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EXHIBIT 10.1
EXECUTION COPY
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TRANSFER AND ASSIGNMENT AGREEMENT
by and between
CAPITAL ONE AUTO FINANCE, INC.
as Transferor,
and
CAPITAL ONE AUTO RECEIVABLES, LLC
as Purchaser
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Dated as of July 26, 2001
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$910,382,514
CAPITAL ONE AUTO FINANCE TRUST 2001-A
AUTOMOBILE RECEIVABLE-BACKED NOTES, SERIES 2001-A
CLASS A NOTES AND CLASS B NOTES
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TABLE OF CONTENTS
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ARTICLE I CERTAIN DEFINITIONS........................................................................1
ARTICLE II ASSIGNMENT AND ACQUISITION OF RECEIVABLES..................................................3
Section 2.01 Assignment and Acquisition of Receivables.........................................3
Section 2.02 The Closing.......................................................................5
Section 2.03 Funding Dates.....................................................................5
Section 2.04 [Reserved]........................................................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES.............................................................5
Section 3.01 Representations and Warranties of the Purchaser...................................5
Section 3.02 Representations and Warranties of the Transferor..................................6
ARTICLE IV CONDITIONS................................................................................18
Section 4.01 Conditions to Obligation of the Purchaser........................................18
Section 4.02 Conditions to Obligation of the Transferor.......................................20
ARTICLE V COVENANTS OF THE TRANSFEROR...............................................................21
Section 5.01 Protection of Right, Title and Interest..........................................21
Section 5.02 Other Liens or Interests.........................................................21
Section 5.03 Principal Executive Office.......................................................22
Section 5.04 Transfer Taxes...................................................................22
Section 5.05 Costs and Expenses...............................................................22
Section 5.06 No Waiver........................................................................22
Section 5.07 Location of Servicer Files.......................................................22
Section 5.08 [Reserved].......................................................................22
Section 5.09 Assignment of Receivables........................................................22
Section 5.10 Transferor's Records.............................................................22
Section 5.11 [Reserved].......................................................................23
Section 5.12 Cooperation by Transferor........................................................23
Section 5.13 Assignment of Additional Receivables.............................................23
Section 5.14 Notice of Breach.................................................................24
ARTICLE VI [RESERVED]................................................................................24
ARTICLE VII MISCELLANEOUS PROVISIONS..................................................................24
Section 7.01 Obligations of Transferor........................................................24
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Section 7.02 Repurchase Events................................................................24
Section 7.03 Purchaser's Assignment of Repurchased Receivables................................25
Section 7.04 Subsequent Transfer and Pledge...................................................25
Section 7.05 Amendment........................................................................26
Section 7.06 Waivers..........................................................................26
Section 7.07 Notices..........................................................................26
Section 7.08 Costs and Expenses...............................................................27
Section 7.09 Representations..................................................................27
Section 7.10 Confidential Information.........................................................27
Section 7.11 Headings and Cross-References....................................................27
Section 7.12 Governing Law....................................................................27
Section 7.13 Counterparts.....................................................................27
Section 7.14 No Bankruptcy Petition Against the Owner Trustee or the Purchaser................27
Section 7.15 Third Party Beneficiaries........................................................27
SCHEDULE I Perfection Representations .....................................................I-1
EXHIBIT A ASSIGNMENT......................................................................A-1
EXHIBIT B SAMPLE RECEIVABLES - FORMS......................................................B-1
EXHIBIT C [RESERVED]......................................................................C-1
EXHIBIT D FORM OF CERTIFICATE OF DELIVERY.................................................D-1
EXHIBIT E FORM OF DEALER'S AGREEMENT......................................................E-1
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TRANSFER AND ASSIGNMENT AGREEMENT
This
TRANSFER AND ASSIGNMENT AGREEMENT is made as of July 26, 2001, by
and between Capital One Auto Finance, Inc., a
Texas corporation (the
"Transferor" or "COAF") and Capital One Auto Receivables, LLC, a Delaware
limited liability company (the "Purchaser").
WHEREAS, the Transferor has acquired and will acquire in the ordinary
course of business, certain Receivables (as defined herein), each secured by a
security interest granted by the related Obligors (as defined in the Indenture)
in the Financed Vehicles (as defined in the Indenture) financed thereby; and
WHEREAS, the Transferor and the Purchaser wish to set forth the terms
and provisions pursuant to which the Receivables are to be absolutely assigned
by the Transferor to the Purchaser on the Closing Date and on each Funding Date
(both as defined herein), which Receivables will then be transferred by the
Purchaser to Wilmington Trust Company (the "Owner Trustee") not in its
individual capacity but solely as Owner Trustee for Capital One Auto Finance
Trust 2001-A, as issuer (the "Issuer"), pursuant to the terms of that certain
Contribution Agreement dated of even date herewith (the "Contribution
Agreement") by and between the Purchaser and the Owner Trustee and Granted (as
defined in the Indenture) by the Owner Trustee to the Indenture Trustee for the
benefit of the Noteholders and the Note Insurer (both as defined in the
Indenture) as their interests appear, pursuant to the terms of that certain
Indenture dated of even date herewith (the "Indenture") by and between the Owner
Trustee and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as indenture
trustee (the "Indenture Trustee").
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 the Indenture. As used in this Agreement, the following
terms shall, unless the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms of such
terms and to the masculine, feminine and neuter genders of such terms):
"Agreement" or "
Transfer and Assignment Agreement" means this
Transfer
and Assignment Agreement and all amendments and restatements hereof and
supplements hereto.
"Assignment" means the document of assignment substantially in the form
attached to this Agreement as Exhibit A.
"Closing Date" means July 26, 2001.
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"COAF" means Capital One Auto Finance, Inc., a
Texas corporation, its
successors and assigns.
"Custodian File" has the meaning set forth in Section 4.01(d) hereof.
"Eligible Receivable" means a Receivable which meets the requirements
and specifications set forth in Section 3.02(b) hereof.
"Funding Date" means a date occurring not more than once per calendar
week during the Funding Period and on which the Subsequent Receivables are
transferred and assigned by the Transferor to the Purchaser, contributed and
assigned by the Purchaser to the Owner Trustee and Granted by the Owner Trustee
to the Indenture Trustee.
"Funding Reviews" means the procedures specified in Section 2.04 hereof
performed by the Review Firm (a) prior to the Closing Date with respect to the
Initial Receivables to be included in the Receivables Pool as of the Closing
Date and (b) within fourteen (14) Business Days following the final Funding Date
with respect to the Subsequent Receivables included in the Receivables Pool as
of each of the Funding Dates if a subsequent Funding Review is requested by the
Note Insurer.
"Indenture" means the Indenture dated of even date herewith by and
between the Owner Trustee and the Indenture Trustee, and all amendments and
supplements thereto and restatements thereof.
"Indenture Trustee" means Well Fargo Bank Minnesota, National
Association, its successors and assigns, as indenture trustee pursuant to the
Indenture.
"Initial Receivables" means the Receivables acquired by the Purchaser,
transferred to the Owner Trustee and Granted to the Indenture Trustee on the
Closing Date.
"Perfection Representations" means the representations, warranties and
covenants set forth in Schedule I attached hereto.
"Purchaser" means Capital One Auto Receivables, LLC, a Delaware
limited liability company, its successors and assigns.
"Receivable" means the obligation of an Obligor, as evidenced by a
retail installment contract and security agreement substantially in one of the
forms included in Exhibit B hereto, as the case may be, or such other forms as
may be added by amendment or supplement to this Agreement.
"Repurchase Event" has the meaning specified in Section 7.02 hereof.
"Review Firm" means a firm of independent certified public accountants
or other third-party acceptable to the Note Insurer and engaged by the
Transferor to perform the Funding Reviews.
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"Subsequent Receivables" means the Eligible Receivables acquired by the
Purchaser, contributed and assigned to the Owner Trustee and Granted to the
Indenture Trustee on a Funding Date.
"Transferor" means COAF.
