Exhibit 10.1
--------------------------------------------------------------------------------
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 June 3, 2003
---------------------------------
CAPITAL ONE AUTO FINANCE TRUST 2003-A
ASSET BACKED NOTES, SERIES 2003-A
CLASS A NOTES AND CLASS B NOTES
--------------------------------------------------------------------------------
2003-A Transfer and Assignment Agreement
TABLE OF CONTENTS
Page
----
ARTICLE I CERTAIN DEFINITIONS................................ 1
ARTICLE II ASSIGNMENT AND ACQUISITION OF RECEIVABLES.......... 1
2.01 Assignment and Acquisition of Receivables.............. 1
2.02 The Closing............................................ 3
2.03 Funding Dates.......................................... 3
ARTICLE III REPRESENTATIONS AND WARRANTIES..................... 4
3.01 Representations and Warranties of the Purchaser........ 4
3.02 Representations and Warranties of the Transferor....... 5
ARTICLE IV CONDITIONS......................................... 15
4.01 Conditions to Obligation of the Purchaser.............. 15
4.02 Conditions to Obligation of the Transferor............. 17
ARTICLE V COVENANTS OF THE TRANSFEROR........................ 17
5.01 Protection of Right, Title and Interest................ 17
5.02 Other Liens or Interests............................... 18
5.03 Principal Executive Office............................. 18
5.04 Transfer Taxes......................................... 18
5.05 Costs and Expenses..................................... 18
5.06 [Reserved]............................................. 18
5.07 Location of Servicer Files............................. 19
5.08 [Reserved]............................................. 19
5.09 Assignment of Receivables.............................. 19
5.10 Transferor's Records................................... 19
5.11 [Reserved]............................................. 19
5.12 Cooperation by Transferor.............................. 19
5.13 Assignment of Additional Receivables................... 20
5.14 Notice of Breach....................................... 20
ARTICLE VI [RESERVED]......................................... 20
ARTICLE VII MISCELLANEOUS PROVISIONS........................... 20
7.01 Obligations of Transferor.............................. 20
7.02 Repurchase Events...................................... 20
i
TABLE OF CONTENTS
(continued)
Page
----
7.03 Purchaser's Assignment of Repurchased Receivables...... 21
7.04 Subsequent Transfer and Pledge......................... 21
7.05 Amendment.............................................. 22
7.06 Waivers................................................ 22
7.07 Notices................................................ 22
7.08 Costs and Expenses..................................... 22
7.09 Representations........................................ 22
7.10 Confidential Information............................... 22
7.11 Headings and Cross-References.......................... 22
7.12 Governing Law.......................................... 23
7.13 Counterparts........................................... 23
7.14 No Bankruptcy Petition Against the Issuer or the
Purchaser.............................................. 23
7.15 Third Party Beneficiaries.............................. 23
7.16 Limitation and Subordination of Obligations............ 23
SCHEDULES AND EXHIBITS
----------------------
Schedule I Perfection Representations
Exhibit A Assignment
Exhibit B Form of Certificate of Delivery
ii
TRANSFER AND ASSIGNMENT AGREEMENT
This TRANSFER AND ASSIGNMENT AGREEMENT (this "Agreement") is made as of
June 3, 2003, 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 Purchaser desires to purchase from the Transferor a portfolio
of Receivables and related property; and
WHEREAS, the Transferor is willing to sell such portfolio of Receivables
and related property to the Purchaser on the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Capitalized terms used but not defined in this Agreement shall have the
meanings set forth in Section 1.01 of the Indenture, dated as of the Closing
Date, by and between Capital One Auto Receivables Trust 2003-1 and JPMorgan
Chase Bank, as indenture trustee
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 Transferred
Property relating thereto.
(a) Initial Assignment of Receivables and Transferred 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 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
2003-A Transfer and Assignment Agreement
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; (vi) the original Contracts relating to the Initial Receivables;
and (vii) the proceeds of any and all of the foregoing. (All of the
property identified in this subsection (a) and the following subsection (c)
shall constitute "Transferred 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 Transferred 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.
