Exhibit 10.2
EXECUTION COPY
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PURCHASE AGREEMENT
dated as of March 27, 2003
between
CAPITAL ONE AUTO FINANCE, INC.
and
CAPITAL ONE AUTO RECEIVABLES, LLC,
as Purchaser
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND USAGE ........................................................ 1
SECTION 1.1 Definitions ............................................................ 1
SECTION 1.2 Other Interpretive Provisions .......................................... 1
ARTICLE II PURCHASE ..................................................................... 2
SECTION 2.1 Agreement to Sell and Contribute on the Closing Date ................... 2
SECTION 2.2 Agreement to Sell and Contribute on the Funding Dates .................. 2
SECTION 2.3 Consideration and Payment .............................................. 2
SECTION 2.4 Consideration and Payment for the Subsequent Purchased Assets .......... 2
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS .................................... 3
SECTION 3.1 Representations and Warranties of COAF ................................. 3
SECTION 3.2 Representations and Warranties of COAF as to each Receivable ........... 4
SECTION 3.3 Repurchase upon Breach ................................................. 4
SECTION 3.4 Protection of Title .................................................... 5
SECTION 3.5 Other Liens or Interests ............................................... 6
ARTICLE IV MISCELLANEOUS ................................................................ 6
SECTION 4.1 Transfers Intended as Sale; Security Interest .......................... 6
SECTION 4.2 Notices, Etc ........................................................... 7
SECTION 4.3 Choice of Law .......................................................... 8
SECTION 4.4 Headings ............................................................... 8
SECTION 4.5 Counterparts ........................................................... 8
SECTION 4.6 Amendment .............................................................. 8
SECTION 4.7 Waivers ................................................................ 9
SECTION 4.8 Entire Agreement ....................................................... 10
SECTION 4.9 Severability of Provisions ............................................. 10
SECTION 4.10 Binding Effect; Assignability .......................................... 10
SECTION 4.11 Acknowledgment and Agreement ........................................... 10
SECTION 4.12 No Waiver; Cumulative Remedies ......................................... 10
SECTION 4.13 Nonpetition Covenant ................................................... 10
SECTION 4.14 Submission to Jurisdiction ............................................. 11
i
EXHIBITS
Exhibit A Form of Assignment
Schedule I Representations and Warranties
ii
THIS PURCHASE AGREEMENT is made and entered into as of March 27, 2003 (as
amended from time to time, this "Agreement") by CAPITAL ONE AUTO FINANCE, INC.,
a Texas corporation ("COAF"), and CAPITAL ONE AUTO RECEIVABLES, LLC, a Delaware
limited liability company (the "Purchaser").
WITNESSETH:
WHEREAS, the Purchaser desires to purchase from COAF a portfolio of motor
vehicle receivables, including motor vehicle retail installment sales contracts
and/or installment loans that are secured by new and used automobiles,
light-duty trucks and motorcycles; and
WHEREAS, COAF is willing to sell such portfolio of motor vehicle
receivables and related property to the Purchaser on the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
SECTION 1.1 Definitions. Except as otherwise defined herein or as the
context may otherwise require, capitalized terms used but not otherwise defined
herein are defined in Appendix A to the Sale and Servicing Agreement dated as of
the date hereof (as from time to time amended, supplemented or otherwise
modified and in effect, the "Sale and Servicing Agreement") among Capital One
Prime Auto Receivables Trust 2003-1, COAF, as servicer, the Purchaser, as
seller, and JPMorgan Chase Bank, as indenture trustee, which also contains rules
as to usage that are applicable herein.
SECTION 1.2 Other Interpretive Provisions. For purposes of this Agreement,
unless the context otherwise requires: (a) accounting terms not otherwise
defined in this Agreement, and accounting terms partly defined in this Agreement
to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles; (b) terms defined in Article 9
of the UCC as in effect in the relevant jurisdiction and not otherwise defined
in this Agreement are used as defined in that Article; (c) the words "hereof,"
"herein" and "hereunder" and words of similar import refer to this Agreement as
a whole and not to any particular provision of this Agreement; (d) references to
any Article, Section, Schedule, Appendix or Exhibit are references to Articles,
Sections, Schedules, Appendices and Exhibits in or to this Agreement and
references to any paragraph, subsection, clause or other subdivision within any
Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (e) the term "including" means
"including without limitation"; (f) except as otherwise expressly provided
herein, references to any law or regulation refer to that law or regulation as
amended from time to time and include any successor law or regulation; (g)
references to any Person include that Person's successors and assigns; and (h)
headings are for purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.
