Exhibit 10.2
--------------------------------------------------------------------------------
CONTRIBUTION AGREEMENT
by and between
CAPITAL ONE AUTO RECEIVABLES, LLC,
as Seller
and
CAPITAL ONE AUTO FINANCE TRUST 2003-A
Dated as of June 3, 2003
CAPITAL ONE AUTO FINANCE TRUST 2003-A
ASSET BACKED NOTES, SERIES 2003-A
CLASS A NOTES AND CLASS B NOTES
--------------------------------------------------------------------------------
2003-A Contribution Agreement
ARTICLE I CERTAIN DEFINITIONS................................... 1
ARTICLE II CONTRIBUTION AND ACQUISITION OF RECEIVABLES........... 1
Section 2.01 Contribution and Acquisition of Receivables...... 1
Section 2.02 The Closing...................................... 3
Section 2.03 Funding Dates.................................... 3
ARTICLE III REPRESENTATIONS AND WARRANTIES........................ 4
Section 3.01 Representations and Warranties of the Trust...... 4
Section 3.02 Representations and Warranties of the Seller..... 5
ARTICLE IV CONDITIONS............................................ 8
Section 4.01 Conditions to Obligation of the Trust............ 8
Section 4.02 Conditions to Obligation of the Seller........... 10
ARTICLE V COVENANTS OF THE SELLER............................... 10
Section 5.01 Protection of Right, Title and Interest.......... 10
Section 5.02 Other Liens or Interests......................... 11
Section 5.03 Principal Executive Office....................... 11
Section 5.04 Full Force and Effect............................ 11
Section 5.05 Costs and Expenses............................... 11
Section 5.06 [Reserved]....................................... 11
Section 5.07 Location of Servicer Files....................... 11
Section 5.08 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Requirements.................. 11
Section 5.09 Transfer of Receivables.......................... 11
Section 5.10 Seller's Records................................. 11
Section 5.11 [Reserved]....................................... 11
Section 5.12 Cooperation by Seller............................ 11
Section 5.13 Transfer of Additional Receivables............... 12
Section 5.14 Notice of Breach................................. 12
Section 5.15 No Violation..................................... 12
ARTICLE VI [RESERVED]............................................ 13
ARTICLE VII MISCELLANEOUS PROVISIONS.............................. 13
Section 7.01 Obligations of Seller............................ 13
Section 7.02 Repurchase Events................................ 13
Section 7.03 Trust's Assignment of Repurchased Receivables.... 14
Section 7.04 Subsequent Pledge................................ 14
2003-A Contribution Agreement
Section 7.05 Amendment........................................ 14
Section 7.06 Waivers.......................................... 14
Section 7.07 Notices.......................................... 14
Section 7.08 [Reserved]....................................... 14
Section 7.09 Representations.................................. 14
Section 7.10 Confidential Information......................... 15
Section 7.11 Headings and Cross-References.................... 15
Section 7.12 Governing Law.................................... 15
Section 7.13 Counterparts..................................... 15
Section 7.14 No Bankruptcy Petition Against the Trust......... 15
Section 7.15 Third Party Beneficiaries........................ 15
Section 7.16 Limitation on Seller's Liability................. 16
Section 7.17 Limitations of Owner Trustee's Liability......... 16
2003-A Contribution Agreement
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (this "Agreement") is made as of this June 3,
2003, by and between Capital One Auto Receivables, LLC, a Delaware limited
liability company (the "Seller"), and CAPITAL ONE AUTO FINANCE TRUST 2003-A, a
Delaware statutory trust (the "Trust").
WHEREAS, the Trust desires to receive a contribution of a portfolio of
Receivables and related property from the Seller; and
WHEREAS, the Seller is willing to contribute such portfolio of Receivables
and related property to the Trust on the terms and conditions set forth in this
Agreement
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Capitalized terms used but not defined in this Agreement shall have the
meanings set forth in Section 1.01 of the Indenture, dated as of the Closing
Date, by and between the Trust and JPMorgan Chase Bank, as indenture trustee.
ARTICLE II
CONTRIBUTION AND ACQUISITION OF RECEIVABLES
Section 2.01 Contribution and Acquisition of Receivables. On the Closing
Date and on each Funding Date, subject to the terms and conditions of this
Agreement, the Seller agrees to contribute and assign to the Trust, and the
Trust agrees to acquire from the Seller, the Receivables and the other
Contributed Property relating thereto.
(a) Initial Contribution of Receivables and Contributed Property.
On the Closing Date and simultaneously with the transactions pursuant to
the Transfer and Assignment Agreement, the PFF Transfer and Assignment
Agreement, the F.S.B. Transfer and Assignment Agreement and the Indenture,
the Seller hereby contributes and assigns to the Trust, without recourse
except as set forth herein, all of the Seller's right, title and interest,
whether now or hereafter existing, in and to (i) the Initial Receivables
identified on a Schedule of Receivables delivered on the Closing Date, and
all moneys received thereon (including amounts received on any Extended
Service Agreements relating thereto), after the related Cutoff Date (except
for interest accrued as of the related Cutoff Date and actually received
subsequent to such Cutoff Date which shall be paid to the Seller); (ii) the
security interest in the Financed Vehicles granted by the Obligors pursuant
to such Receivables and the Certificates of Title to such Financed
Vehicles; (iii) the interest of the Seller in any proceeds from claims on
any physical damage, credit life, risk default, disability or other
insurance policies covering the Financed Vehicles or the Obligors or
refunds in connection with Extended Service Agreements relating to
2003-A Contribution Agreement
Defaulted Receivables from such Cutoff Date; (iv) any property (including
the right to receive future Liquidation Proceeds) that shall secure an
Initial Receivable; (v) any recourse against COAF or any Dealer pursuant to
the Transfer and Assignment Agreement or the applicable Dealer Agreement,
respectively; (vi) the original Contracts relating to the Initial
Receivables; and (vii) the proceeds of any and all of the foregoing. (All
of the property identified in this subsection (a) and the following
subsection (c) shall constitute "Contributed Property".)