(c) Assignment of Subsequent Receivables and Transferred 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 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 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 Contracts relating to the
Subsequent Receivables; and (vii) the proceeds of any and all of the
foregoing; provided, however, that Subsequent Receivables may not be
acquired by the Purchaser, transferred by the Purchaser to the Issuer and
Granted by the Issuer 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 Transferred 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.
2 2003-A Transfer and Assignment Agreement
(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 Transferred Property from the
Transferor to the Purchaser. Notwithstanding the foregoing, in the event
that the Receivables and other Transferred Property are held to be property
of the Transferor, or if for any reason this Agreement is held or deemed to
create indebtedness or a security interest in the Receivables and other
Transferred Property, then it is intended that:
(i) This Agreement shall be deemed to be a security agreement
within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction;
(ii) The conveyance provided for in this Section 2.01 shall be
deemed to be a grant by the Transferor, and the Transferor hereby
grants, to the Purchaser of a security interest in all of its right
(including the power to convey title thereto), title and interest,
whether now owned or hereafter acquired, in and to the Receivables
and other Transferred Property, to secure such indebtedness and the
performance of the obligations of the Transferor hereunder;
(iii) The possession by the Transferor of the Receivables and
any other Transferred 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
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 Transferor for the purpose of perfecting such security interest
under applicable law.
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, Xxxx & 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 its right, title and
interest in and to the Initial Receivables and other Transferred Property to the
Purchaser, (b) the Purchaser will contribute and absolutely assign all of its
right, title and interest in and to the Initial Receivables and other
Transferred Property to the Issuer, (c) the Issuer will Grant all of its right,
title and interest in and to the Initial Receivables and other Transferred
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
3 2003-A Transfer and Assignment Agreement
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 Transferred 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 Transferred Property to the Issuer, and (c) the
Issuer will grant all of its right, title and interest in and to the Subsequent
Receivables and other Transferred Property to the Indenture Trustee for the
benefit of the Noteholders, the Swap Counterparty (unless the Interest Rate Swap
Agreement has been terminated and all amounts owed to the Swap Counterparty have
been paid in full) and the Note Insurer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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) Existence and Power. The Purchaser is a Delaware limited
liability company 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 Transferred
Property. The Purchaser has obtained all necessary qualifications, licenses
and approvals in each jurisdiction where the failure to do so would
materially and adversely affect the ability of the Purchaser to perform its
obligations under the Transaction Documents or affect the enforceability or
collectibility of the Receivables or any other part of the Transferred
Property.
(b) Authorization and No Contravention. The execution, delivery and
performance by the Purchaser of the Transaction Documents to which it is a
party have been duly authorized by all necessary action on the part of the
Purchaser and do not contravene or constitute a default under (i) any
applicable law, rule or regulation, (ii) its organizational documents or
(iii) any indenture or agreement or instrument to which the Purchaser is a
party or by which its properties are bound (other than violations of such
laws, rules, regulations, indentures or agreements which do not affect the
legality, validity or enforceability of any of such agreements and which,
individually or in the aggregate, would not materially and adversely affect
the transactions contemplated by, or the Purchaser's ability to perform its
obligations under, the Transaction Documents).
(c) No Consent Required. No approval or authorization by, or filing
with, any Governmental Authority is required in connection with the
execution, delivery and performance by the Purchaser 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
4 2003-A Transfer and Assignment Agreement
the Receivables or any other part of the Transferred Property or would
materially and adversely affect the ability of the Purchaser to perform its
obligations under the Transaction Documents.
(d) Binding Effect. Each Transaction Document to which the Purchaser
is a party constitutes the legal, valid and binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, receivership, conservatorship or
other similar laws affecting creditors' rights generally and, if
applicable, the rights of creditors of limited liability companies from
time to time in effect or by general principles of equity.
(e) No Proceedings. There are no actions, suits or proceedings
pending or, to the knowledge of the Purchaser, threatened against the
Purchaser before or by any Governmental Authority that (i) assert the
invalidity or unenforceability of this Agreement or any of the other
Transaction Documents, (ii) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this Agreement
or any of the other Transaction Documents, (iii) seeking any determination
or ruling that would materially and adversely affect the performance by the
Purchaser of its obligations under this Agreement or any of the other
Transaction Documents or the collectibility or enforceability of the
Receivables, or (iv) relating to the Purchaser that would materially and
adversely affect the federal or Applicable Tax State income, excise,
franchise or similar tax attributes of the Notes.
