: Lauren Burke
Kohr
RBC Capital Markets, LLC,
as a
Representative of the Several
Underwriters
200 Vesey Street, 8th Floor
New York, New York 10281
Attention: Nicole Nowak
Ladies and Gentlemen:
Section 1.
Introductory
. Capital One Auto Receivables, LLC, a Delaware limited liability company (the “
Seller
”
or “
Depositor
”), and Capital One, National Association, a national banking association (the “
Bank
”), confirm their agreement with J.P. Morgan Securities LLC, BofA Securities, Inc. and RBC Capital Markets, LLC
(the “
Representative
s
”), as representatives of the several underwriters (the “
Underwriters
”) listed in Section 2 of the Terms Exhibit attached hereto as Exhibit A (the “
Terms
Exhibit
”) as follows:
Capital One Prime Auto Receivables Trust
2026-1,
a
Delaware statutory trust (the “
Issuer
”), will issue the notes specified in Section 1 of the Terms Exhibit (the “
Issued Notes
”) pursuant to the Indenture, to be dated as of the Closing Date (the
“
Indenture
”), between the Issuer and Wilmington Trust, National Association, as indenture trustee (the “
Indenture Trustee
”). The Seller proposes to sell to the Underwriters a portion of the Issued Notes in the
amounts specified in Section 3 of the Terms Exhibit (the “
Notes
”).
The assets of the Issuer (the “
Trust
Estate
”) consist of all money, accounts, chattel paper, general intangibles, goods, instruments, investment property and other property of the Issuer, including without limitation (i) the Receivables acquired by the Issuer under the
Sale Agreement, to be dated as of the Closing Date (the “
Sale Agreement
”), by and among the Seller and the Issuer, the Related Security relating thereto and Collections thereon after the
Cut-Off
Date, (ii) the Receivable Files, (iii) the rights of the Issuer to the funds on deposit from time to time in the Trust Accounts and any other account or accounts (other than the Certificate
Distribution Account) established pursuant to the Indenture or the Servicing Agreement, to be dated as of the Closing Date (the “
Servicing Agreement
”), among the Issuer, the Bank, as servicer, and the Indenture Trustee, and all
cash, investment property and other property from time to time credited thereto and all proceeds thereof, (iv) the rights of the Seller, as buyer, under the Purchase Agreement, to be dated as of the Closing Date (the “
Purchase
Agreement
”), between the Bank and the Seller (including the representations and warranties of the Bank therein) and the Assignment executed by the Bank pursuant to the Purchase Agreement, (v) the rights of the Issuer under
the Sale Agreement, the Assignment pursuant to the Sale Agreement and the Servicing Agreement, (vi) the rights of the Issuer under the Administration Agreement, to be dated as of the Closing Date (the “
Administration
Agreement
”), among the Bank, as administrator, the Issuer and the Indenture Trustee and (vii) all proceeds of the foregoing. The Issued Notes will be collateralized by the Trust Estate.
The Receivables and related property will be conveyed to the Seller by the Bank pursuant to the Purchase Agreement and will be conveyed to the
Issuer by the Seller pursuant to the Sale Agreement.
The Receivables will be subject to review, in certain circumstances, by Clayton
Fixed Income Services LLC, as assets representations reviewer (the “
Asset Representations Reviewer
”), for compliance with certain of the representations and warranties made about the Receivables, pursuant to and in accordance with
an Asset Representations Review Agreement, to be dated as of the Closing Date (the “
Asset Representations Review Agreement
”), among the Bank, as servicer, the Issuer, and the Asset Representations Reviewer.
The terms of the Notes are set forth in the Registration Statement (as defined below) and the related Prospectus (as defined below).
Capitalized terms used herein but not defined herein or in the Terms Exhibit shall have the meanings given such terms in
Appendix
A
to the Sale Agreement.
The Seller has prepared and filed with the Securities and Exchange Commission (the
“
Commission
”) in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “
Act
”), a shelf
2
registration statement on Form
SF-3
(No. 333-286543), including a form of prospectus, relating to the offering of asset-backed notes. The registration
statement as amended was declared effective by the Commission on June 4, 2025, and remains effective as of the date hereof. If any post-effective amendment has been filed with respect thereto, prior to the execution and delivery of this
Agreement, such amendment has been declared effective by the Commission. Such registration statement, as amended as of the effective date, including the form of prospectus and all material incorporated by reference therein and including all
information deemed to be part of the registration statement as of the effective date pursuant to Rule 430D under the Act, is referred to in this Agreement as the “
Registration Statement
.” For purposes of this Agreement, the
“effective date” means the later of (a) the date and time as of which the Registration Statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission or (b) the most recent
effective date as of which the Prospectus (as defined below) is deemed to be part of the Registration Statement pursuant to Rule 430D under the Act.
Prior to the time the first Contract of Sale (as defined in Section 5(g) hereof) for the Notes (such time, the “
Time of
Sale
”), the Seller has prepared a Preliminary Prospectus, dated September 2, 2026 (subject to completion), and the Ratings Issuer Free Writing Prospectus (as defined below). As used herein, “
Preliminary Prospectus
”
means, with respect to any date or time referred to herein, the most recent Preliminary Prospectus relating to the Notes (as amended or supplemented, if applicable), which has been prepared and delivered by the Seller to the Underwriters in
accordance with the provisions hereof. The Preliminary Prospectus, together with the Registration Statement (including the form of Prospectus), the Ratings Issuer Free Writing Prospectus (only when taken together with the Preliminary Prospectus or
the Prospectus, as applicable), and each Road Show (as defined below) is hereinafter referred to as the “
Time of Sale Information
.”
The Seller proposes to file with the Commission, pursuant to Rule 424(b) under the Act (“
Rule 424(b)
”), a final prospectus
relating to the Notes (such final prospectus, in the form most recently revised and filed with the Commission pursuant to Rule 424(b), together with any amendment or supplement thereto, is hereinafter referred to as the
“
Prospectus
”). The Preliminary Prospectus, together with the Registration Statement (including the form of Prospectus), the Prospectus and the Ratings Issuer Free Writing Prospectus (only when taken together with the Preliminary
Prospectus or the Prospectus, as applicable), is hereinafter referred to as the “
Disclosure Materials
.”
Pursuant to
this Agreement and the Terms Exhibit, which is incorporated by reference herein (this Agreement including such Terms Exhibit if the context so requires, the “
Agreement
”), and subject to the terms hereof, the Seller agrees to sell
the Notes to the Underwriters named in such Terms Exhibit.
Section 2.
Representations and Warranties of the Bank
. The Bank
represents and warrants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(a)
The Bank is a national banking association validly subsisting under the laws of the United States and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Bank has obtained all necessary
licenses, consents, approvals, or orders of, or filings with, any United States governmental agency or authority or any United States federal
3
court in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Bank to perform its obligations under the Transaction Documents.
(b) The execution, delivery and performance by the Bank of this Agreement and each Transaction Document to which it is a party, the issuance
of the Issued Notes, the sale of the Notes, and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Bank. Neither the execution and delivery by the Bank of such
instruments, nor the performance by the Bank of the transactions herein or therein contemplated, nor the compliance by the Bank with the provisions hereof or thereof, will (i) contravene or constitute a default under (A) any applicable
order, law, rule or regulation, (B) its organizational documents or (C) any material agreement, contract, order or other instrument to which it is a party or its property is subject (other than violations which do not affect the legality,
validity or enforceability of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Bank’s ability to perform its obligations under, the Transaction
Documents), or (ii) result in the creation or imposition of any lien, charge or encumbrance upon any of the Bank’s property pursuant to the terms of any such material agreement, contract, order or other instrument.
(c) The Bank has duly executed and delivered this Agreement and, as of the Closing Date, has duly executed and delivered each Transaction
Document to which it is a party.
(d) The Bank has authorized the conveyance of the Receivables and the other related property to the
Seller.
(e) Since the date of filing of the most recent publicly available portions of the Consolidated Reports of Condition and Income
of the Bank, except as set forth in or contemplated in the Preliminary Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank.
(f) Each Transaction Document to which the Bank is a party constitutes a legal, valid and binding obligation of the Bank, enforceable against
the Bank in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating
to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Bank or in the
event of any moratorium or similar occurrence affecting the Seller and to general principles of equity.
(g) Neither the Seller nor the
Issuer is now, and following the issuance of the Issued Notes, neither will be, required to be registered under the Investment Company Act of 1940, as amended (the “
1940 Act
”), and, although there may be additional exclusions or
exemptions available to the Issuer, the Issuer will rely on the exclusion or exemption from the definition of “investment company” under the 1940 Act contained in Section 3(c)(5) of the 1940 Act. The Issuer is structured so as not
to constitute a “covered fund” as defined in the final regulation issued December 10, 2013, implementing the “Volcker Rule” (Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act).
4
(h) As of the Closing Date, the representations and warranties (other than the
representations and warranties concerning the characteristics of the Receivables which representations and warranties will be true and correct in all material respects as of the date set forth in the applicable Transaction Documents) of the Bank in
the Transaction Documents to which it is a party are true and correct in all material respects.
(i) The Bank has provided a written
representation to each of the Hired NRSROs (as defined below), which satisfied the requirements of paragraph (a)(3)(iii) of Rule
17g-5
of the Exchange Act (“
Rule
17g-5
”), as amended (the “
17g-5
Representation
”). The Bank has complied and caused the Seller to comply, and will continue to comply and to
cause the Seller to comply, with the
17g-5
Representation, other than any breach of the
17g-5
Representation (i) that would not have a material adverse effect on
the Notes or (ii) arising from a breach by any of the Underwriters of the representation, warranty and covenant set forth in Section 5(h) or Section 5(i) hereof.
(j) Neither the Bank nor the Seller has engaged any person to provide third-party “due diligence services” (as defined in Rule
17g-10
under the Exchange Act) relating to the Notes, other than a nationally recognized independent accounting firm acceptable to the Representatives (the “
Accounting Firm
”). The Depositor
obtained a “third-party due diligence report” (as defined in Rule
15Ga-2
under the Exchange Act (“
Rule
15Ga-2
”)), prepared by the
Accounting Firm entitled “Report of Independent Accountants on Applying Agreed-Upon Procedures”, dated August 28, 2026 (the “
Accountant
’
s Due Diligence Report
”), and neither the Bank nor the
Seller has received any “third-party due diligence report” (as defined in Rule
15Ga-2)
other than the Accountant’s Due Diligence Report.
(k) The Bank has complied, and is the appropriate entity to comply, with all requirements imposed on the “sponsor of a securitization
transaction” in accordance with the final rules contained in Regulation RR, 17 C.F.R. §246.1, et seq. (the “
Credit Risk Retention Rules
”), in each case directly or (to the extent permitted by the Credit Risk Retention
Rules) through a “majority owned affiliate” (as defined in the Credit Risk Retention Rules, a “
Majority-Owned Affiliate
”). On the Closing Date, the Bank or a Majority-Owned Affiliate of the Bank will retain an
“eligible vertical interest” (as defined in the Credit Risk Retention Rules) equal to at least 5% of each class of “ABS interests” (as defined in the Credit Risk Retention Rules) in the Issuer issued as part of the
transactions contemplated by the Transaction Documents (such interest, the “
Retained Interest
”), determined as of the Closing Date. The Preliminary Prospectus contains all of the required disclosures under 17 C.F.R.
§246.4(c)(2).
Section 3.
Representations, Warranties and Covenants of the Seller
. The Seller represents, warrants and
covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The
Registration Statement, including the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of the Notes has been filed with the Commission and the Registration Statement, as amended,
has become effective and remains effective, and the conditions to the use of such Registration Statement, as set forth in the General Instructions to Form
SF-3,
and the conditions of Rule 415 under the Act
have been satisfied with respect to the Registration Statement;
5
(b) As of the Closing Date, the Disclosure Materials, except with respect to any
modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific
additional information and other changes (beyond that contained in the latest Disclosure Materials that have previously been furnished to the Representatives) as the Seller has advised the Representatives, before such time, will be included or made
therein;
(c) (A) On the effective date of the Registration Statement, the Registration Statement (1) complied in all material
respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
(B) as of its date, the Prospectus (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and (C) on the Closing Date, the Registration Statement and the Prospectus (1) will comply in all material respects with the applicable requirements of the Act and
(2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
provided
,
however
, that the Seller makes no
representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below);
(d) (A) The Time of Sale Information did not, as of the respective dates of the components thereof and at the Time of Sale, and will not, on
the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading
(it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus) and (B) the Preliminary
Prospectus (when taken together with the Ratings Issuer Free Writing Prospectus), did not, as of the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and
price-dependent information, which information shall of necessity appear only in the final Prospectus);
provided
,
however
, that the Seller makes no representation or warranty with respect to any statements or omissions made in reliance
upon and in conformity with Underwriter Information (as defined below); and
(e) Other than the Time of Sale Information and the
Prospectus, the Seller (including its
co-registrants,
agents and representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and
will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free
writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Seller or any of its
co-registrants
with the Commission in accordance with Rule 433 under
the Act on or about September 2, 2026 (the “
Ratings Issuer Free Writing
6
Prospectus
”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Bank to rate the Notes (the “
Hired
NRSROs
”).
(f) The Seller is a limited liability company validly existing and in good standing under the laws of the State of
Delaware and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Seller has obtained all necessary licenses, consents, approvals, or orders of, or filings with, any United States governmental
agency or authority or any United States federal court in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Seller to perform its obligations under the Transaction Documents.
(g) The execution, delivery and performance by the Seller of this Agreement and each Transaction Document to which it is a party, the issuance
of the Issued Notes, the sale of the Notes, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Seller. Neither the execution and
delivery by the Seller of such instruments, nor the performance by the Seller of the transactions herein or therein contemplated, nor the compliance by the Seller with the provisions hereof or thereof, will (i) contravene or constitute a
default under (A) any applicable order, law, rule, regulation, judgment or decree, (B) its organizational documents or (C) any material agreement, contract, order or other instrument to which it is a party or its property is subject
(other than violations which do not affect the legality, validity or enforceability of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Seller’s
ability to perform its obligations under, the Transaction Documents), or (ii) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such material agreement,
contract, order or other instrument.
(h) The Seller has duly executed and delivered this Agreement and, as of the Closing Date, each of
the Seller and the Issuer has duly executed and delivered each Transaction Document to which it is a party.
(i) The Seller has authorized
the conveyance of the Receivables and other related property to the Issuer.
(j) The Issued Notes, when validly issued pursuant to the
Indenture, and the Notes, when sold to the Underwriters pursuant to this Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and
security afforded by the Indenture. When executed and delivered by the parties thereto, each Transaction Document to which the Seller is a party will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to
creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the
Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except
7
with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization
and issuance of the Issued Notes pursuant to the Indenture and the sale of the Notes pursuant to this Agreement have been or will be taken or obtained on or before the Closing Date.
(k) Neither the Seller nor the Issuer is now, and following the issuance of the Issued Notes, neither will be, required to be registered under
the 1940 Act and, although there may be additional exclusions or exemptions available to the Issuer, the Issuer will rely on the exclusion or exemption from the definition of “investment company” under the 1940 Act contained in
Section 3(c)(5) of the 1940 Act. The Issuer is structured so as not to constitute a “covered fund” as defined in the final regulation issued December 10, 2013, implementing the “Volcker Rule” (Section 619 of the
Dodd-Frank Wall Street Reform and Consumer Protection Act).
(l) Based on information currently available to, and in the reasonable belief
of, the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a
material adverse effect on the Receivables.
(m) Except for the Underwriters, neither the Seller nor the Issuer has employed or retained a
broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Seller nor the Issuer is under any obligation to pay any broker’s fee or commission in connection with such sale.
(n) No Event of Default or Servicer Replacement Event or any event which after any applicable grace period or the giving of notice, or both,
would constitute an Event of Default or Servicer Replacement Event, has occurred.
(o) Based on information currently available to, and in
the reasonable belief of, the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of
which might have a material adverse effect on the Noteholders (as defined below).
(p) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance by the Seller of this Agreement and each Transaction Document to which it is a party shall have been paid or will be paid by the Seller at or before the Closing Date to the extent then due.
(q) As of the Closing Date, the representations and warranties of the Seller and the Issuer in the Transaction Documents to which it is a
party will be true and correct in all material respects.
(r) The Seller was not, on the date on which the first bona fide offer of the
Notes sold pursuant to this Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.
(s) The Seller
has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes. Neither the Seller nor the Bank has engaged any person
8
to provide third-party “due diligence services” (as defined in Rule
17g-10
under the Exchange Act) relating to the Notes, other than the
Accounting Firm. The Seller obtained the Accountant’s Due Diligence Report, and neither the Bank nor the Seller has received any “third-party due diligence report” (as defined in Rule
15Ga-2)
other than the Accountant’s Due Diligence Report.
(t) The Seller has (i) furnished to the Commission a Form
ABS-15G
(the “
Form
ABS-15G
”) containing the findings and conclusions of the Accountant’s Due Diligence Report
and has complied with all other
requirements of Rule
15Ga-2,
including by furnishing such Form
ABS-15G
to the Commission on EDGAR within the time period required by Rule
15Ga-2,
(ii) provided
a draft of the Form
ABS-15G,
not materially different from the Form
ABS-15G
furnished to the
Commission, to counsel for the Underwriters and to the Representatives a reasonable period of
time prior to the furnishing of such Form
ABS-15G
to the Commission as set forth in clause (i) and
(iii) no portion of the Form
ABS-15G
contains any names, addresses, other personal identifiers or zip codes with respect to any individuals, or any other personally identifiable or other information that would
be associated with an individual, including without limitation any “nonpublic personal information” within the meaning of Title V of the Gramm-Leach-Bliley Financial Services Modernization Act of 1999.
Section 4.
Purchase, Sale and Issuance of Notes
. Subject to the terms and conditions herein and in reliance upon the covenants,
representations and warranties herein set forth, the Seller agrees to sell and deliver to the several Underwriters as hereinafter provided, and each Underwriter agrees upon the basis of the representations, warranties and covenants herein contained,
severally and not jointly, to purchase the respective initial principal amount of the Notes set forth opposite such Underwriter’s name in Section 3 of the Terms Exhibit. The net purchase price for the Notes, expressed as a percentage of
the initial principal amount of the applicable class of Notes, shall be as set forth in Section 4 of the Terms Exhibit. Payment for the Notes shall be made to the Seller or to its order by wire transfer of same day funds on the closing date
specified in the Terms Exhibit, or at such other time or place on the same or such other date, not later than the fifth Business Day thereafter, as the Representatives and the Seller may agree upon in writing (the “
Closing Date
”).
The underwriting discount to the Underwriters, the selling concessions that the Underwriters may allow to certain dealers, and the discounts that such dealers may reallow to certain other dealers, each expressed as a percentage of the initial
principal amount of the applicable class of Notes sold to the Underwriters, shall be as set forth in Section 4 of the Terms Exhibit. Payment for the Notes shall be made against delivery to the Representatives, for the respective accounts of the
several Underwriters of the Notes, registered in the name of Cede & Co., as nominee of The Depository Trust Company and in such denominations as the Representatives shall request in writing not later than two full Business Days before the
Closing Date, with any transfer taxes payable in connection with the transfer to the Underwriters of the Notes duly paid by the Seller. The Notes will be made available for inspection by the Underwriters in New York, New York not later than 1:00
p.m., New York City time, on the Business Day before the Closing Date, or such other date and time as the Representatives and the Seller may agree.
Section 5.
Offering by Underwriters
.
(a) The Seller and the Issuer authorize each Underwriter to take all such action as it may deem advisable in respect of all matters pertaining
to sales of the Notes to dealers and to retail purchasers and to member firms and specialists, including the right to make variations in the selling
9
arrangements with respect to such sales. Upon the authorization by the Representatives of the release of the Notes, each Underwriter will offer the Notes for sale upon the terms and conditions
set forth in the Prospectus. If the Prospectus specifies an initial public offering price or a method by which the price at which such Notes are to be sold, then after the Notes are released for sale to the public, the Underwriters may vary from
time to time the public offering price, selling concessions and reallowances to dealers that are members of the Financial Industry Regulatory Authority, Inc. and other terms of sale hereunder and under such selling arrangements.
(b) Notwithstanding the foregoing, each Underwriter agrees, severally and not jointly, that it will not offer or sell any Notes within the
United States, its territories or possessions or to persons who are citizens thereof or residents therein, except in transactions that are not prohibited by any applicable securities, bank regulatory or other applicable law.
(c) Notwithstanding the foregoing, each Underwriter agrees, severally and not jointly, that it will not offer or sell any Notes in any
country, its territories or possessions or to persons who are citizens thereof or residents therein, except in transactions that are not prohibited by any applicable securities laws of such country, territory or possession.
(d) Each Underwriter agrees, severally and not jointly, that:
(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation
or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (as amended, the “
FSMA
”)) received by it in connection with the issue or sale of any Notes
in circumstances in which Section 21(1) of the FSMA does not apply to the Issuer or the Depositor; and
(ii) it has
complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom.
(e) Each Underwriter severally, but not jointly, represents and agrees that it has not offered, sold, distributed or otherwise made
available and will not offer, sell, distribute or otherwise make available any Notes to any UK retail investor in the United Kingdom of Great Britain and Northern Ireland (“
UK
”). For the purposes of this provision:
(i) a “UK retail investor” means a person who is either one (or both) of the following: (A) not a professional
client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of UK law by virtue of the European Union (Withdrawal) Act 2018, as amended; or (B) not a qualified investor (a “
UK Qualified
Investor
” being a qualified investor as such term is defined in paragraph 15 of Schedule 1 to the Public Offers and Admissions to Trading Regulations 2024); and
(ii) the expression “offer” includes the communication in any form and by any means of sufficient information on
the terms of the offer and the Notes to be offered so as to enable an investor to decide to buy or subscribe to the Notes.
10
(f) Each Underwriter severally, but not jointly, represents and agrees that it has not
offered, sold, distributed or otherwise made available and will not offer, sell, distribute or otherwise make available any Notes to any EU retail investor in the European Economic Area. For the purposes of this provision:
(i) the expression “EU retail investor” means a person who is one (or more) of: (A) a retail client as defined
in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “
M
i
FID II
”); or (B) a customer within the meaning of Directive (EU) 2016/97 (as amended), where that customer would not qualify as a
professional client as defined in point (10) of Article 4(1) of MiFID II; or (C) not a qualified investor (an “
EU Qualified Investor
” being a qualified investor as such term is defined in Article 2 of Regulation (EU)
2017/1129, as amended); and
(ii) the expression “offer” includes the communication in any form and by any
means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to buy or subscribe to the Notes.
(g) If the Seller, the Bank or an Underwriter determines or becomes aware that any “written communication” (as defined in Rule 405
under the Act) (including without limitation the Preliminary Prospectus) or oral statement (when considered in conjunction with all information conveyed at the time of the “contract of sale” within the meaning of Rule 159 under the Act
and all Commission guidance relating to such rule (the “
Contract of Sale
”)) made or prepared by the Seller or such Underwriter contains an untrue statement of material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading at the time that a Contract of Sale was entered into, either the Seller or such Underwriter may prepare corrective information, with notice to the other
parties, and such Underwriter shall deliver such information in a manner reasonably acceptable to both parties, to any person with whom a Contract of Sale was entered into based on such written communication or oral statement, and such information
shall provide any such person with the following:
(i) adequate disclosure of the contractual arrangement;
(ii) adequate disclosure of the person’s rights under the existing Contract of Sale at the time termination is sought;
(iii) adequate disclosure of the new information that is necessary to correct the misstatements or omissions in the
information given at the time of the original Contract of Sale; and
(iv) a meaningful ability to elect to terminate or not
terminate the prior Contract of Sale and to elect to enter into or not enter into a new Contract of Sale.
Any costs or losses incurred in connection with
any such termination or reformation shall be subject to Section 9 hereof.
11
(h) Each Underwriter agrees, severally and not jointly, that on or prior to the Closing Date
it has not and it will not provide any Rating Information (as defined below) to a Hired NRSRO or other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), unless a designated representative
from the Seller participated in or participates in such communication;
provided
,
however
, that if an Underwriter received or receives an oral communication from a Hired NRSRO, such Underwriter was and is authorized to inform such Hired
NRSRO that it will respond to the oral communication with a designated representative from the Seller or refer such Hired NRSRO to the Seller, who will respond to the oral communication. For purposes of this paragraph, “
Rating
Information
” means any information provided for the purpose of determining the initial credit rating for the Issued Notes or undertaking credit rating surveillance on the Issued Notes (as contemplated by paragraph (a)(3)(iii)(C) of Rule
17g-5).
(i) Each Underwriter severally and not jointly represents that it has not engaged and will not
engage any person to provide third-party “due diligence services” (as defined in Rule
17g-10
under the Exchange Act) relating to the Issued Notes, it being understood that the Accounting Firm has
been engaged by the Bank and the Seller for the purpose of providing the Accountant’s Due Diligence Report.
Section 6.
Covenants
. The Seller and the Bank, jointly and severally, covenant and agree with the several Underwriters that:
(a) The Seller
will prepare a Prospectus setting forth the amount of Notes covered thereby and the terms thereof, the price at which the Notes are to be purchased by the Underwriters from the Seller, the initial public offering price at which the Notes are to be
sold, the selling concessions and allowances, if any, and such other information as the Seller deems appropriate in connection with the offering of the Notes, but the Seller will not file any amendments to the Registration Statement as in effect
with respect to the Notes, or any amendments or supplements to the Preliminary Prospectus or the Prospectus, without the Representatives’ prior written consent (which consent may be provided by electronic mail and shall not be unreasonably
withheld or delayed); the Seller will immediately advise the Representatives and their counsel (i) when notice is received from the Commission that any post-effective amendment to the Registration Statement has become or will become effective,
(ii) when any supplement or amendment to the Preliminary Prospectus or the Prospectus has been filed and (iii) of any order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Notes,
or of any prevention or suspension of the use of the Preliminary Prospectus or the Prospectus, or of any proceedings or examinations that may lead to such an order or communication, whether by or of the Commission or any authority administering any
state securities or Blue Sky law, as soon as practicable after the Seller or the Issuer is advised thereof, and will use its reasonable efforts to prevent the issuance of any such order or communication and to obtain as soon as possible its lifting,
if issued.
(b) If, at any time when a Preliminary Prospectus or a Prospectus relating to the Notes is required to be delivered under the
Act (or required to be delivered but for Rule 172 under the Act), any event occurs as a result of which the Preliminary Prospectus or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement
12
the Preliminary Prospectus or the Prospectus to comply with the Act, the Seller will promptly prepare and (subject to review and no reasonable objection by the Representatives as described in
Section 6(a) of this Agreement) file with the Commission, an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance;
provided
,
however
, that the Representatives’
consent to any amendment shall not constitute a waiver of any of the conditions of Section 7 of this Agreement.
(c) The Seller will
make (or will cause the Issuer to make) generally available to the holders of the Notes (the “
Noteholders
”) (the sole Noteholder being the applicable clearing agency in the case of Book-Entry Notes), in each case as soon as
practicable, a statement which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission with respect to the Notes; provided that this covenant may be satisfied by posting the monthly Servicer’s Report for the
Issuer on a publicly available website or filing such Servicer’s Report with the Commission on a Form
10-D.
(d) Upon request, the Seller will furnish to the Representatives an electronic copy of each of the Registration Statement, the Preliminary
Prospectus, the Prospectus and any other Disclosure Materials, and all amendments and supplements to such documents, in each case as soon as available.
(e) The Seller will assist the Underwriters in arranging for the qualification of the Notes for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as the Representatives may designate and will continue to assist the Underwriters in maintaining such qualifications in effect so long as required for the distribution;
provided
,
however
, that neither the Seller nor the Issuer shall be required to qualify to do business in any jurisdiction where it is now not qualified or to take any action which would subject it to general or unlimited service of process in any
jurisdiction in which it is now not subject to service of process or to file a general consent to service of process in any jurisdiction in which it is now not subject to service of process.
(f) The Seller and the Issuer have filed or will file the Preliminary Prospectus and the Prospectus, as applicable, properly completed, and
any supplement thereto, pursuant to Rule 424(h) or Rule 424(b), as applicable, within the prescribed time period and have provided or will provide evidence satisfactory to the Representatives of such timely filing. If received in a timely manner in
compliance with Section 16(b)(iii) of this Agreement, the Seller and the Issuer will file with the Commission any Underwriter Free Writing Prospectus (as defined below) to the extent such filing is required by Rule 433(d) of the Act.
(g) The Seller and the Issuer will cause the Indenture to be qualified pursuant to the Trust Indenture Act.
(h) The Bank will comply, and will cause each of its affiliates to comply, with the Credit Risk Retention Rules, as in effect from time to
time, in connection with the Capital One Prime Auto Receivables Trust
2026-1
transaction. The Bank is and will be solely responsible for compliance with the disclosure requirements of the Credit Risk Retention
Rules, including the contents of all such disclosures and ensuring that any required post-closing disclosures are timely provided to investors by an appropriate method that does not require any involvement of the Underwriters.
13
Section 7.
Conditions to the Obligations of the Underwriters
. The obligations of
the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the Seller and the Bank herein as of the date hereof and the Closing Date, to the accuracy of the representations
and warranties of the Issuer contained in each Transaction Document to which it is a party as of the Closing Date, to the accuracy of the statements of the Seller and the Bank made pursuant to the provisions thereof, to the performance by the Seller
and the Bank in all material respects of their obligations hereunder and to the following additional conditions precedent:
(a) The
Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state
that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the
Seller’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto).
(b) The Representatives shall have received, with respect to the Bank, a certificate, dated the Closing Date, of an authorized officer of the
Bank in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Bank in this Agreement are true and correct in all material respects on and as of the
Closing Date, (ii) the Bank has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there
has been no material adverse change in the condition (financial or otherwise) of the Seller’s auto loan business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause
include any amendments and supplements thereto).
(c) The Representatives shall have received an opinion of Mayer Brown LLP, special
counsel for the Seller and the Bank, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, with respect to certain corporate matters relating to the Bank and the Seller.
(d) The Representatives shall have received an opinion or opinions of Mayer Brown LLP, special counsel for the Issuer, the Seller and the
Bank, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, with respect to: certain corporate matters, perfection matters, matters related to the creation of a security interest, securities
law matters, 1940 Act matters, tax matters, enforceability matters and true sale and nonconsolidation matters.
Such counsel shall also provide a
“negative assurance” letter, dated as of the Closing Date, covering the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing
14
Prospectus and the Prospectus in form and substance reasonably satisfactory to the Representatives and their counsel.
(e) The Representatives shall have received from Orrick, Herrington & Sutcliffe LLP, counsel to the Underwriters, a “negative
assurance” letter, dated as of the Closing Date, covering the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus and the Prospectus in form and substance reasonably satisfactory to the
Representatives; and the Bank and the Seller shall have furnished to such counsel such documents as they reasonably request in connection therewith.
(f) On or before the Closing Date, (i) a nationally recognized independent accounting firm reasonably acceptable to the Representatives
shall have furnished to the Representatives a letter or letters, dated as of the date of the Preliminary Prospectus and as of the date of the Prospectus, in form and substance reasonably satisfactory to the Representatives and their counsel,
confirming that they are certified independent public accountants and stating in effect that they have performed certain specified procedures with respect to the Issued Notes and the Receivables and (ii) the Accounting Firm shall have furnished
to the Representatives the Accountant’s Due Diligence Report.
(g) The Representatives shall have received evidence satisfactory to
them that, on or before the Closing Date,
UCC-1
financing statements have been filed (or have been sent for filing on the Closing Date or the next Business Day) with the appropriate UCC filing offices,
reflecting the transfer of Receivables and other related property from the Bank to the Seller, the transfer of Receivables and other related property from the Seller to the Issuer and the pledge of the Receivables and other related property by the
Issuer in favor of the Indenture Trustee.
(h) The Representatives shall have received an opinion of Chapman and Cutler LLP, counsel to
the Indenture Trustee, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel.
(i) The Representatives shall have received evidence satisfactory to them that on or before the Closing Date, all applicable UCC termination
statements relating to liens of creditors of the Seller, the Issuer or the Bank or any other person on the Receivables have been filed (or have been sent for filing on the Closing Date or the next Business Day) with the appropriate filing offices,
and the Representatives shall have received on or before the Closing Date contractual releases or releases terminating liens of creditors of the Seller, the Issuer, the Bank or any other person on the Receivables.
