E XHIBIT 4.3
AMBAC ASSURANCE
CORPORATION
NOTE GUARANTY INSURANCE
POLICY
Policy No. AB1061BE
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Insured
Party:
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The Indenture
Trustee for the benefit of the Holders of the Capital One Auto
Finance Trust 2007-A Class A Notes issued pursuant to the
Indenture.
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Insured
Obligations:
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To the extent
set forth herein, the aggregate interest on and the Note Balance of
all Class A Notes owned by Holders, such principal balance not to
exceed in the aggregate $1,500,000,000.
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Deficiency Amounts:
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(i) With
respect to each Payment Date, the excess, if any, without
duplication, of (a) the Scheduled Payments minus (b) the sum of,
without duplication: (x) all amounts available for payment of the
Scheduled Payments under the Transaction Documents, including, but
not limited to, from amounts on deposit in the Reserve Account and
any other Trust Accounts available for payment of Scheduled
Payments on the Class A Notes on such Payment Date and (y) any
other amounts available pursuant to the Transaction Documents to
pay the Scheduled Payments on such Payment Date, in each case to
the extent available in accordance with the priorities set forth in
the Transaction Documents, and (ii) with respect to any Preference
Payment Date, Preference Amounts; provided , however
, that the aggregate amount of all such Preference Amounts shall be
subject to the limitations in such definition; provided ,
further , that in no event shall the aggregate amount
payable by the Insurer under this Policy exceed the Maximum Insured
Amount.
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AMBAC ASSURANCE CORPORATION, a
Wisconsin domiciled stock insurance corporation
(“Ambac” or the “Insurer”), in
consideration of the payment of the insurance premium payable with
respect hereto, hereby unconditionally and irrevocably guarantees,
subject only to (i) proper presentation of a Notice in
accordance with the terms of this Note Guaranty Insurance Policy
(together with each and every endorsement, if any, hereto, the
“Policy”) and (ii) the terms of the Policy, the
payment to, or at the direction of, the Indenture Trustee, for the
benefit of the Holders of the Insured Obligations, that portion of
the Deficiency Amounts which are Due for Payment but are unpaid by
reason of Nonpayment.
1. Definitions .
Capitalized terms used herein and
not otherwise defined shall have the meaning assigned to them in
the Insurance Agreement or, if not defined therein, in the
Indenture, without giving effect to any subsequent amendment or
modification thereto unless such
amendment or modification has been approved in
writing by Ambac. For purposes of the Policy, the following terms
shall have the following meanings:
“ Affiliate ”
shall mean, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such
specified Person. For the purposes of this definition,
“control” when used with respect to any Person means
the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms
“controlling” and “controlled” have
meanings correlative to the foregoing.
“ Bankruptcy Code
” shall mean Title 11 of the United States Code.
“ Business Day ”
shall mean any day that is not a Saturday, a Sunday or a day on
which banking institutions in the states of Delaware, California,
Texas, Virginia or New York, or in the state in which the Corporate
Trust Office of the Indenture Trustee is located, are authorized or
obligated by law, executive order or government decree to be
closed.
“ Class A Notes ”
shall mean, collectively, the Class A-1 Notes, the
Class A-2 Notes, the Class A-3-A Notes, the
Class A-3-B Notes and the Class A-4 Notes.
“ COAF Party ”
shall mean any of the Issuer, the Originators, the Servicer, the
Seller and any of their respective Affiliates.
“ Collection Period
” shall mean each calendar month (or, in the case of the
initial Collection Period, the period commencing on the close of
business on the Initial Cut-Off Date and ending on
February 28, 2007) and the “related” Collection
Period means, with respect to any Payment Date, the Collection
Period preceding the month in which such Payment Date
occurs.
“ Due for Payment
” shall mean, with respect to any Deficiency Amounts, such
amount as is due and payable pursuant to the terms of the
Indenture.
“ Final Scheduled Payment
Date ” shall mean, with respect to (i) the
Class A-1 Notes, the Payment Date occurring in February 2008,
(ii) the Class A-2 Notes, the Payment Date occurring in
May 2010, (iii) the Class A-3-A Notes, the Payment Date
occurring in August 2011, (iv) the Class A-3-B Notes, the
Payment Date occurring in August 2011, and (v) the
Class A-4 Notes, the Payment Date occurring in November
2013.
“ Holder ” shall
mean any registered or beneficial owner of a Class A Note
(other than a COAF Party).
“ Indenture ”
shall mean that certain Indenture, dated as of February 15,
2007, by and between the Issuer and the Indenture
Trustee.
“ Indenture Trustee
” shall mean The Bank of New York, not in its individual
capacity but as trustee under the Indenture, and its successors and
assigns in such capacity.
“ Insurance Agreement
” shall mean that certain Insurance Agreement, dated as of
February 28, 2007, among the Insurer, the Servicer, the
Originator, the Seller, the Issuer and the Indenture Trustee, in
regard to the Class A Notes, as such agreement may be amended,
modified or supplemented from time to time.
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“ Insured Payments
” shall mean, (i) with respect to any Payment Date, the
aggregate amount actually paid by the Insurer to, or at the
direction of, the Indenture Trustee in respect of Deficiency
Amounts for such Payment Date and (ii) the aggregate amount of
any Preference Amounts paid by the Insurer on any given Business
Day.
“ Insurer ” shall
mean Ambac, or any successor thereto, as issuer of this
Policy.
“ Interest Rate ”
shall mean, with respect to (i) the Class A-1 Notes,
5.3212% per annum, (ii) the Class A-2 Notes,
5.33% per annum, (iii) the Class A-3-A Notes,
5.25% per annum, (iv) the Class A-3-B Notes, LIBOR
+0.00% per annum and (v) the Class A-4 Notes, LIBOR
+0.02% per annum.
