Exhibit 10.2
CONTRIBUTION AGREEMENT
by and between
CAPITAL ONE AUTO RECEIVABLES, LLC,
as Seller
and
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee for
Capital One Auto Finance Trust 2002-B
Dated as of September 16, 2002
$1,154,030,000
CAPITAL AUTO FINANCE TRUST 2002-B
ASSET BACKED NOTES, SERIES 2002-B
CLASS A NOTES AND CLASS B NOTES
TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS ....................................................... 1
ARTICLE II CONTRIBUTION AND ACQUISITION OF RECEIVABLES ............................... 2
Section 2.01 Contribution and Acquisition of Receivables .......................... 2
Section 2.02 The Closing .......................................................... 3
Section 2.03 Funding Dates ........................................................ 4
ARTICLE III REPRESENTATIONS AND WARRANTIES ............................................ 4
Section 3.01 Representations and Warranties of the Owner Trustee .................. 4
Section 3.02 Representations and Warranties of the Seller ......................... 5
ARTICLE IV CONDITIONS ................................................................ 8
Section 4.01 Conditions to Obligation of the Owner Trustee ........................ 8
Section 4.02 Conditions to Obligation of the Seller ............................... 10
ARTICLE V COVENANTS OF THE SELLER ................................................... 10
Section 5.01 Protection of Right, Title and Interest .............................. 10
Section 5.02 Other Liens or Interests ............................................. 11
Section 5.03 Principal Executive Office ........................................... 11
Section 5.04 Full Force and Effect ................................................ 11
Section 5.05 Costs and Expenses ................................................... 11
Section 5.06 No Waiver ............................................................ 11
Section 5.07 Location of Servicer Files ........................................... 11
Section 5.08 [Reserved] ........................................................... 11
Section 5.09 Transfer of Receivables .............................................. 11
Section 5.10 Seller's Records ..................................................... 11
Section 5.11 [Reserved] ........................................................... 11
Section 5.12 Cooperation by Seller ................................................ 11
Section 5.13 Transfer of Additional Receivables ................................... 12
Section 5.14 Notice of Breach ..................................................... 12
Section 5.15 No Violation ......................................................... 13
ARTICLE VI [RESERVED] ................................................................ 13
ARTICLE VII MISCELLANEOUS PROVISIONS .................................................. 13
Section 7.01 Obligations of Seller ................................................ 13
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TABLE OF CONTENTS
(continued)
Page
Section 7.02 Repurchase Events .................................................... 13
Section 7.03 Owner Trustee's Assignment of Repurchased Receivables ................ 14
Section 7.04 Subsequent Pledge .................................................... 14
Section 7.05 Amendment ............................................................ 14
Section 7.06 Waivers .............................................................. 15
Section 7.07 Notices .............................................................. 15
Section 7.08 [Reserved] ........................................................... 16
Section 7.09 Representations ...................................................... 16
Section 7.10 Confidential Information ............................................. 16
Section 7.11 Headings and Cross-References ........................................ 16
Section 7.12 Governing Law ........................................................ 16
Section 7.13 Counterparts ......................................................... 16
Section 7.14 No Bankruptcy Petition Against the Trust ............................. 16
Section 7.15 Third Party Beneficiaries ............................................ 16
Section 7.16 Limitation on Liability .............................................. 17
Section 7.17 Limitations of Liability ............................................. 17
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CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT is made as of this September 16, 2002, by and
between Capital One Auto Receivables, LLC, a Delaware limited liability company
(the "Seller"), and WILMINGTON TRUST COMPANY, a Delaware banking corporation not
in its individual capacity but solely as Owner Trustee for Capital One Auto
Finance Trust 2002-B (the "Owner Trustee"), a Delaware common law trust (the
"Trust").
WHEREAS, the Seller has acquired and will acquire in the ordinary course
of business, certain Receivables (as defined in the Indenture described below),
each secured by a security interest granted by the related Obligors (as defined
in the Indenture) in the Financed Vehicles (as defined in the Indenture)
financed thereby from Capital One Auto Finance, Inc., a Texas corporation (the
"Transferor"), pursuant to the terms of that certain Transfer and Assignment
Agreement dated of even date herewith (the "Transfer and Assignment Agreement")
by and between the Transferor and the Seller; and
WHEREAS, the Seller and the Owner Trustee wish to set forth the terms and
provisions pursuant to which the Receivables are to be transferred by the Seller
to the Owner Trustee on the Closing Date and on each Funding Date (both as
defined in the Indenture), which Receivables will then be Granted (as defined in
the Indenture) by the Owner Trustee to the Indenture Trustee for the benefit of
the Noteholders and the Note Insurer (both as defined in the Indenture), as
their interests appear, pursuant to the terms of that certain Indenture dated of
even date herewith (the "Indenture") by and between the Owner Trustee and
JPMorgan Chase Bank, as indenture trustee (the "Indenture Trustee").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Capitalized terms used but not defined in this Agreement shall have the
meanings set forth in the Indenture. As used in this Agreement, the following
terms shall, unless the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms of such
terms and to the masculine, feminine and neuter genders of such terms):
"Agreement" or "Contribution Agreement" means this Contribution Agreement
and all amendments and restatements hereof and supplements hereto.
