Exhibit 10.1
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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
_______________________________________
Dated as of September 16, 2002
_______________________________________
$1,200,877,093
CAPITAL ONE AUTO FINANCE TRUST 2002-B
ASSET BACKED NOTES, SERIES 2002-B
CLASS A NOTES AND CLASS B NOTES
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TABLE OF CONTENTS
Page
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ARTICLE I CERTAIN DEFINITIONS ................................................... 1
ARTICLE II ASSIGNMENT AND ACQUISITION OF RECEIVABLES ............................. 3
2.01 Assignment and Acquisition of Receivables ............................... 3
2.02 The Closing ............................................................. 4
2.03 Funding Dates ........................................................... 5
2.04 [Reserved] .............................................................. 5
ARTICLE III REPRESENTATIONS AND WARRANTIES ........................................ 5
3.01 Representations and Warranties of the Purchaser ......................... 5
3.02 Representations and Warranties of the Transferor ........................ 6
ARTICLE IV CONDITIONS ............................................................ 18
4.01 Conditions to Obligation of the Purchaser ............................... 18
4.02 Conditions to Obligation of the Transferor .............................. 19
ARTICLE V COVENANTS OF THE TRANSFEROR ........................................... 20
5.01 Protection of Right, Title and Interest ................................. 20
5.02 Other Liens or Interests ................................................ 21
5.03 Principal Executive Office .............................................. 21
5.04 Transfer Taxes .......................................................... 21
5.05 Costs and Expenses ...................................................... 21
5.06 No Waiver ............................................................... 21
5.07 Location of Servicer Files .............................................. 21
5.08 [Reserved] .............................................................. 21
5.09 Assignment of Receivables ............................................... 22
5.10 Transferor's Records .................................................... 22
5.11 [Reserved] .............................................................. 22
5.12 Cooperation by Transferor ............................................... 22
5.13 Assignment of Additional Receivables .................................... 23
5.14 Notice of Breach ........................................................ 23
ARTICLE VI [RESERVED] ............................................................ 23
ARTICLE VII MISCELLANEOUS PROVISIONS .............................................. 23
7.01 Obligations of Transferor ............................................... 23
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TABLE OF CONTENTS
(continued)
Page
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7.02 Repurchase Events ........................................................ 23
7.03 Purchaser's Assignment of Repurchased Receivables ........................ 24
7.04 Subsequent Transfer and Pledge ........................................... 25
7.05 Amendment ................................................................ 25
7.06 Waivers .................................................................. 25
7.07 Notices .................................................................. 25
7.08 Costs and Expenses ....................................................... 26
7.09 Representations .......................................................... 26
7.10 Confidential Information ................................................. 26
7.11 Headings and Cross-References ............................................ 26
7.12 Governing Law ............................................................ 26
7.13 Counterparts ............................................................. 26
7.14 No Bankruptcy Petition Against the Owner Trustee or the Purchaser ........ 27
7.15 Third Party Beneficiaries ................................................ 27
SCHEDULES AND EXHIBITS
Schedule I Perfection Representations
Exhibit A Assignment
Exhibit B Sample Receivables - Forms
Exhibit C [Reserved]
Exhibit D Form of Certificate of Delivery
Exhibit E Form of Dealer's Agreement
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TRANSFER AND ASSIGNMENT AGREEMENT
This TRANSFER AND ASSIGNMENT AGREEMENT is made as of September 16, 2002, 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 2002-B, 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, the Swap Counterparty 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 JPMorgan Chase Bank, 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 September 16, 2002.
"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.
"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 JPMorgan Chase Bank, a New York banking
corporation, 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 and/or installment loans
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.
"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.
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ARTICLE II
ASSIGNMENT AND ACQUISITION OF RECEIVABLES
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, all of the Transferor's right, title and
interest, whether now or hereafter existing, in and to (i) 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 and/or installment loans 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 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 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
3.90% of the Aggregate Receivables Balance of such Receivables as of the
applicable Cutoff Date.
(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, all of the Transferor's right, title and interest, whether now or
hereafter existing, in and to (i) the Subsequent Receivables
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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 and/or installment loans
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 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
3.90% of the Aggregate Receivables Balance of such Subsequent Receivables
as of the applicable Cutoff Date.
(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 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.
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
Mayer, Brown, ▇▇▇▇ & Maw, 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
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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, the
Swap Counterparty and the Note Insurer, and (d) the Class A Notes and the Class
B Notes will be issued.