(j) The Representatives shall have received an opinion of Morris James LLP, special Delaware counsel to the Seller, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, with respect to (i) certain matters under Delaware law with respect to the
Seller and the authority of the Seller to file a voluntary bankruptcy petition and (ii) certain corporate matters with respect to the Seller.
(k) The Representatives shall have received an opinion of Morris James LLP, counsel to the Owner Trustee and the Issuer, subject to customary
qualifications, assumptions, limitations
15
and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel.
(l) The Ratings Issuer Free Writing Prospectus shall have been filed with the Commission, and the Representatives shall have received evidence
of ratings letters that are reasonably satisfactory to the Representatives from each Hired NRSRO and that assign ratings to the Notes at least equal to the ratings specified in the Ratings Issuer Free Writing Prospectus.
(m) The Representatives shall have received such information, certificates and documents as the Representatives and their counsel may
reasonably request.
(n) All actions required to be taken and all filings required to be made by the Seller or the Issuer under the Act
before the Closing Date for the Notes shall have been duly taken or made; and before the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Seller or the Issuer, threatened by the Commission.
(o) The Representatives shall have
received an opinion of
in-house
counsel to the Asset Representations Reviewer, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance
reasonably satisfactory to the Representatives and their counsel.
(p) The Issuer shall have executed and delivered to DTC a standard
“Letter of Representations” sufficient to cause DTC to qualify each class of Notes for inclusion in DTC’s book-entry registration and transfer system, and each class of Notes shall have been approved by DTC for inclusion on its
book-entry registration and transfer system.
If any of the conditions specified in this Section 7 shall not have been fulfilled in all material
respects when and as provided in this Agreement, or if any of the opinions or certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and
their counsel, this Agreement and all their obligations hereunder may be canceled at, or at any time before, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Issuer, the Bank and the Seller in writing or by
telephone or telecopy confirmed in writing.
Section 8.
Expenses
.
(a) Except as expressly set forth in this Agreement, the Seller and the Bank, jointly and severally, will pay all expenses incidental to the
performance of their obligations under this Agreement and will reimburse each Underwriter for any expenses reasonably incurred by it in connection with qualification of the Notes and determination of their eligibility for investment under the laws
of such jurisdictions as the Representatives may designate (including reasonable fees and disbursements of their counsel) and the printing of memoranda relating thereto, for any fees charged by credit rating agencies for the rating of the Notes and
for expenses incurred in preparing and distributing electronic copies of any Disclosure Materials and the Road Show (including any amendments and supplements thereto) to the Underwriters;
provided
,
however
, that each Underwriter will
pay all of its own costs and expenses in connection with obtaining one or
16
more printed copies of the Registration Statement, the Preliminary Prospectus or the Prospectus, or any amendments or supplement to such documents from the applicable financial printer (which may
include the printing facilities of such Underwriter). Except as specifically provided in this Section 8 and in Section 9 of this Agreement, each Underwriter will pay all of its own costs and expenses (including the fees and disbursements
of counsel), transfer taxes on resales of Notes by it and any advertising expenses connected with any offers it may make.
(b) If the sale
of the Notes provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 7 of this Agreement is not satisfied or because of any refusal, inability or failure on the part of the Seller
or the Bank to perform any agreement herein or to comply with any provision hereof other than by reason of a default by any Underwriter or because of any breach of a representation or warranty herein on the part of the Seller or the Bank, the Seller
or the Bank, as applicable, will reimburse the Underwriters upon demand for all
out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by the Underwriters in connection with the proposed purchase, sale and offering of the Notes.
Section 9.
Indemnification and Contribution
.
(a) The Seller and the Bank, jointly and severally, will indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act and the respective officers, directors, agents and employees of each such person, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or such controlling person may become subject, under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact contained in any Time of Sale Information, the Prospectus or any amendment or supplement thereto or any Form
ABS-15G
furnished to the
Commission on EDGAR with respect to the transactions contemplated by this Agreement (a “
Furnished Form
ABS-15G
”), any data provided by the Seller, the Bank, the Issuer or any of their
affiliates to any Underwriter in order to prepare the Intex CDI File, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not
misleading; and will reimburse each Underwriter and each such officer, director, employee or controlling person for any legal or other expenses reasonably incurred by each Underwriter and each such officer, director, employee or controlling person
in connection with investigating or defending any such loss, claim, damage, liability or action;
provided
,
however
, that the Seller and the Bank will not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged untrue statement in or omission or alleged omission made in any such documents in reliance upon and in conformity with Underwriter Information. This indemnity agreement
will be in addition to any liability which the Seller or the Bank may otherwise have.
(b) Each Underwriter, severally and not jointly,
will indemnify and hold harmless the Seller and the Bank and each person, if any, who controls the Seller or the Bank within the meaning of the Act or the Exchange Act and the respective officers, directors, agents and employees of each such person,
against any losses, claims, damages or liabilities to which the Seller or the Bank may become subject, under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
17
damages or liabilities (or actions in respect thereof) arise out of or are based (i) upon any untrue statement or alleged untrue statement of any material fact contained in the Registration
Statement, the Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information
furnished to the Issuer, the Seller and the Bank by such Underwriter through the Representatives specifically for use therein and (ii) with regard to any investor with whom an Underwriter enters into a Contract of Sale for the Notes prior to
the filing of the final Prospectus, the failure upon the part of such Underwriter to convey (within the meaning of Rule 159 under the Act) the Preliminary Prospectus to such investor at or prior to the time of the contract of sale for such Notes;
provided
,
however
, that to the extent such Preliminary Prospectus or Prospectus, as the case may be, has been amended or supplemented, such indemnity shall not inure to the benefit of the Seller or the Bank unless such amendment or
supplement shall have been delivered to such Underwriter in a reasonable period of time prior to the time of such contract of sale. Each Underwriter will reimburse any legal or other expenses reasonably incurred by the Seller or the Bank, as
applicable, in connection with investigating or defending any of the losses, claims, damages, or liabilities (or actions in respect thereof) for which it has agreed to indemnify the Seller or the Bank, as applicable, in accordance with the
foregoing. The Seller and the Bank agree with each Underwriter that the only written information furnished to the Issuer, the Seller and the Bank by the Underwriters specifically for use in the Registration Statement, the Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or the Ratings Issuer Free Writing Prospectus is the information relating to the Underwriters and the underwriting of the Notes in the second sentence of the fourth paragraph and the sixth
paragraph (except for the information relating to the Depositor in the last sentence thereof) under the heading “Underwriting” in the Preliminary Prospectus or the Prospectus (“
Underwriter Information
”). This indemnity
agreement will be in addition to any liability that each Underwriter may otherwise have.
(c) Each Underwriter, severally and not jointly,
will indemnify and hold harmless the Seller and the Bank and each person, if any, who controls the Seller or the Bank within the meaning of the Act or the Exchange Act and the respective officers, directors, agents and employees of each such person,
against any losses, claims, damages or liabilities to which the Seller or the Bank may become subject, under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Underwriter Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, and will reimburse any legal or other expenses reasonably incurred by the Issuer, the Seller or the Bank in connection with investigating or defending any such
loss, claim, damage, liability or action;
provided
,
however
, that no Underwriter will be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission in any Underwriter Free Writing Prospectus (i) made in reliance upon and in conformity with any written information furnished to the related Underwriter by the Seller or the Bank
expressly for use therein or (ii) as a result of any inaccurate information (including as a result of any omission therein) in the Time of
18
Sale Information, the Prospectus or the Issuer Information which information was not corrected by information subsequently provided by the Seller or the Bank to the related Underwriter prior to
the time of use of such Underwriter Free Writing Prospectus. This indemnity agreement will be in addition to any liability that each Underwriter may otherwise have.
(d) Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under clause (a), (b) or (c) of this Section 9, notify the indemnifying party of the commencement thereof;
provided
, that the failure to
notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have under this Section 9, except to the extent that it has been materially prejudiced by such failure and,
provided
further
,
that the omission and/or delay so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under clause (a), (b) or (c) of this Section 9. In case any such
action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may elect by written notice, jointly with
any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and the appointment of satisfactory counsel, including local counsel if applicable, the indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. If the defendants in any action include
both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that (i) there exists actual or potential conflicting interests between the indemnifying party and the indemnified parties, or
(ii) there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate
counsel, including local counsel if applicable, to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties at the expense of the indemnifying party, subject to the approval
of the indemnifying party (such approval not to be unreasonably withheld). No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action and (ii) does not include a statement as to, or admission of, fault, culpability or a failure to act by or on behalf of any such indemnified party. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 9 is unavailable or
insufficient to hold harmless an indemnified party under this Section 9, then such indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims,
19
damages or liabilities referred to in this Section 9, (i) in such proportion as is appropriate to reflect the relative benefits received by the Seller and the Bank on the one hand and
the relevant Underwriter on the other from the offering of the Notes or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Seller and the Bank on the one hand and the relevant Underwriter on the other in connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative benefits received by the Seller and the Bank on the one hand and the relevant Underwriter on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Issuer or the Seller bear to the total underwriting discounts and commissions received by the relevant Underwriter. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuer, the Seller or the Bank or by any Underwriter and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to
in the first sentence of this clause (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this clause
(e). Notwithstanding the provisions of this clause (e), no Underwriter shall be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by it in connection with such Notes
underwritten by it exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligation of each Underwriter under this Section 9(e) shall be several and not
joint.
(f) The obligations of the indemnifying party under this Section 9 shall be in addition to any liability which the
indemnifying party may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls the indemnified party within the meaning of the Act.
Section 10.
Survival of Representations and Obligations
. The respective agreements, representations, warranties and other
statements made by the Seller or the Bank or their respective officers, including any such agreements, representations, warranties and other statements relating to the Issuer, and of the Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of the Underwriters, the Seller or the Bank or any of their respective officers or directors or any controlling
person, and will survive delivery of and payment of the Notes. The provisions of Section 8 and Section 9 of this Agreement shall survive the termination or cancellation of this Agreement and will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on behalf of the Underwriters, the Seller or the Bank or any of their respective officers or directors or any controlling person.
Section 11.
Notices
. All communications hereunder shall be in writing and effective only on receipt, and, if to the
Representatives or the Underwriters, will be mailed or delivered to
20
the address for the Representatives set forth on the first page hereof, and (a) if to the Seller, will be mailed or delivered to Capital One Auto Receivables, LLC, 1600 Capital One Drive,
Room 27907B, McLean, Virginia 22102, Attention: Assistant Vice President, Treasurer with a copy to Capital One, National Association, 1680 Capital One Drive, McLean, Virginia 22102, Attention: Vice President, Senior Associate General Counsel,
Capital Markets Legal or (b) if to the Bank, will be mailed or delivered to Capital One, National Association, 1680 Capital One Drive, McLean, Virginia 22102, Attention: Treasurer, with a copy to Capital One, National Association, 1680 Capital
One Drive, McLean, Virginia 22102, Attention: Vice President, Senior Associate General Counsel, Capital Markets Legal.
Section 12.
Applicable Law and Consent to Jurisdiction; Entire Agreement
.
(a) This Agreement will be governed by and construed in accordance
with the law of the State of New York. This Agreement supersedes all prior agreements and understandings relating to the subject matter hereof.
(b) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE
JURISDICTION OF ANY
UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK COUNTY, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT AND EACH PARTY HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
(c) Each party to this Agreement hereby irrevocably and unconditionally
waives all right of trial by jury in any action, proceeding or counterclaim based on, or arising out of, under or in connection with this Agreement or any matter arising hereunder or thereunder.
Section 13.
Successors
. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in Section 9 hereof, and their successors and assigns, and no other person will have any right or obligation hereunder.
Section 14.
Waivers; Headings
. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect
the meaning hereof.
Section 15.
Termination of the Obligations of the Underwriters
. The obligations of the Underwriters to
purchase the Notes on the Closing Date shall be terminable by the Representatives by written notice delivered to the Seller and the Bank if at any time on or before the Closing Date (a) trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited, or there shall have been any setting of minimum prices for trading on such
21
exchange, (b) a general moratorium on commercial banking activities in New York or Virginia shall have been declared by any Federal or New York state authorities, (c) there shall have
occurred any material outbreak or escalation of hostilities or other calamity or crisis, the effect of which on the financial markets of the United States is such as to make it, in the Representatives’ reasonable judgment, impracticable to
market the Notes on the terms and in the manner contemplated in the Prospectus or (d) any change or any development involving a prospective change, materially and adversely affecting (i) the Trust Estate taken as a whole or (ii) the
business or properties of the Issuer, the Seller or the Bank occurs, which, in the Representatives’ reasonable judgment, in the case of either clause (i) or (ii), makes it impracticable or inadvisable to market the Notes on the terms and
in the manner contemplated in the Prospectus. Upon such notice being given, the parties to this Agreement shall (except for the liability of the Seller and the Bank under Section 8 and Section 9 of this Agreement and the liability of each
Underwriter under Section 16 of this Agreement) be released and discharged from their respective obligations under this Agreement.
Section 16.
Offering Communications
.
(a) Other than the Preliminary Prospectus, the Prospectus and the Ratings Issuer Free Writing Prospectus, each Underwriter severally
represents, warrants and agrees with the Seller and the Bank that it has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as
defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, including, but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of
Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Seller and the Bank;
provided
,
however
, each Underwriter may prepare and convey to one or more of its potential investors one or more
“written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) an Intex CDI file that does not contain any Issuer Information (as defined below) other than Issuer Information included in
the Preliminary Prospectus or the Ratings Issuer Free Writing Prospectus previously filed with the Commission (each, an “
Intex CDI file
”), (ii) any materials included in one or more investor “road shows” (as defined in
Rule 433 under the Act) relating to the Notes (each, a “
Road Show
”) authorized or approved by the Seller or the Bank, (iii) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary
Prospectus or the Prospectus, (iv) information relating to the class, size, rating, CUSIPs, coupon, yield, benchmark, spread, closing date, legal maturity, weighted average life, expected final payment date and trade date of the Notes and
(v) a column or other entry showing the status of the subscriptions for the Notes and/or expected pricing parameters of the Notes (each such written communication identified in clauses (iii) – (v), an “
Underwriter Free Writing
Prospectus
”);
provided
, that no such Underwriter Free Writing Prospectus would be required to be filed with the Commission. As used herein, the term “
Issuer Information
” means any information of the type specified
in clauses (1)—(5) of footnote 271 of Commission Release
No. 33-8591
(Securities Offering Reform), other than Underwriter Derived Information. As used herein, the term “
Underwriter Derived
Information
” shall refer to information of the type described in clause (5) of footnote 271 of Commission Release
No. 33-8591
(Securities Offering Reform) when prepared by any Underwriter,
including traditional computational and analytical materials prepared by the Underwriter.
22
(b) Each Underwriter severally represents, warrants and agrees with the Seller, the Issuer
and the Bank that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter
Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Notes, include any untrue statement of a material fact or omit any material fact necessary to make the statements contained therein, in light of the circumstances
under which they were made, not misleading;
provided
,
however
, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were (i) made in reliance upon and in conformity
with any written information furnished to the related Underwriter by the Seller or the Bank expressly for use therein or (ii) as a result of any inaccurate information (including as a result of any omission therein) in any Time of Sale
Information or the Prospectus, which information was not corrected by information subsequently provided by the Seller or the Bank to the related Underwriter prior to the time of use of such Underwriter Free Writing Prospectus;
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in
compliance with Rule 433(c)(2)(i) of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act; and
(iii) each Underwriter Free Writing Prospectus prepared by it shall be delivered to the Seller and the Bank no later than the
Business Day prior to the required filing date.
(c) Each Underwriter severally represents and agrees that (a) it has not entered, and
will not enter, into any contract of sale for the Notes (subject to the proviso to clause (ii) below) until at least the later of (i) three business days after the Preliminary Prospectus has been initially filed by the Seller with the
Commission (as determined by reference to the “Filing Date” according to the “Filing Detail” webpage for the Seller related to such filing, as made available on the Commission’s website) and (ii) 48 hours after any
supplement to the Preliminary Prospectus that reflects a material change from the information contained in the Preliminary Prospectus has been filed by the Seller with the Commission (as determined by reference to the time such filing was
“Accepted” according to the “Filing Detail” webpage for the Seller related to such filing, as made available on the Commission’s website);
provided
,
however
, that in the case of any such contract of sale
entered into before the filing of a supplement as referred to in this clause (ii), it will not consummate such transaction without entering into a new contract of sale in accordance with this clause (ii); (b) it did not enter into any contract of
sale for any Notes prior to the Time of Sale and (c) it will, at any time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Notes, (A) convey to each
investor to whom Notes are sold by it during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Seller), at or prior to the applicable time of any such contract of sale with respect to such investor, the
Preliminary Prospectus and (B) comply with Rule 173 of the Act, including, but not limited to (I) by delivering to each investor to whom Notes are sold by it no later than two Business Days following the completion of such sale (i.e., the
date of settlement), a copy of the final Prospectus or a notice to the effect that such sale was made pursuant to the Registration Statement and (II) if only a notice has been sent pursuant to the foregoing clause (I), by delivering
23
to any investor to whom Notes are sold by it, upon request of such investor, a copy of the final Prospectus.
Section 17.
Representation of Underwriters
. The Representatives will act for the several Underwriters in connection with the
transaction contemplated hereby, and any action under this Agreement taken by the Representatives will be binding upon all the Underwriters.
Section 18.
Default by an Underwriter
. If any one or more Underwriters shall fail to purchase and pay for any of the Notes agreed
to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the amount of Notes set forth opposite their names in Section 3 of the Terms Exhibit bears to the aggregate amount of Notes set forth opposite the names of all the remaining Underwriters)
the Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that if the aggregate amount of Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Notes set forth in Section 3 of the Terms Exhibit, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Notes, and if such
nondefaulting Underwriters do not purchase all the Notes, this Agreement will terminate without liability (except the liability of the Seller and the Bank under Section 8(a) hereof) to any nondefaulting Underwriter, the Seller or the Bank. In
the event of a default by any Underwriter as set forth in this Section 18, the Closing Date shall be postponed for such period, as is mutually agreeable to the Seller, the Bank and the Representatives (with all parties hereto agreeing that time
is of the essence), in order that the required changes in the Registration Statement and the Prospectus (and any supplements thereto) or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Seller, the Bank and any nondefaulting Underwriter for damages occasioned by its default hereunder.
Section 19.
Arm’s Length Business Transactions
. The Seller and the Bank acknowledge and agree that (i) the transaction
contemplated by this Agreement is an
arm’s-length
commercial transaction between the Seller and the Bank, on the one hand, and each of the Underwriters, on the other, (ii) in connection therewith
with respect to all aspects of the transaction contemplated herein, each Underwriter is acting as a principal and not the agent or fiduciary of the Seller and the Bank and the Seller and the Bank hereby expressly disclaim any fiduciary relationship
with respect thereto, and (iii) none of the Underwriters has assumed an advisory responsibility in favor of the Seller or the Bank with respect to the transaction contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Seller or the Bank on other matters) or any other obligation to the Seller or the Bank except the obligations expressly set forth in this Agreement.
Section 20.
Recognition of the U.S. Special Resolution Regimes
.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the
transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this
24
Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution
Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) For purposes of this
Section 20:
(i) “
BHC Act Affiliate
” has the meaning assigned to the term “affiliate”
in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
(ii) “
Covered Entity
” means
any of the following: (A) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (B) a “covered bank” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 47.3(b); or (C) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
(iii) “
Default Right
” has the meaning assigned to that term in, and shall be interpreted in accordance with,
12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
(iv) “
U.S. Special Resolution Regime
”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Section 21.
Counterparts and Electronic Signature
. This Agreement may be executed in counterparts, each of which shall constitute
an original, but all of which shall together constitute one instrument. Each of the parties hereto agrees that the transaction consisting of this Agreement may be conducted by electronic means. Each party agrees, and acknowledges that it is such
party’s intent, that if such party signs this Agreement using an electronic signature, it is signing, adopting, and accepting this Agreement and that signing this Agreement using an electronic signature is the legal equivalent of having placed
its handwritten signature on this Agreement on paper. Each party acknowledges that it is being provided with an electronic or paper copy of this Agreement in a usable format.
25
If you are in agreement with the foregoing, please sign a counterpart hereof and return it to the Seller,
whereupon this letter and your acceptance shall become a binding agreement among the Seller, the Bank and the Underwriters.
Very truly yours,
CAPITAL ONE AUTO RECEIVABLES, LLC,
as Seller
By:
/s/ Eric Bauder
Name: Eric Bauder
Title: Assistant Vice President, Treasurer
CAPITAL ONE, NATIONAL ASSOCIATION,
as Bank
By:
/s/ Franco Harris
Name: Franco Harris
Title: Treasurer
Capital One Prime Auto
Receivables Trust 2026-1
Underwriting Agreement
S-1
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
J.P. MORGAN SECURITIES LLC,
as Underwriter and as a Representative of the
Underwriters referred to in the foregoing Agreement
By:
/s/ Ernest Au
Name: Ernest Au
Title: Executive Director
BOFA SECURITIES, INC.,
as Underwriter and as a Representative of the
Underwriters referred to in the foregoing Agreement
By:
/s/ Lauren Burke Kohr
Name: Lauren Burke Kohr
Title: Managing Director ABS Banking & Finance
RBC CAPITAL MARKETS, LLC,
as Underwriter and as a Representative of the
Underwriters referred to in the foregoing Agreement
By:
/s/ Nicole Nowak
Name: Nicole Nowak
Title: Director
Capital One Prime Auto
Receivables Trust 2026-1 Underwriting Agreement
S-2
EXHIBIT A
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
ASSET BACKED NOTES
TERMS EXHIBIT
Dated: September 9,
2026
To:
CAPITAL ONE, NATIONAL ASSOCIATION
CAPITAL ONE AUTO RECEIVABLES, LLC
Re:
Underwriting Agreement, dated September 9, 2026
1.
Terms of the Notes
Class
Initial Note Balance
(1)
Underwritten
Amount
Interest Rate
Final
Scheduled Payment
Date
A-2-A
$
572,380,000
$
543,760,000
4.48%
September 17, 2029
A-2-B
$
157,900,000
$
150,000,000
SOFR Rate + 0.37%
September 17, 2029
A-3
$
730,280,000
$
693,760,000
4.77%
July 15, 2031
A-4
$
118,410,000
$
112,480,000
4.88%
February 17, 2032
(1)
The excess of the Initial Note Balance over the Underwritten Amount for each class of the Issued Notes
will be retained by the Bank or one or more majority-owned affiliates of the Bank to satisfy the obligations imposed on the sponsor under the Credit Risk Retention Rules.
2.
Underwriters
The Underwriters named below are the “Underwriters” for the purpose of this Underwriting Agreement and for the purposes of the
above-referenced Underwriting Agreement as such Underwriting Agreement is incorporated herein and made a part hereof.
J.P. Morgan
Securities LLC, BofA Securities, Inc., RBC Capital Markets, LLC, Academy Securities, Inc., Cabrera Capital Markets LLC, CastleOak Securities, L.P. and Siebert Williams Shank & Co., LLC.
3.
Underwriting
Underwriting Liability
Class A-2-A
Class A-2-B
Class A-3
Class A-4
J.P. Morgan Securities LLC
$
217,504,000
$
60,000,000
$
277,504,000
$
44,992,000
BofA Securities, Inc.
$
135,940,000
$
37,500,000
$
173,440,000
$
28,120,000
RBC Capital Markets, LLC
$
135,940,000
$
37,500,000
$
173,440,000
$
28,120,000
A-1
Underwriting Liability
Class A-2-A
Class A-2-B
Class A-3
Class A-4
Academy Securities, Inc.
$
13,594,000
$
3,750,000
$
17,344,000
$
2,812,000
Cabrera Capital Markets LLC
$
13,594,000
$
3,750,000
$
17,344,000
$
2,812,000
CastleOak Securities, L.P.
$
13,594,000
$
3,750,000
$
17,344,000
$
2,812,000
Siebert Williams Shank & Co., LLC
$
13,594,000
$
3,750,000
$
17,344,000
$
2,812,000
4.
Purchase Price, Discounts and Concessions
Class A-2-A
Class A-2-B
Class A-3
Class A-4
Gross Purchase Price
$
543,722,643.69
$
150,000,000
$
693,657,323.52
$
112,479,640.06
Underwriting Discount
$
1,033,144.00
$
285,000.00
$
1,595,648.00
$
337,440.00
Net Purchase Price
$
542,689,499.69
$
149,715,000.00
$
692,061,675.52
$
112,142,200.06
Maximum Dealer Selling Concessions
0.114
%
0.114
%
0.138
%
0.180
%
Maximum Dealer Reallowance Discounts
0.057
%
0.057
%
0.069
%
0.090
%
5.
Time of Sale
10:50 a.m. (Eastern Time) (U.S.) on September 9, 2026 (the time the first Contract of Sale was entered into as designated by the
Underwriters).
6.
Closing Date
Pursuant to Rule
15c6-1(d)
under the Securities Exchange Act of 1934, as amended, the Underwriters, the
Seller and the Bank hereby agree that the Closing Date shall be September 17, 2026, on or about 11:00 a.m., New York City time.
A-2

----- d117449dex361.htm -----
EX-36.1
10
d117449dex361.htm
EX-36.1
EX-36.1
Exhibit 36.1
Certification
I, Franco Harris,
certify as of September 9, 2026 that:
1.
I have reviewed the prospectus relating to the
Class A-2-A,
Class A-2-B,
Class A-3
and
Class A-4
Notes of Capital One Prime Auto Receivables Trust
2026-1
(the “
securities
”)
and am familiar with, in all material respects, the following: The characteristics of the securitized assets underlying the offering (the “
securitized assets
”), the structure of the securitization, and all material underlying
transaction agreements as described in the prospectus;
2.
Based on my knowledge, the prospectus does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading;
3.
Based on my knowledge, the prospectus and other information included in the registration statement of which it
is a part fairly present, in all material respects, the characteristics of the securitized assets, the structure of the securitization and the risks of ownership of the securities, including the risks relating to the securitized assets that would
affect the cash flows available to service payments or distributions on the securities in accordance with their terms; and
4.
Based on my knowledge, taking into account all material aspects of the characteristics of the securitized
assets, the structure of the securitization, and the related risks as described in the prospectus, there is a reasonable basis to conclude that the securitization is structured to produce, but is not guaranteed by this certification to produce,
expected cash flows at times and in amounts to service scheduled payments of interest and the ultimate repayment of principal on the securities (or other scheduled or required distributions on the securities, however denominated) in accordance with
their terms as described in the prospectus.
5.
The foregoing certifications are given subject to any and all defenses available to me under the federal
securities laws, including any and all defenses available to an executive officer that signed the registration statement of which the prospectus referred to in this certification is part.
Date: September 9, 2026
By: /s/ Franco Harris
Franco Harris
Title: President
(chief
executive officer of the depositor)

----- d117449dex41.htm -----
EX-4.1
3
d117449dex41.htm
EX-4.1
EX-4.1
Exhibit 4.1
CAPITAL ONE PRIME AUTO
RECEIVABLES TRUST 2026-1
Class A-1
4.002% Auto Loan Asset Backed Notes
Class A-2-A
4.48% Auto Loan Asset Backed Notes
Class A-2-B
SOFR Rate + 0.37% Auto Loan Asset Backed Notes
Class A-3
4.77% Auto Loan Asset Backed Notes
Class A-4
4.88% Auto Loan Asset Backed Notes
Class B 5.06% Auto Loan Asset Backed Notes
Class C 5.21% Auto Loan Asset Backed Notes
Class D 5.70% Auto Loan Asset Backed Notes
INDENTURE
Dated as of
September 17, 2026
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as the Indenture Trustee
CROSS REFERENCE TABLE
1
TIA
Section
Indenture
Section
310
(a) (1)
6.11
(a) (2)
6.11
(a) (3)
6.10;
6.11
(a) (4)
N.A.
2
(a) (5)
6.11
(b)
6.8;
6.11
(c)
N.A.
311
(a)
6.12
(b)
6.12
(c)
N.A.
312
(a)
7.1
(b)
7.2
(c)
7.2
313
(a)
7.3
(b) (1)
7.3
(b) (2)
7.3
(c)
7.3
(d)
7.3
314
(a)
3.9
(b)
11.1, 3.6
(c) (1)
11.1
(c) (2)
11.1
(c) (3)
11.1
(d)
11.1
(e)
11.1
(f)
N.A.
315
(a)
6.1(b)
(b)
6.5
(c)
6.1(a)
(d)
6.1(c)
(e)
5.13
316
(a) (1) (A)
5.11
(a) (1) (B)
5.12
(a) (2)
N.A.
(b)
5.7
(c)
5.6(b)
317
(a) (1)
5.3(b)
(a) (2)
5.3(d)
(b)
3.3
318
(a)
11.7
1
Note: This Cross Reference Table shall not, for any purpose, be deemed to be part of this Indenture.
2
N.A. means Not Applicable.