(b) Consideration for Initial Receivables. In consideration of
the Receivables and the Contributed Property described in Section 2.01(a),
the Seller shall, on the Closing Date, receive an amount equal to the
Receivables Purchase Price in the form of cash by federal wire transfer
funds.
(c) Contribution of Subsequent Receivables and Contributed
Property. On each Funding Date, the Seller shall contribute and assign to
the Trust, without recourse except as set forth herein, all of the Seller's
right, title and interest, whether now or hereafter existing, in and to (i)
the Subsequent Receivables identified on a Schedule of Receivables
delivered on such Funding Date, and all moneys received thereon (including
amounts received on any Extended Service Agreements relating thereto),
after the respective Cutoff Date (except for interest accrued as of the
related Cutoff Date and actually received subsequent to the related Cutoff
Date which shall be paid to the Seller); (ii) the security interest of the
Seller in the Financed Vehicles granted by the Obligors, related Dealer or
Referral Originator to COAF pursuant to such Subsequent Receivables and the
Certificates of Title to such Financed Vehicles; (iii) the interest of the
Seller in any proceeds from claims on any physical damage, credit life,
risk default, disability or other insurance policies covering the Financed
Vehicles or the Obligors or refunds in connection with Extended Service
Agreements relating to Defaulted Receivables from the related Cutoff Date;
(iv) any property (including the right to receive future Liquidation
Proceeds) that shall secure a Subsequent Receivable; (v) any recourse
against the Seller or any Dealer pursuant to the Transfer and Assignment
Agreement or the applicable Dealer Agreement, respectively; (vi) the
original Contracts relating to the Subsequent Receivables; and (vii) the
proceeds of any and all of the foregoing; provided, however, that
Subsequent Receivables may not be acquired by the Seller from the
Transferor, contributed and assigned by the Seller to the Trust and Granted
by the Trust to the Indenture Trustee unless the addition of such
Subsequent Receivables to the Receivables Pool meets the requirements set
forth in Section 2.16 of the Indenture.
(d) Consideration for Subsequent Receivables. Upon two (2)
Business Days' prior written notice given by the Trust to the Indenture
Trustee, the Trust shall cause the Indenture Trustee, on the applicable
Funding Date, to pay to the Seller an amount equal to the Receivables
Purchase Price with respect to the Subsequent Receivables acquired from the
Seller on such date in cash by federal wire transfer funds. The Seller
acknowledges that funds to transfer the Subsequent Receivables and the
other Contributed Property relating thereto on each Funding Date shall be
disbursed by the Indenture Trustee solely from the Prefunding Account
pursuant to Section 5.06 of the Indenture.
2 2003-A Contribution Agreement
(e) Absolute Assignment. It is the intention of the Seller and
the Trust that each contribution, assignment and conveyance hereunder
constitute an absolute assignment of the Contributed Property from the
Seller to the Trust. Notwithstanding the foregoing, in the event that the
Receivables and other Contributed Property 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
Contributed Property, 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
Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction;
(ii) The conveyance provided for in this Section 2.01 shall
be deemed to be a grant by the Seller, and the Seller hereby grants,
to the Trust of 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
Contributed Property, to secure such indebtedness and the performance
of the obligations of the Seller hereunder;
(iii) The possession by the Seller of the Receivables and
any other Contributed Property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" or possession by the Trust or a
person designated by such purchaser, for purposes of perfecting the
security interest pursuant to the New York Uniform Commercial Code
and the Uniform Commercial Code 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 Seller for the purpose of perfecting such security interest under
applicable law.
Section 2.02 The Closing. The transfer of the Initial Receivables shall
take place at a closing (the "Closing") at the offices of Mayer, Brown, ▇▇▇▇ &
Maw, Chicago, Illinois on the Closing Date, simultaneously with the closings
under the Transfer and Assignment Agreement and the Indenture pursuant to which
(a) the Transferor will absolutely assign all of its right, title and interest
in and to the Initial Receivables and other Contributed Property to the Seller,
(b) the Seller will absolutely assign all of its right, title and interest in
and to the Initial Receivables and other Contributed Property to the Trust, (c)
the Trust will Grant all of its right, title and interest in and to the Initial
Receivables and other Contributed Property to the Indenture Trustee for the
benefit of the Noteholders, the Swap Counterparty and the Note Insurer, and (d)
the Class A Notes and the Class B Notes will be issued.
Section 2.03 Funding Dates. The transfer of the Subsequent Receivables on
a Funding Date shall take place at the offices of the Indenture Trustee or such
other location as the Seller and the Trust may reasonably agree. The transfer of
the Subsequent Receivables shall be made in accordance with Section 2.16 of the
Indenture pursuant to which (a) the Transferor will
3 2003-A Contribution Agreement
absolutely assign all of its right, title and interest in and to the Subsequent
Receivables and other Contributed Property to the Seller, (b) the Seller will
transfer all of its right, title and interest in and to the Subsequent
Receivables and other Contributed Property to the Trust, and (c) the Trust will
Grant all of its right, title and interest in and to the Subsequent Receivables
and other Contributed Property to the Indenture Trustee for the benefit of the
Noteholders, the Swap Counterparty (unless the Interest Rate Swap Agreement has
been terminated and all amounts owed to the Swap Counterparty have been paid in
full) and the Note Insurer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Trust. The Trust hereby
represents and warrants to the Seller as of the date hereof and as of the
Closing Date and each Funding Date:
(a) Existence and Power. The Trust is a Delaware statutory trust
validly existing and in good standing under the laws of its state of
organization 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, deliver and perform its obligations under the Transaction
Documents to which it is a party or affect the enforceability or
collectibility of the Receivables or any other part of the Contributed
Property. The Trust has obtained all necessary qualifications, licenses and
approvals in each jurisdiction where the failure to do so would materially
and adversely affect the ability of the Trust to perform its obligations
under the Transaction Documents or affect the enforceability or
collectibility of the Receivables or any other part of the Contributed
Property.