ARTICLE II
PURCHASE
SECTION 2.1 Agreement to Sell and Contribute on the Closing Date. On the
terms and subject to the conditions set forth in this Agreement, COAF agrees to
transfer, assign, set over, sell and otherwise convey to the Purchaser without
recourse (subject to the obligations herein) on the Closing Date all of its
right, title and interest in, to and under the Receivables, the Collections
after the Initial Cut-Off Date and the Related Security relating thereto,
described in an Assignment in the form of Exhibit A delivered on the Closing
Date, and its rights under the Sale Agreement (collectively, the "Initial
Purchased Assets"), which sale shall be effective as of the Initial Cut-Off
Date. The transfer, assignment and conveyance made hereunder will not constitute
and is not intended to result in an assumption by the Purchaser of any
obligation of COAF or any Originator to the Obligors, the Dealers or any other
Person in connection with the Receivables and the other assets and properties
conveyed hereunder or any agreement, document or instrument related thereto.
SECTION 2.2 Agreement to Sell and Contribute on the Funding Dates. On the
terms and subject to the conditions set forth in this Agreement, COAF agrees to
transfer, assign, set over, sell and otherwise convey to the Purchaser on each
Funding Date all of its right, title and interest in, to and under the
Receivables, and the Collections after the related Subsequent Cut-Off Date and
the Related Security relating thereto, described in an Assignment in the form of
Exhibit A delivered on such Funding Date (collectively, the "Subsequent
Purchased Assets" and, together with the Initial Purchased Assets, all of COAF's
rights under the Sale Agreement and all proceeds of the foregoing, the
"Purchased Assets"). The transfer, assignment and conveyance made hereunder will
not constitute and is not intended to result in an assumption by the Purchaser
of any obligation of COAF or any Originator to the Obligors, the Dealers or any
other Person in connection with the Receivables and the other assets and
properties conveyed hereunder or any agreement, document or instrument related
thereto.
SECTION 2.3 Consideration and Payment. In consideration of the sale of the
Initial Purchased Assets sold to the Purchaser on the Closing Date, the
Purchaser shall pay to COAF on such date an amount equal to $1,000,000,647.18,
representing the estimated fair market value of the Initial Purchased Assets on
the Closing Date.
SECTION 2.4 Consideration and Payment for the Subsequent Purchased Assets.
In consideration of the sale of the Subsequent Purchased Assets sold to the
Purchaser on each Funding Date, the Purchaser shall pay to COAF on such date an
amount equal to the estimated fair market value of the related Subsequent
Purchased Assets on such Funding Date (the "Purchase Price").
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.1 Representations and Warranties of COAF. COAF makes the
following representations and warranties as of the Closing Date and as of each
Funding Date on which the
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Purchaser will be deemed to have relied in acquiring the Purchased Assets. The
representations and warranties speak as of the execution and delivery of this
Agreement and will survive the conveyance of the Purchased Assets to the
Purchaser, to the conveyance of the Purchased Assets to the Issuer pursuant to
the Sale and Servicing Agreement and the pledge thereof by the Issuer to the
Indenture Trustee pursuant to the Indenture:
(a) Existence and Power. COAF is a corporation validly existing and in good
standing under the laws of its state of organization and has, in all material
respects, full power and authority to own its assets and operate its business as
presently owned or operated, and to execute, deliver and perform its obligations
under the Transaction Documents to which it is a party or affect the
enforceability or collectibility of the Receivables or any other part of the
Purchased Assets. COAF has obtained all necessary licenses and approvals in each
jurisdiction where the failure to do so would materially and adversely affect
the ability of COAF to perform its obligations under the Transaction Documents
or affect the enforceability or collectibility of the Receivables or any other
part of the Purchased Assets.
(b) Authorization and No Contravention. The execution, delivery and
performance by COAF of the Transaction Documents to which it is a party have
been duly authorized by all necessary action on the part of COAF and do not
contravene or constitute a default under (i) any applicable law, rule or
regulation, (ii) its organizational documents or (iii) any material indenture or
material agreement or instrument to which COAF is a party or by which its
properties are bound (other than violations of such laws, rules, regulations,
indentures or agreements which do not affect the legality, validity or
enforceability of any of such agreements and which, individually or in the
aggregate, would not materially and adversely affect the transactions
contemplated by, or COAF's ability to perform its obligations under, the
Transaction Documents).