(f) Internet Receivables. At least one payment on the receivables
originated by PeopleFirst Finance, LLC and Capital One, F.S.B. on the basis
of loan applications over the Internet have been made by the underlying
obligor to PeopleFirst Finance, LLC or Capital One, F.S.B., as applicable.
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) Existence and Power. The Transferor is a Texas
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 Transferred Property. The Transferor has obtained
all necessary qualifications, licenses and approvals in each
jurisdiction where the failure to do so would materially and
adversely affect the ability of the Transferor to perform its
obligations under the Transaction Documents or affect the
enforceability or collectibility of the Receivables or any other part
of the Transferred Property.
5 2003-A Transfer and Assignment Agreement
(ii) Authorization and No Contravention. The execution,
delivery and performance by the Transferor of the Transaction
Documents to which it is a party have been duly authorized by all
necessary action on the part of the Transferor and do not contravene
or constitute a default under (i) any applicable law, rule or
regulation, (ii) its organizational documents or (iii) any material
indenture or material agreement or instrument to which the Transferor
is a party or by which its properties are bound (other than
violations of such laws, rules, regulations, indentures or agreements
which do not affect the legality, validity or enforceability of any
of such agreements and which, individually or if the aggregate, would
not materially and adversely affect the transactions contemplated by,
or the Transferor's ability to perform its obligations under, the
Transaction Documents).
(iii) No Consent Required. No approval or authorization by,
or filing with, any Governmental Authority is required in connection
with the execution, delivery and performance by the Transferor of any
Transaction Document other than (i) UCC filings, (ii) approvals and
authorizations that have previously been obtained and filings that
have previously been made and (iii) approval, authorizations or
filings which, if not obtained or made, would not have a material
adverse effect on the enforceability or collectibility of the
Receivables or would materially and adversely affect the ability of
the Transferor to perform its obligations under the Transaction
Documents.
(iv) Binding Effect. Each Transaction Document to which the
Transferor is a party constitutes the legal, valid and binding
obligation of the Transferor enforceable against the Transferor in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, receivership, conservatorship or other similar laws
affecting creditors' rights generally and, if applicable, the rights
of creditors of limited liability companies from time to time in
effect or by general principles of equity.
(v) No Proceedings. There are no actions, suits or
proceedings pending or, to the knowledge of the Transferor,
threatened against the Transferor before or by any Governmental
Authority that (i) assert the invalidity or unenforceability of this
Agreement or any of the other Transaction Documents, (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement or any of the other
Transaction Documents, (iii) seeking any determination or ruling that
would materially and adversely affect the performance by the
Transferor of its obligations under this Agreement or any of the
other Transaction Documents, or (iv) relating to the Transferor that
would materially and adversely affect the federal or Applicable Tax
State income, excise, franchise or similar tax attributes of the
Notes.
(vi) Trade Name. "Capital One Auto 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
6 2003-A Transfer and Assignment Agreement
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.
(vii) Ability to Perform. There has been no material
impairment in the ability of the Transferor to perform its
obligations under this Agreement.
(viii) 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 value of such Receivables
under the circumstances of the transaction, including but not limited
to, timing of such assignment.
(ix) Principal Executive Office. Since its inception, the
Transferor has maintained its principal executive office in the State
of Texas.
(x) No Omission or Misstatement. Neither this Agreement
nor any statement, report or other document furnished or to be
furnished pursuant to this Agreement by the 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.
7 2003-A Transfer and Assignment Agreement
(xi) Perfection Representations. The Perfection
Representations set forth on Schedule I shall be a part of this
Agreement for all purposes.
(xii) 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 where the failure to file such returns or make such payments
would have a material adverse effect on the ability of the Transferor
to perform its obligations under the Transaction Documents to which
it is a party or affect the enforceability or collectibility of the
Receivables or any other part of the Transferred Property. 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.
(xiii) Adequate Provisions for Taxes. The provisions for
taxes on the Transferor's books are in accordance with generally
accepted accounting principles.
(xiv) 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.