(b) Authorization and No Contravention. The execution, delivery and
performance by the Trust of the Transaction Documents to which it is a
party have been duly authorized by all necessary action on the part of the
Trust and do not contravene or constitute a default under (i) any
applicable law, rule or regulation, (ii) its organizational documents or
(iii) any indenture or agreement or instrument to which the Trust is a
party or by which its properties are bound (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 and which,
individually or in the aggregate, would not materially and adversely affect
the transactions contemplated by, or the Trust'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 Trust 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) approval, 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 Contributed
Property or would materially and adversely affect the ability of the Trust
to perform its obligations under the Transaction Documents.
4 2003-A Contribution Agreement
(d) Binding Effect. Each Transaction Document to which the Trust is a
party constitutes the legal, valid and binding obligation of the Trust
enforceable against the Trust 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.
(e) No Proceedings. There are no actions, suits or proceedings
pending or, to the knowledge of the Trust, threatened against the Trust
before or by any Governmental Authority that (i) assert the invalidity or
unenforceability of this Agreement or any of the other Transaction
Documents, (ii) seeking 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, (iii) seeking any determination or
ruling that would materially and adversely affect the performance by the
Trust of its obligations under this Agreement or any of the other
Transaction Documents or the collectibility or enforceability of the
Receivables, or (iv) relating to the Trust that would materially and
adversely affect the federal or Applicable Tax State income, excise,
franchise or similar tax attributes of the Notes.
Section 3.02 Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Trust as of the
Closing Date and each Funding Date:
(i) 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, full power and
authority to own its assets and operate its business as presently
owned or operated, and to execute, deliver and perform its obligations
under the Transaction Documents to which it is a party or affect the
enforceability or collectibility of the Receivables or any other part
of the Contributed Property. The Seller has obtained all necessary
qualifications, 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 the Transaction Documents
or affect the enforceability or collectibility of the Receivables or
any other part of the Contributed Property.
(ii) Authorization and No Contravention. The execution,
delivery and performance by the Seller of the Transaction Documents to
which it is a party have been duly authorized by all necessary action
on the part of the Seller 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 the Seller is a party or by which its
properties are bound (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 and
which, individually or if the aggregate, would not materially and
adversely affect the transactions
5 2003-A Contribution Agreement
contemplated by, or the Seller's ability to perform its obligations
under, the Transaction Documents).
(iii) 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 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) approval, 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 would materially and adversely affect the ability of
the Seller to perform its obligations under the Transaction Documents.
(iv) Binding Effect. Each Transaction Document to which the
Seller is a party 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 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.
(v) No Proceedings. There are no actions, suits or 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 any of the other
Transaction Documents, (ii) seeking 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, (iii)
seeking any determination or ruling that would materially and
adversely affect the performance by the Seller of its obligations
under this Agreement or any of the other Transaction Documents, or
(iv) relating to the Seller that would materially and adversely affect
the federal or Applicable Tax State income, excise, franchise or
similar tax attributes of the Notes.
(vi) Trade Name. "Capital One Auto Receivables, LLC" is the
only trade name under which the Seller is currently operating its
business. For the six (6) years (or such shorter period of time during
which the Seller was in existence) preceding the date hereof, the
Seller operated its business under the trade name "Capital One Auto
Receivables, LLC." "Capital One Auto Receivables, LLC" is the name of
the Seller indicated on the record of the Seller's jurisdiction of
organization which shows the Seller to have been organized.
(vii) Ability to Perform. There has been no material impairment
in the ability of the Seller to perform its obligations under this
Agreement.
(viii) Valid Business Reasons; No Fraudulent Transfers. The
Seller has valid business reasons for contributing the Receivables
rather than obtaining a secured loan with the Receivables as
collateral. At the time of the transfer (A) the
6 2003-A Contribution Agreement
Seller contributed the Receivables to the Trust without any intent to
hinder, delay, or defraud any current or future creditor of the
Seller; (B) the Seller was not insolvent or did not become insolvent
as a result of the transfer; (C) the Seller was not engaged and was
not about to engage in any business or transaction for which any
property remaining with the Seller was an unreasonably small capital
or for which the remaining assets of the Seller were unreasonably
small in relation to the business of the Seller or the transaction;
(D) the Seller did not intend to incur, and did not believe or
reasonably should not have believed that it would incur, debts beyond
its ability to pay as they become due; and (E) the consideration paid
by the Trust to the Seller for the Receivables transferred by the
Seller hereunder was equivalent to a fair market value of such
Receivables under the circumstances of the transaction, including but
not limited to, timing of such transfer.
(ix) Principal Executive Office. Since its inception, the
Seller has maintained, and from the date of this Agreement shall
maintain, its principal executive office in the Commonwealth of
Virginia, and there has been no other jurisdiction in which the
Seller's principal executive office was located during the four (4)
months preceding the Closing Date.
(x) No Omission or Misstatement. Neither this Agreement nor
any statement, report or other document furnished or to be furnished
pursuant to this Agreement by the Seller, or in connection with the
transactions contemplated hereby, contains any untrue statement of
fact or omits to state a fact necessary to make the statements
contained herein or therein not misleading insofar as the same relates
to the Seller. The Seller has good and marketable title to, and is the
owner of, each Receivable transferred by the Seller hereunder and the
indebtedness evidenced by each such Receivable is subject to no Lien,
charge, security interest or encumbrance of any kind or nature and the
Seller has the unqualified right to transfer its ownership interest in
each such Receivable and the indebtedness evidenced thereby; the
Seller has not made any prior transfer of any Receivable or its rights
thereto or thereunder.
(xi) Perfection Representations. The Perfection Representations
set forth on Schedule I shall be a part of this Agreement for all
purposes.
(xii) 1940 Act. The Seller is not an "investment company" as
such term is defined in the 1940 Act.