(c) No Consent Required. No approval or authorization by, or filing with,
any Governmental Authority is required in connection with the execution,
delivery and performance by COAF of any Transaction Document other than (i) UCC
filings, (ii) approvals and authorizations that have previously been obtained
and filings that have previously been made and (iii) approval, authorizations or
filings which, if not obtained or made, would not have a material adverse effect
on the enforceability or collectibility of the Receivables or any other part of
the Purchased Assets or would materially and adversely affect the ability of
COAF to perform its obligations under the Transaction Documents.
(d) Binding Effect. Each Transaction Document to which COAF is a party
constitutes the legal, valid and binding obligation of COAF enforceable against
COAF in accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship or other similar laws affecting creditors' rights generally and,
if applicable, the rights of creditors of limited liability companies from time
to time in effect or by general principles of equity.
(e) No Proceedings. There are no actions, suits or proceedings pending or,
to the knowledge of COAF, threatened against COAF before or by any Governmental
Authority that (i) assert the invalidity or unenforceability of this Agreement
or any of the other Transaction Documents, (ii) seeking to prevent the issuance
of the Notes or the consummation of any of the
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transactions contemplated by this Agreement or any of the other Transaction
Documents, (iii) seeking any determination or ruling that would materially and
adversely affect the performance by COAF of its obligations under this Agreement
or any of the other Transaction Documents, or (iv) relating to COAF that would
materially and adversely affect the federal or Applicable Tax State income,
excise, franchise or similar tax attributes of the Notes.
(f) Lien Filings. COAF is not aware of any material judgment, ERISA or tax
lien filings against COAF.
SECTION 3.2 Representations and Warranties of COAF as to each Receivable.
On the date hereof or on each Funding Date, as the case may be, the COAF hereby
makes the representations and warranties set forth on Schedule I as to the
Receivables transferred, assigned, set over, sold and otherwise conveyed to the
Purchaser on which such representations and warranties the Purchaser relies in
acquiring the Receivables. Such representations and warranties speak, with
respect to any Receivable, as of the applicable Cut-Off Date for such
Receivable, but shall survive the sale of such Receivables to the Issuer under
the Sale and Servicing Agreement, and the Grant of the Receivables by the Issuer
to the Indenture Trustee pursuant to the Indenture. Notwithstanding any
statement to the contrary contained herein or in any other Transaction Document,
COAF shall not be required to notify any insurer with respect to any Insurance
Policy obtained by an Obligor or to notify any Dealer about any aspect of the
transaction contemplated by the Transaction Documents.
SECTION 3.3 Repurchase upon Breach. Upon discovery by or notice to the
Purchaser or COAF of a breach of any of the representations and warranties set
forth in Section 3.2 at the time such representations and warranties were made
which materially and adversely affects the interests of the Issuer or the
Noteholders, the party discovering such breach or receiving such notice shall
give prompt written notice thereof to the other party; provided, that the
failure to give such notice shall not affect any obligation of COAF hereunder.
If COAF does not correct or cure such breach prior to the end of the Collection
Period which includes the 60th day (or, if the Seller elects, an earlier date)
after the date that COAF became aware or was notified of such breach, then COAF
shall purchase any Receivable affected by such breach which materially and
adversely affects the interests of the Issuer and the Noteholders from the
Purchaser on the Payment Date following the end of such Collection Period. Any
such breach or failure will not be deemed to have a material and adverse effect
if such breach or failure does not affect the ability of the Purchaser (or its
assignee) to receive and retain timely payment in full on such Receivable. Any
such purchase by COAF shall be at a price equal to the Repurchase Price. In
consideration for such repurchase, COAF shall make (or shall cause to be made) a
payment to the Purchaser equal to the Repurchase Price by depositing such amount
into the Collection Account prior to noon, New York City time on such Payment
Date. Upon payment of such Repurchase Price by COAF, the Purchaser shall release
and shall execute and deliver such instruments of release, transfer or
assignment, in each case without recourse or representation, as shall be
reasonably necessary to vest in COAF or its designee any Receivable repurchased
pursuant hereto. It is understood and agreed that the obligation of COAF to
purchase any Receivable as described above shall constitute the sole remedy
respecting such breach available to the Purchaser.
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SECTION 3.4 Protection of Title.
(a) COAF shall authorize and file such financing statements and cause to be
authorized and filed such continuation and other statements, all in such manner
and in such places as may be required by law fully to preserve, maintain and
protect the interest of the Purchaser under this Agreement in the Receivables.
COAF shall deliver (or cause to be delivered) to the Purchaser file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing.