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 Transferor will transfer and assign all of its right, title and interest
in and to the Subsequent Receivables and other Trust Property to the Purchaser,
(b) the Purchaser will contribute and assign all of its right, title and
interest in and to the Subsequent Receivables 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, the Swap Counterparty
(unless the Interest Rate Swap Agreement has been terminated and all amounts
owed to the Swap Counterparty have been paid in full) and the Note Insurer.
2.04 [Reserved].
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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; 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 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 or 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
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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.
(f) Internet Receivables. At least one payment on the receivables
originated by Capital One, F.S.B. on the basis of loan applications over
the Internet have been made by the underlying obligor to Capital One,
F.S.B.
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 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
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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 hereof
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, nor the performance of
the Transferor's obligations hereunder, require the consent or
approval of, the giving of notice to, 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.
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(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 therefor.
(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. "Capital One Auto Finance, Inc." is the only
trade name 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." "Capital One Auto Finance, Inc."
is the name of the Transferor indicated on the public record of the
Transferor's jurisdiction of organization which shows the Transferor
to have been organized.
(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 Transferor hereunder was
equivalent to a fair market
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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 insofar 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) to the
extent originated by COAF 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) to the extent
originated by COAF, 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 or in the
case of a Receivable originated by Capital One F.S.B., in favor of the
applicable Referral Originator or Capital One F.S.B. in the related
Financed Vehicle which has been
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validly assigned by such Referral Originator or Capital One F.S.B. to
the Transferor, in each case which 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
in all material respects at the time it was originated or made and on
the Closing Date or Funding Date, as the case may be, and 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, (1) each Receivable was secured by a first
priority perfected security interest in the related Financed Vehicle
in favor of the Transferor as secured party, (2) in the case of a
Referral Receivable, such Referral Receivable was secured by a first
priority security interest in the related Financed Vehicle in favor of
the Referral Originator thereof which security interest has been
validly assigned by such Referral Originator to the Transferor, (3) in
the case of a Receivable originated by Capital One F.S.B., such
Receivable was secured by a first priority security interest in the
related Financed Vehicle in favor of Capital One F.S.B. thereof which
security interest has been validly assigned by Capital One F.S.B. to
the Transferor or (4) 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 has 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 has 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
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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 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 that it be furnished 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.
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(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
and/or installment loans 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.
(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 September 30,
2008. 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 relates 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 relates 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 6.4% or higher.
(xxiii) Outstanding Receivable Balance; Down Payment. Receivables
constituting no more than 1% of the Receivables Pool each have an
outstanding balance of $5,000 or less; the Receivables constituting
the remainder of the Receivables Pool each have an outstanding balance
of greater than $5,000 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.
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(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 "tangible 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.
(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 25% 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
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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.
(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. The 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
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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.
(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 14.99%, (b) increase the weighted
average remaining term to maturity of the Receivables included in the
Receivables Pool to greater than 64 months, (c) in the case of
Receivables originated by COAF, 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 10% 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, Referral Originator or
Capital One F.S.B. 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.
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(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, the Swap Counterparty or 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, the Swap Counterparty or 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 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.
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ARTICLE IV
CONDITIONS
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 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,
authorized 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
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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 and/or installment loans 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 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 if COAF is not the
Servicer; provided, however, that, with respect to the Custodian Files delivered
pursuant to this subsection (d) of this Section 4.01, any original Certificate
of Title or other evidence of 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.
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:
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(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:
5.01 Protection of Right, Title and Interest.
(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
authorize 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, jurisdiction of organization 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, the Swap
Counterparty 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.
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,
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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.
5.03 Principal Executive Office. Since its inception, the Transferor has
maintained its principal executive office in the State of Texas.
5.04 Transfer Taxes. In the event that the Purchaser, the 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, the Owner Trustee, the Issuer or the Indenture Trustee, or upon
the Transferor's otherwise being given notice thereof by the Purchaser, the
Owner Trustee, the Issuer or the Indenture Trustee, the Transferor shall pay,
and otherwise indemnify and hold the Purchaser, the Owner Trustee, the Issuer,
the Indenture Trustee, the Swap Counterparty (unless the Interest Rate Swap
Agreement has been terminated and all amounts owed to the Swap Counterparty have
been paid in full) and the Note Insurer harmless, on an after-tax basis, from
and against any and all such Transfer Taxes (it being understood that the
Noteholders, the Swap Counterparty (unless the Interest Rate Swap Agreement has
been terminated and all amounts owed to the Swap Counterparty have been paid in
full), the Indenture Trustee, the Owner Trustee, the Issuer, the Purchaser and
the Note Insurer shall have no obligation to pay such Transfer Taxes).