“ Issuer ” shall
mean Capital One Auto Finance Trust 2007-A, a Delaware statutory
trust.
“ Late Payment Rate
” shall mean the rate of interest as it is publicly announced
by Citibank, N.A. at its principal office in New York, New York as
its prime rate (any change in such prime rate of interest to be
effective on the date such change is announced by Citibank, N.A.),
plus 3%. The Late Payment Rate shall be computed on the basis of a
year of 365 days calculating the actual number of days elapsed. In
no event shall the Late Payment Rate exceed the maximum rate
permissible under any applicable law limiting interest
rates.
“ Maximum Insured
Amount ” shall mean $1,500,000,000 in respect of
principal, plus interest thereon calculated at the applicable
Interest Rate for each Class of Class A Notes.
“ Nonpayment ”
shall mean, with respect to any Payment Date, Deficiency Amounts
which are Due for Payment but have not been paid pursuant to the
Indenture.
“ Noteholders’
Interest Carryover Shortfall ” means, with respect to any
Payment Date, the excess of the sum of the Noteholders’
Monthly Accrued Interest for the preceding Payment Date and any
outstanding Noteholders’ Interest Carryover Shortfall on such
preceding Payment Date, over the amount in respect of interest that
is actually paid to Noteholders on such preceding Payment Date,
plus interest on the amount of interest due but not paid to
Noteholders on the preceding Payment Date, to the extent permitted
by law, at the respective Interest Rates borne by such Notes for
the related Interest Period.
“ Noteholders’ Parity
Deficit Amount ” means, with respect to any Payment Date,
an amount equal to the excess, if any, of (i) the Note Balance
of the Class A Notes as of such Payment Date (before
application of all payments in respect of principal on such date);
over (ii) the sum of (x) the amount of the Pool Balance
(as of the last day of the related Collection Period) and
(y) the amount on deposit in the Pre-Funding Account (as of
the last day of the related Collection Period).
“ Notice ” shall
mean the telephonic or telegraphic notice, promptly confirmed in
writing by telecopy substantially in the form of Exhibit A
or Exhibit B , as applicable, to this Policy, the original
of which is subsequently delivered by registered or certified mail,
from the Indenture Trustee specifying the amount of any Insured
Payment which shall be due and owing.
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“ Order ” shall
have the meaning given such term in Section 8
hereto.
“ Payment Date ”
shall mean the 15th day of each month during which any Class A
Notes remain Outstanding (provided if any such date is not a
Business Day, then the Payment Date shall be the next succeeding
Business Day) beginning on March 15, 2007.
“ Person ” shall
mean 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.
“ Preference Amount
” shall mean any interest on or principal of the Class A
Notes which has become Due for Payment, the Nonpayment of which
would have been covered by the Policy, and which was made to a
Holder by or on behalf of the Issuer which has been deemed a
preferential transfer and recoverable, or theretofore recovered,
from its Holder pursuant to the Bankruptcy Code in accordance with
a final, nonappealable order of a court of competent jurisdiction;
provided that any Preference Amount that constitutes
interest shall be limited to the amount of interest on the Note
Balance of the Class A Notes (calculated at the Interest Rate
for the relevant class of Class A Notes) accrued as of the
last day of the applicable interest accrual period with respect to
the Class A Notes and shall not, in any event, include any
interest on the Class A Notes accrued after such date or any
interest on such interest amount; provided , further
, that in no event shall Ambac be obligated to make any payment in
respect to any Preference Amount to the extent that such payment,
when added to all prior payments of Deficiency Amounts, would
exceed the Maximum Insured Amount.
“ Preference Payment
Date ” shall have the meaning given such term in
Section 8 hereto.
“ Reimbursement Amount
” shall mean, as of any Payment Date, the sum of (x)(i) all
Insured Payments paid by Ambac, but for which Ambac has not been
reimbursed prior to such Payment Date, plus
(ii) interest accrued on such Insured Payments not previously
repaid calculated at the Late Payment Rate from the date the
Indenture Trustee, or any other Person at its direction, received
the related Insured Payments or the date such Insured Payments were
made, (y) (i) all costs and expenses of Ambac in
connection with any action, proceeding or investigation affecting
the Issuer, the Trust Estate or the rights or obligations of Ambac
hereunder or under the Transaction Documents including any judgment
or settlement entered into affecting Ambac or Ambac’s
interests plus (ii) interest on such amounts of the
Late Payment Rate and (z) without duplication (i) any
amounts then due and owing to Ambac under the Insurance Agreement,
the Indenture, and the Sale and Servicing Agreement plus
(ii) interest on such amounts at the Late Payment
Rate.
“ Reserve Account
” shall mean the account designated as such, established and
maintained pursuant to Section 4.1 of the Sale and Servicing
Agreement.
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“ Sale and Servicing
Agreement ” shall mean that certain Sale and Servicing
Agreement dated as of February 15, 2007 by and among the
Issuer, the Seller, Capital One Auto Finance, Inc., as servicer and
The Bank of New York, as indenture trustee.
“ Scheduled Payments
” shall mean, with respect to any Payment Date, an amount
equal to the sum of (a) the Accrued Note Interest (not
including any Noteholders’ Interest Carryover Shortfall that
Ambac has made Insured Payments in respect of on a prior Payment
Date) and the Noteholders’ Parity Deficit Amount for the
related Payment Date and, without duplication, (b) if the
related Payment Date is the Final Scheduled Payment Date for any
class of Class