(b) COAF shall not change its name, identity, corporate structure or
jurisdiction of organization in any manner that would make any financing
statement or continuation statement filed by COAF in accordance with paragraph
(a) above "seriously misleading" within the meaning of Sections 9-506, 9-507 or
9-508 of the UCC, unless it shall have given the Purchaser at least five days'
prior written notice thereof and, to the extent necessary, shall have promptly
filed amendments to previously filed financing statements or continuation
statements described in paragraph (a) above.
(c) COAF shall give the Purchaser at least five days' prior written notice
of any change of location of COAF for purposes of Section 9-307 of the UCC and
shall have taken all action prior to making such change (or shall have made
arrangements to take such action substantially simultaneously with such change,
if it is not possible to take such action in advance) reasonably necessary or
advisable in the opinion of the Purchaser to amend all previously filed
financing statements or continuation statements described in paragraph (a)
above.
(d) COAF shall maintain (or shall cause its Sub-Servicer to maintain)
accounts and records as to each Receivable accurately and in sufficient detail
to permit (i) the reader thereof to know at any time the status of such
Receivable, including payments and recoveries made and payment owing (and the
nature of each) and (ii) reconciliation between payments or recoveries on (or
with respect to) each Receivable and the amounts from time to time deposited in
the Collection Account in respect of such Receivable.
(e) COAF shall maintain (or shall cause its Sub-Servicer to maintain) its
computer systems so that, from time to time after the conveyance under this
Agreement of the Receivables, the master computer records (including any backup
archives) that refer to a Receivable shall indicate clearly the interest of the
Purchaser (or any subsequent assignee of the Purchaser) in such Receivable and
that such Receivable is owned by such Person. Indication of such Xxxxx'x
interest in a Receivable shall not be deleted from or modified on such computer
systems until, and only until, the related Receivable shall have been paid in
full or repurchased.
(f) If at any time COAF shall propose to sell, grant a security interest in
or otherwise transfer any interest in motor vehicle receivables to any
prospective purchaser, lender or other transferee, COAF shall give to such
prospective purchaser, lender or other transferee computer tapes, records or
printouts (including any restored from backup archives) that, if they shall
refer in any manner whatsoever to any Receivable, shall indicate clearly that
such Receivable has been sold and is owned by the Purchaser (or any subsequent
assignee of the Purchaser).
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SECTION 3.5 Other Liens or Interests. Except for the conveyances and grants
of security interests pursuant to this Agreement and the other Transaction
Documents, COAF shall not sell, pledge, assign or transfer the Receivables or
other property transferred to the Purchaser to any other Person, or grant,
create, incur, assume or suffer to exist any Lien (other than Permitted Liens)
on any interest therein, and COAF shall defend the right, title and interest of
the Purchaser in, to and under such Receivables or other property transferred to
the Purchaser against all claims of third parties claiming through or under
COAF.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Transfers Intended as Sale; Security Interest.
(a) Each of the parties hereto expressly intends and agrees that the
transfers contemplated and effected under this Agreement are complete and
absolute sales and transfers rather than pledges or assignments of only a
security interest and shall be given effect as such for all purposes. It is
further the intention of the parties hereto that the Receivables and related
Purchased Assets shall not be part of COAF's estate in the event of a bankruptcy
or insolvency of COAF. The sales and transfers by COAF of the Receivables and
related Purchased Assets hereunder are and shall be without recourse to, or
representation or warranty (express or implied) by, COAF, except as otherwise
specifically provided herein. The limited rights of recourse specified herein
against COAF are intended to provide a remedy for breach of representations and
warranties relating to the condition of the property sold, rather than to the
collectibility of the Receivables.
(b) Notwithstanding the foregoing, in the event that the Receivables and
other Purchased Assets are held to be property of COAF, or if for any reason
this Agreement is held or deemed to create indebtedness or a security interest
in the Receivables and other Purchased Assets, then it is intended that:
(i) This Agreement shall be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and
the Uniform Commercial Code of any other applicable jurisdiction;
(ii) The conveyances provided for in Section 2.1 and Section 2.2 shall
be deemed to be a grant by COAF of, and COAF hereby grants to the
Purchaser, a security interest in all of its right (including the power to
convey title thereto), title and interest, whether now owned or hereafter
acquired, in and to the Receivables and other Purchased Assets, to secure
such indebtedness and the performance of the obligations of COAF hereunder;
(iii) The possession by the Purchaser or its agent of the Receivables
files and any other property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by the purchaser or a person designated by such
purchaser, for purposes of perfecting the
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security interest pursuant to the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; and
(iv) Notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, bailees or agents (as applicable) of the
Purchaser for the purpose of perfecting such security interest under
Applicable Law.