"Transfer Taxes" means any tax, fee or governmental charge payable by
the Transferor, the Purchaser, the Owner Trustee or the Indenture Trustee to any
federal, state or local government attributable to the assignment of a
Receivable.
"Trust Property" has the meaning set forth in Section 2.01(a) hereof.
ARTICLE II
ASSIGNMENT AND ACQUISITION OF RECEIVABLES
Section 2.01 ASSIGNMENT AND ACQUISITION OF RECEIVABLES. On the Closing
Date and on each Funding Date, subject to the terms and conditions of this
Agreement, the Transferor agrees to absolutely assign to the Purchaser, and the
Purchaser agrees to acquire from the Transferor, the Receivables and the other
Trust Property relating thereto.
(a) Initial Assignment of Receivables and Trust Property. On
the Closing Date and simultaneously with the transactions pursuant to
the Contribution Agreement and the Indenture, the Transferor shall
transfer, absolutely assign and otherwise convey to the Purchaser,
without recourse except as set forth herein, a 100% interest in (i) all
right, title and interest of the Transferor in and to the Initial
Receivables identified on the 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 withdrawn from the Revenue Fund, to the extent contained
therein, and paid to the Transferor); (ii) the security interest of the
Transferor in the Financed Vehicles granted by the Obligors pursuant to
the Initial Receivables and the certificates of title to such Financed
Vehicles; (iii) the interest of the Transferor 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 such Cutoff Date; (iv) any
property (including the right to receive future Liquidation Proceeds)
that shall secure an Initial Receivable; (v) all right, title and
interest of the Transferor in and to any recourse against any Dealer
pursuant to the applicable Dealer Agreement (the form of which is
attached hereto as Exhibit E); (vi) the original retail installment
contracts and security agreements evidencing 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 "Trust Property.")
(b) Consideration for Initial Receivables. In consideration
of the absolute assignment by the Transferor to the Purchaser of the
Initial Receivables and the other
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Trust Property relating thereto described in Section 2.01(a) the
Purchaser shall pay or cause to be paid to the Transferor, on the
Closing Date, an amount equal to 98% of the Receivables Purchase Price
with respect to Initial Receivables acquired from the Transferor on
such date in the form of cash by federal wire transfer (same day) funds
and the Transferor shall make a capital contribution to the Purchaser
on the Closing Date of Initial receivables in an amount equal to 2% of
the Receivables Purchase Price.
(c) Assignment of Subsequent Receivables and Trust Property.
On each Funding Date, the Transferor shall transfer, absolutely assign
and otherwise convey to the Purchaser, without recourse except as set
forth herein, a 100% interest in (i) all right, title and interest of
the Transferor in and to 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 such Cutoff Date which shall be withdrawn from
the Revenue Fund, to the extent contained therein, and paid to the
Transferor); (ii) the security interest of the Transferor in the
Financed Vehicles granted by the Obligors pursuant to such Subsequent
Receivables and the certificates of title to such Financed Vehicles;
(iii) the interest of the Transferor 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) all right, title and interest of
the Transferor in and to any recourse against any Dealer pursuant to
the applicable Dealer Agreement; (vi) the original retail installment
contracts and security agreements evidencing 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 Purchaser, transferred by the Purchaser to the Owner Trustee and
Granted by the Owner Trustee 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. In
consideration of the absolute assignment by the Transferor to the
Purchaser of the Subsequent Receivables and other Trust Property
relating thereto described in Section 2.01(c) the Purchaser shall, on
the applicable Funding Date, pay or cause to be paid to the Transferor
an amount equal to 98% of the Receivables Purchase Price with respect
to the Subsequent Receivables acquired from the Transferor on such date
in the form of cash by federal wire transfer (same day) funds and the
Transferor shall make a capital contribution to the Purchaser on the
Closing Date of Initial Receivables in an amount equal to 2% of the
Receivables Purchase Price.
(e) Absolute Assignment. It is the intention of the
Transferor and the Purchaser that each assignment, transfer and
conveyance hereunder constitute an absolute assignment of the Trust
Property from the Transferor to the Purchaser. If, notwithstanding the
express intention of the parties, this Agreement is deemed not to
constitute a transfer, conveyance and assignment of the Trust Property
from the
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Transferor to the Purchaser, this Agreement shall be deemed to be a
security agreement within the meaning of Article 8 and Article 9 of the
Uniform Commercial Code as in effect in the State of
Texas and the
conveyance provided for in this Section 2.01 shall be deemed to be a
grant by the Transferor to the Purchaser of a valid first priority
perfected security interest in all of the Transferor's right, title and
interest in and to the Trust Property.
Section 2.02 THE CLOSING. The absolute assignment and purchase of the
Initial Receivables shall take place at a closing (the "Closing") at the offices
of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, Chicago, Illinois, on the Closing Date, simultaneously
with the closings under the Contribution Agreement and the Indenture pursuant to
which (a) the Transferor will transfer and assign all of its right, title and
interest in and to the Initial Receivables and other Trust Property to the
Purchaser, (b) the Purchaser will contribute and absolutely assign all of its
right, title and interest in and to the Initial Receivable and other Trust
Property to the Owner Trustee, (c) the Owner Trustee will Grant all of its
right, title and interest in and to the Initial Receivables and other Trust
Property to the Indenture Trustee for the benefit of the Noteholders and the
Note Insurer, and (d) the Class A Notes, and the Class B Notes will be issued.
Section 2.03 FUNDING DATES. The absolute assignment and purchase of the
Subsequent Receivables on each Funding Date shall take place at the offices of
the Indenture Trustee or such other location as the Purchaser and the Transferor
may reasonably agree. The assignment and purchase of the Subsequent Receivables
shall be made in accordance with Section 2.16 of the Indenture pursuant to which
(a) the Purchaser will transfer and assign all of its right, title and interest
in and to the Subsequent Receivables and other Trust Property to the Owner
Trustee, (b) the Purchaser will absolutely assign all of its right, title and
interest in and to the Initial Receivable and other Trust Property to the Owner
Trustee, and (c) the Owner Trustee will grant all of its right, title and
interest in and to the Subsequent Receivables and other Trust Property to the
Indenture Trustee for the benefit of the Noteholders and the Note Insurer.
Section 2.04 [RESERVED].
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser hereby represents and warrants to the Transferor as of the date hereof
and as of the Closing Date and each Funding Date:
(a) Organization, Etc. The Purchaser is a limited liability
company duly organized under the laws of the State of Delaware pursuant
to a Certificate of Formation and is validly existing as a limited
liability company and is in good standing under the laws of the State
of Delaware and has full power and authority to execute and deliver
this Agreement and to perform the terms and provisions hereof and
thereof; the Purchaser is duly qualified to do business as a foreign
business entity in good standing and has obtained all required licenses
and approvals, if any, in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such
qualifications
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except those jurisdictions in which failure to be so qualified would
not have a material adverse effect on the business or operations of the
Purchaser.
(b) Due Authorization. The execution, delivery and
performance by the Purchaser of this Agreement have been duly
authorized by all necessary corporate action, do not require any
approval or consent of any Person, do not and will not conflict with
any provision of the Certification of Formation and Limited Liability
Company Agreement of the Purchaser and do not and will not conflict
with or result in a breach which would constitute a material default
under any agreement for borrowed money binding upon or applicable to it
or such of its property which is material to it, or any law or
governmental regulation or court decree applicable to it or such
material property, and this Agreement is the legal, valid and binding
obligation of the Purchaser enforceable in accordance with its terms
except as the same may be limited by insolvency, bankruptcy,
reorganization or other laws relating to or affecting the enforcement
of creditors' rights or by general equity principles.
(c) No Litigation. No litigation or administrative
proceeding of or before any court, tribunal or governmental body is
presently pending, or to the knowledge of the Purchaser threatened,
against the Purchaser or its properties or with respect to this
Agreement, which, if adversely determined would, in the opinion of the
Purchaser, have a material adverse effect on the transactions
contemplated by this Agreement.
(d) Business Purpose. The Purchaser will acquire the
Receivables for a bona fide business purpose and has undertaken the
transactions contemplated herein as principal rather than as agent for
the Transferor or any other person.