"Assignment" means the document of assignment substantially in the form
attached to this Agreement as Exhibit A.
"Perfection Representations" means the representations, warranties and
covenants set forth in Schedule 1 attached hereto.
ARTICLE II
CONTRIBUTION AND ACQUISITION OF RECEIVABLES
Section 2.01 Contribution and Acquisition of Receivables. On the Closing
Date and on each Funding Date, subject to the terms and conditions of this
Agreement, the Seller agrees to contribute and assign to the Owner Trustee, and
the Owner Trustee agrees to acquire from the Seller, the Receivables and the
other Trust Property relating thereto.
(a) Initial Contribution of Receivables and Trust Property. On
the Closing Date and simultaneously with the transactions pursuant to the
Transfer and Assignment Agreement and the Indenture, the Seller shall
contribute and assign to the Owner Trustee, without recourse except as
set forth herein, all of the Seller's right, title and interest, whether
now or hereafter existing, in and to (i) the Initial Receivables
identified on a Schedule of Receivables delivered on the Closing Date,
and all moneys received thereon (including amounts received on any
Extended Service Agreements relating thereto), after the related Cutoff
Date (except for interest accrued as of the related Cutoff Date and
actually received subsequent to such Cutoff Date which shall be withdrawn
from the Revenue Fund, to the extent contained therein, and paid to the
Seller); (ii) the security interest in the Financed Vehicles granted by
the Obligors pursuant to such Receivables and the Certificates of Title
to such Financed Vehicles; (iii) the interest of the Seller in any
proceeds from claims on any physical damage, credit life, risk default,
disability or other insurance policies covering the Financed Vehicles or
the Obligors or refunds in connection with Extended Service Agreements
relating to 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 Seller in and to any recourse against COAF or any Dealer
pursuant to the Transfer and Assignment Agreement or the applicable
Dealer Agreement, respectively; (vi) the original retail installment
contracts and security agreements and/or installment loans evidencing the
Initial Receivables; and (vii) the proceeds of any and all of the
foregoing. (All of the property identified in this subsection (a) and the
following subsection (c) shall constitute "Trust Property".)
(b) Consideration for Initial Receivables. In consideration of
the Receivables and the Trust Property described in Section 2.01(a), the
Seller shall, on the Closing Date, receive an amount equal to the
Receivables Purchase Price in the form of cash by federal wire transfer
funds and the Seller shall make a capital contribution to the Trust on
the Closing Date of Initial Receivables in an amount equal to 3.90% of
the Aggregate Receivables Balance of such Receivables as of the
applicable Cutoff Date.
(c) Contribution of Subsequent Receivables and Trust Property.
On each Funding Date, the Seller shall contribute and assign to the Owner
Trustee, without recourse except as set forth herein, all of the Seller's
right, title and interest, whether now or hereafter existing, in and to
(i) the Subsequent Receivables identified on a Schedule of Receivables
delivered on such Funding Date, and all moneys received thereon
(including amounts received on any Extended Service Agreements relating
thereto), after the respective Cutoff Date (except for interest accrued
as of the related Cutoff Date and actually received subsequent to the
related Cutoff Date which shall be withdrawn from
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the Revenue Fund, to the extent contained therein, and paid to the
Transferor); (ii) the security interest of the Seller in the Financed
Vehicles granted by the Obligors, related Dealer or Referral Originator
to COAF pursuant to such Subsequent Receivables and the certificates of
title to such Financed Vehicles; (iii) the interest of the Seller in any
proceeds from claims on any physical damage, credit life, risk default,
disability or other insurance policies covering the Financed Vehicles or
the Obligors or refunds in connection with Extended Service Agreements
relating to Defaulted Receivables from the related Cutoff Date; (iv) any
property (including the right to receive future Liquidation Proceeds)
that shall secure a Subsequent Receivable; (v) all right, title and
interest of the Seller in and to any recourse against the Transferor or
any Dealer pursuant to the Transfer and Assignment Agreement or the
applicable Dealer Agreement, respectively; (vi) the original retail
installment contracts and security agreements and/or installment loans
evidencing the Subsequent Receivables; and (vii) the proceeds of any and
all of the foregoing; provided, however, that Subsequent Receivables may
not be acquired by the Seller from the Transferor, contributed and
assigned by the Seller to the Owner Trustee and Granted by the Owner
Trustee to the Indenture Trustee unless the addition of such Subsequent
Receivables to the Receivables Pool meets the requirements set forth in
Section 2.16 of the Indenture.