SECTION 4.2 Notices, Etc. All demands, notices and communications hereunder
shall be in writing and shall be delivered or mailed by registered or certified
first-class United States mail, postage prepaid, hand delivery, prepaid courier
service, or by Electronic Transmission, and addressed in each case as follows:
(i) if to the Issuer, c/o the Owner Trustee, at Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000 (telecopier no. (000) 000-0000),
Attention: Corporate Trust Department, with a copy to the Administrator, at 0000
Xxxxxxx Xxx Xxxxx, XxXxxx, Xxxxxxxx 00000 (telecopier no. (000) 000-0000),
Attention: Manager of Securitization, with a copy to Capital One Auto Finance,
Inc., 0000 Xxxxxxx Xxx Xxxxx, XxXxxx, Xxxxxxxx 00000 (telecopier no. (703)
720-2227), Attention: Funding Counsel, with a copy to the Indenture Trustee, at
0 Xxx Xxxx Xxxxx, 0/xx/ Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (telecopier no.
(000) 000-0000), Attention: Structured Finance Administration - Capital One
Prime Auto Receivables Trust 2003-1; (ii) if to the Indenture Trustee, at 0 Xxx
Xxxx Xxxxx, 0/xx/ Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (telecopier no. (212)
623-5932), Attention: Structured Finance Administration - Capital One Prime Auto
Receivables Trust 2003-1; (iii) if to the Purchaser, at 0000 Xxxxxxx Xxx Xxxxx,
XxXxxx, Xxxxxxxx 00000 (telecopier no. (000) 000-0000), Attention: Capital
Markets; (iv) if to the Servicer, at 0000 Xxxxxxx Xxx Xxxxx, XxXxxx, Xxxxxxxx
00000 (telecopier no. (000) 000-0000), Attention: Manager of Securitization,
with a copy to Capital One Auto Finance, Inc., at 0000 Xxxxxxx Xxx Xxxxx,
XxXxxx, Xxxxxxxx 00000 (telecopier no. (000) 000-0000), Attention: Funding
Counsel; (v) if to COAF, at 0000 Xxxxxx Xxxxxxx, Xxxxx, Xxxxx 00000 (telecopier
no. (000) 000-0000), Attention: Chief Financial Officer, with a copy to Capital
One Auto Finance, Inc., at 0000 Xxxxxx Xxxxxxx, Xxxxx, Xxxxx 00000 (telecopier
no. (000) 000-0000), Attention: Legal Department; (vi) if to Moody's, to Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telecopier
no. (000) 000-0000), Attention: ABS Monitoring Group; (vii) if to S&P, to
Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(telecopier no. (000) 000-0000), Attention: Asset Backed Surveillance Group; or
(viii) at such other address as shall be designated by any of the foregoing in a
written notice to the other parties hereto. Any notice required or permitted to
be mailed to a Noteholder shall be given by first class mail, postage prepaid,
at the address of such Noteholder as shown in the Note Register. Delivery shall
occur only upon receipt or reported tender of such communication by an officer
of the recipient entitled to receive such notices located at the address of such
recipient for notices hereunder; provided, however, that any notice to a
Noteholder mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder
shall receive such notice.
SECTION 4.3 Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO CONFLICTS OF LAW AND THE
OBLIGATIONS,
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RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
SECTION 4.4 Headings. The section headings hereof have been inserted for
convenience only and shall not be construed to affect the meaning, construction
or effect of this Agreement.
SECTION 4.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all of such counterparts shall together constitute but one and the same
instrument.
SECTION 4.6 Amendment.
(a) Any term or provision of this Agreement may be amended by COAF and the
Purchaser without the consent of the Indenture Trustee, any Noteholder, the
Issuer or the Owner Trustee; provided that such amendment shall not, as
evidenced by an Opinion of Counsel delivered to the Indenture Trustee materially
and adversely affect the interests of the Noteholders.
(b) Any term or provision of this Agreement may be amended by COAF and the
Purchaser but without the consent of the Indenture Trustee, any Noteholder, the
Issuer, the Owner Trustee or any other Person to add, modify or eliminate any
provisions as may be necessary or advisable in order to enable the Seller, the
Servicer or any of their Affiliates to comply with or obtain more favorable
treatment under any law or regulation or any accounting rule or principle, it
being a condition to any such amendment that the Rating Agency Condition shall
have been satisfied.