(b) On the Closing Date or on each Funding Date, as the case may be,
the Transferor hereby makes the representations and warranties set forth
below as to the Receivables transferred, assigned, set over, sold and
otherwise conveyed to the Purchaser under this Agreement 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 Cutoff Date for such Receivable, but shall
survive the grant of the absolute assignment of the Receivables to the
Purchaser, the subsequent transfer of the Receivables by the Purchaser to
the Issuer pursuant to the Contribution 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, the Transferor 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.
(i) Characteristics of Receivables. Each Receivable (A) to
the extent originated by COAF has been originated in the United
States of America by COAF, in the ordinary course of COAF's business,
and has been fully and properly executed by the Obligor 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
8 2003-A Transfer and Assignment Agreement
case of a Receivable originated by PeopleFirst Finance, LLC or
Capital One, F.S.B., in favor of the applicable Referral Originator,
PeopleFirst Finance, LLC or Capital One, F.S.B., as applicable, in
the related Financed Vehicle which has been validly assigned by such
Referral Originator, PeopleFirst Finance, LLC or Capital One, F.S.B.,
as applicable, 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 Agreement and
contributed and assigned by the Purchaser to the Issuer in accordance
with the terms of the Contribution Agreement and Granted by the
Issuer 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 Simple Interest
Receivables), and (F) to the best knowledge of COAF, is due from an
Obligor which is a resident 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) 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
Xxxxxxxx-Xxxx 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.
(iv) 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.
9 2003-A Transfer and Assignment Agreement
(v) 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.
(vi) Security Interest in Financed Vehicle. As of the
Closing Date or Funding Date, as applicable, (1) each Receivable was
secured by a first priority validly perfected security interest in
the Financed Vehicle in favor of the Transferor, 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 Transferor, as secured party, (2) in
the case of a Referral Receivable, such Referral Receivable was
secured by a first priority validly perfected security interest in
the related Financed Vehicle in favor of the Referral Originator
thereof, 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
Referral Originator, as secured party, which security interest has
been validly assigned by such Referral Originator to the Transferor
or (3) in the case of a Receivable originated by PeopleFirst Finance,
LLC or Capital One, F.S.B., such Receivable was secured by a first
priority validly perfected security interest in the Financed Vehicle
in favor of PeopleFirst Finance, LLC or Capital One, F.S.B., as
applicable, as secured party, or all necessary actions with respect
to the Receivable have been taken or will be taken to perfect a first
priority security interest in the Financed Vehicle in favor of
PeopleFirst Finance, LLC or Capital One, F.S.B., as applicable, as
secured party, which security interest has been validly assigned by
PeopleFirst Finance, LLC or Capital One, F.S.B., as applicable, to
the Transferor. The security interests described in clauses (1), (2)
and (3) above are assignable and have been so assigned by the
Transferor to the Purchaser and by the Purchaser to the Issuer.
(vii) 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.
(viii) 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.
(ix) 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.
(x) No Defenses. The Receivables are not subject to any
right of rescission, recoupment, setoff, counterclaim or defense.
10 2003-A Transfer and Assignment Agreement
(xi) No Liens. No liens or claims have been filed for
work, labor or materials relating to the Financed Vehicle that would
be Liens prior to, or equal or concordant with, the security interest
in the Financed Vehicle granted by the related Obligor pursuant to
the related Receivable, there is no lien against the Financed Vehicle
for delinquent taxes nor has such Receivable been satisfied,
subordinated or rescinded.
(xii) 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.
(xiii) Origination Date. All of the Receivables assigned
hereunder have been originated on or before the applicable Cutoff
Date.
(xiv) 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.
(xv) 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.
(xvi) 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.
11 2003-A Transfer and Assignment Agreement
(xvii) 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.
(xviii) One Original. There is only one manually executed
original of the retail Contract for each Receivable.
(xix) Maturity of Receivables. Each of the Receivables has
a remaining 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 August 1,
2009.
(xx) 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.
(xxi) Contract Rate. Each of the Initial Receivables has a
Contract Rate of 6.45% or higher and each of the Subsequent
Receivables has a Contract Rate of 6.00% or higher.