(xiii) No Unpaid Taxes. All tax returns required to be filed by
the Seller in any jurisdiction have in fact been filed, and all taxes,
assessments, fees and other governmental charges upon it or any
subsidiary or upon any of its properties, income or franchises, shown
to be due and payable on such returns have been paid where the failure
to file such returns or make such payments would have a material
adverse effect on the ability of the Seller to perform its obligations
under the Transaction Documents to which it is a party or affect the
enforceability or collectibility of the Receivables or any other part
of the Contributed Property. To the best of the Seller's knowledge all
such tax returns
7 2003-A Contribution Agreement
were true and correct and neither it nor any subsidiary knows of any
proposed additional tax assessment against it in any material amount
or of any basis therefor.
(xiv) Adequate Provisions for Taxes. The provisions for taxes on
the Seller's books are in accordance with generally accepted
accounting principles.
(xv) Pension/Profit Sharing Plans. No contribution failure has
occurred with respect to any pension or profit sharing plan of the
Seller and all such plans have been fully funded as of the date of
this Agreement.
(b) The Seller hereby affirms that each of the representations and
warranties of the Transferor set forth in Section 3.02(b) of the Transfer
and Assignment Agreement is true and correct as of the Closing Date or
Funding Date, as the case may be, and each such representation and warranty
is hereby incorporated in this Agreement as if set forth herein in full;
provided, however, that in incorporating such representations and
warranties (a) each reference in such representations and warranties to the
Transferor shall be deemed to be a reference to the Seller and each
reference to the Seller shall be deemed to be a reference to the Trust, (b)
each reference in such representations and warranties to an assignment of
the Receivable from the Transferor to the Seller pursuant to the Transfer
and Assignment Agreement shall be deemed to be a reference to the transfer
of the Receivable from the Seller to the Trust pursuant to this Agreement
and (c) each reference in such representations and warranties to the
Transferor having good and marketable title to the Receivable free and
clear of Liens prior to the assignment from the Transferor to the Seller
shall be deemed to be a reference to the Seller having good and marketable
title to the Receivable free and clear of Liens prior to the transfer from
the Seller to the Trust.
ARTICLE IV
CONDITIONS
Section 4.01 Conditions to Obligation of the Trust. The obligation of the
Trust to accept the transfer of the Receivables is subject to the satisfaction
of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct on the Closing
Date or Funding Date, as the case may be, with the same effect as if then
made, and the Seller shall have performed all obligations to be performed
by it hereunder on or prior to the Closing Date or Funding Date, as the
case may be.
(b) Files and Records. The Seller shall, at its own expense, on or
prior to the Closing Date or Funding Date, as the case may be, indicate in
its computer files that the Receivables have been contributed to the Trust
pursuant to this Agreement and deliver to the Trust a Schedule of
Receivables. Further, the Seller hereby agrees that the Seller's computer
files relating to the Receivables will indicate that the Receivables were
transferred to the Trust.
8 2003-A Contribution Agreement
(c) Documents to be delivered by the Seller on or in connection with
the Closing Date or Funding Date.
(i) The Assignment. As of the Closing Date and each Funding
Date, the Seller shall execute an Assignment substantially in the form
of Exhibit A hereto of the Receivables, the security interests in the
related Financed Vehicles and the other Contributed Property being
transferred by the Seller on such date (as identified on the Schedule
of Receivables attached to such Assignment).
(ii) Evidence of UCC Filings. On or prior to the Closing Date
or Funding Date, as the case may be, the Seller shall provide the
Trust evidence that the Seller has recorded and filed, at the expense
of the Transferor, (A) Termination Statements in each jurisdiction in
which required by applicable law, if any, to release any prior
security interests in the Receivables granted by the Seller and (B)
UCC financing statements in each jurisdiction in which required by
applicable law, authorized by the Seller, as seller or debtor, and
naming the Trust, as purchaser or secured party, identifying the
Receivables and the other Contributed Property as collateral, meeting
the requirements of the laws of each such jurisdiction and in such
manner as is necessary to perfect the transfer of such Receivables to
the Trust. The Seller shall deliver the Perfection UCC's, or other
evidence satisfactory to the Trust of such filing, to the Indenture
Trustee within thirty (30) days following the Closing Date or Funding
Date, as the case may be, or promptly following such later date as
such file-stamped copies or other evidence is received by or on behalf
of the Trust.
(iii) Other Documents. Such other documents as the Trust may
reasonably request.
(iv) Documents to be Delivered by the Seller In Connection with
the Closing Date or Funding Date. Within two (2) Business Days
preceding the Closing Date or Funding Date, as the case may be, the
Seller shall cause the Transferor to deliver to the Custodian the
Custodian File.
Such delivery of Custodian Files shall be accompanied by a Certificate
of Delivery substantially in the form of Exhibit D to the Transfer and
Assignment Agreement if COAF is not the Servicer; provided, however, that,
with respect to the Custodian Files delivered pursuant to this subsection
(d) of this Section 4.01, any original Certificate of Title or other
evidence of the lien of the Transferor (or, in the case of a Referral
Receivable, the applicable Referral Originator) not so delivered to the
Custodian due to the fact that such title or other evidence of lien has not
yet been issued by a State title registration agency and delivered to or on
behalf of the Transferor shall be delivered by the Transferor to the
Custodian promptly following receipt thereof by the Transferor.
(d) Other Transactions. The transactions contemplated by the
Indenture, the Transfer and Assignment Agreement and the Servicing
Agreement shall be consummated on the Closing Date.
9 2003-A Contribution Agreement
Section 4.02 Conditions to Obligation of the Seller. The obligation of the
Seller to transfer the Receivables to the Trust on the Closing Date or Funding
Date, as the case may be, is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The representations and
warranties of the Trust hereunder shall be true and correct on the Closing
Date or Funding Date, as the case may be, with the same effect as if then
made, and the Trust shall have performed or cause to be performed all
obligations to be performed by it hereunder on or prior to the Closing Date
or Funding Date, as the case may be.