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 absolute assignment to the Purchaser of the Transferor's right,
title and interest in and to the Receivables.
5.06 No Waiver. The Transferor shall not waive any default, breach,
violation or event permitting acceleration under the terms of any Receivable.
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.
5.08 [Reserved].
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.
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.
21
5.11 [Reserved].
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, the Swap Counterparty (unless the Interest Rate Swap Agreement
has been terminated and all amounts owed to the Swap Counterparty have been
paid in full) and the Note Insurer in and to any proceeds under any and all
of the foregoing insurance policies. The 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, the Swap Counterparty
(unless the Interest Rate Swap Agreement has been terminated and all
amounts owed to the Swap Counterparty have been paid in full) and the Note
Insurer in and to any proceeds under any of the foregoing insurance
policies.
(b) The Transferor shall, within two (2) Business Days of receipt
thereof, endorse any check or draft payable to the Transferor representing
insurance proceeds and (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, the Swap Counterparty (unless the
Interest Rate Swap Agreement has been terminated and all amounts owed to
the Swap Counterparty have been paid in full) and the Note Insurer,
forward, via overnight courier, 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.
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, the Swap Counterparty
(unless the Interest Rate Swap Agreement has been terminated and all amounts
owed to the Swap Counterparty have been paid in full) and any such Person may
enforce its legal or equitable rights, remedies or claims hereunder.
22
5.14 Notice of Breach. The Purchaser and the Transferor shall notify the
Indenture Trustee, the Owner Trustee, the Note Insurer, the Swap Counterparty
(unless the Interest Rate Swap Agreement has been terminated and all amounts
owed to the Swap Counterparty have been paid in full) and the 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
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.
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 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 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
23
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, the Swap Counterparty or the Noteholders.
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.
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, the
Swap Counterparty (unless the Interest Rate Swap Agreement has been terminated
and all amounts owed to the Swap Counterparty have been paid in full) and the
Note Insurer. The Transferor hereby consents to such assignments and Grants.
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)
24
the prior written consent of the Note Insurer. No amendment to this Agreement
shall be effective as to the Servicer, to the extent such amendment is
disadvantageous in any respect to the Servicer, unless the Servicer has given
its written consent to the amendment. The 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.
7.06 Waivers. No failure or delay on the part of the Purchaser or the 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.
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. Any notice to the Swap
Counterparty shall be given to its address as specified in the Interest Rate
Swap Agreement.
If to the Transferor:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager of Securitization
Copy to: Legal Department
If to the Purchaser:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager of Securitization
Copy to: Legal Department
With a Copy to:
Mayer, Brown, ▇▇▇▇ & Maw
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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.
25
The Purchaser shall pay all expenses, including fees and expenses of counsel,
incident to the performance of its obligations under this Agreement.
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.
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.
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.
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.
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.
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.
7.15 Third Party Beneficiaries. This Agreement shall inure to the benefit
of the Note Insurer, the Indenture Trustee, the Swap Counterparty (unless the
Interest Rate Swap Agreement has been terminated and all amounts owed to any
Swap Counterparty have been paid in full) and their respective successors and
assigns and if a Note Insurer Default has occurred and is continuing or if the
Aggregate Outstanding Principal Balance of the Class A Notes (and all interest
accrued thereon) has been reduced to zero and all Reimbursement Obligations and
reimbursement of all Swap Termination Payments paid under the Swap Policy due to
the Note Insurer shall have been paid in full, the Class B Noteholders. Without
limiting the generality of the foregoing, all representations, covenants and
agreements in this Agreement which expressly confer rights upon the 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, the Swap
Counterparty (unless the Interest Rate Swap Agreement has been terminated and
all amounts owed to the Swap Counterparty have been paid in full) and the Note
Insurer or, if a Note Insurer Default has
26
occurred and is continuing or if the Aggregate Outstanding Principal Balance of
the Class A Notes (and all interest accrued thereon) has been reduced to zero
and all Reimbursement Obligations and reimbursement of all Swap Termination
Payments paid under the Swap Policy due to the Note Insurer shall have been paid
in full, the Class B Noteholders. The Indenture Trustee, the Swap Counterparty
(unless the Interest Rate Swap Agreement has been terminated and all amounts
owed to the Swap Counterparty have been paid in full) and the Note Insurer or,
if a Note Insurer Default has occurred and is continuing or if the Aggregate
Outstanding Principal Balance of the Class A Notes (and all interest accrued
thereon) has been reduced to zero and all Reimbursement Obligations and
reimbursement of all Swap Termination Payments paid under the Swap Policy due to
the Note Insurer shall have been paid in full, the Class B Noteholders shall be
entitled to rely on and enforce such representations, covenants and agreements
to the same extent as if it were a party hereto.