(xxii) Outstanding Receivable Balance. Receivables
constituting the Receivables Pool each have an outstanding balance of
greater than $3,000 and no more than $40,000.
(xxiii) Financing. Each of the Receivables is a Simple
Interest Receivable.
(xxiv) Bankruptcy Proceeding. As of the applicable Cutoff
Date, none of the Receivables was noted in the Transferor's records
as a dischargeable debt under a bankruptcy proceeding and none of the
Receivables has been reduced or discharged in any bankruptcy
proceeding.
(xxv) Chattel Paper. Each of the Receivables constitutes
either "chattel paper", an "account", an "instrument" or a "payment
intangible", as defined in the UCC.
(xxvi) Age of Financed Vehicles. As of the Closing Date or
Funding Dates, as the case may be, the aggregate Receivable Balance
which relates to new Financed Vehicles represents at least 28% of the
Aggregate Receivable Balance.
(xxvii) 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
12 2003-A Transfer and Assignment Agreement
or Funding Date, as the case may be, is fully secured by the related
Financed Vehicle.
(xxviii) Receivable Balance. The Receivables do not have a
Receivable Balance which includes capitalized interest, physical
damage insurance or late charges.
(xxix) Servicing. At the applicable Cutoff Date, each of the
Receivables was being serviced by the Servicer.
(xxx) No Proceedings. There are no proceedings or
investigations pending, or, to the best knowledge of the Transferor,
threatened, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the
Transferor or its properties: (A) asserting the invalidity,
illegality or lack of enforceability of the Receivables; (B) seeking
to prevent the enforcement of the Receivable; (C) seeking any
determination or ruling that might materially and adversely affect
the payment on or enforceability of each Receivable; or (D) relating
to the bankruptcy or insolvency of the related Obligor.
(xxxi) 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.
(xxxii) 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.
(xxxiii) No Litigation. None of the Receivables has been in
litigation or restructured.
(xxxiv) No Charge Off. None of the Receivables has been
charged off for accounting purposes by the Transferor.
(xxxv) 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.
(xxxvi) No Fraud, Misrepresentation. None of the Receivables
has been originated with any fraud or misrepresentation.
(xxxvii) Dealer's Agreements. Where applicable, Dealer that
sold a Receivable to the Transferor has entered into a Dealer
Agreement with the Transferor and such Dealer Agreement constitutes
the entire agreement between the Transferor and the related Dealer
with respect to the sale of such Receivable
13 2003-A Transfer and Assignment Agreement
to the Transferor. Such Dealer 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 Agreement; the Transferor has fully performed all
of its obligations under such Dealer Agreement; the Transferor has
not made any statements or representations to such Dealer (whether
written or oral) inconsistent with any term of such Dealer 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 Agreement. The Receivable was originated in the United
States for the retail sale of the Financed Vehicle in the ordinary
course of the Dealer's business.
(xxxviii) Obligor Responsibility. Each of the Receivables (i)
contains provisions requiring the Obligor (A) to pay all taxes (e.g.,
sales, use, property, excise and other similar taxes) imposed on or
with respect to the related Financed Vehicle and (B) to provide
physical damage insurance covering the related Financed Vehicle (ii)
does not contain provisions giving the Obligor the specific right to
offset payments due under the Receivable by reason of any set-off,
counterclaim or defense, provided, however, that the Receivable may
provide the FTC anti-holder-in-due course notice, giving the Obligor
the right to recover against the holder of the Receivable up to the
amount paid thereunder for any claims the Obligor has against the
Transferor, the Referral Originator, PeopleFirst Finance, LLC or
Capital One, F.S.B., as applicable.
(xxxix) Substitution, Etc. None of the Receivables provides
for the substitution, exchange or addition of any Financed Vehicle
subject to such Receivable.
(xl) 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.
(xli) 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.
(xlii) [Reserved].
(xliii) Parties. As of the date of origination, the parties
to the Receivables were the related Dealer, Referral Originator,
PeopleFirst Finance, LLC or Capital One, F.S.B. and the Obligors.
14 2003-A Transfer and Assignment Agreement
(xliv) 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.
(xlv) Not Subject to Transfer Taxes. The assignment of the
Receivables by the Transferor pursuant to this 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.
(xlvi) 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.