(e) Purchaser's Records. This Agreement and all related
documents describe the assignment of the Receivables to the Purchaser
as a purchase by the Purchaser from the Transferor and evidence the
clear intention by the Purchaser to effectuate a purchase of such
Receivables. The financial statements and tax returns of the Purchaser
will disclose that, under generally accepted accounting principles or
for tax purposes, respectively, the Purchaser acquired ownership of the
Receivables.
Section 3.02 REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR.
(a) The Transferor hereby represents and warrants to the
Purchaser and its successors and assigns as of the Closing Date and
each Funding Date:
(i) Organization, Etc. The Transferor is a
corporation duly organized under the laws of the State of
Texas and is validly existing and in good standing under the
laws of the State of
Texas; the Transferor has full power and
authority to own its properties and to conduct its business as
such properties are currently owned and such business is
presently conducted and had at all relevant times, and has the
power, authority and legal right to acquire, own and sell the
Receivables acquired, owned and sold by the Transferor.
(ii) Due Qualification. The Transferor is duly
qualified to do business as a foreign corporation, in good
standing, and has obtained all necessary licenses
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and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such
qualifications.
(iii) Power and Authority. The Transferor has the
power and authority to execute and deliver this Agreement and
to carry out its terms; the Transferor has full power and
authority to sell and assign the property sold and assigned to
the Purchaser and has duly authorized such sale and assignment
to the Purchaser by all necessary corporate or other action;
the execution, delivery, and performance of this Agreement
have been duly authorized by the Transferor by all necessary
corporate or other action, do not require any approval or any
consent of any Person, do not conflict with any material
provision of the Articles of Incorporation or bylaws of the
Transferor, and do not and will not conflict with or result in
a breach which would constitute a material default under any
agreement for borrowed money binding upon or applicable to it
or such of its property which is material to it, or any law or
governmental regulation or court decree applicable to it or
such material property, and this Agreement is the legal, valid
and binding obligation of the Transferor enforceable in
accordance with its terms except as the same may be limited by
insolvency, bankruptcy, reorganization or other laws relating
to or affecting the enforcement of creditors' rights or by
general equity principles.
(iv) No Violation. The consummation of the
transactions contemplated by this Agreement and the
fulfillment of the terms thereof do not conflict with, result
in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation of the Transferor, or
any indenture, agreement or other instrument to which the
Transferor is a party or by which it is bound; nor result in
the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this Agreement); nor
violate any law or any order, rule or regulation applicable to
the Transferor of any court or of any federal or state
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Transferor or its
properties.
(v) No Proceedings. There are no proceedings or
investigations pending, or, to the best of its knowledge,
threatened, before any court, regulatory body, administrative
agency or other governmental instrumentality having
jurisdiction over the Transferor or its properties: (A)
asserting the invalidity of this Agreement; (B) seeking to
prevent the consummation of any of the transactions
contemplated by this Agreement; or (C) seeking any
determination or ruling that might materially and adversely
affect the performance by the Transferor of its obligations
under, or the validity or enforceability of, this Agreement.
(vi) No Consents, Approvals. Neither the execution
nor the delivery by the Transferor of this Agreement, or the
performance of the Transferor's obligations hereunder, require
the consent or approval of, the giving of notice to,
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the registration with, or the taking of any other action with
respect to, any governmental authority or agency under any
existing federal or state law governing the Transferor, except
such as have been previously obtained, made or taken.
(vii) No Unpaid Taxes. All tax returns required to be
filed by the Transferor 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. To the best of the
Transferor's knowledge all such tax returns 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 therefore.
(viii) Adequate Provisions for Taxes. The provisions
for taxes on the Transferor's books are in accordance with
generally accepted accounting principles.
(ix) Pension/Profit Sharing Plans. No contribution
failure has occurred with respect to any pension or profit
sharing plan of the Transferor and all such plans have been
fully funded as of the date of this Agreement.
(x) Trade Name. "Summit Acceptance Corporation" and
"Capital One Auto Finance, Inc." are the only trade names
under which the Transferor is currently operating its
business. For the six (6) years (or such shorter period of
time during which the Transferor was in existence) preceding
the date hereof, the Transferor operated its business under
the trade name "Capital One Auto Finance, Inc." or "Summit
Acceptance Corporation" or that of its predecessor, "Summit
Acceptance Finance, L.L.C." or that of its predecessor,
"Summit Finance, L.L.C."
(xi) Ability to Perform. There has been no material
impairment in the ability of the Transferor to perform its
obligations under this Agreement.
(xii) Valid Business Reasons; No Fraudulent
Transfers. The Transferor has valid business reasons for
assigning the Receivables rather than obtaining a secured loan
with the Receivables as collateral. At the time of the
assignment: (A) the Transferor absolutely assigned the
Receivables to the Purchaser without any intent to hinder,
delay, or defraud any current or future creditor of the
Transferor; (B) the Transferor was not insolvent or did not
become insolvent as a result of the assignment; (C) the
Transferor was not engaged and was not about to engage in any
business or transaction for which any property remaining with
the Transferor was an unreasonably small capital or for which
the remaining assets of the Transferor were unreasonably small
in relation to the business of the Transferor or the
transaction; (D) the Transferor 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 Purchaser to the
Transferor for the Receivables absolutely assigned by the
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Transferor 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 assignment.
(xiii) Principal Executive Office. Since its
inception, the Transferor has maintained its principal
executive office in the State of
Texas.
(xiv) 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
Transferor, 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, in light of the circumstances
under which they were made, not misleading in so far as the
same relates to the Transferor. The Transferor has good and
marketable title to, and is the owner of, each Receivable
absolutely assigned by the Transferor 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 Transferor has the unqualified right to
contribute, transfer, convey and assign its ownership interest
in each such Receivable and the indebtedness evidenced
thereby; the Transferor has not made any prior assignment of
any Receivable or its rights thereto or thereunder except to
existing lenders, the lien of which lenders will be released
in connection with the transactions hereunder.
(xv) Perfection Representations. The Perfection
Representations shall be a part of this
Transfer and
Assignment Agreement for all purposes.
(b) The Transferor makes the following representations and
warranties as to the Receivables absolutely assigned hereunder by the
Transferor on which representations and warranties the Purchaser relies
in acquiring the Receivables. Such representations and warranties speak
as of the execution and delivery of this Agreement and as of the
Closing Date or Funding Date, as the case may be, but shall survive the
absolute assignment of the Receivables to the Purchaser and the
subsequent transfer of the Receivables by the Purchaser to the Owner
Trustee pursuant to the Contribution Agreement and Grant of the
Receivables by the Owner Trustee to the Indenture Trustee pursuant to
the Indenture:
(i) Characteristics of Receivables. Each Receivable
(A) has been originated in the United States of America by
COAF through a Dealer approved by COAF under COAF's approved
form of Dealer Agreement (a copy of which is attached hereto
as Exhibit E), in the ordinary course of COAF's business, and
has been fully and properly executed by the parties thereto,
(B) has been assigned, together with the security interest in
the related Financed Vehicle, by the applicable Dealer to
COAF, (C) has created or creates a valid, subsisting, and
enforceable first priority security interest (1) in favor of
COAF in the related Financed Vehicle or (2) in the case of a
Referral Receivable, in favor of the applicable Referral
Originator in the related Financed Vehicle which has been
validly assigned by such Referral Originator to the
Transferor, in each case which
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security interest is being transferred and assigned by the
Transferor to the Purchaser in accordance with the terms of
this
Transfer and Assignment Agreement and contributed and
assigned by the Purchaser to the Owner Trustee in accordance
with the terms of the Contribution Agreement and Granted by
the Owner Trustee to the Indenture Trustee in accordance with
the terms of the Indenture, (D) 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, (E) is denominated
in U.S. dollars and provides for level monthly payments
(provided that the payment in the first or last payment period
in the life of the Receivable may be minimally different from
the level payment) that fully amortize the Amount Financed by
maturity and yield interest at the applicable Contract Rate
(as determined in accordance with the definition of Scheduled
Interest Receivables and Simple Interest Receivables), and (F)
to the best knowledge of COAF, is due from an Obligor which is
a citizen of the United States.