(c) This Agreement may also be amended from time to time by COAF and the
Purchaser, with the consent of the Holders of Notes evidencing not less than a
majority of the aggregate principal amount of the Outstanding Notes, voting as a
single class, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Noteholders. It will not be necessary for the
consent of Noteholders to approve the particular form of any proposed amendment
or consent, but it will be sufficient if such consent approves the substance
thereof. The manner of obtaining such consents (and any other consents of
Noteholders provided for in this Agreement) and of evidencing the authorization
of the execution thereof by Noteholders will be subject to such reasonable
requirements as the Indenture Trustee may prescribe, including the establishment
of record dates pursuant to the Note Depository Agreement.
(d) Prior to the execution of any such amendment, COAF shall provide
written notification of the substance of such amendment to each Rating Agency;
and promptly after the execution of any such amendment or consent, COAF shall
furnish a copy of such amendment or consent to each Rating Agency and the
Indenture Trustee.
(e) Prior to the execution of any amendment to this Agreement, the
Purchaser, the Owner Trustee and the Indenture Trustee shall be entitled to
receive and conclusively rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement and
that all conditions precedent to the execution and delivery of such
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amendment have been satisfied. The Owner Trustee and the Indenture Trustee may,
but shall not be obligated to, enter into any such amendment which adversely
affects the Owner Trustee's or the Indenture Trustee's, as applicable, own
rights, duties or immunities under this Agreement.
SECTION 4.7 Waivers. No failure or delay on the part of the Purchaser, the
Servicer, COAF, the Issuer or the Indenture Trustee in exercising any power or
right hereunder (to the extent such Person has any power or right hereunder)
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on the Purchaser or
COAF in any case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by the Purchaser under this Agreement
shall, except as may otherwise be stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval under this
Agreement shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 4.8 Entire Agreement. The Transaction Documents contain a final
and complete integration of all prior expressions by the parties hereto with
respect to the subject matter thereof and shall constitute the entire agreement
among the parties hereto with respect to the subject matter thereof, superseding
all prior oral or written understandings. There are no unwritten agreements
among the parties.
SECTION 4.9 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 4.10 Binding Effect; Assignability. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until such time as the parties hereto
shall agree.
SECTION 4.11 Acknowledgment and Agreement. By execution below, COAF
expressly acknowledges and consents to the sale of the Purchased Assets and the
assignment of all rights and obligations of COAF related thereto by the
Purchaser to the Issuer pursuant to the Sale and Servicing Agreement and the
pledge, assignment and grant of a security interest in the Receivables and the
other Purchased Assets by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders. In addition, COAF hereby
acknowledges and agrees that for so long as the Notes are outstanding, the
Indenture Trustee will have the right to exercise all powers, privileges and
claims of the Purchaser under this Agreement.
SECTION 4.12 No Waiver; Cumulative Remedies. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
SECTION 4.13 Nonpetition Covenant. Each party hereto agrees that, prior to
the date which is one year and one day after payment in full of all obligations
of each Bankruptcy
-9-
Remote Party in respect of all securities issued by any Bankruptcy Remote Party
(i) such party hereto shall not authorize any Bankruptcy Remote Party to
commence a voluntary winding-up or other voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to such
Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect in any jurisdiction or seeking the
appointment of an administrator, a trustee, receiver, liquidator, custodian or
other similar official with respect to such Bankruptcy Remote Party or any
substantial part of its property or to consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against such Bankruptcy Remote Party, or to make a
general assignment for the benefit of its creditors generally, any party hereto
or any other creditor of such Bankruptcy Remote Party, and (ii) none of the
parties hereto shall commence or join with any other Person in commencing any
proceeding against such Bankruptcy Remote Party under any bankruptcy,
reorganization, liquidation or insolvency law or statute now or hereafter in
effect in any jurisdiction. This Section shall survive the termination of this
Agreement.
SECTION 4.14 Submission to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement or any documents executed and delivered in connection
herewith, or for recognition and enforcement of any judgment in respect thereof,
to the nonexclusive general jurisdiction of the courts of the State of New York,
the courts of the United States of America for the Southern District of New York
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its
address determined in accordance with Section 3.3 of this Agreement; and
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to xxx in
any other jurisdiction.