COPAR 2026-1 Indenture
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
2
SECTION 1.1 Definitions
2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act
2
SECTION 1.3 Other Interpretive Provisions
2
ARTICLE II THE NOTES
3
SECTION 2.1 Form
3
SECTION 2.2 Execution, Authentication and Delivery
3
SECTION 2.3 Temporary Notes
4
SECTION 2.4 Registration of Transfer and Exchange
4
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes
6
SECTION 2.6 Persons Deemed Owners
6
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest
7
SECTION 2.8 Cancellation
7
SECTION 2.9 Release of Collateral
8
SECTION 2.10 Book-Entry Notes
8
SECTION 2.11 Notices to Clearing Agency
9
SECTION 2.12 Definitive Notes
9
SECTION 2.13 Authenticating Agents
9
SECTION 2.14 Paying Agent
10
SECTION 2.15 Tax and Accounting Treatment
11
SECTION 2.16 Certain Transfer Restrictions on all Classes of the Notes
11
SECTION 2.17 Certain Transfer Restrictions
12
SECTION 2.18 Transfer Restrictions on Certain Notes Upon a Sale of a Certificate
13
SECTION 2.19 Certain Transfer Restrictions on the 144A Notes
13
ARTICLE III COVENANTS
16
SECTION 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark
Replacement
16
SECTION 3.2 Maintenance of Office or Agency
19
SECTION 3.3 Money for Payments to Be Held in Trust
19
SECTION 3.4 Existence
20
SECTION 3.5 Protection of Collateral
21
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TABLE OF CONTENTS
(continued)
Page
SECTION 3.6 Opinions as to Collateral
21
SECTION 3.7 Performance of Obligations; Servicing of Receivables
22
SECTION 3.8 Negative Covenants
22
SECTION 3.9 Annual Compliance Statement
23
SECTION 3.10 Restrictions on Certain Other Activities
24
SECTION 3.11 Restricted Payments
24
SECTION 3.12 Notice of Events of Default
25
SECTION 3.13 Further Instruments and Acts
25
SECTION 3.14 Compliance with Laws
25
SECTION 3.15 Removal of Administrator
25
SECTION 3.16 Perfection Representations, Warranties and Covenants
25
SECTION 3.17 Investment Company Act Representation
25
ARTICLE IV SATISFACTION AND DISCHARGE
25
SECTION 4.1 Satisfaction and Discharge of Indenture
25
SECTION 4.2 Application of Trust Money
26
SECTION 4.3 Repayment of Monies Held by Paying Agent
26
ARTICLE V REMEDIES
26
SECTION 5.1 Events of Default
26
SECTION 5.2 Acceleration of Maturity; Waiver of Event of Default
27
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by the Indenture
Trustee
28
SECTION 5.4 Remedies; Priorities
30
SECTION 5.5 Optional Preservation of the Collateral
33
SECTION 5.6 Limitation of Suits
33
SECTION 5.7 Rights of Noteholders to Receive Principal and Interest
34
SECTION 5.8 Restoration of Rights and Remedies
34
SECTION 5.9 Rights and Remedies Cumulative
34
SECTION 5.10 Delay or Omission Not a Waiver
34
SECTION 5.11 Control by Noteholders
35
SECTION 5.12 Waiver of Past Defaults
35
SECTION 5.13 Undertaking for Costs
36
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COPAR 2026-1 Indenture
TABLE OF CONTENTS
(continued)
Page
SECTION 5.14 Waiver of Stay or Extension Laws
36
SECTION 5.15 Action on Notes
36
SECTION 5.16 Performance and Enforcement of Certain Obligations
36
SECTION 5.17 Sale of Collateral
37
ARTICLE VI THE INDENTURE TRUSTEE
37
SECTION 6.1 Duties of the Indenture Trustee
37
SECTION 6.2 Rights of the Indenture Trustee
38
SECTION 6.3 Individual Rights of the Indenture Trustee
40
SECTION 6.4 The Indenture Trustee’s Disclaimer
40
SECTION 6.5 Notice of Defaults
41
SECTION 6.6 Reports by the Paying Agent
41
SECTION 6.7 Compensation and Indemnity
41
SECTION 6.8 Removal, Resignation and Replacement of the Indenture Trustee
42
SECTION 6.9 Successor Indenture Trustee by Merger
43
SECTION 6.10 Appointment of
Co-Indenture
Trustee or
Separate Indenture Trustee
43
SECTION 6.11 Eligibility; Disqualification
45
SECTION 6.12 Preferential Collection of Claims Against the Issuer
45
SECTION 6.13 Representations and Warranties
45
ARTICLE VII NOTEHOLDERS’ LISTS AND REPORTS
45
SECTION 7.1 The Issuer to Furnish the Indenture Trustee Names and Addresses of
Noteholders
45
SECTION 7.2 Preservation of Information; Communications to Noteholders
46
SECTION 7.3 Reports by the Indenture Trustee
46
SECTION 7.4 Statements to Certificateholders and Noteholders
46
SECTION 7.5 Noteholder Demand for Repurchase, Dispute Resolution
48
SECTION 7.6 Investor Action to Initiate an Asset Review
49
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
50
SECTION 8.1 Collection of Money
50
SECTION 8.2 Trust Accounts
50
SECTION 8.3 General Provisions Regarding Accounts
52
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TABLE OF CONTENTS
(continued)
Page
SECTION 8.4 Additional Withdrawals and Deposits
55
SECTION 8.5 Distributions
55
SECTION 8.6 Release of Collateral
56
SECTION 8.7 Opinion of Counsel
57
ARTICLE IX SUPPLEMENTAL INDENTURES
57
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders
57
SECTION 9.2 Supplemental Indentures with Consent of Noteholders
59
SECTION 9.3 Execution of Supplemental Indentures
61
SECTION 9.4 Effect of Supplemental Indenture
61
SECTION 9.5 Conformity with Trust Indenture Act
61
SECTION 9.6 Reference in Notes to Supplemental Indentures
61
ARTICLE X REDEMPTION OF NOTES
61
SECTION 10.1 Redemption
61
SECTION 10.2 Form of Redemption Notice
62
SECTION 10.3 Notes Payable on Redemption Date
62
ARTICLE XI MISCELLANEOUS
63
SECTION 11.1 Compliance Certificates and Opinions, etc
63
SECTION 11.2 Form of Documents Delivered to the Indenture Trustee
64
SECTION 11.3 Acts of Noteholders
65
SECTION 11.4 Notices
65
SECTION 11.5 Notices to Noteholders; Waiver
66
SECTION 11.6 Alternate Payment and Notice Provisions
66
SECTION 11.7 Conflict with Trust Indenture Act
66
SECTION 11.8 Information Requests
67
SECTION 11.9 Effect of Headings and Table of Contents
67
SECTION 11.10 Successors and Assigns
67
SECTION 11.11 Separability
67
SECTION 11.12 Benefits of Indenture
67
SECTION 11.13 Legal Holidays
67
SECTION 11.14 GOVERNING LAW
67
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TABLE OF CONTENTS
(continued)
Page
SECTION 11.15 Counterparts
67
SECTION 11.16 Recording of Indenture
67
SECTION 11.17 Trust Obligation
69
SECTION 11.18 No Petition
69
SECTION 11.19 Submission to Jurisdiction; Waiver of Jury Trial
69
SECTION 11.20 Subordination of Claims
69
SECTION 11.21 U.S.A. Patriot Act
69
SECTION 11.22 Beneficial Ownership
70
SECTION 11.23 Limitation of Liability
70
ARTICLE XII COMPLIANCE WITH THE FDIC RULE
70
SECTION 12.1 Purpose
70
SECTION 12.2 Requirements of the FDIC Rule
71
SECTION 12.3 Performance
73
SECTION 12.4 Actions Upon Repudiation
73
SECTION 12.5 Notice
75
SECTION 12.6 Reservation of Rights
76
Schedule I
Perfection Representations, Warranties and Covenants
Exhibit A
Form of Notes
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COPAR 2026-1 Indenture
This
INDENTURE, dated as of September 17, 2026 (as amended, supplemented, or
otherwise modified and in effect from time to time, this “
Indenture
”), is between CAPITAL ONE PRIME AUTO RECEIVABLES TRUST 2026-1, a Delaware statutory trust (the “
Issuer
”), and Wilmington Trust, National
Association, a national banking association, solely as trustee and not in its individual capacity (the
“
Indenture Trustee
”).
Each party agrees as follows for the benefit of the other party and the equal and ratable benefit of the Holders of the Issuer’s
Class A-1
4.002% Auto Loan Asset Backed Notes (the “
Class
A-1
Notes
”),
Class A-2-A 4.48%
Auto Loan Asset Backed Notes (the “
Class
A-2-A
Notes
”),
Class A-2-B
SOFR Rate + 0.37% Auto Loan Asset Backed Notes (the “
Class
A-2-B
Notes
”),
Class A-3
4.77% Auto Loan Asset Backed Notes (the “
Class
A-3
Notes
”),
Class A-4
4.88% Auto Loan Asset Backed Notes (the “
Class
A-4
Notes
”, and together with the
Class A-1
Notes, the
Class A-2-A
Notes, the
Class A-2-B
Notes and the
Class A-3
Notes, the “
Class
A
Notes
”), Class B 5.06% Auto Loan Asset Backed Notes (the “
Class
B Notes
”), Class C 5.21% Auto Loan Asset Backed Notes (the “
Class
C Notes
”) and
Class D 5.70% Auto Loan Asset Backed Notes (the “
Class
D Notes
”, and together with the
Class A-1
Notes, the
Class A-2-A
Notes, the
Class A-2-B
Notes, the
Class A-3
Notes, the
Class A-4
Notes, the Class B Notes and the Class C Notes, the “
Notes
”).
GRANTING CLAUSE
The
Issuer, to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes equally and ratably without prejudice, priority or distinction except as set forth herein, and to secure compliance with the
provisions of this Indenture, hereby Grants in trust to the Indenture Trustee on the Closing Date, as trustee for the benefit of the Noteholders, all of the Issuer’s right, title and interest, whether now owned or hereafter acquired, in and to
(i) the Trust Estate and (ii) all present and future claims, demands, causes and choses in action in respect of any or all of the Trust Estate and all payments on or under and all proceeds of every kind and nature whatsoever in respect of
any or all of the Trust Estate, including all proceeds of the conversion, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments, securities, financial assets and other property which at any time constitute all or part of or
are included in the proceeds of any of the Trust Estate (collectively, the “
Collateral
”).
The Indenture Trustee, on
behalf of the Noteholders, acknowledges the foregoing Grant, accepts the trusts under this Indenture and agrees to perform its duties required in this Indenture in accordance with the provisions of this Indenture.
The foregoing Grant is made in trust to secure (i) the payment of principal of and interest on, and any other amounts owing in respect
of, the Notes, equally and ratably without prejudice, priority or distinction except as set forth herein and (ii) compliance with the provisions of this Indenture, all as provided in this Indenture.
Without limiting the foregoing Grant, any Receivable repurchased or purchased by (a) the Servicer pursuant to
Section
3.6
of the Servicing Agreement or (b) the Bank pursuant to
COPAR 2026-1 Indenture
Section
3.4
of the Purchase Agreement shall be deemed to be automatically released from the lien of this Indenture without any action being taken by the Indenture
Trustee upon payment by the applicable purchaser of the related Repurchase Price for such Repurchased Receivable.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1
Definitions
. Capitalized terms are used in this Indenture as defined in
Appendix
A
to the
Sale Agreement, dated as of the date hereof (as amended, supplemented, or otherwise modified and in effect from time to time, the “
Sale Agreement
”), between the Issuer and Capital One Auto Receivables, LLC, which also contains
rules as to usage that are applicable herein.
SECTION 1.2
Incorporation by Reference of Trust Indenture Act
. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“
Commission
” means the Securities and Exchange Commission.
“
indenture securities
” means the Notes.
“
indenture security holder
” means a Noteholder.
“
indenture to be qualified
” means this Indenture.
“
indenture trustee
” or “
institutional trustee
” means the Indenture Trustee.
“
obligor
” on the indenture securities means the Issuer and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
SECTION 1.3
Other Interpretive Provisions
. All terms defined in
this Indenture shall have the defined meanings when used in any certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Indenture and all such certificates and other documents, unless the
context otherwise requires: (a) accounting terms not otherwise defined in this Indenture, and accounting terms partly defined in this Indenture to the extent not defined, shall have the respective meanings given to them under GAAP
(
provided
, that, to the extent that the definitions in this Indenture and GAAP conflict, the definitions in this Indenture shall control); (b) terms defined in Article 9 of the UCC as in effect in the relevant jurisdiction and not otherwise
defined in this Indenture are used as defined in that Article; (c) the words “hereof,” “herein” and “hereunder” and words of similar import refer to this Indenture as a whole and not to any particular
provision of this Indenture; (d) references to any Article, Section, Schedule, Appendix or Exhibit are references to Articles, Sections, Schedules, Appendices and Exhibits in or to this Indenture and references to any paragraph, subsection,
clause or other subdivision within
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COPAR 2026-1 Indenture
any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (e) the term “including” and all variations thereof
means “including without limitation”; (f) except as otherwise expressly provided herein, references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation;
(g) references to any Person include that Person’s successors and assigns and (h) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
ARTICLE II
THE NOTES
SECTION 2.1
Form
. The
Class A-1
Notes,
Class A-2-A
Notes,
Class A-2-B
Notes,
Class A-3
Notes,
Class A-4
Notes, Class B Notes, Class C Notes and Class D Notes, in each case together with the Indenture Trustee’s certificate of authentication, shall be in substantially the form set forth in
Exhibit A
hereto, with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing the Notes, as evidenced by their execution of the Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of
the Note.
Each Note shall be dated the date of its authentication. The terms of the Notes set forth in
Exhibit A
hereto are part
of the terms of this Indenture.
SECTION 2.2
Execution, Authentication and Delivery
. The Notes shall be executed on behalf of
the Issuer by any of its Authorized Officers.
Notes bearing the signature of individuals who were at any time Authorized Officers of the
Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.
The Indenture Trustee shall, upon Issuer Order, authenticate and deliver
Class A-1
Notes for
original issue in an Initial Note Balance of $336,400,000,
Class A-2-A
Notes for original issue in an Initial Note Balance of $572,380,000,
Class A-2-B
Notes
for original issue in an Initial Note Balance of $157,900,000,
Class A-3
Notes for original issue in an Initial Note Balance of $730,280,000,
Class A-4
Notes
for original issue in an Initial Note Balance of $118,410,000, Class B Notes for original issue in an Initial Note Balance of $19,740,000, Class C Notes for original issue in an Initial Note Balance of $19,740,000 and Class D Notes
for original issue in an Initial Note Balance of $19,740,000. The Note Balance of
Class A-1
Notes,
Class A-2-A
Notes,
Class A-2-B
Notes,
Class A-3
Notes,
Class A-4
Notes, Class B Notes, Class C Notes and Class D Notes
Outstanding at any time may not exceed such amounts except as provided in
Section
2.5
.
Each Note shall be dated
the date of its authentication. The Notes shall be issuable as registered Notes in the minimum denomination of $1,000 and in integral multiples of $1,000 in excess thereof (except for one Note of each Class which may be issued in a denomination
other than an integral multiple of $1,000).
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COPAR 2026-1 Indenture
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose, unless there appears on such Note a certificate of authentication substantially in the form provided for herein executed by the Indenture Trustee by the manual signature of one of its authorized signatories, and such certificate upon
any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
SECTION 2.3
Temporary Notes
. Pending the preparation of Definitive Notes, the Issuer may execute, and upon receipt of an Issuer
Order, the Indenture Trustee shall authenticate and deliver, temporary Notes which are printed, lithographed, typewritten, mimeographed or otherwise produced, of the tenor of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture as the officers executing such Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer shall cause Definitive Notes to be prepared without unreasonable delay. After the preparation of
Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at the office or agency of the Issuer to be maintained as provided in
Section
3.2
, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer shall execute and the Indenture Trustee upon Issuer Order shall authenticate and deliver in exchange therefor a like principal amount of Definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4
Registration of Transfer and Exchange
.
(a) The Issuer shall cause to be kept a register (the “
Note Register
”) in which, subject to such reasonable regulations as
it may prescribe, the Issuer shall provide for the registration of Notes and the registration of transfers of Notes. The Indenture Trustee shall initially be the “
Note Registrar
” for the purpose of registering Notes and transfers
of Notes as herein provided. Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a successor or, if it elects not to make such an appointment, assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer as Note Registrar, the Issuer shall give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location, and any change in the location, of the Note Register, and the Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain
copies thereof, and the Indenture Trustee shall have the right to conclusively rely upon a certificate executed on behalf of the Note Registrar by a Responsible Officer thereof as to the names and addresses of the Noteholders and the principal
amounts and number of such Notes.
Notwithstanding the foregoing, for so long as Wilmington Trust, National Association is acting as the
Indenture Trustee hereunder, it shall also act as the Note Registrar.
(b) Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in
Section
3.2
, if the requirements of
Section 8-401
of the UCC are met, the Issuer shall execute and upon its written
request the Indenture Trustee
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COPAR 2026-1 Indenture
shall authenticate and the Noteholder shall obtain from the Indenture Trustee, in the name of the designated transferee or transferees, one or more new Notes, in any authorized denominations,
of the same Class and a like Outstanding Note Balance.
At the option of the related Noteholder, Notes may be exchanged for
other Notes in any authorized denominations, of the same Class and a like Outstanding Note Balance, upon surrender of the Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, if the requirements of
Section 8-401
of the UCC are met the Issuer shall execute and, upon Issuer Request, the Indenture Trustee shall authenticate and the related Noteholder shall obtain from the Indenture Trustee, the Notes
which the Noteholder making the exchange is entitled to receive.
(c) All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
(d) Every Note presented or surrendered for registration of transfer or exchange shall be (i) duly endorsed by, or be accompanied by, a
written instrument of transfer in form and substance satisfactory to the Issuer and the Indenture Trustee duly executed by the Noteholder thereof or its
attorney-in-fact
duly authorized in writing, with such signature guaranteed by an “eligible grantor institution” meeting the requirements of the Note Registrar which requirements include membership or participation in the Securities Transfer Agents
Medallion Program (“
STAMP
”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act and
(ii) accompanied by such other documents as the Indenture Trustee may require, including but not limited to the applicable IRS
Form W-8
or
W-9.
(e) No service charge shall be made to a Noteholder for any registration of transfer or exchange of Notes, but the Issuer may require payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to
Section
2.3
or
Section
9.6
not involving any transfer.
(f) The Indenture Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(g) The preceding provisions of this
Section
2.4
notwithstanding, the Issuer shall not be required to make and the
Note Registrar need not register transfers or exchanges of any Notes selected for redemption or of any Note for a period of fifteen (15) days preceding the Redemption Date or any Payment Date, as applicable.
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COPAR 2026-1 Indenture
SECTION 2.5
Mutilated, Destroyed, Lost or Stolen Notes
. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the Indenture Trustee harmless, then, in the absence of notice to the Issuer, the Note Registrar or the Indenture Trustee that such Note has been acquired by a “protected
purchaser” (as contemplated by Article 8 of the UCC), and
provided
that the requirements of
Section 8-405
of the UCC are met, the Issuer shall execute and upon its written request the
Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note;
provided
that if any such destroyed, lost or stolen Note, but not a mutilated Note, shall
have become or within seven (7) days shall be due and payable, or shall have been called for redemption, instead of issuing a replacement Note, the Issuer may upon delivery of the security or indemnity herein required pay such destroyed, lost
or stolen Note when so due or payable or upon the Redemption Date without surrender thereof. If, after the delivery of such replacement Note or payment of a destroyed, lost or stolen Note pursuant to the proviso to the preceding sentence, a
“protected purchaser” (as contemplated by Article 8 of the UCC) of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuer and the Indenture Trustee shall be entitled
to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was delivered or any assignee of such Person, except a
“protected purchaser” (as contemplated by Article 8 of the UCC), and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the
Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this
Section
2.5
,
the Issuer or the Indenture Trustee may require the payment by the Noteholder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee or the Note Registrar) connected therewith.
Every replacement Note issued pursuant to this
Section
2.5
in replacement of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
The provisions of this
Section
2.5
are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6
Persons Deemed Owners
. Prior to due presentment for registration of transfer of any Note, the Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture Trustee shall treat the Person in whose name any Note is registered (as of the day of determination) as the owner of such Note for the purpose of receiving payments of principal of and interest,
if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Issuer, the Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
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COPAR 2026-1 Indenture
SECTION 2.7
Payment of Principal and Interest; Defaulted Interest
.
(a) Each of the Notes shall accrue interest at its respective Interest Rate, and such interest shall be payable on each Payment Date as
specified therein, subject to
Sections 3.1
and
8.2
. Any installment of interest or principal, if any, payable on any Note which is punctually paid or duly provided for by the Issuer on the applicable Payment Date shall be paid to the
Person in whose name such Note (or one or more Predecessor Notes) is registered on the Record Date, by wire transfer in immediately available funds to the account designated in writing to the Indenture Trustee by such Person (or, if no such account
is designated in writing to the Indenture Trustee by such Person, then by check mailed first-class, postage prepaid, to such Person’s address as it appears on the Note Register on such Record Date), except that, unless Definitive Notes have
been issued pursuant to
Section
2.12
, with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such nominee and except for the final installment of principal payable with respect to such Note on a Payment Date or on the Final Scheduled Payment Date for such Class (and except
for the Redemption Price for any Note called for redemption pursuant to
Section
10.1
) which shall be payable as provided below. The funds represented by any such checks returned undelivered shall be held in accordance with
Section
3.3
.
(b) The principal of each Note shall be payable in installments on each Payment Date as provided
in
Section
8.2
. Notwithstanding the foregoing, the entire unpaid Note Balance and all accrued interest thereon shall be due and payable, if not previously paid, on the earlier of (i) the date on which an Event of
Default shall have occurred and be continuing, if the Indenture Trustee or the Holders of a majority of the Outstanding Note Balance of the Controlling Class have declared the Notes to be immediately due and payable in the manner provided in
Section
5.2
and (ii) with respect to any Class of Notes, on the Final Scheduled Payment Date for that Class. All principal payments on each Class of Notes shall be made pro rata to the Noteholders of such
Class entitled thereto. The Indenture Trustee shall notify the Person in whose name a Note is registered at the close of business on the Record Date preceding the Payment Date on which Indenture Trustee expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be transmitted prior to such final Payment Date and shall specify that such final installment will be payable only upon presentation and surrender of such Note and shall specify
the place where such Note may be presented and surrendered for payment of such installment. Notices in connection with redemptions of Notes shall be mailed to Noteholders as provided in
Section
10.2
.
(c) If the Issuer defaults on a payment of interest on any Class of Notes, the Issuer shall pay defaulted interest (plus interest on such
defaulted interest to the extent lawful at the applicable Interest Rate for such Class of Notes), which shall be due and payable on the Payment Date following such default. The Issuer shall pay such defaulted interest to the Persons who are
Noteholders on the Record Date for such following Payment Date.
SECTION 2.8
Cancellation
. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Notes
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previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Indenture Trustee. No
Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Notes may be held or disposed of by the Indenture Trustee in accordance with
its standard retention or disposal policy as in effect at the time unless the Issuer shall direct by an Issuer Order that they be destroyed or returned to it;
provided
that such Issuer Order is timely and that such Notes have not been
previously disposed of by the Indenture Trustee.
SECTION 2.9
Release of Collateral
. Except as contemplated by
Section
11.1(b)(v)
, the Indenture Trustee shall release property from the lien of this Indenture only upon receipt of an Issuer Request accompanied by an Officer’s Certificate, an Opinion of Counsel and unless the
Notes have been redeemed in accordance with
Section
10.1
, Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion of Counsel in lieu of such Independent Certificates to the effect
that the TIA does not require any such Independent Certificates. If the Commission shall issue an exemptive order under TIA Section 304(d) modifying the Issuer’s obligations under TIA Sections 314(c) and 314(d)(1), subject to
Section
11.1
and the terms of the Transaction Documents, the Indenture Trustee shall release property from the lien of this Indenture in accordance with the conditions and procedures set forth in such exemptive order.
SECTION 2.10
Book-Entry Notes
. The Notes, upon original issuance, will be issued in the form of typewritten notes representing the
Book-Entry Notes, to be delivered to the Indenture Trustee, as agent for DTC, the initial Clearing Agency, by, or on behalf of, the Issuer. One fully registered Book-Entry Note shall be issued with respect to each $500 million in principal
amount of each Class of Notes and any such lesser amount. Such Notes shall initially be registered on the Note Register in the name of Cede & Co., the nominee of the initial Clearing Agency, and no Note Owner shall receive a Definitive
Note representing such Note Owner’s interest in such Note, except as provided in
Section
2.12
. Unless and until definitive, fully registered Notes (the “
Definitive Notes
”) have been issued to
Note Owners pursuant to
Section
2.12
:
(a) the provisions of this Section shall be in full force and effect;
(b) the Note Registrar and the Indenture Trustee shall be entitled to deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the Notes and the giving of instructions or directions hereunder) as the sole Noteholders, and shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section conflict with any other provisions of this Indenture, the provisions of this Section
shall control;
(d) the rights of Note Owners shall be exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between or among such Note Owners and the Clearing Agency and/or the Clearing Agency Participants or Persons acting through Clearing Agency Participants. Pursuant to the Depository Agreement, unless and until
Definitive Notes are issued pursuant to
Section
2.12
, the initial Clearing Agency will make book-
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COPAR 2026-1 Indenture
entry transfers among the Clearing Agency Participants and receive and transmit payments of principal of and interest on the Notes to such Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken based upon instructions or directions of Noteholders evidencing a
specified percentage of the Outstanding Note Balance, the Clearing Agency shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from Note Owners and/or Clearing Agency Participants or
Persons acting through Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Notes and has delivered such instructions to the Indenture Trustee.
SECTION 2.11
Notices to Clearing Agency
. Whenever a notice or other communication to the Noteholders is required under this
Indenture, unless and until Definitive Notes shall have been issued to Note Owners pursuant to
Section
2.12
, the Indenture Trustee shall give all such notices and communications specified herein to be given to the
Noteholders to the Clearing Agency, and shall have no obligation to the Note Owners.
SECTION 2.12
Definitive Notes
. If
(a) the Administrator advises the Indenture Trustee in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Notes, and the Administrator or the Indenture Trustee is unable
to locate a qualified successor, (b) the Administrator at its option advises the Indenture Trustee in writing that it elects to terminate the book-entry system through the Clearing Agency or (c) an Event of Default shall have occurred, and
Note Owners representing beneficial interests aggregating at least a majority of the Outstanding Note Balance of the Controlling Class, voting together as a single Class, advise the Indenture Trustee through the Clearing Agency or its successor in
writing that the continuation of a book entry system through the Clearing Agency or its successor is no longer in the best interests of the Note Owners, then the Clearing Agency shall notify all Note Owners and the Indenture Trustee of the
occurrence of any such event and of the availability of Definitive Notes to Note Owners requesting the same. Upon surrender to the Indenture Trustee of the typewritten Note or Notes representing the Book-Entry Notes by the Clearing Agency or the
custodian holding the Book-Entry Notes on behalf of the Clearing Agency at its direction, accompanied by registration instructions, the Issuer shall execute and the Indenture Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Note Registrar or the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the Holders of the Definitive Notes as Noteholders.
The Definitive Notes shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without
steel engraved borders), all as determined by the officers executing such Notes, as evidenced by their execution of such Notes.
SECTION 2.13
Authenticating Agents
.
(a) Upon the request of the Issuer, the Indenture Trustee shall, and if the Indenture Trustee so chooses, the Indenture Trustee may appoint
one or more Persons (each, an “
Authenticating Agent
”) with power to act on its behalf and subject to its direction in the
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COPAR 2026-1 Indenture
authentication of Notes in connection with issuance, transfers and exchanges under
Sections 2.2
,
2.3
,
2.4
,
2.5
and
9.6
, as fully to all
intents and purposes as though each such Authenticating Agent had been expressly authorized by those Sections to authenticate such Notes. For all purposes of this Indenture, the authentication of Notes by an Authenticating Agent pursuant to this
Section shall be deemed to be the authentication of Notes “by the Indenture Trustee.” The Indenture Trustee shall be the Authenticating Agent in the absence of any appointment thereof.
(b) Any entity into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any entity resulting
from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of any Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, without the execution or filing of any further act on the part of the parties hereto or such Authenticating Agent or such successor entity.
(c) Any Authenticating Agent may at any time resign by giving written notice of resignation to the Indenture Trustee and the Issuer. The
Indenture Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and the Issuer. Upon receiving such notice of resignation or upon such termination, the Indenture
Trustee may appoint a successor Authenticating Agent and shall give written notice of any such appointment to the Issuer.
(d) The
provisions of
Section
6.4
and, for so long as the Indenture Trustee is the Authenticating Agent, all other rights, benefits and protections afforded to the Indenture Trustee hereunder, shall be applicable to any
Authenticating Agent.
SECTION 2.14
Paying Agent
. (a) The Indenture Trustee may appoint a Paying Agent with respect to
the Notes. Initially, the Paying Agent shall be the Indenture Trustee. The Paying Agent shall have the revocable power to withdraw funds from the Collection Account and the Principal Distribution Account and to make distributions to the Noteholders,
to the Certificate Distribution Account, to the Servicer, to the Administrator and to the Owner Trustee pursuant to
Section
8.4
of this Indenture. The Indenture Trustee may revoke such power and remove the Paying Agent if
the Indenture Trustee determines in its sole discretion that the Paying Agent shall have failed to perform its obligations under this Indenture in any material respect or for other good cause. Any Paying Agent shall be permitted to resign as Paying
Agent upon thirty (30) days’ written notice to the Seller and the Indenture Trustee. In the event that the Paying Agent shall have been removed or resigned, the Indenture Trustee shall appoint a successor to act as Paying Agent (which
shall be a bank or trust company and may be the Indenture Trustee) with the consent of the Seller, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, for so long as Wilmington Trust, National Association is acting as
the Indenture Trustee hereunder, it shall also act as the Paying Agent, and be entitled to the rights, benefits, protection and immunities afforded to the Indenture Trustee hereunder.
(b) The Indenture Trustee in its capacity as initial Paying Agent hereunder agrees that it (i) will hold all sums held by it hereunder
for payment to the Noteholders in trust for the benefit of the Noteholders entitled thereto until such sums shall be paid to such Person and (ii)
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shall comply with all requirements of the Code regarding the withholding of payments in respect of United States federal income taxes due from the Noteholders or Note Owners.
(c) An institution succeeding to the corporate trust or agency business of the Paying Agent shall continue to be the Paying Agent without the
execution or filing of any paper or any further act on the part of the Indenture Trustee or such Paying Agent.
SECTION 2.15
Tax
and Accounting Treatment
.
(a) The parties hereto acknowledge and agree that it is their mutual intent that the Notes constitute and
be treated as indebtedness for U.S. federal and all applicable state and local income and franchise tax purposes (other than any Notes that are owned during any period of time either by the Issuer or by a Person that is considered to be the same
Person as the Issuer for U.S. federal income tax purposes). Further, each party hereto, and each Noteholder by accepting and holding a Note (other than a Noteholder that is the Issuer or a Person that is considered to be the same Person as the
Issuer for U.S. federal income tax purposes), hereby covenants to every other party hereto and to every other Noteholder to treat the Notes as indebtedness for U.S. federal and all applicable state and local income and franchise tax purposes in all
tax filings, reports and returns and otherwise, and further covenants that neither it nor any of its Affiliates will take, or participate in the taking of or permit to be taken, any action that is inconsistent with such tax treatment and tax
reporting of the Notes, unless required by applicable law. All successors and assignees of the parties hereto shall be bound by the provisions hereof.
(b) The parties hereto agree that it is their mutual intent that, for all applicable purposes the Certificates will not constitute
indebtedness.
(c) Prior to the first Payment Date, at any time required by law and/or promptly upon request, each Noteholder shall
provide to the Indenture Trustee, Paying Agent and/or the Issuer (or other person responsible for withholding of taxes) with its Tax Information. Each Noteholder is deemed to understand that by acceptance of a Note, such Noteholder agrees to supply
the foregoing information. Further, each Noteholder is deemed to understand that the Issuer, Indenture Trustee and Paying Agent have the right to withhold as required on amounts payable with respect to the Note (without any corresponding
gross-up)
on any beneficial owner of an interest in a Note that fails to comply with both of the preceding sentences.
(d) It is the intent of the Issuer that the Notes constitute indebtedness for all financial accounting purposes and the Issuer agrees and each
purchaser of a Note (by virtue of the acquisition of such Note or an interest therein) shall be deemed to have agreed, to treat the Notes as indebtedness for all financial accounting purposes.
SECTION 2.16
Certain Transfer Restrictions on all Classes of the Notes
.
(a) By acquiring a Note (or any interest therein), each purchaser and transferee (and, if the purchaser or transferee is a Plan, its
fiduciary) (i) shall be deemed to represent and warrant that either (x) it is not acquiring and will not hold such Note (or any interest therein) on behalf of, or with any assets of, a Benefit Plan or any Plan that is subject to Similar
Law or (y) the acquisition, holding and disposition of such Note (or any interest therein) will not give rise to a
non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code or a
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COPAR 2026-1 Indenture
violation of any Similar Law and (ii) acknowledges and agrees if it is a Benefit Plan or a Plan that is subject to Similar Law, it shall not acquire such Note (or any interest therein) at
any time that the ratings on such Note are below investment grade or if such Note has been characterized as other than indebtedness for applicable local law purposes.
(b) Any purported transfer of a Note not in accordance with this
Section
2.16
or not in accordance with
Sections
2.17
,
2.18
or
2.19
shall be null and void
ab initio
and shall not be given effect for any purpose hereunder. The Issuer may sell, or direct the Indenture Trustee to sell on its behalf, any Notes acquired in violation of the
foregoing at the cost and risk of the purported transferee. If the transferee fails to transfer such Note or such beneficial interests in such Note within thirty (30) days after notice of the voided transfer, then the Issuer shall cause such
Noteholder’s interest or Note Owner’s interest in such Note to be transferred in a commercially reasonable sale arranged by the Issuer (conducted by the Issuer or an agent of the Issuer in accordance with
Section 9-610(b)
of the UCC as applied to securities that are sold on a recognized market or that may decline speedily in value).
(c) Each Noteholder and Note Owner, by its acceptance of a Note agrees to treat the Notes as indebtedness of the Issuer for ERISA purposes.
SECTION 2.17
Certain Transfer Restrictions
.
(a) Any Notes (or interests therein) beneficially owned by the Issuer or a Person that is considered to be the same Person as the Issuer for
United States federal income tax purposes after the Closing Date may not be transferred for United States federal income tax purposes to another Person (other than a Person that is considered to be the same Person as the Issuer for United States
federal income tax purposes) unless the Administrator shall cause an Opinion of Counsel, of nationally recognized tax counsel, to be delivered to the Seller and the Indenture Trustee to the effect that (x) such Notes will be treated as debt for
United States federal income tax purposes and (y) the sale of such Notes will not cause the Issuer to be treated as other than a grantor trust for United States federal income tax purposes. The transferee acknowledges that any transfer in
violation of the foregoing will be of no force and effect, will be void
ab initio
, and will not operate to transfer any rights to the transferee. In addition, if for tax or other reasons it may be necessary to track such Notes (e.g., the
Notes have original issue discount), tracking conditions such as requiring that such Notes be in definitive registered form or have a different CUSIP may be required by the Administrator as a condition to such transfer.
(b) Other than as described in clause (a) above, after the Closing Date, a Note (or beneficial interest therein) may not be sold or
transferred to a Person that beneficially owns more than 99% of the Certificates of the Issuer (and any other interest in the Issuer treated as equity for United States federal income tax purposes),
provided, however
, that such sale or
transfer shall be permitted if such Person covenants and agrees in writing, in form and substance satisfactory to the Issuer and Indenture Trustee, that it will not transfer its Certificates or Notes except upon prior delivery to the Indenture
Trustee of an Opinion of Counsel substantially to the effect described in clause (a) and subject to any tracking conditions that may be imposed by the Administrator with respect to such Notes pursuant to clause (a).