(ii) Schedule of Receivables. The information set
forth in the Schedule of Receivables is true and correct in
all material respects as of the close of business on the
applicable Cutoff Date, no selection procedures believed to be
adverse to the Purchaser have been utilized in selecting the
Receivables and the geographic distribution of the Obligors
with respect to the Receivables or the credit quality
characteristics of the Receivables assigned hereunder are not
materially different from the Transferor's existing core
portfolio. The information on the computer tape regarding the
Receivables made available to the Purchaser and its assigns is
true and correct in all material respects.
(iii) Form of Receivables. Each of the Receivables is
substantially in one of the forms included in Exhibit B
attached hereto. Any modifications or deviations from the
applicable form set forth in such Exhibit will not have a
material adverse effect on the Noteholders or the Note Insurer
and will not reduce the Scheduled Payment or other amounts due
under such Receivable.
(iv) Compliance with Law. Each Receivable, the sale
of the related Financed Vehicle and any Extended Service
Agreement complied at the time it was originated or made and
on the Closing Date or Funding Date, as the case may be, does
comply in all material respects with all requirements of
applicable federal, State and local laws, and regulations
thereunder, including, without limitation, usury laws, the
Fair Credit Reporting Act, the Federal Truth-in-Lending Act,
the Equal Credit Opportunity Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the
▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's
Regulations B and Z, the applicable Consumer Credit Act, State
adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code, and other consumer credit laws and equal
credit opportunity and disclosure laws.
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(v) Binding Obligation. Each Receivable represents
the genuine, legal, valid and binding payment obligation in
writing of the Obligor, enforceable by the owner thereof in
accordance with its terms.
(vi) No Government Obligor. The Receivables are not
due from the United States of America or any State or from any
agency, department or instrumentality of the United States of
America or any State.
(vii) Security Interest in Financed Vehicle.
Immediately prior to the assignment thereof, each Receivable
was secured by a first priority security interest in the
related Financed Vehicle (1) in favor of the Transferor as
secured party, (2) in the case of a Referral Receivable, in
favor of the Referral Originator thereof which security
interest has been validly assigned by such Referral Originator
to the Transferor or (3) all necessary and appropriate actions
have been commenced that would result in the valid perfection
of a first priority security interest in the Financed Vehicle
in favor of the Transferor (or the applicable Referral
Originator) upon completion of processing by the applicable
state agency and the Servicer has a clear legal right to
repossess the Financed Vehicle upon the occurrence of certain
matters including non-payment under the Receivable. The
Transferor warrants that it will defend its security interest
in the Financed Vehicle that has been assigned hereunder
against all Persons.
(viii) Receivables in Force. The Receivables have not
been satisfied, subordinated or rescinded, nor has the related
Financed Vehicle been released from the lien granted by the
Receivable in whole or in part.
(ix) No Waiver. No provision of the Receivables have
been waived, impaired, altered or modified in any respect
except in accordance with the Servicing Agreement, the
substance of which is reflected in the Schedule of Receivables
as it relates to the information included thereon.
(x) No Amendments. The Receivables have not been
amended such that either the original Receivable Balance was
modified or reduced or the number of the originally scheduled
due dates have been increased except as permitted under the
terms of the Collection Policy.
(xi) No Defenses. The Receivables are not subject to
any right of rescission, recoupment, setoff, counterclaim or
defense.
(xii) No Liens. No liens or claims have been filed
for work, labor or materials relating to the Financed Vehicle
that would be Liens prior to, or equal or concordant with, the
security interest in the Financed Vehicle granted by the
related Obligor pursuant to the related Receivable, there is
no lien against the Financed Vehicle for delinquent taxes nor
has such Receivable been satisfied, subordinated or rescinded.
(xiii) No Default. Except for payment delinquencies
continuing for a period of not more than thirty (30) days as
of the applicable Cutoff Date, no
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default, breach, violation or event permitting acceleration
under the terms of such Receivable has occurred; and no
continuing condition that with notice or the lapse of time
would constitute a default, breach, violation or event
permitting acceleration under the terms of such Receivable has
arisen, and the Transferor has not waived any of the
foregoing. As of the applicable Cutoff Date, the Transferor
has no knowledge of why such Receivable would not be paid in
full. The Obligor is not an obligor under any other existing
receivable payable to the Transferor or the Servicer which is
in default or is more than thirty (30) days past due; to the
best knowledge of the Transferor, the Obligor was not an
obligor under any prior receivable which was in default.
(xiv) Origination Date. All of the Receivables
assigned hereunder have been originated on or before the
applicable Cutoff Date.
(xv) Insurance. In connection with the purchase of a
Receivable, the Servicer required the related Dealer to
furnish evidence that the related Financed Vehicle was covered
by a comprehensive and collision policy subject to a
deductibility not in excess of $500 (i) naming the Servicer as
a loss payee and (ii) insuring against loss and damage due to
fire, theft, transportation, collision and other risks
generally covered by comprehensive and collision coverage.
(xvi) Title. It is the intention of the Transferor
that the transfer and assignment contemplated herein
constitute an absolute assignment of each Receivable from the
Transferor to the Purchaser and that the beneficial interest
in and title to such Receivable not be property of the
Transferor for any purpose under state or federal law.
Immediately prior to the transfer and assignment contemplated
herein, the Transferor had good and marketable title to each
Receivable free and clear of all Liens and, immediately upon
the transfer thereof, the Purchaser will have good and
marketable title to each Receivable, free and clear of all
Liens, except any Lien which will be released prior to
assignment hereunder and the Lien created by the Indenture;
and the security interest in each Receivable has been validly
perfected under the UCC and other applicable law, if any.
(xvii) Lawful Assignment. The Receivables have not
been originated in, and are not subject to the laws of, any
jurisdiction under which the contribution, assignment or
pledge of the Receivable hereunder or the Contribution
Agreement or Indenture would be unlawful, void or voidable.
(xviii) All Filings Made. All filings (including,
without limitation, UCC filings) necessary in any jurisdiction
to give the Indenture Trustee a first priority perfected
security interest in each Receivable have been made.
(xix) One Original. There is only one manually
executed original of the retail installment contract and
security agreement or similar agreement evidencing each of the
Receivables. All items required to be in the Custodian File
with respect to such Receivable have been delivered to the
Custodian.
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(xx) Maturity of Receivables. Each of the Receivables
has an original term of no more than 72 months, such
Receivable calls for level monthly payments (provided that the
payment in the first or last payment period in the life of
such Receivable may be minimally different from the level
payment), is fully amortizing and the final Scheduled Payment
on such Receivable is due on or before October 26, 2007. As of
the Closing Date or Funding Dates, as the case may be, (i) the
aggregate Receivable Balance which relates to Receivables
originated under the lowest two tiers of the Credit Policy is
no more than 30% of the Aggregate Receivable Balance, (ii) the
aggregate Receivable Balance which relate to Receivables with
an original term of greater than 60 payments is no more than
60% of the Aggregate Receivable Balance, (iii) the aggregate
Receivable Balance which relates to Receivables with an
original term of greater than 60 payments and which were
originated under the two lowest tiers of the Credit Policy is
no more than 25% of the aggregate Receivable Balance of
Receivables with an original term of greater than 60 payments
and (iv) the aggregate Receivable Balance which relate to
Receivables with an original term of greater than 66 payments
is no more than 60% of the aggregate Receivable Balance of
Receivables with an original term of greater than 60 payments.
(xxi) Extensions; Modifications. No extension or
modification has been made with respect to any of the
Receivables except as permitted by the terms of the Collection
Policy.
(xxii) Contract Rate. Each of the Receivables has a
Contract Rate of 8.25% or higher.
(xxiii) Outstanding Receivable Balance; Down Payment.
Receivables constituting no more than 1% of the Receivables
Pool each have an outstanding balance of $3,000 or less; the
Receivables constituting the remainder of the Receivables Pool
each have an outstanding balance of greater than $3,000 and no
more than $40,000; and the related Obligor has paid the entire
amount of the down payment required in COAF's Credit Policy.