(b) Proceedings. All corporate and legal proceedings and all
instruments in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to the Seller, and
the Seller shall have received from the Trust copies of all documents
(including, without limitation, records of Seller proceedings) relevant to
the transactions herein contemplated as the Seller may reasonably have
requested.
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Trust, the Note Insurer and the Swap
Counterparty as follows:
Section 5.01 Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause all financing statements and
continuation statements and any other necessary documents covering the
right, title and interest of the Trust in and to the Receivables and the
other Contributed Property to be promptly filed, and at all times to be
kept recorded, registered and filed, all in such manner and in such places
as may be required by law fully to preserve and protect the right, title
and interest of the Trust or the Indenture Trustee hereunder to the
Receivables and the other Contributed Property. The Seller shall deliver or
cause to be delivered to or at the direction of the Trust, file-stamped
copies of, or filing receipts for, any document recorded, registered or
filed as provided above, as soon as available following such recordation,
registration or filing. The Trust shall cooperate fully with the Seller in
connection with the obligations set forth above and will execute any and
all documents reasonably required to fulfill the intent of this Section
5.01(a).
(b) Name Change. Within fifteen (15) days after the Seller makes any
change in its name, identity, jurisdiction of organization or structure
which would make any financing statement or continuation statement filed in
accordance with paragraph (a) above seriously misleading within the
applicable provisions of the UCC or any title statute, the Seller shall
give the Trust, the Note Insurer, the Swap Counterparty (unless the
Interest Rate Swap Agreement has been terminated and all amounts owed to
the Swap Counterparty have been paid in full), the Transferor and the
Indenture Trustee notice of any such change and no later than five (5) days
after the effective date thereof the Seller shall file such financing
statements or amendments as may be necessary to continue the perfection of
the Trust's security interest in the Contributed Property.
10 2003-A Contribution Agreement
Section 5.02 Other Liens or Interests. Except for the transfers hereunder,
the Seller will not sell, pledge, assign or transfer to any other person, or
grant, create, incur, assume or suffer to exist any Lien on, any interest
therein, and the Seller shall defend the right, title, and interest of the Trust
in, to and under such Receivables against all claims of third parties claiming
through or under the Seller; provided, however, that the Seller's obligations
under this Section 5.02 shall terminate upon the termination of the Indenture.
Section 5.03 Principal Executive Office. Since its inception, the Seller
has maintained and, from the date of this Agreement, shall maintain its
principal executive office in the Commonwealth of Virginia and shall not change
its jurisdiction of organization.
Section 5.04 Full Force and Effect. The Seller shall keep in full force
and effect its existence, rights and franchises as a limited liability company
under the laws of the State of Delaware.
Section 5.05 Costs and Expenses. The Seller agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all third
parties, of the transfer to the Trust of the Seller's right, title and interest
in and to the Receivables.
Section 5.06 [Reserved].
Section 5.07 Location of Servicer Files. The Servicer Files, exclusive of
the Custodian Files, are to be kept at the Servicer's principal executive
office. The Custodian Files are to be kept at the principal executive office of
the Custodian, such other office of the Custodian as specified in the Indenture
or at the Custodian's agent or designated designee.
Section 5.08 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Requirements. To the extent any documents
are required to be filed or any certification is required to be made with
respect to the Trust or the Notes pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act , the
Seller shall prepare and execute any such document or certification and is
authorized to file such document or certification on behalf of the Trust.
Section 5.09 Transfer of Receivables. The Seller will take no action
inconsistent with the transfer of the Receivables to the Trust for financial
accounting purposes.
Section 5.10 Seller's Records. The financial statements of the Seller will
disclose that, under generally accepted accounting principles, the Seller
transferred the Receivables to the Trust. The Seller will file all tax returns
and reports in a manner consistent with the transfer to the Seller of the
Receivables for federal income tax purposes.
Section 5.11 [Reserved].
Section 5.12 Cooperation by Seller.
(a) The Seller will cooperate fully and in a timely manner with the
Trust, the Servicer or the Indenture Trustee in connection with (i) the
filing of any claims with an insurer or any agent of any insurer under any
insurance policy affecting an Obligor or any of the Financed Vehicles; (ii)
supplying any additional information as may be requested
11 2003-A Contribution Agreement
by the Trust, the Servicer, the Indenture Trustee or any such agent or
insurer in connection with the processing of any such claim; and (iii) the
execution or endorsement of any check or draft made payable to the Seller
representing proceeds from any such claim. The Seller shall take all such
actions as may be requested by the Trust, the Servicer or the Indenture
Trustee to protect the rights of the Trust or the Indenture Trustee on
behalf of the Noteholders, the Swap Counterparty (unless the Interest Rate
Swap Agreement has been terminated and all amounts owed to the Swap
Counterparty have been paid in full) and the Note Insurer in and to any
proceeds under any and all of the foregoing insurance policies. The Seller
shall not take or cause to be taken any action which would impair the
rights of the Trust or the Indenture Trustee on behalf of the Noteholders,
the Swap Counterparty (unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid in
full) and the Note Insurer in and to any proceeds under any of the
foregoing insurance policies.
(b) The Seller shall, within two (2) Business Days of receipt
thereof, endorse any check or draft payable to the Seller representing
insurance proceeds and (i) in the event there are no other payees on such
check or draft, forward, via hand delivery, such endorsed check or draft to
the Servicer for deposit into the Collection Account and (ii) in the event
such check or draft is also payable to the Indenture Trustee on behalf of
the Noteholders, the Swap Counterparty (unless the Interest Rate Swap
Agreement has been terminated and all amounts owed to the Swap Counterparty
have been paid in full) and the Note Insurer, forward, via overnight
courier, to the Indenture Trustee with a copy of such endorsed check or
draft to the Servicer. The Seller will hold in trust and remit to the
Indenture Trustee, within two (2) Business Days of receipt thereof, any
funds received with respect to the Receivables after the Cutoff Date.