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SECTION 2.18
Transfer Restrictions on Certain Notes Upon a Sale of a
Certificate
. The restrictions on transfer of Notes retained by the Issuer or a Person that is considered the same Person as the Issuer for United States federal income tax purposes provided in
Section
2.17(a)
shall not
continue to apply in the event the Indenture Trustee and the Seller have received the Initial Certificate Transfer Opinion.
SECTION 2.19
Certain Transfer Restrictions on the 144A Notes
.
(a) None of the Issuer, the Indenture Trustee nor any other Person may register the 144A Notes under the Securities Act or any state
securities laws. No 144A Note or any interest therein may be sold or transferred (including by pledge or hypothecation) to any other Person unless such sale or transfer is to a Qualified Institutional Buyer in accordance with Rule 144A (except for
transfers of 144A Notes to the Seller or any of its Affiliates and by the Seller or any of its Affiliates as part of the initial distribution or any redistribution of the 144A Notes by the Seller or any of its Affiliates pursuant to a note purchase
agreement or any similar agreement).
(b) Prior to any sale or transfer of any 144A Note (or any interest therein) each prospective
transferee of such 144A Note (or any interest therein) (except for transfers of Notes to the Seller or any of its Affiliates and by the Seller or any of its Affiliates as part of the initial distribution or any redistribution of the Notes by the
Seller or any of its Affiliates pursuant to the Note Purchase Agreement or any similar agreement) shall be deemed to make the following representations to the Indenture Trustee, the Note Registrar and the Seller:
(i) The transferee (A) is a Qualified Institutional Buyer, (B) is aware that the sale of the 144A Notes to it is
being made in reliance on the exemption from registration provided by Rule 144A and (C) is acquiring the 144A Notes for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the
owner exercises sole investment discretion, and in a principal amount of not less than the minimum denomination of such 144A Note for the purchaser and for each such account.
(ii) The 144A Notes may not at any time be held by or on behalf of any Person (other than the Seller or an Affiliate of the
Seller) that is not a Qualified Institutional Buyer.
(iii) The transferee understands that the 144A Notes are being
offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the 144A Notes have been or will be registered under the Securities Act, and, if in the future the transferee
decides to offer, resell, pledge or otherwise transfer the 144A Notes, such 144A Notes may only be offered, resold, pledged or otherwise transferred in accordance with this Indenture and the applicable legend on such 144A Notes set forth below. The
transferee acknowledges that no representation is made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the 144A Notes.
(iv) The transferee understands that an investment in the 144A Notes involves certain risks, including the risk of loss of all
or a substantial part of its investment
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COPAR 2026-1 Indenture
under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the 144A Notes as it deemed necessary or appropriate in order to make
an informed investment decision with respect to its purchase of the 144A Notes, including an opportunity to ask questions of and request information from the Servicer, the Seller and the Issuer. The transferee has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and risks of its investment in the 144A Notes, and the transferee and any accounts for which it is acting are each able to bear the economic risk of the holder’s
investment or of its investment.
(v) In connection with the transfer of the 144A Notes (a) none of the Issuer, the
Servicer, the Seller, any initial purchaser of the 144A Notes, nor the Indenture Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment
decision or otherwise) upon any advice, counsel or representations (whether written or oral) of any initial purchaser of the 144A Notes, the Issuer, the Servicer, the Seller, or the Indenture Trustee other than in the most current offering
memorandum for such 144A Notes and any representations expressly set forth in a written agreement with such party, (c) none of any initial purchaser of the 144A Notes, the Issuer, the Servicer, the Seller, or the Indenture Trustee has given to
the transferee (directly or indirectly through any other person) any assurance, guarantee, or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence, or benefit (including
legal, regulatory, tax, financial, accounting, or otherwise) of its purchase or the documentation for the 144A Notes, (d) the transferee has consulted with its own legal, regulatory, tax, business, investment, financial, and accounting advisers
to the extent it has deemed necessary, and it has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to this Indenture) based upon its own judgment and upon any advice from such advisers as
it has deemed necessary and not upon any view expressed by any initial purchaser of the 144A Notes, the Issuer, the Servicer, the Seller, or the Indenture Trustee, (e) the transferee has determined that the rates, prices or amounts and other
terms of the purchase and sale of the 144A Notes reflect those in the relevant market for similar transactions, (f) the transferee is purchasing the 144A Notes with a full understanding of all of the terms, conditions and risks thereof
(economic and otherwise), and is capable of assuming and willing to assume (financially and otherwise) these risks and (g) the transferee is a sophisticated investor familiar with transactions similar to its investment in the 144A Notes.
(vi) The transferee understands that the 144A Notes will bear the legend(s) substantially similar to those set forth in
Section
2.17(c)
unless the Issuer determines otherwise in compliance with applicable law.
(vii)
The transferee will not, at any time, offer to buy or offer to sell the 144A Notes by any form of general solicitation or advertising, including, but not limited to, any advertisement, article, notice or other communication published in any
newspaper, magazine or similar medium or broadcast over television or radio or at a seminar or meeting whose attendees have been invited by general solicitations or advertising.
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COPAR 2026-1 Indenture
(viii) The transferee is not acquiring the 144A Notes with a view to the
resale, distribution or other disposition thereof in violation of the Securities Act.
(ix) The transferee will provide
notice to each Person to whom it proposes to transfer any interest in the 144A Notes of the transfer restrictions and representations set forth in this Indenture.
(x) The transferee acknowledges that any transfer in violation of the foregoing will be of no force and effect, will be void
ab initio
, and will not operate to transfer any rights to the transferee.
(c) Each 144A Note will bear a legend to the following
effect:
“THIS NOTE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY
ACT”). THIS NOTE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED
INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN A PRINCIPAL AMOUNT OF NOT LESS THAN $1,000 AND IN GREATER WHOLE NUMBER DENOMINATIONS OF $1,000 IN EXCESS THEREOF
(EXCEPT FOR TWO SUCH NOTES WHICH MAY BE ISSUED IN INTEGRAL MULTIPLES IN EXCESS THEREOF OF OTHER THAN $1,000) FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT, IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS NOTE IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, OR (2) TO THE SELLER OR ANY OF ITS U.S. CORPORATE AFFILIATES (OR DISREGARDED ENTITIES THEREOF) AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE INDENTURE. ANY TRANSFER IN VIOLATION OF THE
FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID
AB INITIO
, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE INDENTURE TRUSTEE, OR ANY INTERMEDIARY. IF AT
ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH NOTE OR BENEFICIAL INTEREST IN SUCH NOTE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE
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COPAR 2026-1 Indenture
REPRESENTATIONS SET FORTH IN THE INDENTURE, THE ISSUER AND THE INDENTURE TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS NOTE OR SUCH INTEREST IN SUCH NOTE VOID AND REQUIRE THAT THIS NOTE OR SUCH
INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER.
BY ACQUIRING THIS NOTE (OR ANY INTEREST HEREIN), EACH PURCHASER AND
TRANSFEREE (AND, IF THE PURCHASER OR TRANSFEREE IS A PLAN (AS DEFINED BELOW), ITS FIDUCIARY) (I) WILL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (A) SUCH PURCHASER OR TRANSFEREE IS NOT ACQUIRING AND WILL NOT HOLD THIS NOTE (OR ANY
INTEREST HEREIN) ON BEHALF OF, OR WITH ANY ASSETS OF, A PLAN THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) (EACH, A “BENEFIT PLAN”), OR A PLAN THAT IS SUBJECT TO A LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”) OR (B) THE ACQUISITION, HOLDING AND
DISPOSITION OF THIS NOTE (OR ANY INTEREST HEREIN) WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF ANY SIMILAR LAW AND (II) ACKNOWLEDGES AND AGREES IF IT IS A
BENEFIT PLAN OR A PLAN THAT IS SUBJECT TO SIMILAR LAW, IT SHALL NOT ACQUIRE THIS NOTE (OR INTEREST HEREIN) AT ANY TIME THAT THE RATINGS ON THIS NOTE ARE BELOW INVESTMENT GRADE OR IF THIS NOTE HAS BEEN CHARACTERIZED AS OTHER THAN INDEBTEDNESS FOR
APPLICABLE LOCAL LAW PURPOSES. FOR PURPOSES OF THE FOREGOING, “PLAN” MEANS AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA WHETHER OR NOT SUBJECT TO TITLE I OF ERISA, A “PLAN” AS DEFINED IN SECTION
4975 OF THE CODE, OR AN ENTITY OR ACCOUNT DEEMED TO HOLD THE PLAN ASSETS OF ANY OF THE FOREGOING.
TRANSFERS OF THIS NOTE MUST GENERALLY BE
ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE INDENTURE.”
ARTICLE III
COVENANTS
SECTION 3.1
Payment of Principal and Interest
; Determination of SOFR; Benchmark Replacement
.
(a) The Issuer will duly and punctually
pay the principal of and interest on the Notes in accordance with the terms of the Notes and this Indenture. Without limiting the foregoing and subject to Section 8.2, on each Payment Date the Issuer shall cause to be paid all amounts on
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deposit in the Collection Account which represent the Reserve Account Draw Amount and Available Funds for such Payment Date received by the Servicer during the preceding Collection Period.
Amounts properly withheld under the Code by any Person from a payment to any Noteholder of interest and/or principal shall be considered to have been paid by the Issuer to such Noteholder for all purposes of this Indenture. Interest accrued on the
Notes shall be due and payable on each Payment Date. The final interest payment on each Class of Notes is due on the earlier of (a) the Payment Date (including any Redemption Date) on which the principal amount of that Class of Notes
is reduced to zero or (b) the applicable Final Scheduled Payment Date for that Class of Notes.
(b) So long as the
Class A-2-B
Notes are Outstanding, the Paying Agent shall obtain SOFR in accordance with the definition of “SOFR Rate” on each SOFR Adjustment Date and shall promptly provide such rate to the
Administrator or such person as directed by the Administrator. All determinations of the SOFR Rate by the Paying Agent, in the absence of manifest error, will be conclusive and binding on the Noteholders.
(c) If the Administrator determines prior to the relevant Reference Time that a Benchmark Transition Event and its related Benchmark
Replacement Date have occurred prior to the determination of the then-current Benchmark, the Benchmark Replacement determined by the Administrator will replace the then-current Benchmark for all purposes relating to the
Class A-2-B
Notes in respect of such determination on such date and all such determinations on all subsequent dates. The Administrator shall deliver written notice to each Rating Agency, the Relevant Trustees
and the Paying Agent on any SOFR Adjustment Date if, as of the applicable Reference Time, the Administrator has determined with respect to the related Interest Period that there will be a change in the SOFR Rate or the terms related thereto since
the immediately preceding SOFR Adjustment Date due to a determination by the Administrator that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred. The Administrator shall have the right to make SOFR Adjustment
Conforming Changes and, in connection with the implementation of a Benchmark Replacement, Benchmark Replacement Conforming Changes, from time to time.
(d) All percentages resulting from any calculation on the
Class A-2-B
Notes shall be rounded to
the nearest one hundred-thousandth of a percentage point, with five-millionths of a percentage point rounded upwards (e.g., 9.8765445% (or 0.098765445) would be rounded to 9.87655% (or 0.0987655)), and all dollar amounts used in or resulting from
that calculation on the
Class A-2-B
Notes will be rounded to the nearest cent (with
one-half
cent being rounded upwards).
(e) Any determination, decision or election that may be made by the Administrator or any other Person in connection with a Benchmark
Transition Event, a Benchmark Replacement Conforming Change or a Benchmark Replacement pursuant to this Section 3.1 (or pursuant to any capitalized term used in this Section 3.1 or in any such capitalized term), including any determination
with respect to administrative feasibility (whether due to technical, administrative or operational issues), a tenor, rate or adjustment or of the occurrence or
non-occurrence
of an event, circumstance or date
and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error, may be made in the Administrator’s sole discretion, and, notwithstanding anything to the contrary in the
Transaction Documents, will become effective without the consent of any other Person (including any Noteholder). The
Class A-2-B
Noteholders shall not have any right to approve or disapprove of
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these changes and shall be deemed by their acceptance of a Note to have agreed to waive and release any and all claims relating to any such determinations. Notwithstanding anything to the
contrary in the Transaction Documents, none of the Issuer, the Owner Trustee, the Indenture Trustee, the Administrator, the Paying Agent, the Sponsor, the Depositor or the Servicer will have any liability for any action or inaction taken or
refrained from being taken by it with respect to any Benchmark, Benchmark Transition Event, Benchmark Replacement Date, Benchmark Replacement, Unadjusted Benchmark Replacement, Benchmark Replacement Adjustment, Benchmark Replacement Conforming
Changes or any other matters related to or arising in connection with the foregoing. Each Noteholder and beneficial owner of Notes, by its acceptance of a Note or a beneficial interest in a Note, will be deemed to waive and release any and all
claims against the Issuer, the Owner Trustee, the Indenture Trustee, the Paying Agent, the Administrator, the Sponsor, the Depositor and the Servicer relating to any such determinations.
(f) None of the Indenture Trustee, the Owner Trustee or the Paying Agent shall be under any obligation (i) to monitor, determine or
verify the unavailability or cessation of SOFR, the Benchmark or Benchmark Replacement or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Transition Event or Benchmark
Replacement Date, (ii) to select, determine or designate any Benchmark Replacement, or other successor or replacement benchmark index or whether any conditions to the designation of such a rate have been satisfied, (iii) to select,
determine or designate any Benchmark Replacement Adjustment, or Unadjusted Benchmark Replacement, or other modifier to any replacement or successor index, or (iv) to determine whether or what Benchmark Replacement Conforming Changes are
necessary or advisable, if any, in connection with any of the foregoing.
(g) None of the Indenture Trustee, the Owner Trustee or the
Paying Agent shall be liable for any inability, failure or delay on its part to perform any of its duties set forth in this Indenture or any other Transaction Document as a result of the unavailability of SOFR (or other applicable Benchmark) and the
absence of the designated Benchmark Replacement, including as a result of any inability, delay, error or inaccuracy on the part of any other transaction party, including without limitation the Servicer or Administrator (on behalf of the Trust), in
providing any direction, instruction, notice or information required or contemplated by the terms of this Indenture and the other Transaction Documents and reasonably required for the performance of such duties.
(h) (i) In no event shall (x) the Indenture Trustee and the Paying Agent be responsible for determining the SOFR Rate or any substitute
for SOFR if such rate does not appear on the FRBNY’s Website or on a comparable system as is customarily used to quote SOFR or such substitute for SOFR, (y) the Owner Trustee be responsible for determining the SOFR Rate or any substitute
for SOFR, or (z) the Indenture Trustee, the Paying Agent and the Owner Trustee be responsible for making any decision or election in connection with a Benchmark Transition Event or a Benchmark Replacement as described above, including any
determination with respect to a tenor, rate or adjustment or of the occurrence or
non-occurrence
of an event and (ii) in connection with any of the matters referenced in clause (i) of this sentence,
the Indenture Trustee, the Paying Agent and the Owner Trustee shall be entitled to conclusively rely on any determinations made by the Administrator (on behalf of the Issuer), as applicable, in regard to such matters and shall have no liability for
such actions taken at the direction of the Administrator (on behalf of the Issuer).
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SECTION 3.2
Maintenance of Office or Agency
. As long as any of the Notes remain
Outstanding, the Issuer shall maintain at the Corporate Trust Office of the Indenture Trustee, an office or agency where Notes may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer hereby initially appoints the Indenture Trustee to serve as its agent for the foregoing purposes. The Issuer shall give prompt written notice to the Indenture Trustee of the location,
and of any change in the location, of any such office or agency. If at any time the Issuer shall fail to maintain any such office or agency or shall fail to furnish the Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent to receive all such surrenders, notices and demands.
SECTION 3.3
Money for Payments to Be Held in Trust
. (a) As provided in
Sections
5.4
and
8.2
,
all payments of amounts due and payable with respect to any Notes that are to be made from amounts withdrawn from the Trust Accounts shall be made on behalf of the Issuer by the Indenture Trustee or by another Paying Agent, and no amounts so
withdrawn therefrom for payments on the Notes shall be paid over to the Issuer except as provided in this Section and
Section
8.5
.
(b) On or prior to noon, New York City time, on the Business Day prior to each Payment Date, and on or prior to noon, New York City time on
the Redemption Date, the Issuer shall deposit or cause to be deposited into the Collection Account Available Funds with respect to the related Collection Period and the Paying Agent shall hold such sum in trust for the benefit of the Persons
entitled thereto pursuant to the Transaction Documents and (unless the Paying Agent is the Indenture Trustee) shall promptly notify the Indenture Trustee in writing of its action or failure so to act.
(c) The Issuer shall cause each Paying Agent, other than the Indenture Trustee, to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby so agrees to the extent relevant), subject to the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as provided in the Transaction Documents;
(ii) give the Indenture Trustee written notice of any default by the Issuer of which it has actual knowledge in the making of
any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the Indenture Trustee all sums held by it in trust for the
payment of Notes if at any time it
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ceases to meet the standards required to be met by a Paying Agent at the time of its appointment;
(v) comply with all requirements of the Code with respect to the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon, including FATCA Withholding Tax (including obtaining and retaining from Persons entitled to payments with respect to the Notes any Tax Information and making any withholdings with respect to the Notes as
required by the Code (including FATCA) and paying over such withheld amounts to the appropriate governmental authority); and
(vi) comply with respect to any applicable reporting requirements in connection with any payments made by it on any Notes and
any withholding of taxes therefrom, and, upon request, provide any Tax Information to the Issuer.
(d) The Issuer may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, by Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by such Paying Agent, such sums to be held by the
Indenture Trustee upon the same trusts as those upon which such sums were held by such Paying Agent; and upon such a payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to
such money.
(e) Subject to applicable laws with respect to the escheat of funds, any money held by the Indenture Trustee or any Paying
Agent in trust for the payment of any amount due with respect to any Note and remaining unclaimed for two years after such amount has become due and payable shall be discharged from such trust and distributed by the Indenture Trustee to the Issuer
upon receipt of an Issuer Request and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof and all liability of the Indenture Trustee or such Paying Agent with respect to such trust
money shall thereupon cease;
provided
,
however
, that the Indenture Trustee or such Paying Agent, before being required to make any such payment, shall at the reasonable expense of the Issuer cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which date shall not be less than thirty (30) days from the date of such publication, any unclaimed balance of such money then remaining shall be paid
to the Issuer. The Indenture Trustee may also adopt and employ, at the written direction of and at the expense of the Issuer, any other reasonable means of notification of such repayment (including, but not limited to, mailing notice of such
repayment to Holders whose Notes have been called but have not been surrendered for redemption or whose right to or interest in monies due and payable but not claimed is determinable from the records of the Indenture Trustee or of any Paying Agent,
at the last address of record for each such Noteholder).
SECTION 3.4
Existence
. The Issuer will keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the State of Delaware and shall obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate.
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SECTION 3.5
Protection of Collateral
. The Issuer intends the security interest
Granted pursuant to this Indenture in favor of the Indenture Trustee on behalf of the Noteholders to be prior to all other Liens in respect of the Collateral, and the Issuer shall take all actions necessary to obtain and maintain, for the benefit of
the Indenture Trustee on behalf of the Noteholders, a first Lien on and a first priority, perfected security interest in the Collateral (except to the extent that the interest of the Indenture Trustee therein cannot be perfected by the filing of a
financing statement). The Issuer shall from time to time execute and deliver all such supplements and amendments hereto, shall file or authorize the filing of all such financing statements, continuation statements, instruments of further assurance
and other instruments, all as prepared by the Administrator and delivered to the Issuer, and shall take such other action necessary or advisable to:
(a) Grant more effectively all or any portion of the Collateral;
(b) maintain or preserve the lien and security interest (and the priority thereof) created by this Indenture or carry out more effectively the
purposes hereof;
(c) perfect, publish notice of or protect the validity of any Grant made or to be made by this Indenture;
(d) enforce any of the Collateral; or
(e) preserve and defend title to the Collateral and the rights of the Indenture Trustee and the Noteholders in the Collateral against the
claims of all Persons.
The Issuer hereby designates the Indenture Trustee as its agent and
attorney-in-fact
and hereby authorizes the Indenture Trustee to file all financing statements, continuation statements or other instruments required to be filed (if any) pursuant to this Section;
provided,
however,
the Indenture Trustee shall have no duty and shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or
maintaining the perfection of any security interest and shall have no liability in connection with taking or failing to take such action. Notwithstanding any statement to the contrary contained herein or in any other Transaction Document, the Issuer
shall not be required to notify any Dealer or any insurer with respect to any Insurance Policy about any aspect of the transactions contemplated by the Transaction Documents.
SECTION 3.6
Opinions as to Collateral
.
(a) On the Closing Date, the Issuer shall furnish or cause to be furnished to the Indenture Trustee an Opinion of Counsel to the effect that,
in the opinion of such counsel, either (i) such action has been taken with respect to the recording and filing of this Indenture, any indentures supplemental hereto and any other requisite documents, and with respect to the filing of any
financing statements and continuation statements, as are necessary to perfect and make effective the first priority lien and security interest of this Indenture, and reciting the details of such action, or (ii) no such action is necessary
to make such lien and security interest effective.
(b) Within one hundred twenty (120) days after the beginning of each calendar
year, beginning with April 30, 2027, the Issuer shall furnish to the Indenture Trustee an Opinion
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of Counsel to the effect that, in the opinion of such counsel, either (i) such action has been taken with respect to the recording, filing,
re-recording
and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents, and with respect to the filing of any financing statements and continuation statements as are
necessary to maintain the lien and security interest created by this Indenture, and reciting the details of such actions or (ii) no such action is necessary to maintain such lien and security interest. Such Opinion of Counsel shall also
describe the recording, filing,
re-recording
and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and the filing of any financing statements and continuation
statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Indenture until April 30 in the following calendar year.
SECTION 3.7
Performance of Obligations; Servicing of Receivables
.
(a) The Issuer shall not take any action and shall use its reasonable efforts not to permit any action to be taken by others, including the
Administrator, that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Collateral or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as ordered by any bankruptcy or other court or as expressly provided in this Indenture, the other Transaction Documents or such other
instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing its duties under this Indenture, and
any performance of such duties by a Person identified to the Indenture Trustee in an Officer’s Certificate of the Issuer shall be deemed to be action taken by the Issuer. Initially, the Issuer has contracted with the Administrator, and the
Administrator has agreed, to assist the Issuer in performing its duties under this Indenture.
(c) The Issuer shall, and shall cause the
Administrator and the Servicer to, punctually perform and observe all of its respective obligations and agreements contained in this Indenture, the other Transaction Documents and the instruments and agreements included in the Collateral, including
but not limited to preparing (or causing to be prepared) and filing (or causing to be filed) all UCC financing statements and continuation statements required to be filed by the terms of this Indenture and the other Transaction Documents in
accordance with and within the time periods provided for herein and therein. Except as otherwise expressly provided therein, the Issuer shall not waive, amend, modify, supplement or terminate any Transaction Document or any provision thereof other
than in accordance with the amendment provisions set forth in such Transaction Document.
SECTION 3.8
Negative Covenants
. So
long as any Notes are Outstanding, the Issuer shall not:
(a) engage in any activities other than financing, acquiring, owning,
pledging and managing the Receivables and the other Collateral as contemplated by this Indenture and the other Transaction Documents;
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COPAR 2026-1 Indenture
(b) except as expressly permitted by this Indenture or in the other Transaction Documents,
sell, transfer, exchange or otherwise dispose of any of the properties or assets of the Issuer;
(c) claim any credit on, or make any
deduction from the principal or interest payable in respect of, the Notes (other than amounts properly withheld from such payments under the Code or applicable state law) or assert any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Trust Estate;
(d) dissolve or liquidate in whole or in part;
(e) (i) permit the validity or effectiveness of this Indenture to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to the Notes under this Indenture except as may be expressly permitted hereby, (ii) permit any Lien (other
than Permitted Liens) to be created on or extend to or otherwise arise upon or burden the assets of the Issuer or any part thereof or any interest therein or the proceeds thereof or (iii) permit the lien of this Indenture not to constitute a
valid first priority (other than with respect to any Permitted Lien) security interest in the Collateral (it being understood that (A) either each Receivable constituting part of the Collateral is secured by a first priority validly perfected
security interest in the Financed Vehicle in favor of the Originator, as secured party, or all necessary actions with respect to the Receivable have been taken or will be taken to perfect a first priority security interest in the Financed Vehicle in
favor of the Originator, as secured party and (B) the Issuer shall not be required to notify any insurer with respect to any Insurance Policy obtained by an Obligor about any aspect of the transactions contemplated by the Transaction
Documents);
(f) incur, assume or guarantee any indebtedness other than indebtedness incurred in accordance with the Transaction
Documents; or
(g) merge or consolidate with, or transfer substantially all of its assets to, any other Person.
SECTION 3.9
Annual Compliance Statement
.
(a) The Issuer shall deliver to the Indenture Trustee on or before March 30
th
of each
calendar year beginning with March 30, 2027, an Officer’s Certificate stating, as to the Authorized Officer signing such Officer’s Certificate, that:
(i) a review of the activities of the Issuer during the preceding
12-month
period (or
since the Closing Date, in the case of the first such Officer’s Certificate) and of its performance under this Indenture has been made under such Authorized Officer’s supervision; and
(ii) to the best of such Authorized Officer’s knowledge, based on such review, the Issuer has complied in all material
respects with all conditions and covenants under this Indenture throughout such period, 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.
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(b) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen (15) days after the Issuer is required (if at all) to file the same
with the Commission, copies of the annual reports and such other information, documents and reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) as the Issuer may be
required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act or such other reports required pursuant to TIA Section 314(a)(1);
(ii) file with the Indenture Trustee and the Commission in accordance with rules and regulations prescribed from time to time
by the Commission such other information, documents and reports with respect to compliance by the Issuer with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall transmit by mail to all Noteholders as required by TIA
Section 313(c)) such summaries of any information, documents and reports required to be filed by the Issuer pursuant to
clauses (i)
and
(ii)
of this
Section
3.9(b)
as may be required pursuant to
rules and regulations prescribed from time to time by the Commission.
(c) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall be the same as the fiscal year of the Servicer (which shall end on the December 31
st
of each year).
SECTION 3.10
Restrictions on Certain Other Activities
. The Issuer shall not: (i) engage in any activities other than
financing, acquiring, owning, pledging and managing the Trust Estate and the other Collateral in the manner contemplated by the Transaction Documents; (ii) issue, incur, assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness other than the Notes; (iii) make any loan, advance or credit to, guarantee (directly or indirectly or by an instrument having the effect of assuring another’s payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly or indirectly, in connection with the obligations, stocks or dividends of, own, purchase, repurchase or acquire (or agree contingently to do so) any stock, obligations,
assets or securities of, or any other interest in, or make any capital contribution to, any other Person; or (iv) make any expenditure (by long-term or operating lease or otherwise) for capital assets (either realty or personalty).
SECTION 3.11
Restricted Payments
. The Issuer shall not, directly or indirectly, (a) pay any dividend or make any distribution
(by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, to the Owner Trustee or any owner of a beneficial interest in the Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer or to the Servicer or the Administrator, (b) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or security or (c) set aside or otherwise segregate any amounts for any
such purpose;
provided
that the Issuer may cause to be made distributions to the Servicer, the Administrator, the Owner Trustee, the Indenture Trustee, the Noteholders and the Certificateholders as permitted by, and to the extent funds are
available
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for such purpose under, this Indenture, the Servicing Agreement, the Administration Agreement or the Trust Agreement. Other than as set forth in the preceding sentence, the Issuer will not,
directly or indirectly, make distributions from the Trust Accounts.
SECTION 3.12
Notice of Events of Default
. The Issuer
shall promptly deliver to the Indenture Trustee and each Rating Agency written notice, in the form of an Officer’s Certificate, of an Event of Default or any event which with the giving of notice, the lapse of time or both would become an
Event of Default, its status and what action the Issuer is taking or proposes to take with respect thereto.
SECTION 3.13
Further
Instruments and Acts
. Upon request of the Indenture Trustee, the Issuer shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this
Indenture.
SECTION 3.14
Compliance with Laws
. The Issuer shall comply with the requirements of all applicable laws, the
non-compliance
with which would, individually or in the aggregate, materially and adversely affect the ability of the Issuer to perform its obligations under the Notes, this Indenture or any other Transaction
Document.
SECTION 3.15
Removal of Administrator
. For so long as any Notes are Outstanding, the Issuer shall not remove the
Administrator without cause unless the Rating Agency Condition shall have been satisfied in connection therewith.
SECTION 3.16
Perfection Representations, Warranties and Covenants
. The perfection representations, warranties and covenants attached hereto as
Schedule
I
shall be deemed to be part of this Indenture for all purposes.
SECTION 3.17
Investment Company Act Representation
. The Issuer hereby represents and warrants to the Indenture Trustee that it is
not an “investment company” that is registered or required to be registered under, or otherwise subject to the restrictions of, the Investment Company Act of 1940, as amended.
ARTICLE IV
SATISFACTION AND
DISCHARGE
SECTION 4.1
Satisfaction and Discharge of Indenture
. This Indenture shall cease to be of further effect with
respect to the Notes except as to (a) rights of registration of transfer and exchange, (b) substitution of mutilated, destroyed, lost or stolen Notes, (c) rights of Noteholders to receive payments of principal thereof and interest
thereon, (d)
Sections 3.3
,
3.4
,
3.5
,
3.8
,
3.10
and
3.11
, (e) the rights, protections, indemnities and immunities of the Indenture Trustee hereunder and (f) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with the Indenture Trustee payable to all or any of them, and the Indenture Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, when:
(a) either (i) all Notes theretofore authenticated and
delivered (other than (1) Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in
Section
2.5
and (2) Notes for which payment money has theretofore been deposited in trust
or
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segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust, as provided in
Section
3.3
) have been delivered to the
Indenture Trustee for cancellation or (ii) all Notes not theretofore delivered to the Indenture Trustee for cancellation (1) have become due and payable, (2) will become due and payable at the latest occurring Final Scheduled Payment
Date within one year, or (3) are to be called for redemption within one year under arrangements satisfactory to the Indenture Trustee for the giving of notice of redemption by the Indenture Trustee in the name, and at the expense, of the
Issuer, and the Issuer, in the case of
clauses (1)
,
(2)
or
(3)
, has irrevocably deposited or caused to be irrevocably deposited with the Indenture Trustee cash or direct obligations of or obligations guaranteed by the United
States (which will mature prior to the date such amounts are payable), in trust for such purpose, in an amount sufficient to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Indenture Trustee for cancellation,
when due, to the latest occurring Final Scheduled Payment Date or Redemption Date (if Notes shall have been called for redemption pursuant to
Section
10.1
)
, as the case may be;
(b) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer (but without taking into account any distributions
to the Certificate Distribution Account); and
(c) the Issuer has delivered to the Indenture Trustee an Officer’s Certificate, an
Opinion of Counsel and (if required by the TIA or the Indenture Trustee and if such discharge is not related to a redemption of the Notes in accordance with Section 10.1) a certificate from a firm of certified public accountants, each meeting
the applicable requirements of
Section
11.1(a)
and, subject to
Section
11.2
, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with (and, in the case of an Officer’s Certificate, stating that the Rating Agency Condition has been satisfied (provided, that such Officer’s Certificate need not state that the Rating Agency Condition has
been satisfied if all amounts owing on each Class of Notes have been paid or will be paid in full on the date of delivery of such Officer’s Certificate)).
SECTION 4.2
Application of Trust Money
. All monies deposited with the Indenture Trustee pursuant to
Section
4.1
shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture. Such monies need not be segregated from other funds except to the extent required herein or by law.
SECTION 4.3
Repayment of Monies Held by Paying Agent
. In connection with the satisfaction and discharge of this Indenture
with respect to the Notes, all monies then held by any Paying Agent other than the Indenture Trustee under the provisions of this Indenture with respect to such Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to be held and
applied according to
Section
3.3
and thereupon such Paying Agent shall be released from all further liability with respect to such monies.