(xxiv) Financing. Each of the Receivables is a Simple
Interest Receivable or a Scheduled Interest Receivable.
(xxv) Bankruptcy Proceeding. As of the applicable
Cutoff Date, each of the Receivables was not noted in the
Transferor's records as a dischargeable debt under a
bankruptcy proceeding and none of the Receivables have been
reduced or discharged in any bankruptcy proceeding.
(xxvi) Chattel Paper, Marking of Records. Each of the
Receivables constitutes "chattel paper" as defined in the UCC.
The Transferor's electronic or other ledgers have been marked
to reflect the transfer and assignment of each Receivable to
the Purchaser, the contribution and assignment thereof by the
Purchaser to the Owner Trustee and the Grant thereof by the
Owner Trustee to the Indenture Trustee.
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(xxvii) Age of Financed Vehicles. As of the Closing
Date or Funding Dates, as the case may be, the aggregate
Receivable Balance which relates to new Financed Vehicles
represents at least 28% of the Aggregate Receivable Balance.
(xxviii) No Future Advances. The full principal
amount of each Receivable has been advanced to the related
Obligor or advanced in accordance with the directions of such
Obligor, and there is no requirement for future advances
thereunder. The Obligor with respect to a Receivable does not
have any options under such Receivable to borrow from any
Person additional funds secured by the Financed Vehicle. The
Receivable Balance as of the Closing Date or Funding Date, as
the case may be, is fully secured by the related Financed
Vehicle.
(xxix) Underwriting Guidelines. Each of the
Receivables has been originated in accordance with the Credit
Policy, a copy of which is attached to the Servicing Agreement
as Exhibit D and which shall not be materially altered during
the Funding Period.
(xxx) Receivable Balance. The Receivables do not have
a Receivable Balance which includes capitalized interest,
physical damage insurance or late charges.
(xxxi) Servicing. At the applicable Cutoff Date, each
of the Receivables was being serviced by the Servicer.
(xxxii) Agreement. The representations and warranties
of the Transferor herein are true.
(xxxiii) No Proceedings. There are no proceedings or
investigations pending, or, to the best knowledge of the
Transferor, threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Transferor or its properties: (A)
asserting the invalidity, illegality or lack of enforceability
of the Receivables; (B) seeking to prevent the enforcement of
the Receivable; (C) seeking any determination or ruling that
might materially and adversely affect the payment on or
enforceability of each Receivable; or (D) relating to the
bankruptcy or insolvency of the related Obligor.
(xxxiv) Collection Procedures. The collection
practices utilized by any person servicing the Receivable in
seeking payment under the documentation evidencing such
Receivable have been in accordance with the Collection Policy
and in all respects legal, proper, prudent and customary in
the automobile loan servicing business.
(xxxv) Aggregate Balances. Neither the Obligor under
a Receivable nor any of its affiliates is the Obligor under a
Receivable or Receivables with an aggregate Receivable Balance
greater than $40,000 as of the applicable Cutoff Date.
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(xxxvi) No Litigation. None of the Receivables has
been in litigation or restructured.
(xxxvii) No Charge Off. None of the Receivables has
been charged off for accounting purposes by the Transferor.
(xxxviii) Normal Procedures. Each of the Receivables
has been originated, serviced and administered pursuant to the
Transferor's normal credit, administration, collection and
charge-off procedures.
(xxxix) No Fraud, Misrepresentation. None of the
Receivables has been originated with any fraud or
misrepresentation.
(xl) Payments Received. Transferor has not received
any payment with respect to any Receivable from any payor
affiliated with the Transferor.
(xli) Dealer's Agreements. The Dealer that sold a
Receivable to the Transferor has entered into a Dealer's
Agreement with the Transferor and such Dealer's Agreement
constitutes the entire agreement between the Transferor and
the related Dealer with respect to the sale of such Receivable
to the Transferor. Such Dealer's Agreement is in full force
and effect and is the legal, valid and binding obligation of
such Dealer; there have been no material defaults by such
Dealer or by the Transferor under such Dealer's Agreement; the
Transferor has fully performed all of its obligations under
such Dealer's Agreement; the Transferor has not made any
statements or representations to such Dealer (whether written
or oral) inconsistent with any term of such Dealer's
Agreement; the purchase price (as specified in the applicable
Dealer Agreement) for such Receivable has been paid in full by
the Transferor; there is no other payment due to such Dealer
from the Transferor for the purchase of such Receivable; such
Dealer has no right, title or interest in or to any
Receivable; there is no prior course of dealing between such
Dealer and the Transferor which will affect the terms of such
Dealer's Agreement. The Receivable was originated in the
United States for the retail sale of the Financed Vehicle in
the ordinary course of the Dealer's business.
(xlii) Obligor Responsibility. Each of the
Receivables contains provisions requiring the Obligor (A) to
assume all risk of loss or malfunction of the related Financed
Vehicle, (B) to maintain liability and collision insurance
with respect thereto, (C) to pay all sales, use, property,
excise and other similar taxes imposed on or with respect to
the related Financed Vehicle and (D) to be liable for all
payments required to be made thereunder, without any setoff,
counterclaim or defense for any reason whatsoever.
(xliii) Substitution, etc. None of the Receivables
provides for the substitution, exchange or addition of any
Financed Vehicle subject to such Receivable.
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(xliv) Assignments. The rights with respect to a
Receivable are assignable without the consent of any Person
other than consents which will have been obtained on or before
the Closing Date or Funding Date, as the case may be.
(xlv) Previous Repossession. The Receivables are not
secured by a security interest in a related Financed Vehicle
which has been repossessed and is subject to redemption by the
related Obligor; to the best knowledge of the Transferor, the
Receivables are not secured by a security interest in a
related Financed Vehicle which has been previously repossessed
and redeemed by the original obligor unless approved in
writing by the Note Insurer.
(xlvi) Receivables Pool. The inclusion of any
Receivable in the Receivables Pool after the Closing Date will
not (a) reduce the weighted average Contract Rate of the
Receivables included in the Receivables Pool to less than
17.25%, (b) increase the weighted average remaining term to
maturity of the Receivables included in the Receivables Pool
to greater than 63 months, (c) increase the average Loan to
Value Ratio of Receivables included in the Receivables Pool as
of a Funding Date to greater than 115%, (d) cause the
aggregate Receivable Balances of all Referral Receivables to
exceed 5% of the Aggregate Receivable Balance, or (e) in the
case of the inclusion of a Subsequent Receivable in the
Receivables Pool, result in a material reduction in the
overall credit quality of the Receivables Pool.
(xlvii) Parties. As of the date of origination, the
parties to the Receivables were the related Dealer and the
Obligors.
(xlviii) Submission of Titles. All documents
necessary to permit the Indenture Trustee to submit the
certificate of title for the related Financed Vehicle to the
applicable Department of Motor Vehicles for retitling in the
name of the Indenture Trustee as secured party have been
delivered to the Custodian.
(xlix) Transferor Fulfilled All Obligations. The
Transferor and the Servicer have duly fulfilled all
obligations to be fulfilled under or in connection with the
origination, acquisition and assignment of the Receivables,
including, without limitation, giving any notices or consents
necessary to effect the Grant of the Receivables to the
Indenture Trustee, and have done nothing to impair the rights
of the Indenture Trustee, the Note Insurer and the Noteholders
in payments with respect thereto. The Transferor has obtained
all necessary licenses, permits and charters required to be
obtained by the Transferor, which failure to obtain would
render any portion of the documents executed in connection
with the assignment from the Transferor to the Purchaser and
the transfer from the Purchaser to the Owner Trustee of the
Receivables and the issuance and sale of the Notes secured
thereby unenforceable or would have a material adverse effect
on the Note Insurer and the Noteholders.
(l) Not Subject to Transfer Taxes. The assignment of
the Receivables by the Transferor pursuant to this
Transfer
and Assignment Agreement is not
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subject to and will not result in any Transfer Taxes other
than Transfer Taxes which have been or will be paid by the
Transferor as due.