27
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
S-1
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:
General
1. The Transfer and Assignment Agreement creates a valid and continuing
security interest (as defined in UCC Section 9-102) in the Collateral 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 (except for the Interest Rate Swap Agreement) constitutes
"tangible chattel paper" within the meaning of UCC Section 9-102.
3. The rights of the Owner Trustee under the Interest Rate Swap Agreement
constitute "general intangibles" within the meaning of the applicable UCC.
4. COAF has taken all steps necessary to perfect its security interest against
the Obligor in the property securing the Receivables that constitute chattel
paper.
Creation
5. The Transferor owns and has good and marketable title to the Collateral
free and clear of any Lien, claim or encumbrance of any Person, excepting only
liens for taxes, assessments or similar governmental charges or levies incurred
in the ordinary course of business that are not yet due and payable or as to
which any applicable grace period shall not have expired, or that are being
contested in good faith by proper proceedings and for which adequate reserves
have been established, but only so long as foreclosure with respect to such a
lien is not imminent and the use and value of the property to which the Lien
attaches is not impaired during the pendency of such proceeding.
Perfection
6. 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 Trust
Property from COAF to the Seller, the transfer and sale of the Trust Property
from the Seller to the Owner Trustee, and the security interest in the
Collateral granted to the Indenture Trustee hereunder.
7. With respect to Collateral that constitutes tangible chattel paper, such
tangible chattel paper is in the possession of the Custodian and the Indenture
Trustee has received a written acknowledgment from the Custodian that the
Custodian is holding such tangible chattel paper solely on behalf and for the
benefit of the Indenture Trustee.
I-1
Priority
8. Neither the Transferor, the Servicer nor the Owner Trustee has authorized
the filing of, or is aware of any financing statements against either the
Seller, the Transferor or the Owner Trustee that include a description of the
Collateral, the Trust Property and proceeds related thereto other than any
financing statement (i) relating to the sale of Trust Property by the Transferor
to the Seller under the Transfer and Assignment Agreement, (ii) relating to the
contribution of Trust Property by the Seller to the Owner Trustee under the
Contribution Agreement, (iii) relating to the security interest granted to the
Indenture Trustee hereunder, or (iv) that has been terminated.
9. Neither the Seller, the Transferor nor the Owner Trustee is aware of any
judgment, ERISA or tax lien filings against either the Seller, the Transferor or
the Owner Trustee.
10. None of the tangible chattel paper that constitute or evidence the
Receivables has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Indenture Trustee.
Survival of Perfection Representations
11. 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.
No Waiver
12. The parties hereto: (i) shall not, without obtaining a confirmation of the
then-current rating of the Class A Notes, waive any of the Perfection
Representations; (ii) shall provide the Ratings Agencies with prompt written
notice of any breach of the Perfection Representations, and shall not, without
obtaining a confirmation of the then-current rating of the Class A Notes (as
determined after any adjustment or withdrawal of the ratings following notice of
such breach) waive a breach of any of the Perfection Representations.
I-2
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
September 16, 2002 (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), 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 and/or installment loans 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 herein shall have
the meaning assigned to them in the Transfer and Assignment Agreement.
A-1
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:
CAPITAL ONE AUTO RECEIVABLES, LLC,
as Purchaser
By:
-----------------------------
Name:
Title:
S-1
EXHIBIT B
SAMPLE RECEIVABLES - FORMS
B-1
EXHIBIT C
[RESERVED]
C-1
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 Capital One Auto Finance, Inc., as Custodian ("Custodian")
on behalf of JPMorgan Chase Bank, as indenture trustee ("Indenture Trustee")
pursuant to the terms of that certain Indenture dated as of September 16, 2002
by and between Capital One, Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee for Capital One Auto Finance Trust 2002-B,
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 and/or installment loans 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:_______________________
D-1
EXHIBIT E
FORM OF DEALER'S AGREEMENT
E-1