ARTICLE V
REMEDIES
SECTION 5.1
Events of Default
. The occurrence and continuation of any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
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order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a default under this Indenture (each, an “
Event of Default
”):
(a) a default in the payment of any interest on any Note of the Controlling Class when the same becomes due and
payable, and such default shall continue for a period of five (5) Business Days or more;
(b) a default in the payment
of principal of any Note at the related Final Scheduled Payment Date or the Redemption Date;
(c) any failure by the Issuer
to duly observe or perform in any material respect any of its covenants or agreements made in this Indenture (other than (i) a covenant or agreement, a default in the observance or performance of which is elsewhere specifically addressed in
this
Section
5.1
or (ii) a covenant or agreement in
Section
12.2
), which failure materially and adversely affects the interests of the Noteholders, and such failure shall continue unremedied
for a period of ninety (90) days after receipt by the Issuer of written notice, by registered or certified mail, by the Indenture Trustee or by Noteholders evidencing at least a majority of the Outstanding Note Balance of the Controlling Class,
specifying such failure and requiring it to be remedied and stating that such notice is a “
Notice of Default
” hereunder;
(d) any representation or warranty of the Issuer made in this Indenture proves to have been incorrect in any material respect
when made, which failure materially and adversely affects the interests of the Noteholders, and which failure continues unremedied for ninety (90) days after receipt by the Issuer of written notice, by registered or certified mail, by the
Indenture Trustee or by Noteholders evidencing at least a majority of the Outstanding Note Balance of the Controlling Class, specifying such failure and requiring it to be remedied and stating that such notice is a “
Notice of
Default
” hereunder; or
(e) a Bankruptcy Event with respect to the Issuer;
provided, however
, that a delay in or failure of performance referred to under
clauses (a
), (
b
), (
c
) or (
d
) above for
a period of one hundred twenty (120) days will not constitute an Event of Default if that delay or failure was caused by force majeure or other similar occurrence.
SECTION 5.2
Acceleration of Maturity; Waiver of Event of Default
.
(a) Except as set forth in the following sentence, if an Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee may, or if directed by the Noteholders representing not less than a majority of the Outstanding Note Balance of the Controlling Class shall, declare all the Notes to be immediately due and payable, by a notice in writing to
the Issuer (and to the Indenture Trustee if given by Noteholders), and upon any such declaration the unpaid Note Balance of such Notes, together with accrued and unpaid interest thereon through the date of acceleration, shall become immediately due
and payable. If an Event of Default specified in
Section
5.1(e)
occurs, all unpaid principal, together with all accrued and unpaid interest thereon, of all Notes, and all other amounts payable hereunder, shall automatically
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become due and payable without any declaration or other act on the part of the Indenture Trustee or any Noteholder.
(b) At any time after such declaration of acceleration of maturity has been made and before a judgment or decree for payment of the money due
has been obtained by the Indenture Trustee as hereinafter provided for in this
Article V
, the Noteholders representing a majority of the Outstanding Note Balance of the Controlling Class, by written notice to the Issuer and the Indenture
Trustee, may rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the
Indenture Trustee a sum sufficient to pay (A) all payments of principal of and interest on all Notes and all other amounts that would then be due hereunder or upon such Notes if the Event of Default giving rise to such acceleration had not
occurred and (B) all sums paid or advanced by the Indenture Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in
Section
5.12
.
No such rescission shall affect any
subsequent default or impair any right consequent thereto.
If the Notes have been declared due and payable or have automatically become
due and payable following an Event of Default, the Indenture Trustee may institute Proceedings to collect amounts due, exercise remedies as a secured party (including foreclosure or sale of the Collateral) or elect to maintain the Collateral
and continue to apply the proceeds from the Collateral as if there had been no declaration of acceleration. Any sale of the Collateral by the Indenture Trustee will be subject to the terms and conditions of
Section
5.4
.
SECTION 5.3
Collection of Indebtedness and Suits for Enforcement by the Indenture Trustee
.
(a) The Issuer covenants that if (i) default is made in the payment of any interest on any Note of the Controlling Class when the
same becomes due and payable, and such default continues for a period of five (5) Business Days or more, or (ii) default is made in the payment of the principal of any Note at the related Final Scheduled Payment Date or the Redemption
Date, the Issuer will, upon demand of the Indenture Trustee in writing as directed by a majority of the Outstanding Note Balance of the Controlling Class, pay to the Indenture Trustee, for the benefit of the Holders of the Notes, the whole amount
then due and payable on such Notes for principal and interest, with interest upon the overdue principal, and, to the extent payment at such rate of interest shall be legally enforceable, upon overdue installments of interest, at the applicable
Interest Rate and in addition thereto such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and
counsel.
(b) In case the Issuer shall fail forthwith to pay the amounts described in
clause (a)
above upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
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trust, may institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuer or
other obligor upon such Notes and collect in the manner provided by law out of the property of the Issuer or other obligor upon such Notes, wherever situated, the monies adjudged or decreed to be payable.
(c) If an Event of Default shall have occurred and is continuing, the Indenture Trustee may, as more particularly provided in
Section
5.4
, proceed to protect and enforce its rights and the rights of the Noteholders, by such appropriate Proceedings as the Indenture Trustee shall deem most effective to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Indenture Trustee by this Indenture or
by law.
(d) In case there shall be pending, relative to the Issuer or any other obligor upon the Notes or any Person having or claiming
an ownership interest in the Collateral, Proceedings under the Bankruptcy Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor or Person, or in case of any other comparable judicial Proceedings relative to the Issuer or other
obligor upon the Notes, or to the creditors or property of the Issuer or such other obligor, the Indenture Trustee, irrespective of whether the principal of any Notes shall then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Indenture Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Notes
and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for reasonable compensation to the Indenture Trustee and each predecessor Indenture Trustee, and
their respective agents, attorneys and counsel, and for reimbursement of all expenses, indemnities and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee, except as a result of negligence,
bad faith or willful misconduct) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by
applicable law and regulations, to vote on behalf of the Holders of Notes in any election of a trustee, a standby trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Noteholders and of the Indenture Trustee on their behalf; and
(iv) to
file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee or the
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Noteholders allowed in any judicial Proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in any such Proceeding is hereby authorized by each Noteholder to make payments to
the Indenture Trustee, and, in the event that the Indenture Trustee shall consent to the making of payments directly to such Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel, and all other expenses, indemnities and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence, bad faith or willful misconduct, and any other amounts due the Indenture Trustee under
Section
6.7
.
(e) Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such
Proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of
asserting claims under this Indenture, or under any of the Notes, may be enforced by the Indenture Trustee without the possession of any of the Notes or the production thereof in any trial or other Proceedings relative thereto, and any such action
or Proceedings instituted by the Indenture Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the Noteholders, and it shall not be necessary to make any Noteholder a party to any such Proceedings.
SECTION 5.4
Remedies; Priorities
.
(a) If an Event of Default shall have occurred and be continuing, the Indenture Trustee may do one or more of the following (subject to
Sections 5.2
and
5.5
):
(i) institute Proceedings in its own name and as trustee of an express trust
for the collection of all amounts then payable on the Notes or under this Indenture with respect thereto, whether by declaration or otherwise, enforce any judgment obtained, and collect from the Issuer and any other obligor upon such Notes monies
adjudged due;
(ii) institute Proceedings from time to time for the complete or partial foreclosure of this Indenture with
respect to the Collateral;
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(iii) exercise any other remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee and the Noteholders; and
(iv) subject to
Section
5
.
17
, after an acceleration of the maturity of the
Notes pursuant to
Section
5
.
2
, sell the Collateral or any portion thereof or rights or interest therein, at one or more public or private sales called and conducted in any manner permitted by law;
provided, however
, that the Indenture Trustee may not sell or otherwise liquidate the Collateral following an Event of Default unless (A) the
Holders of 100% of the Outstanding Note Balance have consented to such liquidation, (B) the proceeds of such sale or liquidation are sufficient to pay in full the principal of and the accrued interest on the Outstanding Notes or (C) the
Event of Default either (x) relates to the failure to pay interest or principal when due (a “
Payment Default
”) and the Indenture Trustee determines (but shall have no obligation to make such determination) that the
Collections on the Receivables will not be sufficient on an ongoing basis to make all payments on the Notes as they would have become due if the Notes had not been declared due and payable or (y) relates to a Bankruptcy Event, and in the case
of each of (x) and (y) above, the Indenture Trustee obtains the consent of the Holders of
66-2/3%
of the Outstanding Note Balance of the Controlling Class. In determining such sufficiency or insufficiency
with respect to
clauses (B)
and
(C)
of the preceding sentence, the Indenture Trustee may, but need not, obtain and fully rely upon an opinion of an Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the Trust Estate for such purpose. Notwithstanding anything herein to the contrary, if the Event of Default does not relate to a Payment Default or Bankruptcy Event with respect
to the Issuer, the Indenture Trustee may not sell or otherwise liquidate the Trust Estate unless the Holders of all Outstanding Notes consent to such sale or the proceeds of such sale are sufficient to pay in full the principal of and accrued
interest on the Outstanding Notes.
(b) Notwithstanding the provisions of
Sections 8.2
or
8.5
of this Indenture, if the
Notes have been accelerated, the Indenture Trustee shall, upon written direction from the Servicer, pay out such money or property (and other amounts, including all amounts held on deposit in the Reserve Account) held as Collateral for the benefit
of the Noteholders (net of liquidation costs associated with the sale of the Trust Estate) in the following order of priority:
(i)
first
, to the Indenture Trustee, the Owner Trustee and the Asset Representations Reviewer,
pro rata
based on
amounts due, any accrued and unpaid fees, indemnification amounts and reasonable expenses permitted under the Transaction Documents;
(ii)
second
, to the Servicer, the Servicing Fee and all unpaid Servicing Fees with respect to prior Collection Periods;
(iii)
third
, based on interest amounts due to the Class A Noteholders for payment to each respective
Class of Class A Noteholders, the Accrued Class A Note Interest;
provided
that if there are not sufficient funds available to pay the entire amount of the Accrued Class A Note Interest, the amount available shall be
applied to the payment of
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COPAR 2026-1 Indenture
such interest on each Class of Class A Notes on a pro rata basis based on the amount of interest payable to each Class of Class A Notes;
(iv)
fourth
, to the Holders of the Class A-1 Notes, in respect of principal thereon, until the Class A-1
Notes have been paid in full;
(v)
fifth
, to the Holders of the
Class A-2-A
Notes and the
Class A-2-B
Notes, in respect of principal thereon, pro rata until the
Class A-2-A
and the
Class A-2-B
Notes are paid in full;
(vi)
sixth
, to the Holders of the
Class A-3
Notes, in respect of principal
thereon, until the
Class A-3
Notes have been paid in full;
(vii)
seventh
, to the Holders of the
Class A-4
Notes, in respect of principal thereon, until the
Class A-4
Notes have been paid in full;
(viii)
eighth
, to the Holders of the Class B Notes, the Accrued Class B Note Interest;
(ix)
ninth
, to the Holders of the Class B Notes in respect of principal thereon until the Class B Notes have
been paid in full;
(x)
tenth
, to the Holders of the Class C Notes, the Accrued Class C Note Interest;
(xi)
eleventh
, to the Holders of the Class C Notes in respect of principal thereon until the Class C
Notes have been paid in full;
(xii)
twelfth
, to the Holders of the Class D Notes, the Accrued Class D
Note Interest;
(xiii)
thirteenth
, to the Holders of the Class D Notes in respect of principal thereon until
the Class D Notes have been paid in full; and
(xiv)
fourteenth
, any remaining funds shall be distributed to
the Certificateholders,
pro rata
based on the Percentage Interest of each Certificateholder, or, to the extent Definitive Certificates have been issued, to the Certificate Distribution Account for distribution to the Certificateholders in
accordance with
Section
5.1
of the Trust Agreement.
The Indenture Trustee may fix a record date and payment
date for any payment to Noteholders pursuant to this Section. At least fifteen (15) days before such record date, the Issuer shall mail to each Noteholder and the Indenture Trustee a notice that states the record date, the payment date and the
amount to be paid.
Prior to an acceleration of the Notes after an Event of Default, if the Indenture Trustee collects any money or
property pursuant to this
Article V
, such amounts shall be deposited into the Collection Account and distributed in accordance with
Sections 8.2
or
8.5
hereof.
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(c) Notwithstanding the foregoing, in the event that the Bank were to become the subject of
an insolvency proceeding and the FDIC as receiver or conservator for the Bank pays damages as contemplated by paragraph (d)(4)(ii) of the FDIC Rule, then the actions and distributions described in
Section
12.4
shall be
effected instead of
Section
5.4(b)
.
SECTION 5.5
Optional Preservation of the Collateral
. If the
Notes have been declared or are automatically due and payable under
Section
5.2
following an Event of Default and such declaration or automatic occurrence and its consequences have not been rescinded and annulled, if
permitted hereunder, the Indenture Trustee may, but need not, elect to maintain possession of the Collateral and, if the Indenture Trustee elects to maintain such possession, it shall continue to apply the proceeds thereof in accordance with
Section
5.4(b)
. It is the intent of the parties hereto and the Noteholders that there be at all times sufficient funds for the payment of principal of and interest on the Notes under the Transaction Documents, and the
Indenture Trustee shall take such intent into account when determining whether or not to maintain possession of the Collateral. In determining whether to maintain possession of the Collateral, the Indenture Trustee may, but need not, obtain and
fully rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Collateral for such purpose.
SECTION 5.6
Limitation of Suits
.
(a) No Holder of any Note shall have any right to institute any Proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given
written notice to a Responsible Officer of the Indenture Trustee (or to the Indenture Trustee at its address for notices in accordance with
Section
11.4
) of a continuing Event of Default;
(ii) the Holders of not less than 25% of the Note Balance of the Notes have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its own name as the Indenture Trustee hereunder;
(iii)
such Holder or Holders have offered to the Indenture Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity has
failed to institute such Proceedings; and
(v) no direction inconsistent with such written request has been given to the
Indenture Trustee during such sixty (60) day period by the Holders of a majority of the Outstanding Note Balance.
No Noteholder or
group of Noteholders shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Noteholders or to obtain or to seek to obtain priority or
preference
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COPAR 2026-1 Indenture
over any other Noteholders or to enforce any right under this Indenture, except, in each case, to the extent and in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or inconsistent requests and indemnity from two or more groups of Noteholders,
each representing less than a majority of the Outstanding Note Balance of the Controlling Class, the Indenture Trustee will take the action, if any, directed by the largest percentage of Noteholders satisfying
Section
5.6(a)
, notwithstanding any other provisions of this Indenture.
(b) No Noteholder shall have any right
to vote except as provided pursuant to this Indenture and the Notes, nor any right in any manner to otherwise control the operation and management of the Issuer. However, in connection with any action as to which Noteholders are entitled to vote or
consent under this Indenture and the Notes, the Issuer may set a record date for purposes of determining the identity of Noteholders entitled to vote or consent in accordance with TIA Section 316(c).
SECTION 5.7
Rights of Noteholders to Receive Principal and Interest
. Notwithstanding any other provisions in this Indenture, the
Holder of any Note shall have the right, to receive payment of the principal of and interest, on such Note on or after the respective due dates thereof expressed in such Note or in this Indenture (or, in the case of redemption, on or after the
Redemption Date) and to institute suit for the enforcement of any such payment and such right shall not be impaired without the consent of such Noteholder.
SECTION 5.8
Restoration of Rights and Remedies
. If the Indenture Trustee or any Noteholder has instituted any Proceeding to
enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Indenture Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the
Noteholders shall continue as though no such Proceeding had been instituted.
SECTION 5.9
Rights and Remedies Cumulative
. No
right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder or otherwise shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10
Delay or Omission Not a Waiver
. No delay or omission of the
Indenture Trustee or any Holder of any Note to exercise any right or remedy accruing upon any Default or Event of Default shall impair any such right or remedy or constitute a waiver of any such Default or Event of Default or an acquiescence
therein. Every right and remedy given by this
Article
V
or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the
Noteholders, as the case may be.
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SECTION 5.11
Control by Noteholders
. Subject to the provisions of
Sections
5.4
,
5.
6
,
6.2(d)
,
6.2(e)
and
6.2(f)
, Noteholders holding not less than a majority of the Outstanding Note Balance of the Controlling Class, shall have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee with respect to the Notes or with respect to the exercise of any trust or power conferred on the Indenture Trustee;
provided
, that
(a) such direction shall not be in conflict with any rule of law or with this Indenture;
(b) subject to the express terms of the proviso and the last sentence of Section 5.4(a), any direction to the Indenture Trustee to sell
or liquidate the Trust Estate shall be by the Holders of Notes representing not less than 100% of the Outstanding Note Balance unless the proceeds of such sale are sufficient to pay in full the principal of and accrued interest on the Outstanding
Notes;
(c) if the conditions set forth in
Section
5.5
have been satisfied and the Indenture Trustee elects to
retain the Trust Estate pursuant to such Section, then any direction to the Indenture Trustee by Holders of Notes representing less than 100% of the Outstanding Note Balance to sell or liquidate the Trust Estate shall be of no force and effect;
(d) the Indenture Trustee may take any other action deemed proper by the Indenture Trustee that is not inconsistent with such direction,
applicable law and the terms of this Indenture; and
(e) such direction shall be in writing;
provided
,
further
, that, subject to
Section
6.1
, the Indenture Trustee need not take any action that it determines
might expose it to personal liability or might materially adversely affect or unduly prejudice the rights of any Noteholders not consenting to such action.
SECTION 5.12
Waiver of Past Defaults
. Prior to the declaration of the acceleration of the maturity of the Notes as provided in
Section
5.2
, the Holders of Notes of not less than a majority of the Outstanding Note Balance of the Controlling Class may waive any past Default or Event of Default and its consequences except a Default (a) in
payment of principal of or interest on any of the Notes, (b) in respect of a covenant or provision hereof which cannot be modified or amended without the consent of each Noteholder or (c) arising from a Bankruptcy Event with respect to the
Issuer. In the case of any such waiver, the Issuer, the Indenture Trustee and the Noteholders shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Default or Event
of Default or impair any right consequent thereto.
Upon any such waiver, such Default or Event of Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured and not to have occurred, for every purpose of this Indenture; but no such waiver shall extend to any prior, subsequent
or other Default or Event of Default or impair any right consequent thereto.
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SECTION 5.13
Undertaking for Costs
. All parties to this Indenture agree, and
each Noteholder by such Noteholder’s acceptance of a Note shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the
Indenture Trustee for any action taken, suffered or omitted by it as the Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to
(a) any suit instituted by the Indenture Trustee, (b) any suit instituted by any Noteholder, or group of Noteholders, in each case holding in the aggregate more than 10% of the Outstanding Note Balance or (c) any suit instituted by
any Noteholder for the enforcement of the payment of principal of or interest on any Note on or after the respective due dates expressed in such Note and in this Indenture (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14
Waiver of Stay or Extension Laws
. The Issuer covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead or in any manner whatsoever, claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
SECTION 5.15
Action
on Notes
. The Indenture Trustee’s right to seek and recover judgment on the Notes or under this Indenture shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Indenture. Neither
the lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuer or by the levy of any execution under such judgment upon
any portion of the Trust Estate or upon any of the assets of the Issuer. Any money or property collected by the Indenture Trustee shall be applied in accordance with
Section
5.4(b)
, if the maturity of the Notes has been
accelerated pursuant to
Section
5.2
or
Sections 8.2
and
8.5
of this Indenture, or
Section
4.4
of the Servicing Agreement and
Section
8.2
of this Indenture,
if the maturity of the Notes has not been accelerated.
SECTION 5.16
Performance and Enforcement of Certain Obligations
.
(a) Promptly following a request from the Indenture Trustee to do so, the Issuer shall take all such lawful action as the Indenture Trustee
may request to compel or secure the performance and observance (i) by the Seller of its obligations to the Issuer under or in connection with the Sale Agreement, (ii) by the Servicer of its obligations to the Issuer under or in connection
with the Servicing Agreement or (iii) by the Seller or the Bank, as applicable, of each of their obligations under or in connection with the Purchase Agreement, in each case, in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer under or in connection with the Sale Agreement, the Servicing Agreement and the Purchase Agreement, as the case may be, to the extent and in the manner directed by the
Indenture Trustee, including the transmission of notices of default on the part of the Seller, the Servicer or the Bank thereunder and the institution of legal or administrative actions or
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Proceedings to compel or secure performance by the Seller of its obligations under the Sale Agreement, by the Servicer of its obligations under the Servicing Agreement or by the Seller or the
Bank of each of their obligations under or in connection with the Purchase Agreement.
(b) If an Event of Default has occurred and is
continuing, the Indenture Trustee may, and, at the direction (which direction shall be in writing) of the Holders of a majority of the Outstanding Note Balance of the Controlling Class shall, exercise all rights, remedies, powers,
privileges and claims of the Issuer against the Seller under or in connection with the Sale Agreement, against the Servicer under or in connection with the Servicing Agreement or against the Seller or the Bank under or in connection with the
Purchase Agreement, including the right or power to take any action to compel or secure performance or observance by the Seller, the Servicer or the Bank of each of their obligations to the Issuer thereunder.
SECTION 5.17
Sale of Collateral
. If the Indenture Trustee acts to sell the Collateral or any part thereof, pursuant to
Section
5.4(a)
, the Indenture Trustee shall publish a notice in an Authorized Newspaper stating that the Indenture Trustee intends to effect such a sale in a commercially reasonable manner and on commercially reasonable
terms, which shall include the solicitation of competitive bids. Following such publication, the Indenture Trustee shall, unless otherwise prohibited by applicable law from any such action, sell the Collateral or any part thereof, in such manner and
on such terms as provided above to the highest bidder,
provided
,
however
, that the Indenture Trustee may from time to time postpone any sale by public announcement made at the time and place of such sale. The Indenture Trustee shall
give notice to the Seller and the Servicer of any proposed sale, and the Seller, the Servicer or any Affiliate thereof shall be permitted to bid for the Collateral at any such sale. The Indenture Trustee may obtain a prior determination from a
conservator, receiver or trustee in bankruptcy of the Issuer that the terms and manner of any proposed sale are commercially reasonable. The power to effect any sale of any portion of the Collateral pursuant to
Section
5.4
and this
Section
5.17
shall not be exhausted by any one or more sales as to any portion of the Collateral remaining unsold, but shall continue unimpaired until the entire Collateral shall have been sold or all amounts
payable on the Notes shall have been paid.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1
Duties of the Indenture Trustee
.
(a) If an Event of Default has occurred and is continuing, the Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and shall use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(b) Prior to the occurrence of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture and the other Transaction Documents to which it is a party and no implied covenants or obligations shall be read into this Indenture or the other Transaction Documents against the Indenture Trustee; and
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(ii) in the absence of bad faith on its part, the Indenture Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates, resolutions, certificates of auditors, opinions or other documents furnished to the Indenture Trustee and conforming to
the requirements of this Indenture; but in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Indenture Trustee, the Indenture Trustee shall examine the certificates,
opinions or other documents to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Indenture Trustee shall not be relieved from liability for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b)
of this
Section;
(ii) the Indenture Trustee shall not be liable for any error of judgment made in good faith by the Indenture
Trustee unless it is proved that the Indenture Trustee was negligent in ascertaining the pertinent facts; and
(iii) the
Indenture Trustee shall not be liable with respect to any action it takes or omits to take in good faith in the exercise of any trust or power conferred upon it hereunder in accordance with a direction received by it pursuant to
Section
5.11
.
(d) Every provision of this Indenture that in any way relates to the Indenture Trustee is subject
to
paragraphs (a)
,
(b)
and
(c)
of this Section.
(e) The Indenture Trustee shall not be liable for interest on
any money received by it except as the Indenture Trustee may agree in writing with the Issuer.
(f) Money held in trust by the Indenture
Trustee need not be segregated from other funds except to the extent required by law or the terms of this Indenture.
(g) No provision of
this Indenture or any other Transaction Document shall require the Indenture Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or thereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture and each other Transaction Document relating to the conduct or affecting the liability of or affording
protection to the Indenture Trustee shall be subject to the provisions of this Section and to the provisions of the TIA.
SECTION 6.2
Rights of the Indenture Trustee
.
(a) The Indenture Trustee may conclusively rely on any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Indenture Trustee need not investigate any fact or matter stated in the document.
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(b) Before the Indenture Trustee acts or refrains from acting, it may require an
Officer’s Certificate or an Opinion of Counsel, as applicable. The Indenture Trustee shall not be liable for any action it takes, suffers or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee.
(d) The Indenture Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or powers;
provided
,
however
, that the Indenture Trustee’s conduct does not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(f) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture or to institute,
conduct or defend any litigation under this Indenture or in relation to this Indenture or to honor the request or direction of any of the Noteholders pursuant to this Indenture (other than requests, demands or directions relating to an Asset Review
as described in
Section
7.6
hereof or to the Noteholders’ or Note Owners’ right to communication with each other as described in
Section
3.12
of the Sale Agreement) unless such
Noteholders shall have offered to the Indenture Trustee security or indemnity reasonably satisfactory to the Indenture Trustee against the reasonable costs, expenses, disbursements, advances and liabilities that might be incurred by it, its agents
and its counsel in compliance with such request or direction.
(g) The Indenture Trustee shall be deemed not to have knowledge of any
event or information (including, but not limited to, an Event of Default) or be required to act upon any event or information (including the sending of any notice), unless a Responsible Officer of the Indenture Trustee has actual knowledge or shall
have received written notice thereof and shall have no duty to take any action to determine whether any such event shall have occurred.
(h) The Indenture Trustee shall not be imputed with any knowledge of, or information possessed or obtained by any other Person, or any
affiliate, line of business, or other division of Wilmington Trust, National Association (and vice versa) unless such person is a Responsible Officer of the Indenture Trustee or the Indenture Trustee also has such actual knowledge or information.
Information contained in any reports delivered to the Indenture Trustee and any other publicly available information shall not constitute actual or constructive knowledge;
provided
,
however
, that notwithstanding any provision in the
Transaction Documents to the contrary, any document delivered to the Indenture Trustee that contains information which the Indenture Trustee is required to be notified of to fulfill its obligations under the Transaction Documents or under applicable
law, shall constitute actual notice to the Indenture Trustee of such information.
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(i) Notwithstanding anything to the contrary herein or otherwise, under no circumstance will
the Indenture Trustee be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including lost profits).
(j) The Indenture Trustee shall not be liable with respect to any action it takes or omits to take in accordance with a direction received by
it from the Issuer or the required Noteholders, as the case may be, in accordance with the Transaction Documents.
(k) Notwithstanding
anything to the contrary in this Indenture, the Indenture Trustee shall not be liable for any loss or damage, or any failure or reasonable delay in the performance of its obligations hereunder if it is prevented from so performing its obligations by
any reason which is beyond the control of such party, including, but not limited to, applicable law or force majeure, and the Indenture Trustee shall not be required to take any action that is contrary to applicable law.
(l) The right of the Indenture Trustee to perform any permissive or discretionary act enumerated in this Indenture or any related document
shall not be construed as a duty.
(m) Neither the Indenture Trustee nor any of its officers, directors, employees, attorneys or agents
will be responsible or liable for the existence, genuineness, value or protection of any collateral, for the legality, enforceability, effectiveness or sufficiency of the Transaction Documents, for the creation, perfection, continuation, priority,
sufficiency or protection of any liens with regard to the Collateral or the Transaction Documents, or for any defect or deficiency as to any such matters, to monitor the status of any lien or the performance of the Collateral, or for any failure to
demand, collect, foreclose or realize upon or otherwise enforce any of such liens or the Transaction Documents or any delay in doing so, unless such responsibility or liability is otherwise imposed on the Indenture Trustee under this Indenture.
(n) The Indenture Trustee shall not be liable solely for any action or inaction of the Issuer, the Noteholders, the Servicer, or any other
party (or agent thereof) to this Indenture or any other Transaction Document and may assume compliance by such parties with their obligations under this Indenture or any other Transaction Documents, unless a Responsible Officer of the Indenture
Trustee has actual knowledge or received written notice to the contrary.
SECTION 6.3
Individual Rights of the Indenture
Trustee
. Subject to Section 310 of the TIA, the Indenture Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Seller, the Owner Trustee, the Administrator and their
respective Affiliates with the same rights it would have if it were not the Indenture Trustee, and the Seller, the Owner Trustee, the Administrator and their respective Affiliates may maintain normal commercial banking and investment banking
relationships with the Indenture Trustee and its Affiliates. Any Paying Agent, Note Registrar,
co-registrar,
co-paying
agent,
co-trustee
or separate trustee may do the same with like rights. However, the Indenture Trustee must comply with
Section
6.11
.
SECTION 6.4
The Indenture Trustee
’
s Disclaimer
. The Indenture Trustee shall not be responsible for and makes
no representation as to the validity, enforceability or adequacy
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of this Indenture or the Notes, shall not be accountable for the Issuer’s use of the proceeds from the Notes, and shall not be responsible for any statement of the Issuer in the Indenture
or in any document issued in connection with the sale of the Notes or in the Notes (including any recitals), all of which shall be taken as the statements of the Issuer, other than the Indenture Trustee’s certificate of authentication.
SECTION 6.5
Notice of Defaults
. If a Default occurs and is continuing and if it is either actually known by a Responsible Officer
of the Indenture Trustee or written notice of the existence thereof has been delivered to a Responsible Officer of the Indenture Trustee, the Indenture Trustee shall mail to each Noteholder and the Administrator notice of the Default within ninety
(90) days after such knowledge or notice occurs. Except in the case of a Default in payment of principal of or interest on any Note (including payments pursuant to the mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Noteholders.
SECTION 6.6
Reports by the Paying Agent
.
(a) The Paying Agent, at the expense of the Issuer, shall make available to each Noteholder, not later than the latest date permitted by law,
such information as may be required by law to enable such Holder to prepare its federal and state income tax returns.
(b) The Paying
Agent shall comply with all requirements of the Code with respect to the withholding from any payments made by it on any Notes of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in
connection therewith.
SECTION 6.7
Compensation and Indemnity
. The Issuer shall cause the Servicer to (i) pay to
the Indenture Trustee from time to time such compensation as the Servicer and the Indenture Trustee shall from time to time agree in writing for services rendered by the Indenture Trustee hereunder in accordance with a fee letter between the
Servicer and the Indenture Trustee,
provided, however,
that such fee letter may be amended from time to time after the date hereof to provide for the Indenture Trustee’s role as Computation Agent, if applicable, and as agreed to by the
Servicer and the Indenture Trustee, (ii) reimburse the Indenture Trustee for all reasonable expenses, advances and disbursements reasonably incurred by it in connection with the performance of its duties as Indenture Trustee and
(iii) indemnify the Indenture Trustee for, and hold it harmless against, any and all fees, costs, loss, liability, expense, tax, penalty or claim (including reasonable attorneys’ fees and expenses and court costs and any losses, including
those incurred in connection with a successful defense, in whole or part, of any claim that the Indenture Trustee breached its standard of care and those incurred in actions involving the indemnifying party or other relevant transaction parties)
incurred by it in connection with the administration of the Transaction Documents, the performance of its duties as Indenture Trustee or in connection with any claim, action or suit brought to enforce the Indenture Trustee’s right to
indemnification. The Indenture Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Indenture Trustee shall notify the Issuer and the Servicer promptly of any claim for which it may seek
indemnity. Failure by the Indenture Trustee to so notify the Issuer and the Servicer shall not relieve the Issuer or the Servicer of its obligations hereunder. The Issuer
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shall, or shall cause the Servicer to, defend any such claim, and the Indenture Trustee may have separate counsel and the Issuer shall, or shall cause the Servicer to, pay the fees and expenses
of such counsel within a reasonable time following receipt by the Servicer of an invoice therefor. The Indenture Trustee shall not be indemnified by the Administrator, the Issuer, the Seller, the Bank or the Servicer against any loss, liability or
expense incurred by it or arising from (i) the Indenture Trustee’s own willful misconduct, negligence or bad faith, as determined by a court of competent jurisdiction or as otherwise agreed to by the parties, (ii) the inaccuracy of
any representation or warranty expressly made in accordance with
Section
6.13
hereof or (iii) taxes, fees or other charges on, based on or measured by, any fees, commissions or compensation received by the Indenture
Trustee.
The compensation and indemnity obligations to the Indenture Trustee pursuant to this Section shall survive the termination,
assignment and/or discharge of this Indenture and the resignation or removal of the Indenture Trustee. When the Indenture Trustee incurs expenses after the occurrence of an Event of Default set forth in
Section
5.1(e)
with
respect to the Issuer, the expenses are intended to constitute expenses of administration under the Bankruptcy Code or any other applicable federal or state bankruptcy, insolvency or similar law.