(li) Complete and Accurate Information. The computer
tape from which the selection was made of the Receivables
being assigned on the Closing Date or Funding Date, as
applicable, has been made available to any firm performing
agreed upon procedures with respect to any information
contained in the Registration Statement, and such information
was complete and accurate as of its date and includes a
description of the same Receivables that are described on the
Schedule of Receivables and the payments due thereunder as of
the Closing Date or Funding Date, as applicable.
(lii) No Early Termination or Prepayment. None of the
Receivables permits early termination or prepayment unless the
amount to be paid by or on behalf of the Obligor in respect of
such prepayment or termination is at all times equal to or in
excess of the principal value of any Receivable.
(liii) No Purchase After Cutoff Date. None of the
Receivables was purchased by the Transferor after the
applicable Cutoff Date.
(liv) Extended Service Agreements. (A) All rights of
the Transferor under each Extended Service Agreement relating
to the Financed Vehicles have been assigned by the Transferor
to the Purchaser, transferred by the Purchaser to the Issuer,
and Granted by the Issuer to the Indenture Trustee; and (B)
the Indenture Trustee will be entitled to receive all amounts
due to an Obligor or lienholder upon cancellation of an
Extended Service Agreement by an Obligor with respect to a
Defaulted Receivable.
ARTICLE IV
CONDITIONS
Section 4.01 CONDITIONS TO OBLIGATION OF THE PURCHASER. The obligation
of the Purchaser to acquire the Receivables is subject to the satisfaction of
the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Transferor 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 Transferor 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 Marked; Files and Records Owned by Purchaser. The
Transferor shall, at its own expense, on or prior to the Closing Date
or Funding Date, as the case may be, indicate in its files that the
Receivables have been absolutely assigned to the Purchaser pursuant to
this Agreement and the Transferor shall deliver to the Purchaser a
Schedule of Receivables certified by the Chairman, the President, a
Vice President or the Treasurer of the Transferor to be true, correct
and complete. Further, the Transferor hereby agrees that the computer
files and other physical records of the Receivables
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maintained by the Transferor will bear an indication reflecting that
the Receivables are owned by the Purchaser.
(c) Documents to be Delivered by the Transferor on or in
connection with the Closing Date or Funding Date.
(i) The Assignment. As of the Closing Date and each
Funding Date, the Transferor 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 Trust Property being absolutely
assigned by the Transferor 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
Transferor shall provide the Purchaser evidence that the
Transferor has recorded and filed, at its own expense, (A)
Termination Statements in each jurisdiction in which required
by applicable law, to release any prior security interests in
the Receivables granted by the Transferor and (B) UCC
financing statements in each jurisdiction in which required by
applicable law, executed by the Transferor, as Transferor or
debtor, and naming the Purchaser, as purchaser or secured
party, identifying the Receivables and the other Trust
Property as collateral, meeting the requirements of the laws
of each such jurisdiction and in such manner as is necessary
to perfect the contribution, transfer, assignment and
conveyance of such Receivables to the Purchaser. The
Transferor shall deliver the Perfection UCC's, or other
evidence satisfactory to the Purchaser 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 Purchaser.
(iii) Other Documents. Such other documents as the
Purchaser may reasonably request.
(d) Documents to be Delivered by the Transferor 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
Transferor shall deliver or cause to be delivered to the Custodian or
its designated bailee thereof, the following documents (with respect to
each Receivable, a "Custodian File"):
(i) the sole original counterpart of the retail
installment contract and security agreement evidencing each
such Receivable and any and all amendments thereto; and
(ii) (A) the original Certificate of Title or copies
of correspondence to the appropriate State title registration
agency, and all enclosures thereto, for issuance of the
original Certificate of Title for the related Financed Vehicle
or (B) if the appropriate State title registration agency
issues a letter or other form of evidence of lien in lieu of a
Certificate of Title, the original lien entry letter or
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form or copies of correspondence to such State title
registration agency, and all enclosures thereto, for issuance
of the original lien entry letter or form for the related
Financed Vehicle.
Such delivery of Custodian Files shall be accompanied by a
Certificate of Delivery substantially in the form of Exhibit D hereto;
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 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 but in no event
later than 120 days following the Closing Date or Funding Date, as the
case may be; further provided, however, that for any original
Certificate of Title or other document evidencing the Transferor's (or,
in the case of a Referral Receivable, the applicable Referral
Originator's) status as lienholder not so delivered to the Custodian,
the Transferor shall be deemed to be in breach of its representations
and warranties contained in Section 3.02(b) hereof, and such occurrence
shall constitute a Repurchase Event pursuant to Section 7.02 hereof.
(e) Other Transactions. The transactions contemplated by the
Indenture, the Contribution Agreement and the Servicing Agreement shall
be consummated on the Closing Date.
Section 4.02 CONDITIONS TO OBLIGATION OF THE TRANSFEROR. The obligation
of the Transferor to absolutely assign the Receivables to the Purchaser on the
Closing Date or a Funding Date, as the case may be, is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The warranties of the
Purchaser 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 Purchaser 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) Proceedings. All corporate and legal proceedings and all
instruments in connection with the transactions contemplated by this
Transfer and Assignment Agreement shall be satisfactory in form and
substance to the Transferor, and the Transferor shall have received
from the Purchaser copies of all documents (including, without
limitation, records of applicable proceedings) relevant to the
transactions herein contemplated as the Transferor may reasonably have
requested.
ARTICLE V
COVENANTS OF THE TRANSFEROR
The Transferor agrees with the Purchaser as follows:
Section 5.01 PROTECTION OF RIGHT, TITLE AND INTEREST.
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(a) Filings. The Transferor shall cause all financing
statements and continuation statements and any other necessary
documents covering the right, title and interest of the Purchaser in
and to the Receivables and the other Trust 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 Purchaser
hereunder or the Indenture Trustee to the Receivables and the other
Trust Property. The Transferor shall deliver or cause to be delivered
to or at the direction of the Purchaser, 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 Purchaser shall cooperate fully with the
Transferor 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 Transferor
makes any change in its name, identity or corporate 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 Transferor
shall give the Purchaser, the Note Insurer, the Issuer and the
Indenture Trustee notice of any such change and no later than five (5)
days after the effective date thereof the Transferor shall file such
financing statements or amendments as may be necessary to continue the
perfection of the Purchaser's security interest in the Trust Property.
Section 5.02 OTHER LIENS OR INTERESTS. Except for the assignments
hereunder, the Transferor 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 Transferor shall defend the right, title, and interest
of the Purchaser in, to and under the Receivables against all claims of third
parties claiming through or under the Transferor and the Transferor warrants
that it will defend the security interest of the Indenture Trustee in the
Financed Vehicles against all Persons; provided, however, that the Transferor'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
Transferor has maintained its principal executive office in the State of
Texas.
Section 5.04 TRANSFER TAXES. In the event that the Purchaser, Issuer or
the Indenture Trustee receives actual notice of any Transfer Taxes arising out
of the transfer, assignment and conveyance of the Receivables on written demand
by the Purchaser, Owner Trustee, Issuer or the Indenture Trustee, or upon the
Transferor's otherwise being given notice thereof by the Purchaser, Owner
Trustee, Issuer or the Indenture Trustee, the Transferor shall pay, and
otherwise indemnify and hold the Purchaser, Owner Trustee, Issuer, the Indenture
Trustee and the Note Insurer harmless, on an after-tax basis, from and against
any and all such Transfer Taxes (it being understood that the Noteholders, the
Indenture Trustee, the Owner Trustee, the Issuer, the Purchaser and Note Insurer
shall have no obligation to pay such Transfer Taxes).
Section 5.05 COSTS AND EXPENSES. The Transferor agrees to pay all
reasonable costs and disbursements in connection with the perfection, as against
all third parties, of the
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absolute assignment to the Purchaser of the Transferor's right, title and
interest in and to the Receivables.