(xlvii) 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.
(xlviii) No Purchase After Cutoff Date. None of the
Receivables was purchased by the Transferor after the applicable
Cutoff Date.
(xlix) 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.
(l) Underwriting Guidelines. Each of the Receivables has
been originated in accordance with the Credit Policy.
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:
15 2003-A Transfer and Assignment Agreement
(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 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 computer 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.
Further, the Transferor hereby agrees that the Transferor's computer files
relating to the Receivables will indicate 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
Transferred 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 and the Note Insurer 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 Transferred 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 and the Note Issuer of such filing, to the Indenture
Trustee within thirty (30) days following the Closing Date or Funding
Date, as the case may be, or promptly following such later date as
such file-stamped copies or other evidence is received by or on
behalf of the Purchaser.
(iii) Other Documents. Such other documents as the
Purchaser may reasonably request.
(d) Documents to be Delivered by the Transferor in Connection with
the Closing Date or Funding Date. Within two (2) Business Days preceding
the Closing Date or Funding Date, as the case may be, the Transferor shall
deliver or cause to be delivered to the Custodian or its designated bailee
thereof, the Custodian File. Such
16 2003-A Transfer and Assignment Agreement
delivery of Custodian Files shall be accompanied by a Certificate of
Delivery substantially in the form of Exhibit B 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.
(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:
(a) Representations and Warranties True. The representations and
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
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 Transferred 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 Transferred 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
17 2003-A Transfer and Assignment Agreement
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 Section 9-508 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 Transferred 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, 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 Issuer or the Indenture Trustee, or upon the Transferor's
otherwise being given notice thereof by the Purchaser, 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 [Reserved].
18 2003-A Transfer and Assignment Agreement
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, such other office of the Custodian as specified in the Indenture or at
the Custodian's agent or designated designee.
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.
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 Issuer 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
Issuer, 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 Issuer,
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
19 2003-A Transfer and Assignment Agreement
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 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 Issuer, 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.
5.14 Notice of Breach. The Purchaser and the Transferor shall notify the
Indenture Trustee, the Issuer, 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) The Transferor and the Purchaser, as applicable, shall inform
the Issuer, the Servicer (if the Servicer is not the Transferor), the Note
Insurer, the Indenture Trustee and the Swap Counterparty promptly, in
writing, upon (i) the discovery of any event, that if it continues uncured
will, with the lapse of time and/or the giving of notice, constitute an
Eligibility Repurchase Event or a Custodian File Repurchase Event and (ii)
the occurrence of the day that is 10 days prior to the First Title Delivery
Date of each
20 2003-A Transfer and Assignment Agreement
Receivable for which no Certificate of Title has been delivered to the
Custodian or its agent (unless notice of such occurrence has been delivered
by the Servicer pursuant to Section 2.07 of the Servicing Agreement).
Except as specifically provided in the Servicing Agreement or Indenture,
the Indenture Trustee has no obligation to review or monitor the
Transferred Property for compliance with representations and warranties,
delivery requirements or payments. Upon the occurrence of a Repurchase
Event, the Purchaser shall assign to the Transferor the related Receivable
and the other related items of Transferred Property and the Transferor
shall accept such assignment from the Purchaser and the Transferor shall
deposit (or cause the deposit of) the Repurchase Price for such Receivable
into the Collection Account within five (5) Business Days following the
occurrence of such Repurchase Event. The Issuer shall be entitled to
enforce the obligations of the Purchaser, the Transferor and the applicable
Dealer under this Agreement and the applicable Dealer Agreements,
respectively, to remit the Repurchase Price for deposit into the Collection
Account. The Indenture Trustee and the Note Insurer are authorized by the
parties hereto to take action on behalf of the Issuer to enforce the
obligations of the Transferor to repurchase Receivables under this
Agreement, and to enforce the obligation of a Dealer to repurchase such
Receivable under the applicable Dealer Agreement.