Any amounts payable to the Indenture Trustee, to the extent not paid by the Servicer, pursuant to this
Section
6.7
shall be paid by the Issuer in accordance with
Section
8.5(a)
or
Section
5.4(b)
of this Indenture, as applicable.
SECTION 6.8
Removal, Resignation and Replacement of the Indenture Trustee
. The Indenture Trustee may resign at any time by so
notifying the Issuer, the Administrator, the Servicer and each Rating Agency. The Holders of a majority of the Note Balance of the Controlling Class may remove the Indenture Trustee without cause by giving thirty (30) days’ prior
written notice to the Indenture Trustee and the Issuer, and following that removal may appoint a successor to the Indenture Trustee. The Issuer shall remove the Indenture Trustee if:
(a) the Indenture Trustee fails to comply with
Section
6.11
;
(b) a Bankruptcy Event occurs with respect to the Indenture Trustee;
(c) a receiver or other public officer takes charge of the Indenture Trustee or its property; or
(d) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the office of the Indenture Trustee for any reason (the Indenture
Trustee in such event being referred to herein as the retiring Indenture Trustee), the Issuer shall promptly appoint a successor Indenture Trustee which satisfies the requirements set forth in
Section
6.11
.
A successor Indenture Trustee shall deliver a written acceptance of its appointment to the retiring Indenture Trustee and to the Issuer.
Thereupon the resignation or removal of the retiring Indenture Trustee shall become effective, and the successor Indenture Trustee, without any further act, deed or conveyance, shall have all the rights, powers and duties of the Indenture Trustee
under this Indenture. The successor Indenture Trustee shall mail a notice of its succession to
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Noteholders. The retiring Indenture Trustee shall promptly transfer all property held by it as the Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within sixty (60) days after the retiring Indenture Trustee resigns or is removed,
the retiring Indenture Trustee, the Issuer or the Holders of a majority of the Note Balance of the Controlling Class may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with
Section
6.11
, any Noteholder may petition any court of competent
jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee.
Any resignation or removal of
the Indenture Trustee and appointment of a successor Indenture Trustee pursuant to any of the provisions of this Section shall not become effective until acceptance of appointment by the successor Indenture Trustee pursuant to this
Section
6.8
and payment of all fees, expenses and indemnities owed to the outgoing Indenture Trustee.
Notwithstanding the resignation or removal of the Indenture Trustee pursuant to this Section, the Issuer’s and the Servicer’s
obligations under
Section
6.7
shall continue for the benefit of the retiring Indenture Trustee.
The Indenture
Trustee shall not be liable for the acts or omissions of any successor Indenture Trustee.
SECTION 6.9
Successor Indenture Trustee
by Merger
. Subject to
Section
6.11
, if the Indenture Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any further act shall be the successor Indenture Trustee,
provided
, that such corporation or banking association shall be otherwise qualified and eligible under
Section
6.11
. The Indenture Trustee shall provide the Administrator prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion or consolidation to the Indenture Trustee shall succeed to the trusts
created by this Indenture any of the Notes shall have been authenticated but not delivered, any such successor to the Indenture Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated;
and in case at that time any of the Notes shall not have been authenticated, any successor to the Indenture Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Indenture Trustee.
SECTION 6.10
Appointment of
Co-Indenture
Trustee or Separate Indenture Trustee
.
(a) Notwithstanding any other provisions of this Indenture, at any time, after delivering written notice to the Administrator, for the purpose
of meeting any legal requirement of any jurisdiction in which any part of the Trust Estate may at the time be located, the Indenture Trustee and the Administrator acting jointly shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a
co-trustee
or
co-trustees,
or separate trustee
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COPAR 2026-1 Indenture
or separate trustees, of all or any part of the Trust Estate, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders, such title to the Trust Estate, or
any part hereof, and, subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Indenture Trustee and the Administrator may consider necessary or desirable. No
co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under
Section
6.11
and no notice to Noteholders of the appointment
of any
co-trustee
or separate trustee shall be required under
Section
6.8
.
(b) Every separate trustee and
co-trustee
shall, to the extent permitted by law, be appointed and act
subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and exercised or performed by the Indenture Trustee and such separate trustee or
co-trustee
jointly (it being intended that such separate trustee
or
co-trustee
is not authorized to act separately without the Indenture Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be
performed the Indenture Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Collateral or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee or
co-trustee,
but solely at the direction of the Indenture Trustee;
(ii) no separate trustee or
co-trustee
hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder, including acts or omissions of predecessor or successor trustees; and
(iii) the Indenture Trustee and the Administrator may at any time accept the resignation of or, acting jointly, remove any
separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the separate trustees and
co-trustees,
as effectively as if given to each of them. Every instrument appointing any separate trustee or
co-trustee
shall refer to this Indenture and the conditions of this
Article VI
. Each separate trustee and
co-trustee,
upon its acceptance of the trusts conferred, shall
be vested with the estates or property specified in its instrument of appointment, either jointly with the Indenture Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection to, the Indenture Trustee. Every such instrument shall be filed with the Indenture Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or
co-trustee
may at any time constitute the Indenture Trustee its agent
or
attorney-in-fact
with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in
its name. If any separate trustee or
co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the
Indenture Trustee, to the extent permitted by law, without the appointment of a new or successor trustee. Notwithstanding anything to the contrary in this Indenture, the appointment of any separate trustee
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COPAR 2026-1 Indenture
or
co-trustee
shall not relieve the Indenture Trustee of its obligations and duties under this Indenture.
SECTION 6.11
Eligibility; Disqualification
. The Indenture Trustee shall at all times satisfy the requirements of TIA
Section 310(a) and, in addition, shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition and shall have a long term debt rating of at least investment grade or
better by each Rating Agency or shall otherwise be acceptable to each Rating Agency. The Indenture Trustee shall also satisfy the requirements of TIA Section 310(b). Neither the Issuer nor any Affiliate of the Issuer may serve as Indenture
Trustee.
SECTION 6.12
Preferential Collection of Claims Against the Issuer
. The Indenture Trustee shall comply with TIA
Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). Any Indenture Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13
Representations and Warranties
. The Indenture Trustee hereby makes the following representations and warranties on
which the Issuer and the Noteholders shall rely:
(i) the Indenture Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the United States of America;
(ii) the Indenture
Trustee has full power, authority and legal right to execute, deliver, and perform this Indenture and shall have taken all necessary action to authorize the execution, delivery and performance by it of this Indenture;
(iii) this Indenture has been duly executed and delivered by the Indenture Trustee; and
(iv) this Indenture is a legal, valid and binding obligation of the Indenture Trustee enforceable in accordance with its
terms, subject to the effects of bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and to general principles of equity.
ARTICLE VII
NOTEHOLDERS’
LISTS AND REPORTS
SECTION 7.1
The Issuer to Furnish the Indenture Trustee Names and Addresses of Noteholders
. The Issuer
shall furnish or cause to be furnished to the Indenture Trustee (a) not more than five (5) days after each Record Date, a list, in such form as the Indenture Trustee may reasonably require, of the names and addresses of the Noteholders as
of such Record Date, and (b) at such other times as the Indenture Trustee may request in writing, within thirty (30) days after receipt by the Issuer of any such request, a list of similar form and content as of a date not more than ten
(10) days prior to the time such list is furnished;
provided
,
however
, that so long as (i) the Indenture Trustee is the Note Registrar or (ii) the Notes are issued as Book-Entry Notes, no such list shall be required to
be furnished to the Indenture Trustee.
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SECTION 7.2
Preservation of Information; Communications to Noteholders
.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Noteholders
contained in the most recent list furnished to the Indenture Trustee as provided in
Section
7.1
and the names and addresses of Noteholders received by the Indenture Trustee in its capacity as the Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section
7.1
upon receipt of a new list so furnished.
(b) The Noteholders may communicate pursuant to TIA Section 312(b) with other Noteholders with respect to their rights under this
Indenture or under the Notes. Upon receipt by the Indenture Trustee of any request by three or more Noteholders or by one or more Noteholders of Notes evidencing not less than 25% of the Outstanding Note Balance to receive a copy of the current list
of Noteholders (whether or not made pursuant to TIA Section 312(b)), the Indenture Trustee shall (i) promptly notify the Administrator thereof by providing to the Administrator a copy of such request and a copy of the list of Noteholders
produced in response thereto and (ii) within five (5) Business Days after receipt of such notice, forward a copy of the list of Noteholders produced to such Noteholders.
SECTION 7.3
Reports by the Indenture Trustee
. If required by TIA Section 313(a), within sixty (60) days after each March
31, beginning with March 31, 2027, the Indenture Trustee shall mail to each Noteholder as required by TIA Section 313(c), a brief report dated as of such date that complies with TIA Section 313(a). The Indenture Trustee also shall
comply with TIA Section 313(b). A copy of each report at the time of its mailing to Noteholders shall be filed by the Indenture Trustee with the Commission and each stock exchange, if any, on which the Notes are listed. The Issuer shall
notify the Indenture Trustee if and when the Notes are listed on any stock exchange.
SECTION 7.4
Statements to
Certificateholders
and Noteholders
. On each Payment Date, the Relevant Trustee shall make the Servicer’s Report provided by the Servicer pursuant to
Section
3.9
of the Servicing Agreement available
on its website as described below to the Issuer, the Servicer and each Noteholder and Certificateholder of record as of the most recent Record Date, which Servicer’s Report shall contain a statement setting forth for the Collection Period and
Payment Date relating to such Determination Date the following information (to the extent applicable):
(a) the amount being paid on such
Payment Date in respect of interest on and principal of each Class of Notes;
(b) the
Class A-1
Note Balance, the
Class A-2-A
Note Balance, the
Class A-2-B
Note Balance, the
Class A-3
Note Balance, the
Class A-4
Note Balance, the Class B Note Balance, the Class C Note Balance and the Class D Note Balance, in each case
before and after giving effect to payments on such Payment Date;
(c) (i) the amount on deposit in the Reserve Account, both before and
after giving effect to withdrawals therefrom and deposits thereto in respect of such Payment Date; (ii) the Specified Reserve Account Balance for such Payment Date; (iii) the amount deposited in the
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Reserve Account in respect of such Payment Date, if any; and (iv) the Reserve Account Draw Amount and the Reserve Account Excess Amount, if any, in respect of such Payment Date;
(d) the First Allocation of Principal, Second Allocation of Principal, Third Allocation of Principal, Fourth Allocation of Principal and
Regular Principal Distribution Amount for such Payment Date;
(e) the Pool Factor and the Note Factor for such Payment Date;
(f) the amount of the Servicing Fee with respect to the related Collection Period, the amount of the Servicing Fee to be paid on such Payment
Date and the amount of any unpaid Servicing Fees from the prior Payment Date;
(g) the amount of the Class A Noteholders’
Interest Carryover Shortfall, the Class B Noteholders’ Interest Carryover Shortfall, the Class C Noteholders’ Interest Carryover Shortfall and the Class D Noteholders’ Interest Carryover Shortfall, if any, on such
Payment Date;
(h) the amount of fees, expenses and indemnities to be paid by the Issuer to the Indenture Trustee, the Owner Trustee and
the Asset Representations Reviewer, if any, with respect to the related Payment Date and the amount of any unpaid fees, expenses or indemnities to the Indenture Trustee, the Owner Trustee and the Asset Representations Reviewer;
(i) the YSOC Amount as of the beginning and the end of the related Collection Period;
(j) the aggregate Repurchase Price with respect to Repurchased Receivables with respect to the related Collection Period;
(k) the aggregate amount being distributed on such Payment Date to the Certificates;
(l) the amount of Collections for the related Collection Period;
(m) the Cumulative Net Loss Ratio for such Payment Date;
(n) the number and aggregate Outstanding Principal Balance of
60-Day
Delinquent Receivables as of the
end of the related Collection Period;
(o) the Delinquency Percentage for the related Collection Period;
(p) the Delinquency Trigger for such Payment Date;
(q) the number of Receivables, the Net Pool Balance and the Adjusted Pool Balance as of the beginning and end of the related Collection
Period;
(r) the number, dollar amount and percentage of Net Pool Balance of Receivables that are
30-59,
60-89,
90-119
and 120 or more days delinquent as of the end of the related Collection Period; and
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(s) notice of the occurrence of a Benchmark Transition Event and its related Benchmark
Replacement Date, the determination of a Benchmark Replacement and the making of any Benchmark Replacement Conforming Changes.
No
disbursements shall be made directly by the Servicer to a Noteholder, and the Servicer shall not be required to maintain any investor record relating to the posting of disbursements or otherwise.
The Relevant Trustee will make available via the Relevant Trustee’s internet website all reports or notices required to be provided by
the Relevant Trustee under this
Section
7.4
. Any information that is disseminated in accordance with the provisions of this
Section
7.4
shall not be required to be disseminated in any other form or
manner. The Relevant Trustee will make no representations 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 http://www.wilmingtontrustconnect.com or at such other address as
shall be specified by the Indenture Trustee from time to time in writing to the Noteholders, the Owner Trustee, the Servicer, the Issuer 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 Indenture. The Indenture Trustee shall notify the Noteholders in
writing of any changes in the address or means of access to the Internet website where the reports are accessible.
SECTION 7.5
Noteholder Demand for Repurchase, Dispute Resolution
.
(a) If a Noteholder (if the Notes are represented by Definitive Notes) or a
Note Owner (if the Notes are represented by Book-Entry Notes) becomes aware of a breach of the Bank’s representations and warranties in
Section
3.3
of the Purchase Agreement that would require the Bank to repurchase a
Receivable pursuant to
Section
3.4
of the Purchase Agreement such Noteholder or Note Owner (the “
Requesting Investor
”) may notify the Bank of such breach and request that the Bank repurchase the related
Receivable. Any such written notice shall identify the Receivable and shall reference this Indenture, as well as the related breach of representation or warranty. If the Requesting Investor is a Note Owner, then each written notice from such
Requesting Investor must be accompanied by Verification Documents.
(b) If a Requesting Investor requests the repurchase of a Receivable
pursuant to
clause (a)
above, and the repurchase request has not been fulfilled or otherwise resolved to the reasonable satisfaction of such Requesting Investor within one hundred eighty (180) days of the receipt of notice of the
request by the Bank, the Requesting Investor may, in its discretion, refer the matter to either mediation or arbitration pursuant to
Section
3.11
of the Purchase Agreement.
(c) A Requesting Investor shall not be required to direct that an Asset Review be performed prior to submitting a repurchase request with
respect to any Receivable or using the dispute resolution provisions pursuant to
Section
3.11
of the Purchase Agreement with respect to such Receivable. The failure of a Requesting Investor to direct an Asset Review shall
not affect whether any Requesting Investor can pursue dispute resolution. In addition, whether any
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Requesting Investor voted affirmatively, negatively or abstained in the vote to cause an Asset Review shall not affect whether such Requesting Investor may use the dispute resolution proceedings
pursuant to
Section
3.11
of the Purchase Agreement. A Requesting Investor may refer to either mediation or arbitration pursuant to
Section
3.11
of the Purchase Agreement a dispute related to any
Receivables, including any Receivables that the Asset Representations Reviewer did not review in connection with an Asset Review, any Receivables for which the Asset Representations Reviewer found a Test Fail in connection with an Asset Review and
any Receivables that the Asset Representations Reviewer reviewed and determined that there were no Test Fails in connection with an Asset Review.
SECTION 7.6
Investor Action to Initiate an Asset Review
.
(a) If the Delinquency Percentage on any Payment Date exceeds the Delinquency Trigger, then Noteholders (if the Notes are represented by
Definitive Notes) or Note Owners (if the Notes are represented by Book-Entry Notes) holding at least 5% of the Outstanding Note Balance (the “
Instituting Noteholders
”) may elect to initiate a vote to determine whether the Asset
Representations Reviewer should conduct an Asset Review by giving written notice to the Indenture Trustee of their desire to institute such a vote within ninety (90) days after the filing of the Form
10-D
disclosing that the Delinquency Percentage exceeds the Delinquency Trigger;
provided
,
however
, that the failure of any Noteholder or Note Owner to institute such a vote shall not preclude such Noteholder or Note Owner, as applicable,
from pursuing dispute resolution pursuant to Section 3.11 of the Purchase Agreement. If any Instituting Noteholder is not a Noteholder as reflected on the Note Register, the Indenture Trustee may require such Instituting Noteholder to provide
Verification Documents to confirm that the Instituting Noteholder is, in fact, a Note Owner. If the Instituting Noteholders initiate a vote as described in this clause (a), the Indenture Trustee shall submit the matter to a vote of all Noteholders,
which shall be through the Clearing Agency if the Notes are represented by Book-Entry Notes, and the Issuer will include or cause to be included in the related Form
10-D
that such a vote has been called. The
Indenture Trustee may set a Record Date for purposes of determining the identity of Noteholders or Note Owners, as applicable, entitled to vote in accordance with TIA Section 316(c). The vote will remain open until the 150
th
day after the filing of the Form
10-D
disclosing that the Delinquency Percentage exceeds the Delinquency Trigger. Abstaining from, voting in favor of, or
voting against causing the Asset Representations Reviewer to conduct an Asset Review shall not preclude any Noteholder from pursuing dispute resolution pursuant to Section 3.11 of the Purchase Agreement. The “
Noteholder
Direction
” shall be deemed to have occurred if Noteholders representing at least a majority of the voting Noteholders vote in favor of directing an Asset Review of the Subject Receivables by the Asset Representations Reviewer. Following
the completion of the voting process, the next Form
10-D
filed by the Depositor will disclose whether or not a Noteholder Direction has occurred.
(b) Within five (5) Business Days of the Review Satisfaction Date, the Indenture Trustee will send a written notice (a “
Review
Notice
”) to the Bank, the Seller, the Servicer and the Asset Representations Reviewer specifying that the asset review conditions have been satisfied, providing the applicable Review Satisfaction Date and stating that the Asset
Representations Reviewer shall conduct an Asset Review of the Subject Receivables.
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(c) Notwithstanding
clauses
(a)
and
(b)
of this
Section
7.6
, a Noteholder (if the Notes are represented by Definitive Notes) or Note Owner (if the Notes are represented by Book-Entry Notes) need not direct an Asset Review be performed prior to (i)(x) notifying the Bank
of a breach of the Bank’s representations and warranties in
Section
3.3
of the Purchase Agreement that would require the Bank to repurchase a Receivable pursuant to
Section
3.4
of the
Purchase Agreement and (y) requesting that the Bank repurchase the related Receivable pursuant to
Section
7.5
hereof or (ii) referring the matter, at its discretion, to either mediation or arbitration pursuant to
Section
3.11
of the Purchase Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1
Collection of Money
. Except as otherwise expressly provided herein, the Indenture Trustee may demand payment or
delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all money and other property payable to or receivable by the Indenture Trustee pursuant to this Indenture. The
Indenture Trustee shall apply all such money received by it as provided in this Indenture. Except as otherwise expressly provided in this Indenture, if any default occurs in the making of any payment or performance under any agreement or instrument
that is part of the Collateral, the Indenture Trustee may take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate Proceedings. Any such action shall be without prejudice
to any right to claim a Default or Event of Default under this Indenture and any right to proceed thereafter as provided in
Article V
.
SECTION 8.2
Trust Accounts
.
(a) On or prior to the Closing Date, the Issuer shall cause the Servicer to establish:
(i) (x) Prior to the payment in full of the principal of and interest on the Notes, for the benefit of the Noteholders under
the sole dominion and control of the Indenture Trustee and in the name of the Issuer, an Eligible Account, bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders, which Eligible Account
shall be
non-interest
bearing and established by and maintained with the Indenture Trustee or its designee and (y) following payment in full of the principal of and interest on the Notes, for the benefit
of the Certificateholders, in the name of the Issuer, an Eligible Account, bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Certificateholders, which Eligible Account shall be
non-interest
bearing and established by and maintained with the Owner Trustee, as Relevant Trustee, or its designee (the “
Collection Account
”). No checks shall be issued, printed or honored with
respect to the Collection Account.
(ii) For the benefit of the Noteholders, under the sole dominion and control of the
Indenture Trustee and in the name of the Issuer, an Eligible Account (the “
Principal Distribution Account
”) bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders,
which Eligible Account shall be
non-interest
bearing and established by and maintained with the Indenture Trustee or its
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designee and which may be a sub account of the Collection Account. No checks shall be issued, printed or honored with respect to the Principal Distribution Account.
(iii) For the benefit of the Noteholders, under the sole dominion and control of the Indenture Trustee and in the name of the
Issuer, an Eligible Account (the “
Reserve Account
”, and together with the Collection Account and the Principal Distribution Account, the “
Trust Accounts
”) bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders, which Eligible Account shall be
non-interest
bearing and established by and maintained with the Indenture Trustee or its designee. No checks shall
be issued, printed or honored with respect to the Reserve Account.
(iv) (x) with respect to distributions payable to the
Depositor, as the holder of the Retained Certificate, an account specified in writing by the Servicer to the Certificate Paying Agent and (y) if any Definitive Certificates other than the Retained Certificate are issued, for the benefit of the
Certificateholders, in the name of the Issuer, an Eligible Account (the “
Certificate Distribution Account
”) bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the
Certificateholders, which Eligible Account shall be established by and maintained with the Certificate Paying Agent or its designee. No checks shall be issued, printed or honored with respect to the Certificate Distribution Account. For the
avoidance of doubt, the Certificate Distribution Account referenced in
clause (x)
above shall not be a Trust Account.
(b) On
or before the Business Day prior to each Payment Date, the Issuer shall cause (i) the Servicer to deposit all Collections and (ii) the Servicer, the Seller or the Bank as applicable, to deposit all Repurchase Prices with respect to the
Collection Period preceding such Payment Date in the Collection Account. On the Business Day prior to each Payment Date, all amounts required to be withdrawn from the Reserve Account and deposited in the Collection Account pursuant to
Section
8.4
hereof shall be withdrawn by the Indenture Trustee from the Reserve Account and deposited to the Collection Account as instructed on the Servicer’s Report.
(c) Prior to the acceleration of the maturity of the Notes pursuant to
Section
5.2
of this Indenture, on each
Payment Date and the Redemption Date, the Indenture Trustee shall, upon written direction from the Servicer, distribute all amounts on deposit in the Principal Distribution Account to Noteholders in respect of principal of the Notes to the extent of
the funds therein in the following order of priority:
(i)
first
, to the Holders of the
Class A-1
Notes, until the
Class A-1
Notes are paid in full;
(ii)
second
, to the Holders of the
Class A-2-A
Notes and the
Class A-2-B
Notes,
pro rata
, until the
Class A-2-A
Notes and the
Class A-2-B
Notes are paid in full;
(iii)
third
, to the Holders of the
Class A-3
Notes, until the
Class A-3
Notes are paid in full;
(iv)
fourth
, to the Holders of the
Class A-4
Notes, until the
Class A-4
Notes are paid in full;
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COPAR 2026-1 Indenture
(v)
fifth
, to the Holders of the Class B Notes, until the
Class B Notes are paid in full;
(vi)
sixth
, to the Holders of the Class C Notes, until the Class C
Notes are paid in full; and
(vii)
seventh
, to the Holders of the Class D Notes, until the Class D Notes
are paid in full.
(d) On the Payment Date on which the Notes of all Classes have been paid in full, the Indenture Trustee shall take all
necessary or appropriate actions, as directed by the Issuer and at no expense to the Indenture Trustee or the Owner Trustee, to transfer all of its right, title and interest in the contents of the Collection Account (including any investments and
investment income) to the Owner Trustee for the benefit of the Certificateholders for deposit into such new
non-interest
bearing account to be established by the Owner Trustee in accordance with
Section
8.2(a)(i)
. Following such transfer, the Collection Account will be maintained under the sole dominion and control of the Owner Trustee for the benefit of the Certificateholders and the Certificate Paying Agent will
make distributions from the Collection Account pursuant to
Section
8.5(a)
.
SECTION 8.3
General
Provisions Regarding Accounts
.
(a) Funds on deposit in the Collection Account shall be invested by the Relevant Trustee in Permitted
Investments selected in writing by the Servicer and of which the Servicer provides notification (pursuant to standing instructions or otherwise);
provided
, that it is understood and agreed that if the Servicer does not provide such specific
written investment direction or provides notification (pursuant to standing instructions or otherwise) that such funds on deposit in the Collection Account shall remain uninvested, those funds shall then remain uninvested unless and until the
Servicer provides alternate notification with respect to the Collection Account;
provided further
, that it is further understood and agreed that neither the Servicer, the Relevant Trustee nor the Issuer shall be liable for any loss arising
from such investment in Permitted Investments. All such Permitted Investments shall be held by or on behalf of the Relevant Trustee as secured party for the benefit of the Noteholders (or, if there are no Notes Outstanding, for the benefit of the
Certificateholders);
provided further,
that on each Payment Date all interest and other investment income (net of investment losses and expenses) on funds on deposit in the Collection Account shall be, at the written direction of the
Servicer, distributed to the Servicer as additional servicing compensation and shall not be available to pay the distributions provided for in
Section
8.5
. All investments of funds on deposit in the Collection Account shall
mature or be liquidated on the Business Day immediately preceding the next Payment Date. No Permitted Investment shall be sold or otherwise disposed of prior to its scheduled maturity unless a default occurs with respect to such Permitted Investment
and the Servicer directs the Relevant Trustee in writing to dispose of such Permitted Investment. Funds on deposit in the Principal Distribution Account, the Reserve Account and the Certificate Distribution Account shall remain uninvested.
(b) The Relevant Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Trust Accounts and in
all proceeds thereof and all such funds,
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investments and proceeds shall be part of the Trust Estate. Except as otherwise provided herein, the Trust Accounts shall be under the sole dominion and control of the Relevant Trustee for the
benefit of the Noteholders (or, if there are no Notes outstanding, for the benefit of the Certificateholders). If, at any time, any Trust Account ceases to be an Eligible Account, the Servicer shall promptly notify the Relevant Trustee (unless such
Trust Account is an account with the Relevant Trustee) in writing and within ten (10) Business Days (or any longer period if the Rating Agency Condition is satisfied with respect to such longer period) after becoming aware of the fact,
establish a new Trust Account as an Eligible Account and shall direct the Relevant Trustee to transfer any cash and/or any investments to such new Trust Account.
(c) With respect to the Trust Account Property, the parties hereto agree that:
(i) any Trust Account Property that consists of uninvested funds shall be held solely in Eligible Accounts and, except as
otherwise provided herein, each such Eligible Account shall be subject to the exclusive custody and control of the Indenture Trustee, and, except as otherwise provided in the Transaction Documents, the Relevant Trustee or its designee shall have
sole signature authority with respect thereto;
(ii) any Trust Account Property that is an “uncertificated
security” under Article 8 of the UCC and that is not governed by
clause (iii)
below shall be delivered to the Indenture Trustee or its designee in accordance with
paragraph (c)
of the definition of
“Delivery” and shall be maintained by the Relevant Trustee or such designee, pending maturity or disposition, through continued registration of the Indenture Trustee’s (or its designee’s) ownership of such security on the
books of the issuer thereof; and
(iii) any Trust Account Property that is an uncertificated security that is a
“book-entry security” (as such term is defined in Federal Reserve Bank Operating Circular No. 7) held in a securities account at a Federal Reserve Bank and eligible for transfer through the Fedwire
®
Securities Service operated by the Federal Reserve System pursuant to Federal book-entry regulations shall be delivered in accordance with
paragraph (b)
of the definition of
“Delivery” and shall be maintained by the Relevant Trustee or its designee or a securities intermediary (as such term is defined in
Section 8-102(a)(14)
of the UCC) acting solely for the
Relevant Trustee or such designee, pending maturity or disposition, through continued book-entry registration of such Trust Account Property as described in such paragraph.
(d) All interest and investment income (net of investment losses and expenses) on funds on deposit in the Collection Account shall be
distributed to the Servicer in accordance with the provisions of
Section
3.7
of the Servicing Agreement. The Relevant Trustee shall not be directed to make any investment of any funds or to sell any investment held in any
of the Trust Accounts unless the security interest Granted and perfected in such account will continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person.
(e) Subject to
Section
6.1(c)
, the Relevant Trustee shall not in any way be held liable by reason of any
insufficiency in the Collection Account resulting from any loss on any Permitted Investment included therein, except for losses attributable to the Relevant Trustee’s
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COPAR 2026-1 Indenture
failure to make payments on any such Permitted Investments issued by the Relevant Trustee in its commercial capacity as principal obligor and not as trustee, in accordance with their terms.
(f) If (i) investment directions shall not have been given in writing by the Servicer in accordance with
Section
8.3(a)
for any funds on deposit in the Collection Account to the Relevant Trustee by 11:00 a.m., New York City time (or such other time as may be agreed by the Servicer and the Indenture Trustee), on any Business
Day or (ii) a Default or Event of Default shall have occurred and be continuing with respect to the Notes but the Notes shall not have been declared due and payable pursuant to
Section
5.2
or (iii) if the Notes
shall have been declared due and payable following an Event of Default and amounts collected or received from the Trust Estate are being applied in accordance with
Section
5.4
as if there had not been such a declaration,
then the Relevant Trustee shall, to the fullest extent practicable, invest and reinvest funds in the Collection Account in one or more Permitted Investments in accordance with the standing instructions most recently given by the Servicer;
provided, however,
that if no standing instructions shall have been given to the Relevant Trustee, the funds shall remain uninvested.
(g) In making or disposing of any investment permitted by this Indenture, the Relevant Trustee is authorized to deal with itself (in its
individual capacity) or with any one or more of its Affiliates, in each case on an
arm’s-length
basis and on standard market terms, whether it or such Affiliate is acting as a subagent of the Relevant
Trustee or for any third person or dealing as principal for its own account.
(h) With respect to the period prior to payment in full of
the principal of and interest on the Notes and each Trust Account at Wilmington Trust, National Association (the initial Indenture Trustee), the Issuer, the Indenture Trustee, in its capacity as the secured party hereunder (in such capacity the
“
Indenture Trustee Secured Party
”) and the Indenture Trustee, in its capacity as deposit bank or securities intermediary, as the case may be, for such Trust Account (in such capacity the “
Account Bank
”), agree
that:
(i) with respect to each deposit account that is or constitutes part of such Trust Account, in order to perfect the
security interest of the Indenture Trustee Secured Party in accordance with
Section 9-104
of the UCC, the Account Bank will comply with all instructions originated by the Indenture Trustee Secured Party
directing disposition of the funds in such deposit account without further consent by the Issuer; and
(ii) with respect
to each securities account that is or constitutes part of such Trust Account, in order to perfect the security interest of the Indenture Trustee Secured Party by control in accordance with
Section 9-106
of the UCC, the Account Bank will comply with all “entitlement orders” (as defined in
Section 8-102
of the UCC) originated by the Indenture Trustee Secured Party without further consent by the
Issuer.
(i) Pursuant to
Section
4.1(b)
of the Servicing Agreement, the Servicer acknowledges that upon its
written request and at no additional cost, it has the right to receive notification after the completion of each purchase and sale of Permitted Investments or the Indenture Trustee’s receipt of a broker’s confirmation. The Servicer
agrees that such notifications shall not be provided by the Indenture Trustee hereunder, and the Indenture Trustee shall make
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COPAR 2026-1 Indenture
available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity.
SECTION 8.4
Additional Withdrawals and Deposits
.
(a) The Paying Agent will, on the Business Day prior to each Payment Date, withdraw from the Reserve Account the Reserve Account Excess
Amount, if any, for such Payment Date and deposit such amount in the Collection Account.
(b) The Paying Agent will, on the Business Day
prior to the Payment Date relating to each Collection Period, withdraw from the Reserve Account the Reserve Account Draw Amount and deposit such amount in the Collection Account.
(c) The Paying Agent shall receive written instructions from the Servicer (which may be in the form of the Servicer’s Report or a
written order or request of the Servicer signed by an Authorized Officer of the Servicer upon which the Paying Agent shall be fully protected in relying with no liability thereafter) directing the Paying Agent to make the foregoing withdrawals and
deposits.
SECTION 8.5
Distributions
.