Section 5.06 NO WAIVER. The Transferor shall not waive any default,
breach, violation or event permitting acceleration under the terms of any
Receivable.
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 Custodian's principal
executive office or such other office of the Custodian as specified in the
Indenture.
Section 5.08 [RESERVED].
Section 5.09 ASSIGNMENT OF RECEIVABLES. The Transferor will take no
action inconsistent with the Purchaser's ownership of the Receivables. If a
third party, including a potential purchaser of the Receivables, should inquire,
the Transferor will promptly indicate that ownership of the Receivables has been
absolutely assigned to the Purchaser.
Section 5.10 TRANSFEROR'S RECORDS. This Agreement and all related
documents describe the transfer of the Receivables from the Transferor as an
absolute assignment by the Transferor to the Purchaser and evidence the clear
intention by the Transferor to effectuate an absolute assignment of such
Receivables. The financial statements and tax returns of the Transferor will
disclose that, under generally accepted accounting principles, and for federal
income tax purposes, the Transferor transferred ownership of the Receivables to
the Purchaser.
Section 5.11 [RESERVED].
Section 5.12 COOPERATION BY TRANSFEROR.
(a) The Transferor will cooperate fully and in a timely manner
with the Purchaser, the Servicer. the Owner Trustee 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 by the Purchaser, the
Indenture Trustee, the Servicer, the Owner Trustee, 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 Transferor representing proceeds from any
such claim. The Transferor shall take all such actions as may be
reasonably requested by the Purchaser, the Owner Trustee, the Servicer,
the Note Insurer or the Indenture Trustee to protect the rights of the
Purchaser or the Indenture Trustee on behalf of the Noteholders and the
Note Insurer in and to any proceeds under any and all of the foregoing
insurance policies. The Transferor shall not take or cause to be taken
any action which would impair the rights of the Purchaser or the
Indenture Trustee on behalf of the Noteholders and the Note Insurer in
and to any proceeds under any of the foregoing insurance policies.
(b) The Transferor shall, within two (2) Business Days of
receipt thereof, endorse any check or draft payable to the Transferor
representing insurance proceeds and
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(i) in the event there are no other payees on such check or draft,
deposit such check or draft 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 and the Note Insurer, forward, via overnight
courier, such endorsed check or draft to the Indenture Trustee for
endorsement and return. The Transferor 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 ASSIGNMENT OF ADDITIONAL RECEIVABLES. The Transferor shall
use its best efforts in good faith to make available for assignment to the
Purchaser, on each Funding Date, all Receivables acquired by the Transferor
which meet the eligibility criteria set forth herein as of such date. This
covenant and agreement shall be for the benefit of the Purchaser, the Owner
Trustee, the Indenture Trustee and the Note Insurer 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 Purchaser and the Transferor shall
notify the Indenture Trustee, the Owner Trustee, the Note Insurer and the Owner
Trustee promptly, in writing, of any breach of the representations and
warranties or covenants of the Transferor or the Purchaser contained herein.
ARTICLE VI
[RESERVED]
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 OBLIGATIONS OF TRANSFEROR. The obligations of the
Transferor under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Receivable.
Section 7.02 REPURCHASE EVENTS. The Transferor hereby covenants and
agrees to deliver to the Purchaser and the Note Insurer prompt written notice of
the occurrence of a breach of any of the representations and warranties of the
Transferor contained in Section 3.02(b) hereof with respect to a Receivable
absolutely assigned hereunder.
(a) Upon discovery by any of the Transferor, the Purchaser,
the Owner Trustee, the Issuer, the Indenture Trustee, the Note Insurer
or the Servicer of (i) a Nonconforming Receivable, or (ii) failure to
deliver to the Custodian either (A) any document required to be
included in the Custodian File or (B) failure to deliver to the
Indenture Trustee the Perfection UCCs, pursuant to Section 7.18 of the
Indenture origination of such Receivable on or before sixty (60) days
after the due date of such Scheduled the party discovering such breach
or failure to deliver shall give prompt written notice to each of the
other foregoing parties. Except as specifically provided in the
Servicing Agreement or Indenture, the Indenture Trustee has no
obligation to review
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or monitor the Trust Property for compliance with representations and
warranties, delivery requirements or payments. If (i) the breach of
representations or warranties causing such Receivable to be a
Nonconforming Receivable shall not have been (A) cured within thirty
(30) days following notice thereof or (B) waived by the Note Insurer
following notice thereof or (ii) the failure to deliver to the
Custodian the Custodian File documents or the Perfection UCCs shall not
have been cured within seven (7) calendar days following notice thereof
(the occurrence of any of the foregoing constitutes a "Repurchase
Event"), the Owner Trustee shall assign to the Purchaser and the
Purchaser shall assign to the Transferor the Receivable and the other
related items of the Trust Property affected by such breach, failure to
deliver or non-payment and the Transferor shall accept such assignment
from the Purchaser and deposit the Repurchase Price with respect to
such Receivable into the Collection Account within five (5) Business
Days following the applicable cure period or two (2) Business Days
following receipt by the Transferor of notice from the Note Insurer
that the Note Insurer will not waive the breach of representations or
warranties causing such Receivable to be a Nonconforming Receivable;
provided, that such transfer and assignment shall only be made upon
receipt by the Owner Trustee of notice from the Servicer (pursuant to
the terms of the Servicing Agreement) that the Repurchase Price has
been remitted to the Servicer and deposited into the Collection
Account. In consideration of the removal of such Receivable and the
other related items of the Trust Property, the Owner Trustee shall
cause the Purchaser and the Purchaser shall cause the Transferor, no
later than the fifth Business Day following such cure period, if any,
to pay the Repurchase Price to the Servicer for deposit into the
Collection Account. The Owner Trustee shall be entitled to enforce the
obligations of the Purchaser, the Transferor and the applicable Dealer
under the Contribution Agreement, this
Transfer and Assignment
Agreement and the Dealer's Agreements, respectively, to remit the
Repurchase Price to the Servicer for deposit into the Collection
Account no later than the last day of the Collection Period following
such date. The Indenture Trustee and the Note Insurer are authorized to
take action on behalf of the Owner Trustee to enforce the obligations
of the Purchaser and the Transferor to repurchase such Receivable under
the Contribution Agreement or this Transfer and Assignment Agreement,
respectively, and to enforce the obligation of a Dealer to repurchase
such Receivable under the applicable Dealer Agreement.
(b) The obligations of the Transferor, the Purchaser and the
Owner Trustee to remove any Receivable and the other related items of
the Trust Property and to remit the Repurchase Price with respect to a
Nonconforming Receivable or as to which a failure to deliver has
occurred and is continuing shall constitute the sole remedy, except for
the indemnification provisions expressly set forth in the Indenture,
the Servicing Agreement, the Contribution Agreement, this Transfer and
Assignment Agreement and the Insurance Agreement, against the
Transferor, the Purchaser and the Owner Trustee for such breach or
failure to deliver available to the Indenture Trustee or the
Noteholders.
Section 7.03 PURCHASER'S ASSIGNMENT OF REPURCHASED RECEIVABLES. With
respect to any Receivable repurchased by the Transferor pursuant to this
Agreement, the Purchaser shall assign, without recourse, representation or
warranty, to the Transferor all the Purchaser's right, title and interest in and
to such Receivable, and all security and documents relating thereto.
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Section 7.04 SUBSEQUENT TRANSFER AND PLEDGE. The Transferor
acknowledges that (a) the Purchaser will absolutely assign the Receivables and
the other Trust Property along with the Purchaser's rights and benefits
hereunder to the Owner Trustee pursuant to the terms of the Contribution
Agreement, (b) the Owner Trustee will Grant the Receivables and the other Trust
Property along with the Owner Trustee's rights and benefits under the
Contribution Agreement and hereunder to the Indenture Trustee pursuant to the
terms of the Indenture and (c) the terms and provisions hereof are intended to
benefit the Noteholders and the Note Insurer. The Transferor hereby consents to
such assignments and Grants.