[Remainder of Page Intentionally Left Blank]
-10-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
CAPITAL ONE AUTO FINANCE, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Manager of Securitization
Address:
0000 Xxxxxxx Xxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Director of Securitization
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
0000 Xxxxxxx Xxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Legal Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-1
CAPITAL ONE AUTO RECEIVABLES, LLC
By:/s/Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Address:
0000 Xxxxxxx Xxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Director of Securitization
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
0000 Xxxxxxx Xxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Legal Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-2
EXHIBIT A
FORM OF
ASSIGNMENT PURSUANT TO PURCHASE AGREEMENT
For value received, in accordance with the Purchase Agreement dated as of
March 27, 2003, between Capital One Auto Finance, Inc., a Texas corporation
("COAF"), and Capital One Auto Receivables, LLC, a Delaware limited liability
company (the "Purchaser") (the "Agreement"), on the terms and subject to the
conditions set forth in the Agreement, COAF agrees to transfer, assign, set
over, sell and otherwise convey to the Purchaser on _________, 2003, all of its
right, title and interest in, to and under the Receivables set forth on the
schedule of Receivables delivered by COAF to the Purchaser on the date hereof
(such schedule, together with any other Schedule of Receivables delivered by
COAF to the Purchaser pursuant to the Agreement, the "Schedule of Receivables"),
and the Collections after the related Cut-Off Date and the Related Security
relating thereto, which sale shall be effective as of such Cut-Off Date.
The foregoing sale 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 Receivables, 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
Agreement and is governed by the Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Agreement.
[Remainder of page intentionally left blank]
A-1
IN WITNESS HEREOF, the undersigned has caused this assignment to be duly
executed as of March 27, 2003.
CAPITAL ONE AUTO FINANCE, INC.
By: _____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Manager of Securitization
A-2
SCHEDULE I
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE RECEIVABLES
(a) Characteristics of Receivables. Each Receivable:
(i) has been fully and properly executed by the Obligor
thereto;
(ii) has been originated directly by the Originator in
accordance with its customary practices;
(iii) as of the Closing Date or Subsequent Funding Date, as
applicable, is secured by a first priority validly
perfected security interest in the Financed Vehicle in
favor of the Originator, as secured party, or all
necessary actions with respect to the Receivable has been
taken or will be taken to perfect a first priority
security interest in the Financed Vehicle in favor of the
Originator, as secured party, which security interest, in
either case, is assignable and has been so assigned by the
Originator to COAF, by COAF to the Seller and by the
Seller to the Issuer;
(iv) contains customary and enforceable provisions such that
the rights and remedies of the holder thereof are adequate
for realization against the collateral of the benefits of
the security;
(v) provided, at origination, for level monthly payments which
fully amortize the initial Principal Balance over the
original term; provided, that the amount of the first or
last payment may be different but in no event more than
three times the level monthly payment;
(vi) provides for interest at the Contract Rate specified in
the Schedule of Receivables; and
(vii) was originated in the United States;
(b) Individual Characteristics. Each Receivables has the following
individual characteristics as of its respective Cut-Off Date:
(i) each Receivable is secured by a new or used automobile,
light-duty truck or motorcycle;
(ii) each Receivable has a Contract Rate of no less than 3.40%
and not more than 9.50%;
(iii) each Receivable had an original term to maturity of not
more than 72 months and not less than 12 months and each
Receivable has a remaining term to maturity, as of its
respective Cut-Off Date, of four months or more;
Schedule I-1
(iv) each Receivable had an original Principal Balance less than or
equal to $100,000;
(v) each Receivable has a Principal Balance on its respective
Cut-Off Date of greater than or equal to $500;
(vi) no Receivable has a scheduled maturity date later than May 31,
2009;
(vii) no Receivable was more than 30 days past due as of the Cut-Off
Date;
(viii) the Originator has not received notice that any Obligor under a
Receivable has filed for bankruptcy, and to the best of the
Originator's knowledge without any independent investigation, no
Obligor was the subject of any pending bankruptcy or insolvency
proceeding;
(ix) no Receivable is subject to a force-placed Insurance Policy on
the related Financed Vehicle;
(x) each Receivable is a Simple Interest Receivable, and scheduled
payments under each Receivable have been applied in accordance
with the method for allocating principal and interest set forth
in the Receivable; and
(xi) each of the Receivables were selected using no materially
adverse selection procedures.
(c) Schedule of Receivables. The information with respect to a Receivable
transferred on the Closing Date or on any Funding Date set forth in the
Schedule of Receivables for such date was true and correct in all
material respects as of the respective Cut-Off Date for such
Receivable.
(d) Compliance with Law. The Receivable complied at the time it was
originated or made, and the transfer of that Receivable to the Issuer
complied at the time of transfer, in all material respects with all
requirements of applicable federal, state and local laws, and
regulations thereunder, including, to the extent applicable, usury
laws, the Federal Truth in Lending Act, the Equal Credit Opportunity
Act, the Fair Credit Reporting Act, the Federal Trade Commission Act,
the Fair Debt Collection Practices Act, the Fair Credit Billing Act,
the Xxxxxxxx-Xxxx Warranty Act, Federal Reserve Board Regulations B and
Z, the Soldiers' and Sailors' Civil Relief Act of 1940, state
adaptations of the National Consumer Act and of the Uniform Consumer
Credit Code and any other consumer credit, equal opportunity and
disclosure laws applicable to that Receivable.