(b) The (i) obligation of the Transferor to repurchase Receivables
and to deposit the Repurchase Price for such Receivables pursuant to
Section 7.02 of this Agreement, (ii) the obligation of Purchaser to
repurchase Receivables and to deposit (or cause the deposit of) the
Repurchase Price for such Receivables pursuant to Section 7.02 of the
Contribution Agreement, (iii) the obligation of the Issuer to release the
Lien of the Indenture with respect to Repurchased Receivables and related
Trust Property pursuant to Section 2.15 of the Indenture and (iv) the
indemnification provisions expressly set forth in the Indenture, the
Servicing Agreement, the Contribution Agreement, this Agreement and the
Insurance Agreement which specifically relate to Repurchased Receivables
shall constitute the only remedies for Repurchase Events available to the
Indenture Trustee, the Note Insurer, the Swap Counterparty, any other party
to a Transaction Document or the Noteholders.
7.03 Purchaser's Assignment of Repurchased Receivables. With respect to
any Repurchased Receivable, the Purchaser shall assign, without recourse,
representation or warranty, to the Transferor all the Purchaser's right, title
and interest in and to such Repurchased Receivable, and all Transferred Property
relating thereto.
7.04 Subsequent Transfer and Pledge. The Transferor acknowledges that (a)
the Purchaser will absolutely assign the Receivables and the other Transferred
Property along with the Purchaser's rights and benefits hereunder to the Issuer
pursuant to the terms of the Contribution Agreement, (b) the Issuer will Grant
the Receivables and the other Transferred Property along with the Issuer'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.
21 2003-A Transfer and Assignment Agreement
7.05 Amendment. This Agreement may be amended, restated or supplemented
from time to time by a written agreement duly executed and delivered by the
Transferor and the Purchaser, but only with (a) fifteen (15) days' prior written
notice to the Rating Agencies and (b) the prior written consent of the Note
Insurer. 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 in Section 14.04(b) of the Indenture or at such
other address as may be designated by it by notice to the other party and shall
be deemed given when so delivered, or if mailed. Any notice to the Note Insurer
shall be given in accordance with the terms of the Insurance Agreement.
7.08 Costs and Expenses. The Transferor shall pay all expenses, including
fees and expenses of counsel, incident to the performance of its obligations
under this Agreement and the Transferor agrees to pay all reasonable
out-of-pocket costs and expenses, including reasonable attorneys fees in
connection with the enforcement of any obligation of the Transferor hereunder.
The Purchaser shall pay all expenses, including fees and expenses of counsel,
incident to the performance of its obligations under this Agreement.
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.
22 2003-A Transfer and Assignment 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 Issuer 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 Issuer or the Purchaser, or
join any other Person in instituting against the Issuer 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 Issuer, the
Note Insurer or the Indenture Trustee shall be for the benefit of and run
directly to 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 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. 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.
7.16 Limitation and Subordination of Obligations. The Purchaser's
obligations under this Agreement are obligations solely of the Purchaser and
will not constitute a claim against the Purchaser to the extent that the
Purchaser does not have funds sufficient to make payment of such obligations. In
furtherance of and not in derogation of the foregoing, the Transferor, by
entering into or accepting this Agreement, acknowledges and agrees that it has
no right, title or interest in or to the Other Assets of the Purchaser. To the
extent that, notwithstanding the
23 2003-A Transfer and Assignment Agreement
agreements and provisions contained in the preceding sentence, the Transferor
either (i) asserts an interest or claim to, or benefit from, Other Assets, or
(ii) is deemed to have any such interest, claim to, or benefit in or from Other
Assets, whether by operation of law, legal process, pursuant to applicable
provisions of insolvency laws or otherwise (including by virtue of Section
1111(b) of the Bankruptcy Code or any successor provision having similar effect
under the Bankruptcy Code), then the Transferor further acknowledges and agrees
that any such interest, claim or benefit in or from Other Assets is and will be
expressly subordinated to the indefeasible payment in full, which, under the
terms of the relevant documents relating to the securitization or conveyance of
such Other Assets, are entitled to be paid from, entitled to the benefits of, or
otherwise secured by such Other Assets (whether or not any such entitlement or
security interest is legally perfected or otherwise entitled to a priority of
distributions or application under applicable law, including insolvency laws,
and whether or not asserted against the Purchaser), including the payment of
post-petition interest on such other obligations and liabilities. This
subordination agreement will be deemed a subordination agreement within the
meaning of Section 510(a) of the Bankruptcy Code. The Transferor further
acknowledges and agrees that no adequate remedy at law exists for a breach of
this Section 7.16 and the terms of this Section 7.16 may be enforced by an
action for specific performance. The provisions of this Section 7.16 will be for
the third party benefit of those entitled to rely thereon and will survive the
termination of this Agreement.