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 Transferor and the Purchaser, but only with (a) fifteen (15)
days' prior written notice to the Rating Agencies and (b) the prior written
consent of the Note Insurer. The Transferor shall deliver to the Persons
identified on a list provided to the Transferor 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 Purchaser
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 and the Note Insurer.
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 below 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. Any notice to the Note Insurer shall be given
in accordance with the terms of the Insurance Agreement.
If to the Transferor:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Director of Securitization
Copy to: Legal Department
If to the Purchaser:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Director of Securitization
Copy to: Legal Department
With a Copy to:
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▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Section 7.08 COSTS AND EXPENSES. The Transferor shall pay all expenses,
including fees and expenses of counsel, incident to the performance of its
obligations under this Agreement and the Transferor agrees to pay all reasonable
out-of-pocket costs and expenses, including reasonable attorneys fees in
connection with the enforcement of any obligation of the Transferor hereunder.
The Purchaser shall pay all expenses, including fees and expenses of counsel,
incident to the performance of its obligations under this Agreement.
Section 7.09 REPRESENTATIONS. The respective agreements,
representations, warranties and other statements by the Transferor and the
Purchaser set forth in or made pursuant to this Agreement shall remain in full
force and effect and will survive the Closing Date under Section 2.02 hereof and
each Funding Date under Section 2.03.
Section 7.10 CONFIDENTIAL INFORMATION. The Purchaser agrees that it
will neither use nor disclose to any person other than the Note Insurer, the
Indenture Trustee, the Owner Trustee, the Issuer and the Holders of the Notes
the names and addresses of the Obligors, except in connection with the
enforcement of the Purchaser'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 OWNER TRUSTEE OR THE
PURCHASER. The Transferor 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 Owner
Trustee or the Purchaser, or join any other Person in instituting against the
Owner Trustee or the Purchaser, 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 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
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zero and all Reimbursement Obligations 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 Owner Trustee, the Note Insurer or the
Indenture Trustee shall be for the benefit of and run directly to the Owner
Trustee, the Indenture Trustee and the Note Insurer or, 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 due to the Note Insurer shall have
been paid in full, the Class B Noteholders. The Indenture Trustee and the Note
Insurer or, 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 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.
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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 FINANCE, INC.,
as Transferor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager of Securitization
CAPITAL ONE AUTO RECEIVABLES, LLC,
as Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
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SCHEDULE I
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained
in the Transfer and Assignment Agreement, the Transferor hereby represents,
warrants, and covenants to the Seller as to itself as follows on the Closing
Date and on each Payment Date thereafter:
1. The Transfer and Assignment Agreement creates a valid and continuing
security interest (as defined in UCC Section 9-102) in the Receivables in favor
of the Seller, which security interest is prior to all other Liens, and is
enforceable as such as against creditors of and purchasers from the Transferor.
2. The Receivables constitute "tangible chattel paper" within the
meaning of UCC Section 9-102.
3. The Transferor has taken all steps necessary to perfect its security
interest against the Obligor in the property securing the Receivables that
constitute chattel paper.
4. The Transferor owns and has good and marketable title to the
Receivables 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.
5. The Transferor has caused or will have caused, within ten days after
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 contribution and sale of the Receivables
from the Transferor to the Seller, the transfer and sale of the Receivables from
the Seller to the Owner Trustee, and the security interest in the Receivables
granted to the Indenture Trustee hereunder.
6. With respect to Receivables that constitute 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.
7. Neither the Transferor, the Seller, nor the Servicer has authorized
the filing of, or is aware of any financing statements against either the
Transferor, the Seller or the Servicer that include a description of collateral
covering the Receivables, the Trust Property and proceeds related thereto other
than any financing statement (i) relating to the contribution of Receivables by
the Transferor to the Seller under the Transfer and Assignment Agreement, (ii)
relating to the sale of Receivables by the Seller to the Owner Trustee under the
Contribution Agreement, (iii)
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relating to the security interest granted to the Indenture Trustee hereunder, or
(iv) that has been terminated.
8. Neither the Transferor, the Seller nor the Servicer is aware of any
judgment, ERISA or tax lien filings against either the Transferor, the Seller or
the Servicer.
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.
10. Survival of Perfection Representations. Notwithstanding any other
provision of the Transfer and Assignment Agreement, the Contribution 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, Contribution Agreement and the Indenture have
been finally and fully paid and performed.
11. No Waiver. 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.
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EXHIBIT A
ASSIGNMENT
For value received this ___ day of ____________, 200_, in the form of
cash, in accordance with terms of the Transfer and Assignment Agreement dated as
of July 26, 2001 (the "Transfer and Assignment Agreement") by and between
Capital One Auto Finance, Inc., as transferor (the "Transferor"), and Capital
One Auto Receivables, LLC, as purchaser (the "Purchaser"), the undersigned does
hereby contribute, assign, transfer and otherwise convey unto the Purchaser,
without recourse, a 100% interest in and to (i) the [SUBSEQUENT] Receivables
identified on the Schedule of Receivables and all moneys received thereon
(including amounts received on any Extended Service Agreements relating
thereto), on and after the respective Cutoff Date (except for interest accrued
as of the respective Cutoff Date and actually received subsequent to such Cutoff
Date which will be withdrawn from the Revenue Fund, to the extent contained
therein, and paid to the Transferor), (ii) a security interest in the Financed
Vehicles granted by the Obligors pursuant to such [SUBSEQUENT] Receivables and
the certificates of title to such Financed Vehicles; (iii) the interest of the
Transferor 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 applicable Cutoff Date; (iv) any
property (including the right to receive future Liquidation Proceeds) that shall
secure a [SUBSEQUENT] Receivable, (v) all right, title and interest of the
Transferor in and to any recourse against any Dealer pursuant to the applicable
Dealer's Agreement; (vi) the original retail installment contracts and security
agreements evidencing the [SUBSEQUENT] Receivables; and (vii) the proceeds of
any and all of the foregoing. The foregoing contribution, assignment, transfer
and conveyance does not constitute and is not intended to result in any
assumption by the Purchaser of any obligation of the undersigned to the
Obligors, insurers or any other person in connection with the [SUBSEQUENT]
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
Transfer and Assignment Agreement and is to be governed by the Transfer and
Assignment Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Transfer and Assignment Agreement.
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IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of the date first written above.
CAPITAL ONE AUTO FINANCE, INC.
By: ____________________________________
Name:
Title:
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EXHIBIT B
SAMPLE RECEIVABLES - FORMS
[On file with the Registrant.]
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EXHIBIT C
[RESERVED]
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EXHIBIT D
FORM OF CERTIFICATE OF DELIVERY
In connection with the absolute assignment of certain auto loan
receivables by Capital One Auto Finance, Inc. (the "Transferor") to Capital One
Auto Receivables, LLC the undersigned, as servicer (the "Servicer"), hereby
certifies that the documents listed below are included in the Custodian File (as
defined below) delivered to ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
indenture trustee ("Indenture Trustee") pursuant to the terms of that certain
Indenture dated as of July 26, 2001 by and between Capital One, Wilmington Trust
Company no in its individual capacity but solely as Owner Trustee for Capital
One Auto Finance Trust 2001-A and the Indenture Trustee (the "Indenture") for
each of the Receivables listed on the attached Schedule of Receivables. Unless
otherwise defined herein, capitalized terms have the meanings set forth in the
Indenture.
(i) the sole original counterpart of the retail
installment contract and security agreement evidencing each
such Receivable and any and all amendments thereto; and
(ii) (A) the original Certificate of Title or copies
of correspondence to the appropriate State title registration
agency, and all enclosures thereto, for issuance of the
original Certificate of Title or (B) if the appropriate State
title registration agency issues a letter or other form of
evidence of lien in lieu of a Certificate of Title, the
original lien entry letter or form or copies of correspondence
to such State title registration agency, and all enclosures
thereto, for issuance of the original lien entry letter or
form.]
CAPITAL ONE AUTO FINANCE, INC.
Date: ___________, 200___ By: ___________________________
Name: ___________________________
Title: ___________________________
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EXHIBIT E
FORM OF DEALER'S AGREEMENT
[On file with the Registrant.]
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