Section 5.13 Transfer of Additional Receivables. The Seller shall use its
best efforts in good faith to make available for transfer to the Trust on each
Funding Date during the Funding Period, all Receivables acquired by the Seller
which meet the eligibility criteria set forth herein as of such date. This
covenant and agreement shall be for the benefit of the Trust, the Note Insurer,
the Swap Counterparty (unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid in full)
and the Indenture Trustee or, if a Note Insurer Default has occurred and is
continuing, the Holders of the Notes and any such Person may enforce its legal
or equitable rights, remedies or claims hereunder.
Section 5.14 Notice of Breach. The Trust and the Seller shall notify the
Indenture Trustee, the Note Insurer, the Swap Counterparty (unless the Interest
Rate Swap Agreement has been terminated and all amounts owed to the Swap
Counterparty have been paid in full) and the Trust promptly, in writing, of any
breach of the representations and warranties or covenants of the Seller or the
Trust contained herein.
Section 5.15 No Violation. The Seller will not take any action which would
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the Limited Liability
Company Agreement of the Seller or Section 3.10(b)(x) of the Indenture.
12 2003-A Contribution Agreement
ARTICLE VI
[RESERVED]
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
Section 7.02 Repurchase Events.
------------------
(a) The Seller and the Trust, as applicable, shall inform the
Servicer, the Transferor (if the Transferor is not the Servicer), the Note
Insurer, the Indenture Trustee and the Swap Counterparty promptly, in
writing, upon (i) the discovery of any event, that if it continues uncured
will, with the lapse of time and/or the giving of notice, constitute an
Eligibility Repurchase Event or a Custodian File Repurchase Event and (ii)
the occurrence of the day that is 10 days prior to the First Title Delivery
Date of each Receivable for which no Certificate of Title has been
delivered to the Custodian or its agent (unless notice of such occurrence
has been delivered by the Servicer pursuant to Section 2.07 of the
Servicing Agreement). Except as specifically provided in the Servicing
Agreement or Indenture, the Indenture Trustee has no obligation to review
or monitor the Contributed Property for compliance with representations and
warranties, delivery requirements or payments. Upon the occurrence of a
Repurchase Event, the Trust shall assign to the Seller the related
Receivable and the other related items of Contributed Property and the
Seller shall accept such assignment from the Trust and the Seller shall
deposit (or cause the deposit of) the Repurchase Price for such Receivable
into the Collection Account within five (5) Business Days following the
occurrence of such Repurchase Event. The Issuer shall be entitled to
enforce the obligations of the Purchaser, the Seller, the Transferor and
the applicable Dealer under this Agreement, the Transfer and Assignment
Agreement and the applicable Dealer Agreements, respectively, to remit the
Repurchase Price for deposit into the Collection Account. The Indenture
Trustee and the Note Insurer are authorized by the parties hereto to take
action on behalf of the Issuer to enforce the obligations of the Seller to
repurchase Receivables under this Agreement, the Transferor to repurchase
Receivables under the Transfer and Assignment Agreement and to enforce the
obligation of a Dealer to repurchase such Receivable under the applicable
Dealer Agreement.
(b) The (i) obligation of the Seller to repurchase Receivables and to
deposit (or cause the deposit of) the Repurchase Price for such Receivables
pursuant to Section 7.02 of this Agreement, (ii) the obligation of the
Transferor to repurchase Receivables and to deposit (or cause the deposit
of) the Repurchase Price for such Receivables pursuant to Section 7.02 of
the Transfer and Assignment Agreement, (iii) the obligation of the Issuer
to release the Lien of the Indenture with respect to Repurchased
Receivables and related Trust Property pursuant to Section 2.15 of the
Indenture and (iv) the indemnification provisions expressly set forth in
the Indenture, the Servicing Agreement, the Contribution Agreement, this
Agreement and the Insurance Agreement which specifically relate to
Repurchased Receivables shall constitute the only remedies for
13 2003-A Contribution Agreement
Repurchase Events available to the Indenture Trustee, the Note Insurer, the
Swap Counterparty, any other party to a Transaction Document or the
Noteholders.
Section 7.03 Trust's Assignment of Repurchased Receivables. With respect
to any Repurchased Receivable, the Trust shall assign, without recourse,
representation or warranty, to the Seller all the Trust's right, title and
interest in and to such Receivable, and all Contributed Property relating
thereto.
Section 7.04 Subsequent Pledge. The Seller acknowledges that (i) the Trust
will Grant the Receivables and the other Contributed Property along with the
Trust's rights and benefits under this Agreement and under the Transfer and
Assignment Agreement to the Indenture Trustee pursuant to the terms of the
Indenture and (ii) the terms and provisions hereof are intended to benefit the
Noteholders, the Swap Counterparty (unless the Interest Rate Swap Agreement has
been terminated and all amounts owed to the Swap Counterparty has been paid in
full) and the Note Insurer. The Seller hereby consents to such Grant.
Section 7.05 Amendment. This Agreement may be amended, restated or
supplemented from time to time by a written agreement duly executed and
delivered by the Seller and the Trust, but only with (a) fifteen (15) days'
prior written notice to the Rating Agencies, (b) the prior written consent of
the Class B Noteholder and the Note Insurer and (c) if adversely affected
thereby, the prior written consent of the Swap Counterparty (unless the Interest
Rate Swap Agreement has been terminated and all amounts owed to the Swap
Counterparty have been paid in full). No amendment to this Agreement shall be
effective as to the Servicer, to the extent such amendment is disadvantageous in
any respect to the Servicer, unless the Servicer has given its written consent
to the amendment. The Seller shall deliver to the Persons identified on a list
provided to the Seller by the Indenture Trustee, as such list may be amended
from time to time, a copy of any amendment to this Agreement.
Section 7.06 Waivers. No failure or delay on the part of the Trust or Note
Insurer in exercising any power, right or remedy under this Agreement or an
Assignment shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy. Any waiver
of the terms and provisions hereof must be in writing and must be consented to
in writing by the Indenture Trustee, the Note Insurer and, if adversely affected
thereby, the Swap Counterparty.