(e) Binding Obligation. The Receivable constitutes the legal, valid and
binding payment obligation in writing of the Obligor, enforceable in
all respects by the holder thereof in accordance with its terms,
subject, as to enforcement, to applicable bankruptcy, insolvency,
reorganization, liquidation or other similar laws and equitable
principles relating to or affecting the enforcement of creditors'
rights generally.
Schedule I-2
(f) Receivable in Force. The Receivable has 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.
(g) No Waiver. Since its respective Cut-Off Date, no provision of a
Receivable has been waived.
(h) No Default. Except for payment delinquencies continuing for a period of
not more than 30 days as of the applicable Cut-Off Date, COAF has no
knowledge that a default, breach, violation or event permitting
acceleration under the terms of the Receivable existed at the
applicable Cut-Off Date or that any continuing condition that with
notice or lapse of time, or both, would constitute a default, breach,
violation or event permitting acceleration under the terms of the
Receivable had arisen as of the applicable Cut-Off Date, and COAF has
not waived any of the foregoing.
(i) Insurance. The Receivable requires that the Obligor thereunder obtain
comprehensive and collision insurance covering the Financed Vehicle.
(j) No Government Obligor. The Obligor on the Receivable is not the United
States of America or any state thereof or any local government, or any
agency, department, political subdivision or instrumentality of the
United States of America or any state thereof or any local government.
(k) Assignment. No Receivable has been originated in, or is subject to the
laws of, any jurisdiction under which the sale, transfer, assignment,
conveyance or pledge of such Receivable would be unlawful, void, or
voidable. COAF has not entered into any agreement with any Obligor that
prohibits, restricts or conditions the assignment of the related
Receivable.
(l) Good Title. It is the intention of COAF that the sale, transfer,
assignment and conveyance herein contemplated constitute an absolute
sale, transfer, assignment and conveyance of the Receivables and that
the Receivables not be part of COAF's estate in the event of the filing
of a bankruptcy petition by or against COAF under any bankruptcy law.
No Receivable has been sold, transferred, assigned, conveyed or pledged
to any Person other than pursuant to the Transaction Documents. As of
the Closing Date or Subsequent Funding Date, as applicable, and
immediately prior to the sale and transfer herein contemplated, COAF
had good and marketable title to and was the sole owner of each
Receivable free and clear of all Liens , and, immediately upon the sale
and transfer thereof, the Purchaser will have good and marketable title
to each Receivable, free and clear of all Liens.
(m) Filings. All filings (including, without limitation, UCC filings)
necessary in any jurisdiction to give the Issuer a first priority,
validly perfected ownership interest in the Receivables (other than the
Related Security with respect thereto), and to give the Indenture
Trustee a first priority perfected security interest therein, will be
made within ten days of the Closing Date.
Schedule I-3
(n) Priority. The Receivable is not pledged, assigned, sold, subject to a
security interest, or otherwise conveyed other than pursuant to the
Transaction Documents. COAF has not authorized the filing of and is not
aware of any financing statements against the Originator, COAF or the
Seller that include a description of collateral covering the
Receivables other than any financing statement relating to security
interests granted under the Transaction Documents or that have been
terminated. The Purchase Agreement creates a valid and continuing
security interest in the Receivable (other than the Related Security
with respect thereto) in favor of the Purchaser which security interest
is prior to all other Liens and is enforceable as such against all
other creditors of and purchasers and assignees from COAF.
(o) Characterization of Receivables. Each Receivable constitutes either
"tangible chattel paper", an "account", a "promissory note" or a
"payment intangible", each as defined in the UCC.
(p) One Original. There is only one original executed copy of each
Receivable in existence. The Servicer (or its agent) has possession of
such original. If such original has been marked, then such original
does not have any marks or notations indicating that it has been
pledged, assigned or otherwise conveyed to any Person other than to a
party to the Transaction Documents.
(q) No Offset or Counterclaim. As of the Closing Date or Subsequent Funding
Date, as applicable, there are no rights of rescission, offset, claim,
counterclaim or defense, and COAF has no knowledge of the same being
asserted or threatened, with respect to any Receivable.
Schedule I-4