24 2003-A Transfer and Assignment Agreement
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
CAPITAL ONE AUTO FINANCE, INC.,
as Transferor
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Manager of Securitization
CAPITAL ONE AUTO RECEIVABLES,
LLC, as Purchaser
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
Assistant Vice President
S-1 2003-A Transfer and Assignment Agreement
SCHEDULE I
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in
the 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 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. Each Receivable constitutes either "chattel paper", an "account", an
"instrument" or a "payment intangible", within the meaning of UCC Section 9-102.
3. COAF has taken or will take all steps necessary to perfect its security
interest against the Obligors in the Financed Vehicles.
Creation
4. 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
5. The Transferor has caused or will have caused, within ten days after the
effective date of the Indenture, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the contribution and sale of the Transferred
Property from COAF to the Seller, the transfer and sale of the Transferred
Property from the Seller to the Issuer, and the security interest in the
Collateral granted to the Indenture Trustee hereunder.
6. With respect to Collateral that constitutes tangible chattel paper, such
tangible chattel paper is in the possession of the Custodian and the Indenture
Trustee has received a written acknowledgment from the Custodian that the
Custodian is holding such tangible chattel paper solely on behalf and for the
benefit of the Indenture Trustee.
I-1 2003-A Transfer and Assignment Agreement
Priority
7. Neither the Transferor, the Servicer nor the Issuer has authorized the
filing of, or is aware of any financing statements against either the Seller,
the Transferor or the Issuer that include a description of the Collateral, the
Transferred Property and proceeds related thereto other than any financing
statement (i) relating to the sale of Transferred Property by the Transferor to
the Seller under the Agreement, (ii) relating to the contribution of Transferred
Property by the Seller to the Issuer under the Contribution Agreement, (iii)
relating to the security interest granted to the Indenture Trustee hereunder, or
(iv) that has been terminated.
8. Neither the Seller, the Transferor nor the Issuer is aware of any
judgment, ERISA or tax lien filings against either the Seller, the Transferor or
the Issuer.
9. None of the tangible chattel paper that constitute or evidence the
Receivables has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Indenture Trustee.
Survival of Perfection Representations
10. Notwithstanding any other provision of the 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 Agreement, Contribution Agreement and the Indenture have
been finally and fully paid and performed.
No Waiver
11. The parties hereto: (i) shall not, without obtaining a confirmation of the
then-current rating of the Class A Notes, waive any of the Perfection
Representations; (ii) shall provide the Ratings Agencies with prompt written
notice of any breach of the Perfection Representations, and shall not, without
obtaining a confirmation of the then-current rating of the Class A Notes (as
determined after any adjustment or withdrawal of the ratings following notice of
such breach) waive a breach of any of the Perfection Representations.
I-2 2003-A Transfer and Assignment Agreement
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
June 3, 2003 (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 except as set forth in the Transfer and Assignment Agreement, all of
the Transferor's right, title and interest, whether now or hereafter existing,
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 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 Contracts relating to 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 2003-A Transfer and Assignment Agreement
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: /s/
--------------------------------------
A-2 2003-A Transfer and Assignment Agreement
EXHIBIT B
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 pursuant to the Transfer and Assignment Agreement, the
undersigned, as servicer (the "Servicer"), hereby certifies that the documents
included in the definition of "Custodian File" are included in the Custodian
File 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 June 3, 2003 by and
between Capital One Auto Finance Trust 2003-A, and the Indenture Trustee (the
"Indenture") for each of the Receivables listed on the attached Schedule of
Receivables. Unless otherwise defined herein, capitalized terms have the
meanings set forth in Section 1.01 of the Indenture. Notwithstanding the
foregoing, 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.
CAPITAL ONE AUTO FINANCE, INC.
Date: ___________, 200___ By: /s/
--------------------------------------
2003-A Transfer and Assignment Agreement