(a) Prior to any acceleration of the Notes pursuant to
Section
5.2
and subject to
Section
8.5(b)
, on each Payment Date, the Paying Agent (based solely on information contained in, and as directed by, the Servicer’s Report delivered on or before the related Determination Date pursuant to
Section
3.9
of the Servicing Agreement) shall make the following deposits and distributions, to the extent of Available Funds and the Reserve Account Draw Amount on deposit in the Collection Account for such Payment Date,
in the following order of priority:
(i)
first
, to the Servicer, the Servicing Fee and all unpaid Servicing Fees
with respect to prior Collection Periods;
(ii)
second,
to the Noteholders of the Class A Notes,
pro
rata
, the Accrued Class A Note Interest;
provided
, that if there are not sufficient funds available to pay the entire amount of the Accrued Class A Note Interest, the amount available will be applied to the payment of interest
on the Class A Notes on a pro rata basis based on the amount of interest payable to each Class of Class A Notes;
(iii)
third
, to the Principal Distribution Account for distribution to the Noteholders pursuant to
Section
8.2(c)
, the First Allocation of Principal, if any;
(iv)
fourth
, to the
Class B Noteholders, the Accrued Class B Note Interest for the related Interest Period;
(v)
fifth
, to
the Principal Distribution Account for distribution to the Noteholders pursuant to
Section
8.2(c)
, the Second Allocation of Principal, if any;
(vi)
sixth
, to the Class C Noteholders, the Accrued Class C Note Interest for the related Interest Period;
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(vii)
seventh
, to the Principal Distribution Account for distribution
to the Noteholders pursuant to
Section
8.2(c)
, the Third Allocation of Principal, if any;
(viii)
eighth
, to the Class D Noteholders, the Accrued Class D Note Interest for the related Interest Period;
(ix)
ninth
, to the Principal Distribution Account for distribution to the Noteholders pursuant to
Section
8.2(c)
, the Fourth Allocation of Principal, if any;
(x)
tenth
, to the Reserve
Account, any additional amount required to cause the amount on deposit in the Reserve Account to equal the Specified Reserve Account Balance;
(xi)
eleventh
, to the Principal Distribution Account for distribution to the Noteholders in accordance with
Section
8.2(c)
, the Regular Principal Distribution Amount;
(xii)
twelfth
, to the
Indenture Trustee, the Owner Trustee and the Asset Representations Reviewer,
pro rata
, fees, expenses and indemnification amounts due and owing under the Asset Representations Review Agreement, the Servicing Agreement, the Sale Agreement, the
Trust Agreement and the Indenture, as applicable, which have not been previously paid; and
(xiii)
thirteenth
, to
the Certificateholders,
pro rata
based on the Percentage Interest of each Certificateholder, or, to the extent Definitive Certificates have been issued, to the Certificate Distribution Account for distribution to the Certificateholders in
accordance with
Section
5.1
of the Trust Agreement.
Notwithstanding any other provision of this
Section
8.5
, following the occurrence and during the continuation of an Event of Default which has resulted in an acceleration of the Notes, the Paying Agent shall apply all amounts on deposit in the Collection Account
pursuant to
Section
5.4(b)
.
(b) Notwithstanding
Section
8.5(a)
, in the event that the
Bank were to become the subject of an insolvency proceeding and the FDIC as receiver or conservator for the Bank pays damages as contemplated by paragraph (d)(4)(ii) of the FDIC Rule, then the actions and distributions described in
Section
12.4
of the Indenture shall be effected instead of
Section
8.5(a)
.
SECTION 8.6
Release of Collateral
.
(a) The Indenture Trustee may if permitted and in accordance with the terms hereof, and when required by the provisions of this Indenture
shall, execute instruments to release property from the lien of this Indenture, or convey the Indenture Trustee’s interest in the same, in a manner and under circumstances that are not inconsistent with the provisions of this Indenture. No
party relying upon an instrument executed by the Indenture Trustee as provided in this
Article VIII
shall be bound to ascertain the Indenture Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to the
application of any monies.
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(b) The Indenture Trustee shall, at such time as there are no Notes Outstanding and all sums
due the Indenture Trustee pursuant to
Section
6.7
have been paid, release any remaining portion of the Collateral from the lien of this Indenture and release to the Issuer or any other Person entitled thereto any funds then
on deposit in the Trust Accounts. Such release shall include release of the lien of this Indenture and transfer of dominion and control over the Trust Accounts to the Owner Trustee. The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section only upon receipt of an Issuer Request accompanied by an Officer’s Certificate, an Opinion of Counsel and (if required by the TIA) Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1)
meeting the applicable requirements of
Section
11.1
.
Each Noteholder or Note Owner, by its acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note, acknowledges that from time to time the Indenture Trustee shall release the lien of this Indenture (or shall be deemed to automatically release the lien of this Indenture without any
further action) on any Receivable to be sold to (i) the Servicer in accordance with
Section
3.6
of the Servicing Agreement and (ii) the Bank pursuant to
Section
3.4
of the Purchase
Agreement.
SECTION 8.7
Opinion of Counsel
. The Indenture Trustee shall receive at least five (5) days’ notice (or
such shorter notice acceptable to the Indenture Trustee) when requested by the Issuer to take any action pursuant to
Section
8.6
, accompanied by copies of any instruments involved, and the Indenture Trustee may also require
as a condition to such action, an Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee, stating the legal effect of any such action, outlining the steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action will not materially and adversely impair the security for the Notes or the rights of the Noteholders in contravention of the provisions of this Indenture;
provided
that such Opinion of Counsel shall not be required to express an opinion as to the fair value of the Trust Estate. Counsel rendering any such opinion may rely, as to factual matters, without independent investigation, on the accuracy and validity of
any certificate or other instrument delivered to the Indenture Trustee in connection with any such action. Such opinion shall be at other than the Indenture Trustee’s expense.
ARTICLE IX
SUPPLEMENTAL
INDENTURES
SECTION 9.1
Supplemental Indentures Without Consent of Noteholders
.
(a) Without the consent of the Noteholders or any other Person, but with prior notice from the Issuer to each Rating Agency, the Issuer and
the Indenture Trustee (when so directed by an Issuer Request), at any time and from time to time, may enter into one or more indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of
the provisions of, this Indenture or for the purposes of modifying in any manner the rights of the Noteholders under this Indenture subject to the satisfaction of the following conditions:
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(i) the Issuer delivers an Opinion of Counsel or an Officer’s
Certificate to the Indenture Trustee to the effect that such supplemental indenture will not materially and adversely affect the interests of the Noteholders; or
(ii) the Rating Agency Condition is satisfied with respect to such amendment and the Issuer notifies the Indenture Trustee in
writing that the Rating Agency Condition is satisfied with respect to such amendment.
(b) Prior to the execution of any such supplemental
indenture, the Issuer shall provide written notification of the substance of such supplemental indenture to each Rating Agency and the Owner Trustee; and promptly after the execution of any such supplemental indenture, the Issuer shall furnish a
copy of such supplemental indenture to each Rating Agency, the Owner Trustee and the Indenture Trustee;
provided
, that no supplemental indenture pursuant to this
Section
9.1
shall be effective which materially and
adversely affects the rights, privileges, indemnities, protections, immunities, obligations or duties of the Indenture Trustee or the Owner Trustee without the prior written consent of such Person.
(c) Promptly after the execution by the Issuer and the Indenture Trustee of any supplemental indenture pursuant to this
Section
9.1
, the Indenture Trustee shall make available to the Noteholders a copy of such amendment or supplemental indenture via its website at http://www.wilmingtontrustconnect.com. Any failure of the Indenture Trustee to
make available a copy of such amendment or supplemental indenture, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
(d) Notwithstanding
subsection (a)
of this
Section
9.1
, other than in connection with an amendment
pursuant to
Section
12.1(b)
or
Section
12.4
, this Indenture may only be amended by the Issuer and the Indenture Trustee if (i) the Majority Certificateholders or, if 100% of the aggregate
Percentage Interests is then beneficially owned by the Bank and/or its Affiliates, such Person (or Persons), consent to such amendment or (ii) such amendment shall not, as evidenced by an Officer’s Certificate of the Seller or an Opinion
of Counsel delivered to the Indenture Trustee and the Owner Trustee, materially and adversely affect the interests of the Certificateholders. It will not be necessary to obtain the consent of the Certificateholders to approve the particular form of
any proposed amendment or consent, but it will be sufficient if such consent approves the substance thereof. In determining whether 100% of the aggregate Percentage Interests is then beneficially owned by the Bank and/or its Affiliates for purposes
of clause (i), any party shall be entitled to rely on an Officer’s Certificate or similar certification of the Bank or any Affiliate thereof to such effect.
(e) Notwithstanding anything under this
Section
9.1
or in any other Transaction Document to the contrary, to the
extent permitted by the TIA, this Indenture may be supplemented by the Issuer without the consent of the Indenture Trustee, the Paying Agent, the Owner Trustee, any Noteholder or any other Person, and without satisfying any other provisions of this
Indenture related to supplements thereto or in any other Transaction Document, solely in connection with any SOFR Adjustment Conforming Changes or, following the determination of a Benchmark Replacement, any Benchmark Replacement Conforming Changes
to be made by the Administrator;
provided
, that the Issuer has delivered notice of such supplement to the Rating Agencies and the Indenture Trustee on or prior to the date such supplement is executed;
provided
,
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further, that any such SOFR Adjustment Conforming Changes or any such Benchmark Replacement Conforming Changes will not affect the Indenture Trustee’s, the Paying Agent’s or the Owner
Trustee’s rights, indemnities or obligations without the Indenture Trustee’s, the Paying Agent’s or the Owner Trustee’s consent, respectively. For the avoidance of doubt, any SOFR Adjustment Conforming Changes or any
Benchmark Replacement Conforming Changes in any supplement to the indenture may be retroactive (including retroactive to the Benchmark Replacement Date) and the indenture may be supplemented more than once in connection with any SOFR Adjustment
Conforming Changes or any Benchmark Replacement Conforming Changes.
SECTION 9.2
Supplemental Indentures with Consent of
Noteholders
.
(a) Subject to
subsection (b)
of this
Section
9.2
, the Issuer and the Indenture
Trustee, when authorized by an Issuer Request, also may, with prior notice from the Issuer to the Rating Agencies and with the consent of the Holders of not less than a majority of the Outstanding Note Balance of the Controlling Class, by Act of
such Holders delivered to the Issuer and the Indenture Trustee, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Noteholders under this Indenture;
provided
, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Note affected thereby:
(i) change the coin or currency in which, any Note or the interest thereon is payable, reduce the interest rate or principal
amount of any Note, or delay the Final Scheduled Payment Date or reduce the Redemption Price of any Note;
(ii) reduce the
percentage of the Note Balance, the consent of the Holders of which is required for any such supplemental indenture, or the consent of the Holders of which is required for any waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the
proviso to the definition of the term “
Outstanding
”;
(iv) reduce the percentage of the Note Balance,
the consent of the Holders of which is required to direct the Indenture Trustee to direct the Issuer to sell or liquidate the Trust Estate pursuant to
Section
5.4
if the proceeds of such sale would be insufficient to
pay the Note Balance plus accrued but unpaid interest on the Notes;
(v) modify any provision of this
Section
9.2
in any respect materially adverse to the interests of the Noteholders;
(vi) permit
the creation of any Lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Trust Estate or, except as otherwise permitted or contemplated herein or in the Transaction Documents, terminate the lien of
this Indenture on any property at any time subject hereto or deprive any Noteholder of the security provided by the lien of this Indenture; or
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(vii) impair the right to institute suit for the enforcement of payment as
provided in
Section
5.7
.
(b) Notwithstanding
subsection (a)
of this
Section
9.2
, other than in connection with an amendment pursuant to
Section
12.1(b)
or
Section
12.4
, this Indenture may only be amended by the Issuer and the Indenture
Trustee if (i) the Majority Certificateholders consent to such amendment or (ii) such amendment shall not, as evidenced by an Officer’s Certificate of the Seller or an Opinion of Counsel delivered to the Indenture Trustee and the
Owner Trustee, materially and adversely affect the interests of the Certificateholders. It will not be necessary to obtain the consent of the Certificateholders to approve the particular form of any proposed amendment or consent, but it will be
sufficient if such consent approves the substance thereof.
(c) It shall not be necessary for any Act of Noteholders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. For purposes of this
Section
9.2
, if the Bank and/or its Affiliates is the
Holder of Notes representing 100% of the Note Balance of the Outstanding Notes, such Person (or Persons) may consent to such amendment on behalf of the Noteholders. In determining whether the Bank and/or its Affiliates is the Holder of Notes
representing 100% of the Note Balance of the Outstanding Notes for purposes of the preceding sentence, any party shall be entitled to rely on an Officer’s Certificate or similar certification of the Bank or any Affiliate thereof to such
effect.
(d) Prior to the execution of any such supplemental indenture, the Issuer shall provide written notification of the substance of
such supplemental indenture to each Rating Agency and the Owner Trustee; and promptly after the execution of any such supplemental indenture, the Issuer shall furnish a copy of such supplemental indenture to each Rating Agency, the Owner Trustee and
the Indenture Trustee;
provided
that no supplemental indenture pursuant to this
Section
9.2
shall be effective which affects the rights, privileges, indemnities, protections, immunities, obligations or duties of the
Indenture Trustee or the Owner Trustee without the prior written consent of such Person.
(e) Promptly after the execution by the Issuer
and the Indenture Trustee of any supplemental indenture pursuant to this Section, the Indenture Trustee shall make available to the Noteholders a copy of such amendment or supplemental indenture via its website at
http://www.wilmingtontrustconnect.com. Any failure of the Indenture Trustee to make available such amendment or supplemental indenture, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
(f) Notwithstanding anything herein to the contrary and for purposes of classifying the Issuer as a grantor trust under the
Code, no amendment or indenture supplemental to this Indenture shall be made that would (i) result in a variation of the investment of the beneficial owners of the Certificates for purposes of the United States Treasury Regulation section
301.7701-4(c)
without the consent of Noteholders evidencing at least a majority of the Outstanding Note Balance of the Controlling Class and the Majority Certificateholders or (ii) cause the Issuer (or any
part thereof) to be classified as other than a grantor trust under subtitle A, chapter 1, subchapter J, part I, subpart E of the Code without the consent of all of the Noteholders and all of the Certificateholders.
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SECTION 9.3
Execution of Supplemental Indentures
. In executing, or permitting
the additional trusts created by, any supplemental indenture permitted by this
Article
IX
or the modifications thereby of the trusts created by this Indenture, the Indenture Trustee shall be entitled to receive, and subject to
Sections 6.1
and
6.2
, shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the Indenture Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise.
SECTION 9.4
Effect of Supplemental Indenture
. Upon the execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in accordance therewith with respect to the Notes affected thereby, and the respective rights, limitations of rights, obligations, duties, liabilities and immunities under this
Indenture of the Indenture Trustee, the Issuer and the Noteholders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.5
Conformity with Trust Indenture Act
. Every amendment of this Indenture and every supplemental indenture executed
pursuant to this
Article
IX
shall conform to the requirements of the Trust Indenture Act as then in effect so long as this Indenture shall then be qualified under the Trust Indenture Act.
SECTION 9.6
Reference in Notes to Supplemental Indentures
. Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this
Article IX
may, and if required by the Indenture Trustee shall, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such supplemental indenture. If the Issuer or
the Indenture Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by
the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1
Redemption
.
(a) Each of the Notes is subject to redemption in whole, but not in part, at the direction of the Bank, as Servicer, pursuant to
Section
7.1
of the Servicing Agreement, on any Payment Date on which the Servicer (or its designee) exercises its option to purchase the Trust Estate (other than the Reserve Account) pursuant to such Section, for a purchase
price equal to the Optional Purchase Price, which amount shall be deposited by the Servicer (or its designee) into the Collection Account on or prior to noon, New York City time, on the Redemption Date.
(b) Each of the Notes is subject to redemption in whole, but not in part, on any Payment Date on which the sum of the amounts in the Reserve
Account and the remaining Available Funds after the payments under
clauses
first
through
ninth
and
eleventh
of
Section
8.5(a)
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would be sufficient to pay in full the aggregate unpaid Note Balance of all of the Outstanding Notes as determined by the Servicer. On such Payment Date, (i) the Indenture Trustee upon
written direction from the Servicer shall transfer all amounts on deposit in the Reserve Account to the Collection Account and (ii) the Outstanding Notes shall be redeemed in whole, but not in part.
(c) If the Notes are to be redeemed pursuant to
Sections 10.1(a)
or
10.1(b)
, the Administrator or the Issuer shall provide at
least ten (10) days’ prior notice of the redemption of the Notes to the Indenture Trustee and the Owner Trustee and the Indenture Trustee shall provide prompt (but not later than five (5) days prior to the applicable Redemption Date)
notice thereof, at the expense of the Servicer, to the Noteholders.
SECTION 10.2
Form of Redemption Notice
. Notice of
redemption under
Section
10.1
shall be given by the Indenture Trustee by first-class mail, postage prepaid, transmitted or mailed prior to the applicable Redemption Date to each Holder of Notes as of the close of business
on the Record Date preceding the applicable Redemption Date, at such Holder’s address appearing in the Note Register.
All notices
of redemption under this
Section
10.2
shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such Redemption Date is not applicable and that payments shall be made only
upon presentation and surrender of such Notes, and the place where such Notes are to be surrendered for payment of the Redemption Price (which shall be the office or agency of the Issuer to be maintained as provided in
Section
3.2
);
(iv) that interest on the Notes shall cease to accrue on the Redemption Date; and
(v) the CUSIP numbers (if applicable) for such Notes.
Notice of redemption of the Notes shall be given by the Indenture Trustee in the name and at the expense of the Issuer. In addition, the
Issuer shall notify each Rating Agency upon redemption of the Notes. Failure to give notice of redemption, or any defect therein, to any Noteholder shall not impair or affect the validity of the redemption of any Note.
SECTION 10.3
Notes Payable on Redemption Date
. The Notes to be redeemed shall, following notice of redemption as required by
Section
10.2
(in the case of redemption pursuant to
Section
10.1
), on the Redemption Date become due and payable at the Redemption Price and (unless the Issuer shall default in the payment of the
Redemption Price) no interest shall accrue on the Redemption Price for any period after the date to which accrued interest is calculated for purposes of calculating the Redemption Price.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1
Compliance Certificates and Opinions,
etc
.
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer shall furnish to the Indenture Trustee (i) an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with that satisfies TIA Section 314(c)(1), (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with that satisfies TIA
Section 314(c)(2) and (iii) if required by the TIA in the case of condition precedent compliance that is subject to verification by accountants, a certificate or opinion of an accountant that satisfies TIA Section 314(c)(3), except
that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion furnished in accordance with TIA Section 314(e) with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion has read
or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement
as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the Issuer shall, in addition to any obligation imposed in
Section
11.1(a)
or elsewhere in this Indenture, furnish to the Indenture Trustee an
Officer’s Certificate certifying or stating the opinion of each Person signing such certificate as to the fair value in accordance with TIA Section 314(d) (within ninety (90) days of such deposit) to the Issuer of the Collateral or
other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture Trustee an
Officer’s Certificate certifying or stating the opinion of any signer thereof as to the matters described in
clause (i)
above, the Issuer shall also deliver to the Indenture Trustee an Independent Certificate as to the same
matters, if the fair value in accordance with TIA Section 314(d) to the
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Issuer of the property or securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then-current fiscal year of
the Issuer, as set forth in the certificates delivered pursuant to
clause (i)
and this
clause (ii)
, is 10% or more of the Outstanding Note Balance, but such a certificate need not be furnished with respect to any securities so
deposited, if the fair value thereof to the Issuer as set forth in the related Officer’s Certificate is less than $25,000 or less than one percent of the Outstanding Note Balance.
(iii) Other than as contemplated by
Section
11.1(b)(v)
, whenever any property or securities are to be released from
the lien of this Indenture, the Issuer shall also furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of each Person signing such certificate as to the fair value (within ninety (90) days of such
release) of the property or securities proposed to be released and stating that in the opinion of such Person the proposed release will not impair the security under this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of
any signer thereof as to the matters described in
clause (iii)
above, the Issuer shall also furnish to the Indenture Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of
all other property other than Purchased Receivables, or securities released from the lien of this Indenture since the commencement of the then current calendar year, as set forth in the certificates required by
clause (iii)
above and
this
clause (iv)
, equals 10% or more of the Outstanding Note Balance, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer’s
Certificate is less than $25,000 or less than one percent of the then Outstanding Note Balance.
(v) Notwithstanding
Section
2.9
or any other provision of this Section, the Issuer may (A) collect, liquidate, sell or otherwise dispose of Receivables and Financed Vehicles as and to the extent permitted or required by the Transaction
Documents, including without limitation pursuant to
Section
10.1
of this Indenture, and (B) make cash payments out of the Trust Accounts as and to the extent permitted or required by the Transaction Documents.
SECTION 11.2
Form of Documents Delivered to the Indenture Trustee
. In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Servicer, the
Seller, the Administrator or the Issuer, stating that the information with respect to such factual matters is in the possession of the Servicer, the Seller, the
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Administrator or the Issuer, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Whenever in this
Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of the granting of such application, or as evidence of the Issuer’s
compliance with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such
document shall in such case be conditions precedent to the right of the Issuer to have such application granted or to the sufficiency of such certificate or report. The foregoing shall not, however, be construed to affect the Indenture
Trustee’s right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in
Article VI
.
SECTION 11.3
Acts of Noteholders
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by agents duly appointed in writing; and except as herein otherwise expressly provided such action shall
become effective when such instrument or instruments are delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “
Act
” of the Noteholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to
Section
6.1
) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by any Noteholder shall bind the Holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon, whether or not notation of such action is
made upon such Note.
SECTION 11.4
Notices
. All demands, notices and communications hereunder shall be in writing and shall be
delivered or mailed by registered or certified
first-class
United States mail, postage prepaid, hand delivery, prepaid courier service, or by
e-mail
(if an applicable
e-mail
address is provided on Schedule I to the Sale Agreement), and addressed in each case as specified on Schedule I to the Sale Agreement or at such other address as shall be designated by any of the specified
addressees in a written notice to the other parties hereto. Delivery shall occur
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only upon receipt or reported tender of such communication by an officer of the recipient entitled to receive such notices located at the address of such recipient for notices hereunder.
SECTION 11.5
Notices to Noteholders; Waiver
. Where this Indenture provides for notice to Noteholders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class, postage prepaid or via electronic transmission to each Noteholder affected by such event, at his address as it appears on the Note
Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Noteholders is given by mail, neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice that is mailed in the manner herein provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Indenture Trustee but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage
or similar activity, it shall be impractical to mail notice of any event to Noteholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the
Indenture Trustee shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or obligations created hereunder, and shall not under any circumstance constitute a Default or an Event of Default.
SECTION 11.6
Alternate Payment and Notice Provisions
. Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Noteholder providing for a method of payment, or notice by the Indenture Trustee or any Paying Agent to such Noteholder, that is different from the methods provided for in this Indenture for
such payments or notices,
provided
that such methods are reasonable and consented to by the Indenture Trustee (which consent shall not be unreasonably withheld). The Issuer will furnish to the Indenture Trustee a copy of each such agreement
and the Indenture Trustee will cause payments to be made and notices to be given in accordance with such agreements.
SECTION 11.7
Conflict with Trust Indenture Act
. If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required
provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on any person (including the provisions
automatically deemed included herein unless expressly excluded by this Indenture) are a part of and govern this Indenture, whether or not physically contained herein.
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SECTION 11.8
Information Requests
. The parties hereto shall provide any
information reasonably requested by the Servicer, the Issuer, the Seller or any of their Affiliates, in order to comply with or obtain more favorable treatment under any current or future law, rule, regulation, accounting rule or principle.
SECTION 11.9
Effect of Headings and Table of Contents
. The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.10
Successors and Assigns
. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind its successors and assigns, whether so expressed or not. All agreements of the Indenture Trustee in this Indenture shall bind its successors.
SECTION 11.11
Separability
. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.12
Benefits of Indenture
. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the Noteholders, and any other party secured hereunder, and any other Person with an ownership interest in any part of the Trust Estate, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 11.13
Legal Holidays
. In any case where the date on which any payment is due
shall not be a Business Day, then (notwithstanding any other provision of the Notes or this Indenture) payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date
on which nominally due, and no interest shall accrue for the period from and after any such nominal date.
SECTION 11.14
GOVERNING
LAW
.
THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS OTHER THAN SECTIONS
5
-1401
AND
5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.15
Counterparts
. This Indenture may be executed in any number of counterparts, each of which so executed shall be
deemed to be an original, regardless of whether delivered in physical or electronic form, but all such counterparts shall together constitute but one and the same instrument.
SECTION 11.16
Recording of Indenture
. If this Indenture is subject to recording in any appropriate public recording offices, such
recording is to be effected by the Issuer and at its expense accompanied by an Opinion of Counsel (which may be counsel to the Indenture Trustee or any other counsel reasonably acceptable to Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person secured hereunder or for the enforcement of any right or remedy granted to the Indenture Trustee under this Indenture.
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SECTION 11.17
Trust Obligation
. Each Noteholder or Note Owner, by acceptance of
a Note, or, in the case of a Note Owner of a beneficial interest in a Note, by accepting the benefits of this Indenture, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the
Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or any certificate or other writing delivered in connection herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in their respective individual
capacities, (ii) any Certificateholder or any other owner of a beneficial interest in the Issuer, (iii) the Servicer, the Administrator or the Seller or (iv) any partner, owner, beneficiary, agent, officer, director, employee,
successor or assign of any Person described in
clauses (i)
,
(ii)
and
(iii)
above, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay
any installment or call owing to such entity.
SECTION 11.18
No Petition
. Each of the Indenture Trustee, by entering into this
Indenture, and each Noteholder and Note Owner, by accepting a Note or, in the case of a Note Owner, a beneficial interest in a Note, hereby covenants and agrees that prior to the date which is one year and one day after payment in full of all
obligations of each Bankruptcy Remote Party in respect of all securities issued by the Bankruptcy Remote Parties, (i) such party shall not authorize any Bankruptcy Remote Party to commence a voluntary
winding-up
or other voluntary case or other Proceeding seeking liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian or other similar official with respect to such Bankruptcy Remote Party or any substantial part of
its property or to consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other Proceeding commenced against such Bankruptcy Remote Party, or to make a general assignment for the
benefit of, its creditors generally, any party hereto or any other creditor of such Bankruptcy Remote Party, and (ii) such party shall not commence, join or institute against, with any other Person, any Proceeding against such Bankruptcy Remote
Party under any bankruptcy, reorganization, arrangement, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction.
SECTION 11.19
Submission to Jurisdiction; Waiver of Jury Trial
. Each of the parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any Proceeding relating to this Indenture or any documents executed and delivered in
connection herewith, or for recognition and enforcement of any judgment in respect thereof, to the nonexclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New
York and appellate courts from any thereof;
(b) consents that any such Proceeding may be brought in such courts and waives any objection
that it may now or hereafter have to the venue of such action or Proceeding in any such court or that such Proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
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(c) agrees that service of process in any such Proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person at its address determined in accordance with
Section
11.4
of this Indenture;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) to the extent permitted by applicable law, waives all right of trial by jury in any
Proceeding or counterclaim based on, or arising out of, under or in connection with this Indenture, any other Transaction Document, or any matter arising hereunder or thereunder.
SECTION 11.20
Subordination of Claims
. The Issuer’s obligations under this Indenture are obligations solely of the Issuer
and will not constitute a claim against the Seller to the extent that the Issuer does not have funds sufficient to make payment of such obligations. In furtherance of and not in derogation of the foregoing, each of the Owner Trustee (in its
individual capacity and as the Owner Trustee), by accepting the benefits of this Indenture, the Certificateholder, by accepting the Certificate, and the Indenture Trustee (in its individual capacity and as Indenture Trustee), by entering into this
Indenture, and each Noteholder and each Note Owner, by accepting the benefits of this Indenture, hereby acknowledges and agrees that such Person has no right, title or interest in or to the Other Assets of the Seller. To the extent that,
notwithstanding the agreements and provisions contained in the preceding sentence, each of the Owner Trustee, the Indenture Trustee, each Noteholder or Note Owner and the Certificateholder either (i) asserts an interest or claim to, or benefit
from, Other Assets, or (ii) is deemed to have any such interest, claim to, or benefit in or from Other Assets, whether by operation of law, legal process, pursuant to applicable provisions of insolvency laws or otherwise (including by virtue of
Section 1111(b) of the Bankruptcy Code or any successor provision having similar effect under the Bankruptcy Code), then such Person further acknowledges and agrees that any such interest, claim or benefit in or from Other Assets is and will be
expressly subordinated to the indefeasible payment in full, which, under the terms of the relevant documents relating to the securitization or conveyance of such Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise
secured by such Other Assets (whether or not any such entitlement or security interest is legally perfected or otherwise entitled to a priority of distributions or application under applicable law, including insolvency laws, and whether or not
asserted against the Seller), including the payment of post-petition interest on such other obligations and liabilities. The provisions of this
Section
11.20
will be deemed a subordination agreement within the meaning of
Section 510(a) of the Bankruptcy Code. Each of the Indenture Trustee (in its individual capacity and as the Indenture Trustee), by entering into or accepting this Indenture, the Certificateholder, by accepting the Certificate, and the Owner
Trustee, and each Noteholder or Note Owner, by accepting the benefits of this Indenture, hereby further acknowledges and agrees that no adequate remedy at law exists for a breach of this Section and the terms of this Section may be enforced by an
action for specific performance. The provisions of this Section will be for the third party benefit of those entitled to rely thereon and will survive the termination of this Indenture.
SECTION 11.21
U.S.A. Patriot Act
. The parties hereto acknowledge that in accordance with Section 326 of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. 107 56 (signed
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into law October 26, 2001) and its implementing regulations (collectively, “Patriot Act”), the Indenture Trustee, like all financial institutions and in order to help fight the
funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Indenture Trustee. The parties to this
Indenture agree that they will provide the Indenture Trustee with such information about the Issuer as it may reasonably request in order for the Indenture Trustee to satisfy the requirements of the Patriot Act.
SECTION 11.22
Beneficial Ownership
. Pursuant to the Patriot Act, the Financial Crimes Enforcement Network’s (FinCEN)
Customer Due Diligence Requirements and such other laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions (“
Applicable Law
”), the Indenture Trustee is required to obtain from
the Issuer on or before closing, and from time to time thereafter, documentation to verify and record information that identifies each person who opens an account. For a
non-individual
person such as a
business entity, a charity, a trust or other legal entity, the Indenture Trustee will ask for documentation to verify the entity’s formation and existence, its financial statements, licenses, tax identification documents, identification and
authorization documents from individuals claiming authority to represent the entity and other relevant documentation and information (including beneficial owners of such entities). To the fullest extent permitted by Applicable Law, the Indenture
Trustee may conclusively rely on, and shall be fully protected and indemnified in relying on, any such information received. Failure to provide such information may result in an inability of the Indenture Trustee to perform its obligations
hereunder, which, at the sole option of the Indenture Trustee, may result in the Indenture Trustee’s resignation in accordance with the terms hereof.
SECTION 11.23
Limitation of Liability
. It is expressly understood and agreed by the parties hereto that
(a) this Indenture is executed and delivered by BNY Mellon Trust of Delaware, not individually or personally but solely as Owner Trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it under the Trust
Agreement, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, undertakings and agreements by BNY Mellon Trust of Delaware, but is made
and intended for the purpose for binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on BNY Mellon Trust of Delaware, individually or personally, to perform any covenant, either express or implied,
contained herein, all such liability, if any, being expressly waived by the parties hereto and any Person claiming by, through or under the parties hereto, (d) BNY Mellon Trust of Delaware has made no investigation as to the accuracy or
completeness of any representations and warranties made by the Issuer in this Indenture and (e) under no circumstances shall BNY Mellon Trust of Delaware be personally liable for the payment of any indebtedness or expenses of the Issuer or be
liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture or the other related documents.
ARTICLE XII COMPLIANCE WITH THE FDIC RULE
SECTION 12.1
Purpose
. (a) Each of the Noteholders, by its acceptance of the Notes, each of the Certificateholders, by
its acceptance of the Certificates, the Capital One Parties and the Relevant Trustee acknowledges and agrees that the purpose of this
Article XII
is to facilitate compliance by the Capital One Parties with the provisions of the FDIC Rule.
Each of the
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Noteholders, the Certificateholders, the Capital One Parties and the Relevant Trustee acknowledges that the interpretations of the requirements of the FDIC Rule may change over time, whether due
to interpretive guidance provided by the FDIC or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees that the provisions set forth in this
Article XII
shall have the
effect and meanings that are appropriate under the FDIC Rule as such meanings change over time on the basis of evolving interpretations of the FDIC Rule.