Section 7.07 Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered personally
or mailed by first-class registered or certified mail, postage prepaid, or by
telephonic facsimile transmission and overnight delivery service, postage
prepaid, to any party at the address set forth in Section 14.04(b) of the
Indenture or at such other address as may be designated by it by notice to the
other party and shall be deemed given when so delivered, or if mailed.
Section 7.08 [Reserved].
Section 7.09 Representations. The respective agreements, representations,
warranties and other statements by the Seller and the Trust set forth in or made
pursuant to this Agreement
14 2003-A Contribution Agreement
shall remain in full force and effect and will survive the Closing Date under
Section 2.02 hereof and each Funding Date.
Section 7.10 Confidential Information. The Trust agrees that it will
neither use nor disclose to any person other than the Note Insurer, the
Indenture Trustee, the Trust and the Holders of the Notes the names and
addresses of the Obligors, except in connection with the enforcement of the
Trust's rights hereunder, under the Receivables, or any agreement relating to
the Receivables or as required by law.
Section 7.11 Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
Section 7.12 Governing Law. This Agreement and the Assignment shall be
governed by and construed in accordance with the internal laws of the State of
Texas.
Section 7.13 Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
Section 7.14 No Bankruptcy Petition Against the Trust. The Seller agrees
that, prior to the date that is one year and one day after the payment in full
of all amounts payable with respect to the Class A Notes and the Class B Notes,
it will not institute against the Trust or the Seller, or join any other Person
in instituting against the Trust, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under the laws of the
United States or any state of the United States. This Section 7.14 shall survive
the termination of the Indenture.
Section 7.15 Third Party Beneficiaries. This Agreement shall inure to the
benefit of the Note Insurer, the Swap Counterparty (unless the Interest Rate
Swap Agreement has been terminated and all amounts owed to the Swap Counterparty
have been paid in full), the Indenture Trustee and their respective successors
and assigns and, if a Note Insurer Default has occurred and is continuing or if
the Aggregate Outstanding Principal Balance of the Class A Notes (and all
interest accrued thereon) has been reduced to zero and all Reimbursement
Obligations and reimbursement of all Swap Termination Payments paid under the
Swap Policy due to the Note Insurer shall have been paid in full, the Class B
Noteholders. Without limiting the generality of the foregoing, all
representations, covenants and agreements in this Agreement which expressly
confer rights upon the Trust, the Note Insurer or the Indenture Trustee shall be
for the benefit of and run directly to the Trust, the Indenture Trustee, the
Swap Counterparty (unless the Interest Rate Swap Agreement has been terminated
and all amounts owed to the Swap Counterparty have been paid in full) and the
Note Insurer or, if a Note Insurer Default has occurred and is continuing, the
Aggregate Outstanding Principal Balance of the Class A Notes (and all interest
accrued thereon) has been reduced to zero and all Reimbursement Obligations and
reimbursement of all Swap Termination Payments paid under the Swap Policy due to
the Note Insurer shall have been paid in full, the Class B Noteholders. The
Indenture Trustee, the Swap Counterparty (unless the Interest Rate Swap
Agreement has been terminated and all amounts
15 2003-A Contribution Agreement
owed to the Swap Counterparty have been paid in full) and the Note Insurer or,
if a Note Insurer Default has occurred and is continuing, the Aggregate
Outstanding Principal Balance of the Class A Notes (and all interest accrued
thereon) has been reduced to zero and all Reimbursement Obligations and
reimbursement of all Swap Termination Payments paid under the Swap Policy due to
the Note Insurer shall have been paid in full, the Class B Noteholders, shall be
entitled to rely on and enforce such representations, covenants and agreements
to the same extent as if it were a party hereto.
Section 7.16 Limitation on Seller's Liability. Notwithstanding anything to
the contrary contained in this Agreement, the obligations of the Seller under
this Agreement are solely the obligations of the Seller and shall be payable by
the Seller solely to the extent that it receives additional funds designated for
such purposes or to the extent that it has additional funds available that would
be in excess of amounts that would be necessary to pay the debt and other
obligations of such entity incurred in accordance with its Limited Liability
Company Agreement and all financing documents to which it is a party as they
come due. In addition, no amount owing by the Seller hereunder in excess of the
liabilities that it is required to pay in accordance with the preceding sentence
shall constitute a "claim" (as defined in Section 101(5) of the Bankruptcy Code)
against it. No recourse shall be had for the payment of any amount owing
hereunder or any other obligation of, or claim against, the Seller arising out
of or based upon this Agreement against any member, employee, officer, agent,
director or authorized person of the Seller; provided, however, that the
foregoing shall not relieve any such person or entity of any liability they
might otherwise have as a result of fraudulent actions or omissions taken by
them nor shall the foregoing relieve any person of any liability expressly
undertaken by such person under the Transaction Documents.
Section 7.17 Limitations of Owner Trustee's Liability. It is expressly
understood and agreed by and between the parties hereto that (i) this Agreement
is executed and delivered by Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee under the Amended and Restated Trust
Agreement dated as of June 3, 2003 with Capital One Auto Receivables, LLC (the
"Trust Agreement") in the exercise of the power and authority conferred and
vested in it as such Owner Trustee, (ii) each of the representations,
undertakings and agreements made herein by the Trust are not personal
representations, undertakings and agreements of Wilmington Trust company, but
are binding only on the Trust, (iii) nothing contained herein shall be construed
as creating any liability on Wilmington Trust Company, individually or
personally, to perform any covenant of the Trust 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 any such party,
and (iv) under no circumstances shall Wilmington Trust Company be personally
liable for the payment of any indebtedness or expense of the Trust or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Trust under this Agreement.