(b) If any provision of the FDIC Rule is amended, or any interpretive guidance regarding the FDIC Rule is provided by the FDIC or its staff,
as a result of which the Issuer determines that an amendment to this
Article XII
is necessary or desirable, then the Issuer and the Relevant Trustee shall be authorized and entitled to amend this
Article XII
in accordance with such
FDIC Rule amendment or guidance notwithstanding the requirements set forth in
Sections 9.1
and
9.2
, provided that the Issuer delivers to the Relevant Trustee an Opinion of Counsel to the effect that such amendment is required to remain
in compliance with the FDIC Rule. Nothing in this
Section
12.1(b)
shall limit the rights of the Indenture Trustee pursuant to
Section
9.3
or the Owner Trustee pursuant to
Section
11.1(d)
of the Trust Agreement.
(c) As used in this
Article XII
, but subject to the rules of
interpretation specified in
Section
12.1(a)
and
Section
12.1(b)
, references to (i) the “sponsor” shall mean the Bank, (ii) the “issuing entity” shall mean,
collectively, the Seller and the Issuer (except in
Section
12.2(e)
, where such term shall have the meaning in the FDIC Rule), (iii) the “servicer” shall mean the Servicer or Administrator, as applicable,
(iv) “obligations” or “securitization obligations” shall mean the Notes and, to the extent permitted by the FDIC Rule, the Certificates, and (v) “financial assets” and “securitized financial
assets” shall mean the Receivables (except in
Section
12.2(e)
, where such term shall have the meaning in the FDIC Rule).
(d) Each of the Capital One Parties believes that the transactions and actions contemplated by the Transaction Documents and the Prospectus
comply with the requirements of
Section
12.2
.
SECTION 12.2
Requirements of the FDIC Rule
. As
required by the FDIC Rule:
(a) Payment of principal and interest on the securitization obligations must be primarily based on the
performance of financial assets that are transferred to the issuer and, except for interest rate or currency mismatches between the financial assets and the obligations, shall not be contingent on market or credit events that are independent of such
financial assets.
(b) The sponsor, issuing entity, and/or servicer, as appropriate, shall make available to investors, information
describing the financial assets, obligations, capital structure, compensation of relevant parties, and relevant historical performance data set forth below:
(i) On or prior to issuance of obligations and at the time of delivery of any periodic distribution report and, in any event,
at least once per calendar quarter, while obligations are outstanding, information about the obligations and the securitized financial assets shall be disclosed to all potential investors at the financial asset or pool level, as appropriate for the
financial assets, and security-level to enable evaluation and analysis of
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COPAR 2026-1 Indenture
the credit risk and performance of the obligations and financial assets. Such information and its disclosure, at a minimum, shall comply with the requirements of Regulation AB or any successor
disclosure requirements for public issuances, even if the obligations are issued in a private placement or are not otherwise required to be registered;
provided
that information that is unknown or not available to the sponsor or the issuer
after reasonable investigation may be omitted if the issuer includes a statement in the offering documents disclosing that the specific information is otherwise unavailable;
(ii) On or prior to issuance of obligations, the structure of the securitization and the credit and payment performance of the
obligations shall be disclosed, including the capital or tranche structure, the priority of payments and specific subordination features; representations and warranties made with respect to the financial assets, the remedies for and the time
permitted for cure of any breach of representations and warranties, including the repurchase of financial assets, if applicable; liquidity facilities and any credit enhancements permitted by the FDIC Rule, any waterfall triggers or priority of
payment reversal features; and policies governing delinquencies, servicer advances, loss mitigation, and write-offs of financial assets;
(iii) While obligations are outstanding, the issuing entity shall provide to investors information with respect to the credit
performance of the obligations and the financial assets, including periodic and cumulative financial asset performance data, delinquency and modification data for the financial assets, substitutions and removal of financial assets, servicer
advances, as well as losses that were allocated to such tranche and remaining balance of financial assets supporting such tranche, if applicable, and the percentage of each tranche in relation to the securitization as a whole; and
(iv) In connection with the issuance of the obligations, the nature and amount of compensation paid to the originator,
sponsor, rating agency or third-party advisor, any mortgage or other broker, and the servicer(s), and the extent to which any risk of loss on the underlying assets is retained by any of them for such securitization shall be disclosed. The issuer
shall provide to investors while any obligations are outstanding any changes to such information and the amount and nature of payments of any deferred compensation or similar arrangements to any of the parties.
(c) The sponsor or a majority-owned affiliate of the sponsor shall retain an economic interest in the credit risk of the financial assets in
accordance with Regulation RR, 17 C.F.R. §246.1, et seq. (“
Regulation RR
”), including (1) the restrictions on sale, pledging and hedging set forth therein and (2) any disclosure requirements set forth therein.
(d) The obligations shall not be predominantly sold to an affiliate (other than (i) a wholly-owned subsidiary consolidated for accounting
and capital purposes with the sponsor or (ii) an affiliated broker-dealer who purchases such obligations with a view to promptly reselling such obligations to persons or entities that are neither affiliates (other than wholly-owned subsidiaries
of the sponsor consolidated for accounting and capital purposes with the sponsor) nor insiders of the sponsor in the ordinary course of such broker-dealer’s business pursuant to an underwriting or similar agreement entered into in the ordinary
course of business) or an insider of the sponsor;
provided
that (i) at the time the obligations are sold to the affiliated broker-dealer,
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such broker-dealer sells not less than 51% of the principal amount of the obligations to persons and entities that are not affiliates (other than wholly-owned subsidiaries of the sponsor
consolidated for accounting and capital purposes with the sponsor) or insiders of the sponsor; (ii) at all times after such obligations are sold to the affiliated broker-dealer, such broker-dealer holds the unsold portion of the obligations
with the intent to sell such unsold portion to persons or entities that are not affiliates (other than wholly-owned subsidiaries of the sponsor consolidated for accounting and capital purposes with the sponsor) or insider of the sponsor and
(iii) the other requirements of the FDIC Rule, including, without limitation, the requirements of Sections 360.6(c)(3) and (4) of the FDIC Rule, are satisfied.
(e) The sponsor shall separately identify in its financial asset data bases the financial assets transferred into any securitization and shall
maintain an electronic or paper copy of the closing documents in a readily accessible form, and a current list of all of its outstanding securitizations and issuing entities, and the most recent Form
10-K,
if
applicable, or other periodic financial report for each securitization and issuer. The sponsor shall make these records readily available for review by the FDIC promptly upon written request.
(f) To the extent serving as servicer, custodian or paying agent for the securitization, the sponsor shall not commingle amounts received with
respect to the financial assets with its own assets except for the time, not to exceed two (2) Business Days, necessary to clear any payments received.
SECTION 12.3
Performance
. The Issuer agrees to perform the obligations set forth in
Section
12.2
,
except to the extent any such obligation is specifically imposed exclusively upon the servicer or the sponsor.
SECTION 12.4
Actions Upon Repudiation
.
(a) In the event that the Sponsor becomes the subject of an insolvency proceeding and the FDIC as
receiver or conservator for the Sponsor exercises its right of repudiation as contemplated by paragraph (d)(4)(ii) of the FDIC Rule, the Servicer (including any successor Servicer, if the Bank has been replaced as Servicer) shall ascertain whether
the FDIC in such capacity will pay damages as provided in such paragraph (d)(4)(ii). Upon making such determination, the Servicer shall promptly, and in any event no more than one Business Day thereafter (or, if the Servicer fails to act, the
Noteholders representing not less than a majority of the Outstanding Note Balance or the Majority Certificateholders may), so notify the Indenture Trustee and the Owner Trustee.
(b) Upon receipt of the notice specified in
Section
12.4(a)
indicating that a payment will be made, the Relevant
Trustee shall determine the date (the “
applicable distribution date
”) for making a distribution to Noteholders and Certificateholders of such damages, which date shall be the earlier of (i) the next Payment Date on which such
damages could be distributed and (ii) the earliest practicable date by which the Relevant Trustee could declare a special distribution date, in each case subject to all applicable provisions of this Indenture, applicable law and the procedures
of any applicable Clearing Agency.
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COPAR 2026-1 Indenture
(c) When the applicable distribution date is determined, (i) the Computation Agent
shall promptly compute the amount of interest to be paid on each Class of Notes on the applicable distribution date, which interest (unless such applicable distribution date is a Payment Date) shall be the amount accruing up to the applicable
distribution date and which shall be computed by pro rating the amount that would otherwise be payable on the next succeeding Payment Date on the basis of (x) the number (in the case of Notes other than the
Class A-1
Notes and the
Class A-2-B
Notes, not to exceed 30) of days elapsed from such preceding Payment Date divided by (y) 30 and (ii) the Owner
Trustee, based on written instructions setting forth the damages calculation provided by the Majority Certificateholders, shall notify the Indenture Trustee and the FDIC of the damages due to the Certificateholders pursuant to
Section 360.6(d)(4)(ii) of the FDIC Rule. The Computation Agent shall notify the Owner Trustee and the Indenture Trustee (if a separate Person) in writing of the applicable amounts of principal and interest to be paid on each Class of
Notes not later than the Business Day following the day on which the applicable distribution date is determined.
(d) If the applicable
distribution date is a special distribution date, the Relevant Trustee shall (i) declare such special distribution date (the record date for which shall be the close of business on the day immediately preceding such special distribution date),
(ii) declare a special distribution to Noteholders consisting of unpaid interest on each Note and the Outstanding Principal Balance of each Note, (iii) deliver notice to the Noteholders of such special distribution date and special
distribution; and (iv) deliver notice to the Owner Trustee (or, if the Owner Trustee is the Relevant Trustee, deliver notice to the Certificateholders) of such special distribution date and special distribution.
(e) Following payment by the FDIC of such damages,
(i) such damages with respect to the Notes shall be deposited into the Principal Distribution Account and such damages with
respect to the Certificates shall be deposited into the Certificate Distribution Account;
(ii) the Computation Agent
shall promptly, and no later than one Business Day after such damages have been paid by the FDIC, (i) compute the amount, if any, required to be withdrawn from available funds in the Reserve Account and transferred to the Principal Distribution
Account so that the amount on deposit in the Principal Distribution Account shall equal the aggregate amount to be distributed as specified in
Section
12.4(c)
, and (ii) promptly inform the Servicer, the Owner Trustee
and the Indenture Trustee (if a separate Person) in writing of such computations;
(iii) on the applicable distribution
date, the Indenture Trustee shall,
first,
withdraw from monies on deposit in the Reserve Account and, if necessary, from monies on deposit in the Collection Account the amount necessary to pay the Indenture Trustee and the Owner Trustee any
accrued and unpaid fees (including any prior unpaid Indenture Trustee or Owner Trustee fees) and reasonable expenses and any indemnification amounts not previously paid and distribute such amount to the Indenture Trustee and the Owner Trustee
pro
rata
based on amounts due;
provided
, that the Owner Trustee shall provide the amount of any such fees, expenses and indemnification amounts owed to it to the Indenture Trustee, upon which the Indenture Trustee may conclusively rely
without any liability
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COPAR 2026-1 Indenture
therefor,
second,
based on the computations in
Section
12.4(e)
, withdraw from monies on deposit in the Reserve Account and, if necessary, monies on deposit in the
Collection Account the amount so computed and deposit such amount into the Principal Distribution Account and
third
, cause all amounts deposited in the Principal Distribution Account pursuant to this
Section
12.4
to
be applied in accordance with the following order of priority:
(a)
first
, to the Holders of the Notes, ratably, interest on the
Notes in the amount computed by the Computation Agent pursuant to
Section
12.4(c)
;
(b)
second
, to the
Holders of the Class A-1 Notes, in respect of principal thereon, until the
Class A-1
Notes have been paid in full;
(c)
third
, to the Holders of the
Class A-2-A
Notes and the
Class A-2-B
Notes, in respect of principal thereon,
pro rata
, until the
Class A-2-A
Notes and the
Class A-2-B
Notes have been paid in full;
(d)
fourth
, to the Holders of the
Class A-3
Notes, in respect of principal thereon, until
the
Class A-3
Notes have been paid in full;
(e)
fifth
, to the Holders of the
Class A-4
Notes, in respect of principal thereon, until the
Class A-4
Notes have been paid in full;
(f)
sixth
,
to the Holders of the Class B Notes, in respect of principal thereon, until the Class B Notes have been
paid in full;
(g)
seventh,
to the Holders of the Class C Notes, in respect of principal thereon, until the Class C
Notes have been paid in full; and
(h)
eighth
, to the Holders of the Class D Notes, in respect of principal thereon, until
the Class D Notes have been paid in full.
(iv) On the applicable distribution date, the Owner Trustee shall, based
on the computations in
Section
12.4(c)
, cause all amounts deposited in the Certificate Distribution Account pursuant to this
Section
12.4
to be distributed to the Certificateholders, pro rata based
on the Percentage Interest of each Certificateholder; and
(v) any funds remaining in the Collection Account and the
Reserve Account shall be distributed on the following Payment Date (or on such applicable distribution date, if it is a Determination Date), such distributions to be made in accordance with
Section
5.4
or
8.5
, as
applicable, with the Relevant Trustee at the written direction of the Servicer to adjust the amounts of such distributions in the Relevant Trustee’s Certificate to take into account the amounts distributed on the applicable distribution date.
SECTION 12.5
Notice
.
(a) In the event that the Bank becomes the subject of an insolvency proceeding and the FDIC as receiver or conservator provides a written
notice of repudiation as contemplated
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COPAR 2026-1 Indenture
by paragraph (d)(4)(ii) of the FDIC Rule, the party receiving such notice shall promptly deliver such notice to each of the Capital One Parties and the Indenture Trustee and the Owner Trustee.
(b) If the FDIC (i) is appointed as a conservator or receiver of the Bank and (ii) is in default due to its failure to pay
principal or interest when due following the expiration of any cure period hereunder or under the other Transaction Documents, the Indenture Trustee at the direction of the Noteholders representing not less than a majority of the Outstanding Note
Balance, the Servicer or the Majority Certificateholders shall be entitled to deliver written notice to the FDIC requesting the exercise of contractual rights hereunder and under the other Transaction Documents. Upon delivery of such notice, the
Relevant Trustee may exercise any contractual rights such Relevant Trustee may have in accordance with the Transaction Documents and the FDIC Rule. The Indenture Trustee shall, at the written direction of the Noteholders representing not less than a
majority of the Outstanding Note Balance, and the Owner Trustee shall, at the written direction of the Majority Certificateholders, exercise such contractual rights.
SECTION 12.6
Reservation of Rights
. Neither the inclusion of this
Article XII
in this Indenture nor the compliance by any
Person with, or the acknowledgment by any Person of, this Article’s provisions constitutes an agreement or acknowledgment by any Person that, in the case of an insolvency proceeding with respect to the Bank, a receiver or conservator will have
any rights with respect to the Trust Estate.
[Remainder of Page Intentionally Left Blank]
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COPAR 2026-1 Indenture
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Indenture to be
duly executed by their respective officers, thereunto duly authorized, all as of the day and year first above written.
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST 2026-1
By:
BNY MELLON TRUST OF DELAWARE
,
not in its  individual capacity but solely as Owner Trustee
By:
Name:
Title:
WILMINGTON TRUST, NATIONAL ASSOCIATION
, a national banking association, not in its individual capacity but solely as the Indenture Trustee
By:
Name:
Title:
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COPAR 2026-1 Indenture
SCHEDULE I
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in the Indenture, the Issuer hereby represents, warrants, and covenants
to the Indenture Trustee as follows on the Closing Date:
General
1. The Indenture creates a valid and continuing security interest (as defined in the applicable UCC) in the Receivables and the other Collateral in favor of
the Indenture Trustee, which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from the Issuer.
2. The Receivables constitute “chattel paper” (including “electronic chattel paper” or “tangible chattel paper”),
“accounts”, “instruments”, “promissory notes”, “payment intangibles” or “general intangibles”, within the meaning of the applicable UCC. If a Receivable constitutes “electronic
chattel paper,” the Servicer has “control” of such electronic chattel paper within the meaning of Section 9-105 of the applicable UCC.
3. Immediately prior to the sale, transfer, contribution, assignment and/or conveyance of a Receivable, such Receivable is secured by a first priority validly
perfected and enforceable security interest in the related Financed Vehicle in favor of the Originator (or its assignee), as secured party, or all necessary actions with respect to such Receivable have been taken or will be taken to perfect a first
priority security interest in the related Financed Vehicle in favor of the Originator (or its assignee), as secured party, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization, liquidation or other similar laws and
equitable principles relating to or affecting the enforcement of creditors’ rights generally.
Creation
4. Immediately prior to the sale, transfer, contribution, assignment and/or conveyance of a Receivable by the Seller to the Issuer, the Seller owned and had
good and marketable title to such Receivable free and clear of any Lien created by the Seller (other than any Liens in favor of the Issuer) and immediately after the sale, transfer, assignment and conveyance of such Receivable to the Issuer, the
Issuer will have good and marketable title to such Receivable free and clear of any Lien created by the Seller.
Perfection
5. The Issuer has submitted or will have caused to be submitted, on the effective date of the Indenture, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Receivables granted to the Indenture Trustee hereunder; and the Servicer, in its capacity as custodian, has
in its possession the original copies of such instruments or tangible chattel paper that constitute or evidence the Receivables, and all financing statements referred to in this paragraph contain a statement that: “A purchase of or security
interest in any collateral described in this financing statement will violate the rights of the Secured Party”.
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COPAR 2026-1 Indenture
6. With respect to Receivables that constitute an instrument or tangible chattel paper, either:
(i) All original executed copies of each such instrument or tangible chattel paper have been delivered to the Indenture Trustee, as pledgee of
the Issuer; or
(ii) Such instruments or tangible chattel paper are in the possession of the Servicer and the Indenture Trustee has
received a written acknowledgment from the Servicer that the Servicer (in its capacity as custodian) is holding such instruments or tangible chattel paper solely on behalf and for the benefit of the Indenture Trustee, as pledgee of the Issuer; or
(iii) The Servicer received possession of such instruments or tangible chattel paper after the Indenture Trustee received a written
acknowledgment from the Servicer that the Servicer is acting solely as agent of the Indenture Trustee, as pledgee of the Issuer.
Priority
7. The Issuer has not
authorized the filing of, and is not aware of any financing statements against the Issuer that include a description of collateral covering the Receivables other than any financing statement (i) relating to the conveyance of the Receivables by
the Bank to the Seller under the Purchase Agreement, (ii) relating to the conveyance of the Receivables by the Seller to the Issuer under the Sale Agreement, (iii) relating to the security interest granted to the Indenture Trustee under
the Indenture or (iv) that has been terminated.
8. The Issuer is not aware of any material judgment, ERISA or tax lien filings against the Issuer.
9. Neither the Issuer nor a custodian or vaulting agent thereof holding any Receivable that is electronic chattel paper has communicated an
“authoritative copy” (as such term is used in
Section 9-105
of the UCC) of any loan agreement that constitutes or evidences such Receivable to any Person other than the Servicer.
10. None of the instruments, electronic chattel paper or tangible chattel paper that constitutes or evidences the Receivables has any marks or notations
indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Issuer or the Indenture Trustee.
Survival of Perfection Representations
11. Notwithstanding any other provision of the Indenture, the perfection representations, warranties and covenants contained in this
Schedule I
shall
be continuing, and remain in full force and effect until such time as all obligations under the Indenture have been finally and fully paid and performed.
No Waiver
12. The Issuer shall
provide the Rating Agencies with prompt written notice of any material breach of the perfection representations, warranties and covenants contained in this
Schedule I
, and shall not, without satisfying the Rating Agency Condition, waive a
breach of any of such perfection representations, warranties or covenants.
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COPAR 2026-1 Indenture
Exhibit A
FORM OF CLASS
[A-1]
[A-2-A]
[A-2-B]
[A-3]
[A-4]
[B] [C] [D] NOTES
REGISTERED
No.
R-________
$___________________
1
CUSIP NO. ______________
ISIN. ______________
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
[[FOR 144A NOTES:] THIS NOTE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY
ACT”). THIS NOTE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED
INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN A PRINCIPAL AMOUNT OF NOT LESS THAN [$1,000 AND IN GREATER WHOLE NUMBER DENOMINATIONS OF $1,000 IN EXCESS THEREOF
(EXCEPT FOR TWO SUCH NOTES WHICH MAY BE ISSUED IN INTEGRAL MULTIPLES IN EXCESS THEREOF OF OTHER THAN $1,000)] FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT, IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS NOTE IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, OR (2) TO THE SELLER OR ANY OF ITS U.S. CORPORATE AFFILIATES (OR DISREGARDED ENTITIES THEREOF) AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION. EACH PURCHASER
1
Denominations of $1,000 and integral multiples of $1,000 in excess thereof (except for two Notes of each
Class which may be issued in a denomination other than an integral multiple of $1,000).
A-1
COPAR 2026-1 Indenture
WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE INDENTURE. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID
AB
INITIO
, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE INDENTURE TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE
HOLDER OF SUCH NOTE OR BENEFICIAL INTEREST IN SUCH NOTE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE INDENTURE, THE ISSUER AND THE INDENTURE TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS NOTE OR SUCH INTEREST IN
SUCH NOTE VOID AND REQUIRE THAT THIS NOTE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER.]
BY ACQUIRING THIS
NOTE (OR ANY INTEREST HEREIN), EACH PURCHASER AND TRANSFEREE (AND, IF THE PURCHASER OR TRANSFEREE IS A PLAN (AS DEFINED BELOW), ITS FIDUCIARY) (I) WILL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (A) SUCH PURCHASER OR TRANSFEREE IS NOT
ACQUIRING AND WILL NOT HOLD THIS NOTE (OR ANY INTEREST HEREIN) ON BEHALF OF, OR WITH ANY ASSETS OF, A PLAN THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH, A “BENEFIT PLAN”), OR A PLAN THAT IS SUBJECT TO A LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”) OR
(B) THE ACQUISITION, HOLDING AND DISPOSITION OF THIS NOTE (OR ANY INTEREST HEREIN) WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF ANY SIMILAR LAW AND
(II) ACKNOWLEDGES AND AGREES IF IT IS A BENEFIT PLAN OR A PLAN THAT IS SUBJECT TO SIMILAR LAW, IT SHALL NOT ACQUIRE THIS NOTE (OR INTEREST HEREIN) AT ANY TIME THAT THE RATINGS ON THIS NOTE ARE BELOW INVESTMENT GRADE OR IF THIS NOTE HAS BEEN
CHARACTERIZED AS OTHER THAN INDEBTEDNESS FOR APPLICABLE LOCAL LAW PURPOSES. FOR PURPOSES OF THE FOREGOING, “PLAN” MEANS AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA WHETHER OR NOT SUBJECT TO TITLE I OF
ERISA, A “PLAN” AS DEFINED IN SECTION 4975 OF THE CODE, OR AN ENTITY OR ACCOUNT DEEMED TO HOLD THE PLAN ASSETS OF ANY OF THE FOREGOING.
TRANSFERS OF THIS NOTE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN
THE INDENTURE.
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COPAR 2026-1 Indenture
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST 2026-1
[CLASS
A-1
4.002%] [CLASS
A-2-A
4.48%] [CLASS
A-2-B
SOFR RATE + 0.37%] [CLASS
A-3
4.77%] [CLASS
A-4
4.88%]
[CLASS B 5.06%] [CLASS C 5.21%] [CLASS D 5.70%]
AUTO LOAN ASSET BACKED NOTES
Capital One Prime Auto Receivables Trust 2026-1, a statutory trust organized and existing under the laws of the State of Delaware (including
any successor, the “
Issuer
”), for value received, hereby promises to pay to [______], or registered assigns, the principal sum of [___] DOLLARS ($[___]), in monthly installments on the 15
th
of each month, or if such day is not a Business Day, on the immediately succeeding Business Day, commencing on October 15, 2026 (each, a “
Payment Date
”) until the principal of
this Note is paid or made available for payment, and to pay interest on each Payment Date on the Class
[A-1]
[A-2-A]
[A-2-B]
[A-3]
[A-4]
[B] [C] [D] Note Balance as of the preceding Payment Date (after giving effect to all payments of principal made on the preceding Payment Date), or as of the
Closing Date in the case of the first Payment Date, at the rate per annum shown above (the “
Interest Rate
”), in each case as and to the extent set forth in
Sections 2.7
,
3.1
,
5.4(b)
,
8.2
and
8.5
of the Indenture;
provided
,
however
, that the entire unpaid Class
[A-1]
[A-2-A]
[A-2-B]
[A-3]
[A-4]
[B] [C] [D] Note Balance shall be due and payable on the earliest of (i) [___] (the “
Final Scheduled Payment Date
”), (ii) the Redemption Date,
if any, pursuant to
Section
10.1
of the Indenture and (iii) the date the Notes are accelerated after an Event of Default pursuant to
Section
5.2
of the Indenture. Interest on this Note will
accrue for each Payment Date from and including the [preceding Payment Date (or, in the case of the initial Payment Date, from and including the Closing Date) to but excluding such Payment Date]
2
[15
th
day of the prior calendar month (or, in the case of the initial Payment Date from and including the Closing Date) to but excluding the
15
th
day of the calendar month in which such Payment Date occurs]
3
. Interest will be computed on the basis of [[Class
A-1,
A-2-B]:
actual days elapsed and a
360-day
year][Class
A-2-A,
A-3,
A-4,
B, C, D: a
360-day
year of twelve
30-day
months]. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied first to interest on this Note as provided above and
then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the reverse hereof,
which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has
been executed by the Indenture Trustee the name of which appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.
2
The
Class A-1
and
A-2-B
Notes.
3
The
Class A-2-A,
A-3,
A-4,
B, C and D Notes.
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COPAR 2026-1 Indenture
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually, by its
Authorized Officer.
Dated:
CAPITAL ONE PRIME AUTO RECEIVABLES TRUST
2026-1
By: BNY MELLON TRUST OF DELAWARE, not in its individual capacity but solely as Owner Trustee
By:
Name:
Title:
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COPAR 2026-1 Indenture
INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
Dated:
WILMINGTON TRUST, NATIONAL ASSOCIATION
,
a national banking association, not in its
individual capacity but solely as Indenture Trustee
By:
Authorized Signatory
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COPAR 2026-1 Indenture
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer, designated as its [Class
A-1
4.002%] [Class
A-2-A
4.48%] [Class
A-2-B
SOFR Rate + 0.37%] [Class
A-3
4.77%] [Class
A-4
4.88%] [Class B 5.06%] [Class C 5.21%] [Class D 5.70%] Auto Loan Asset-Backed Notes (herein called the “
Class
[A-1]
[A-2-A]
[A-2-B]
[A-3]
[A-4]
[B] [C] [D] Notes
” or the “
Notes
”), all issued under an Indenture, dated as of
September 17, 2026 (such Indenture, as supplemented or amended, is herein called the “
Indenture
”), between the Issuer and Wilmington Trust, National Association, a national banking association, not in its individual capacity
but solely as trustee (the “
Indenture Trustee
”), which term includes any successor Indenture Trustee under the Indenture, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Notes are subject to all terms of the Indenture and the Servicing Agreement. All terms used in this Note that are not otherwise defined herein
and that are defined in the Indenture or the Servicing Agreement shall have the meanings assigned to them in or pursuant to the Indenture or in Appendix A of the Sale Agreement.
The
Class A-1
Notes, the
Class A-2-A
Notes, the
Class A-2-B
Notes, the
Class A-3
Notes, the
Class A-4
Notes, the Class B Notes, the Class C Notes and the
Class D Notes are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture. The Class B Notes are subordinated to the Class A Notes and are secured by the collateral pledged
as security therefor on a subordinated basis as provided in the Indenture. The Class C Notes are subordinated to the Class A Notes and Class B Notes and are secured by the collateral pledged as security therefor on a subordinated
basis as provided in the Indenture. The Class D Notes are subordinated to the Class A Notes, Class B Notes and Class C Notes and are secured by the collateral pledged as security therefor on a subordinated basis as provided in
the Indenture. All covenants and agreements made by the Issuer in the Indenture are for the benefit of the Holders of the Class A Notes, Class B Notes, Class C Notes and the Class D Notes.
Principal payable on the Notes will be paid on each Payment Date in the amount specified in the Indenture and in the Servicing Agreement. As
described above, the entire Class
[A-1]
[A-2-A]
[A-2-B]
[A-3]
[A-4]
[B] [C] [D] Note Balance shall be due and payable on the earliest of (i) [___] (the “
Final Scheduled Payment Date
”), (ii) the Redemption Date, if any, pursuant to
Section
10.1
of the Indenture and (iii) the date the Notes are accelerated after an Event of Default pursuant to
Section
5.2
of the Indenture. All principal payments on the Class
[A-1]
[A-2-A]
[A-2-B]
[A-3]
[A-4]
[B] [C] [D] Notes
shall be made pro rata to the Class
[A-1]
[A-2-A]
[A-2-B]
[A-3]
[A-4]
[B] [C] [D] Noteholders entitled thereto.
Payments of principal of and interest on this Note made
on each Payment Date, Redemption Date or upon acceleration shall be made by wire transfer if an account has been designated by the related Noteholder three (3) Business Days prior to the related Payment Date and otherwise by check mailed
first-class, postage prepaid, to the Person whose name appears as the registered Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on the related Record Date, except that with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee.
Such checks shall be mailed to the Person entitled thereto at the
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COPAR 2026-1 Indenture
address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal
amount of this Note (or any one or more Predecessor Notes) affected by any payments made on any Payment Date or Redemption Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the remaining unpaid principal amount of this Note on a Payment Date or Redemption Date,
then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the registered Holder hereof as of the close of business on the Record Date preceding such Payment Date or Redemption Date by notice mailed prior
to such Payment Date or Redemption Date which shall specify the amount then due and payable and such amount shall be payable only upon presentation and surrender of this Note at the Corporate Trust Office of the Indenture Trustee or at the place
specified by the Indenture Trustee in such notice.
The Issuer shall pay interest on overdue installments of interest at the Class
[A-1]
[A-2-A]
[A-2-B]
[A-3]
[A-4]
[B] [C] [D] Interest
Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of this Note, or, in the case of a Note Owner of a beneficial
interest in this Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in their respective individual capacities, (ii) any Certificateholder or any other owner of a beneficial interest in the
Issuer, (iii) the Servicer, the Administrator or the Seller or (iv) any partner, owner, beneficiary, agent, officer, director, employee, successor or assign of any Person described in clauses (i), (ii) and (iii) above, except as any
such Person may have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
It is the intent of the Issuer, the Noteholders and the Note Owners that, for purposes of federal, state and local income, franchise and value
added tax, the
Class A-1
Notes, the
Class A-2-A
Notes, the
Class A-2-B
Notes, the
Class A-3
Notes, the
Class A-4
Notes, the Class B Notes, the Class C Notes and the Class D Notes (other than any Notes that are owned during any
period of time by either the Issuer or a Person that is considered the same Person as the Issuer for United States federal income tax purposes) shall constitute indebtedness. The Noteholders, by acceptance of this Note, agree to treat, and to take
no action inconsistent with the treatment of, the Notes for such tax purposes as indebtedness.
Each Noteholder and Note Owner, by
accepting this Note or, in the case of a Note Owner, a beneficial interest in this Note, hereby covenants and agrees that prior to the date which is one year and one day after payment in full of all obligations of each Bankruptcy Remote Party in
respect of all securities issued by the Bankruptcy Remote Parties, (i) such party shall not authorize any Bankruptcy Remote Party to commence a voluntary
winding-up
or other voluntary case or other
Proceeding seeking liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other similar law now
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COPAR 2026-1 Indenture
or hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian or other similar official with respect to such Bankruptcy
Remote Party or any substantial part of its property or to consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other Proceeding commenced against such Bankruptcy Remote Party, or to
make a general assignment for the benefit of, its creditors generally, any party to the Indenture or any other creditor of such Bankruptcy Remote Party and (ii) such party shall not commence, join with any other Person in commencing or
institute, with any other Person, any Proceeding against such Bankruptcy Remote Party under any bankruptcy, reorganization, arrangement, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction.
THIS NOTE AND THE INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS OTHER THAN SECTIONS
5-1401
AND
5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-8
COPAR 2026-1 Indenture
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints ______________________, attorney,
to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated: _____________
_______________________________*/
Signature Guaranteed:
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature
guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
*/ NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within
Note in every particular without alteration, enlargement or any change whatsoever.
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COPAR 2026-1 Indenture