16 2003-A Contribution Agreement
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
CAPITAL ONE AUTO RECEIVABLES, LLC,
as Seller
By: /s/ ▇▇▇▇▇▇ ▇. Chiafre
--------------------------------------
▇▇▇▇▇▇ ▇. Chiafre
Manager of Securitization
S-1 2003-A Contribution Agreement
CAPITAL ONE AUTO FINANCE TRUST 2003-A
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Authorized Officer
S-2 2003-A Contribution Agreement
SCHEDULE I
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in
the Indenture, the Trust hereby represents, warrants, and covenants to the
Indenture Trustee as to itself as follows on the Closing Date and on each
Payment Date thereafter:
General
1. This Agreement creates a valid and continuing security interest (as defined
in UCC Section 9-102) in the Collateral in favor of the Trust, which security
interest is prior to all other Liens, and is enforceable as such as against
creditors of and purchasers from the Seller.
2. Each Receivable constitutes either "chattel paper", an "account"; an
"instrument" or a "payment intangible" within the meaning of UCC Section 9-102.
3. The Seller has taken or will or all steps necessary to perfect its security
interest against the Obligors in the Financed Vehicle.
Creation
4. The Seller owns and has good and marketable title to the Collateral free and
clear of any Lien, claim or encumbrance of any Person, excepting only liens for
taxes, assessments or similar governmental charges or levies incurred in the
ordinary course of business that are not yet due and payable or as to which any
applicable grace period shall not have expired, or that are being contested in
good faith by proper proceedings and for which adequate reserves have been
established, but only so long as foreclosure with respect to such a lien is not
imminent and the use and value of the property to which the Lien attaches is not
impaired during the pendency of such proceeding.
Perfection
5. The Seller has caused or will have caused, within ten days after 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 contribution and sale of the Contributed
Property from COAF to the Seller, the transfer and sale of the Contributed
Property from the Seller to the Trust, and the security interest in the
Collateral granted to the Indenture Trustee hereunder.
6. With respect to Collateral that constitutes tangible chattel paper, such
tangible chattel paper is in the possession of the Custodian and the Indenture
Trustee has received a written acknowledgment from the Custodian that the
Custodian is holding such tangible chattel paper solely on behalf and for the
benefit of the Indenture Trustee.
I-1 2003-A Contribution Agreement
Priority
7. Neither the Seller, the Servicer nor the Trust has authorized the filing of,
or is aware of any financing statements against either the Seller, the
Transferor or the Trust that include a description of the Collateral, the
Contributed Property and proceeds related thereto other than any financing
statement (i) relating to the sale of Contributed Property by the Transferor to
the Seller under the Transfer and Assignment Agreement, (ii) relating to the
contribution of Contributed Property by the Seller to the Trust under this
Agreement, (iii) relating to the security interest granted to the Indenture
Trustee hereunder, or (iv) that has been terminated.
8. Neither the Seller, the Transferor nor the Trust is aware of any judgment,
ERISA or tax lien filings against either the Seller, the Transferor or the
Trust.
9. None of the tangible chattel paper that constitute or evidence the
Receivables has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Indenture Trustee.
Survival of Perfection Representations
10. Notwithstanding any other provision of the Transfer and Assignment
Agreement, this Agreement, the Indenture or any other Transaction Document, the
Perfection Representations contained in this Schedule shall be continuing, and
remain in full force and effect (notwithstanding any replacement of the Servicer
or termination of Servicer's rights to act as such) until such time as all
obligations under the Transfer and Assignment Agreement, this Agreement and the
Indenture have been finally and fully paid and performed.
No Waiver
11. The parties hereto: (i) shall not, without obtaining a confirmation of the
then-current rating of the Class A Notes, waive any of the Perfection
Representations; (ii) shall provide the Ratings Agencies with prompt written
notice of any breach of the Perfection Representations, and shall not, without
obtaining a confirmation of the then-current rating of the Class A Notes (as
determined after any adjustment or withdrawal of the ratings following notice of
such breach) waive a breach of any of the Perfection Representations.
I-2 2003-A Contribution Agreement
TABLE OF CONTENTS
Page
EXHIBIT A
ASSIGNMENT
For value received this ___ day of ________, 2002 in accordance with terms
of the Contribution Agreement dated as of June 3, 2003 (the "Contribution
Agreement") by and between Capital One Auto Receivables, LLC, as Seller (the
"Seller"), and Capital One Auto Finance Trust 2003-A, (the "Trust"), the
undersigned does hereby transfer unto the Trust, without recourse except as set
forth in the Contribution Agreement, all of the Seller's right, title and
interest, whether now or hereafter existing, in and to (i) the [Subsequent]
Receivables identified on the Schedule of Receivables attached hereto and all
moneys received thereon (including amounts received on any Extended Service
Agreements relating thereto), after the respective Cutoff Date (except for
interest accrued as of the Cutoff Date and actually received subsequent to the
Cutoff Date which will be paid to the Seller); (ii) the security interest in the
Financed Vehicles granted by the Obligors pursuant to such Receivables and the
Certificates of Title to such Financed Vehicles; (iii) the interest of the
Seller in any proceeds from claims on any physical damage, credit life, risk
default or other insurance policies covering the Financed Vehicles or the
Obligors or refunds in connection with Extended Service Agreements relating to
Defaulted Receivables from the applicable Cutoff Date; (iv) any property
(including the right to receive future Liquidation Proceeds) that shall secure a
[Subsequent] Receivable; (v) any recourse against the Transferor or any Dealer
pursuant to the Transfer and Assignment Agreement or the applicable Dealer
Agreement, respectively; (vi) the original Contracts relating to the
[Subsequent] Receivables; and (vii) the proceeds of any and all of the
foregoing. The foregoing transfer does not constitute and is not intended to
result in any assumption by the Trust of any obligation of the undersigned to
the Obligors, insurers or any other person in connection with the Receivables,
Servicer Files (as defined in the Servicing Agreement), any insurance policies
or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Contribution Agreement and is to be governed by the Contribution Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Contribution Agreement.
-i- 2003-A Contribution Agreement
TABLE OF CONTENTS
(continued)
Page
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of the date first written above.
CAPITAL ONE AUTO RECEIVABLES, LLC, as
Seller
By:
--------------------------------------
-ii- 2003-A Contribution Agreement