(d) Consideration for Subsequent Receivables. Upon two (2)
Business Days' prior written notice given by the Owner Trustee to the
Indenture Trustee, the Owner Trustee shall cause the Indenture Trustee,
on the applicable Funding Date, to pay to the Seller an amount equal to
the Receivables Purchase Price with respect to the Subsequent Receivables
acquired from the Seller on such date in cash by federal wire transfer
funds and the Seller shall make a capital contribution to the Trust on
such Funding Date of Subsequent Receivables in an amount equal to 3.90%
of the Aggregate Receivables Balance of such Subsequent Receivables as of
the applicable Cutoff Date. The Seller acknowledges that funds to
transfer the Subsequent Receivables and the other Trust Property relating
thereto on each Funding Date shall be disbursed by the Indenture Trustee
solely from the Issuance Fund pursuant to Section 5.06 of the Indenture.
(e) Absolute Assignment. It is the intention of the Seller and
the Owner Trustee that each contribution, assignment and conveyance
hereunder constitute an absolute assignment of the Trust Property from
the Seller to the Owner Trustee. If, notwithstanding the express
intention of the parties, this Agreement is deemed not to constitute an
absolute assignment of the Trust Property from the Seller to the Owner
Trustee, this Agreement shall be deemed to be a security agreement within
the meaning of Article 8 and Article 9 of the Uniform Commercial Code as
in effect in the Commonwealth of Virginia and the State of Delaware and
the conveyance provided for in this Section 2.01 shall be deemed to be a
grant by the Seller to the Owner Trustee of a valid first priority
perfected security interest in all of the Seller's right, title and
interest in and to the Trust Property.
Section 2.02 The Closing. The transfer of the Initial Receivables shall
take place at a closing (the "Closing") at the offices of Mayer, Brown, Xxxx &
Maw, Chicago, Illinois on the Closing Date, simultaneously with the closings
under the Transfer and Assignment Agreement and the Indenture pursuant to which
(a) the Transferor will absolutely assign all of its right, title
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and interest in and to the Initial Receivables and other Trust Property to the
Seller, (b) the Seller will absolutely assign all of its right, title and
interest in and to the Initial Receivables and other Trust Property to the Owner
Trustee, (c) the Owner Trustee will Grant all of its right, title and interest
in and to the Initial Receivables and other Trust Property to the Indenture
Trustee for the benefit of the Noteholders, the Swap Counterparty and the Note
Insurer, and (d) the Class A Notes and the Class B Notes will be issued.
Section 2.03 Funding Dates. The transfer of the Subsequent Receivables
on a Funding Date shall take place at the offices of the Indenture Trustee or
such other location as the Seller and the Owner Trustee may reasonably agree.
The transfer of the Subsequent Receivables shall be made in accordance with
Section 2.16 of the Indenture pursuant to which (a) the Transferor will
absolutely assign all of its right, title and interest in and to the Subsequent
Receivables and other Trust Property to the Seller, (b) the Seller will transfer
all of its right, title and interest in and to the Subsequent Receivables and
other Trust Property to the Owner Trustee, and (c) the Owner Trustee will Grant
all of its right, title and interest in and to the Subsequent Receivables and
other Trust Property to the Indenture Trustee for the benefit of the
Noteholders, the Swap Counterparty (unless the Interest Rate Swap Agreement has
been terminated and all amounts owed to the Swap Counterparty have been paid in
full) and the Note Insurer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Owner Trustee. The
Owner Trustee hereby represents and warrants to the Seller as of the date hereof
and as of the Closing Date and each Funding Date:
(a) Organization, Etc. The Owner Trustee is a banking
corporation in good standing under the laws of the State of Delaware with
full power and authority to execute and deliver this Agreement and to
perform the terms and provisions hereof. The Owner Trustee is duly
qualified to do business as a foreign business entity in good standing
and has obtained all required licenses and approvals, if any, in all
jurisdictions in which the ownership or lease of property or the conduct
of its business requires such qualification except those jurisdictions in
which failure to be so qualified would not have a material adverse effect
on the business or operations of the Owner Trustee.
(b) Due Authorization. The execution, delivery and performance
by the Owner Trustee of this Agreement have been duly authorized by all
necessary action, do not require any approval or consent of any Person,
do not and will not conflict with any material provision of the
Certificate of Incorporation or bylaws of the Owner Trustee, and do not
and will not conflict with or result in a breach which would constitute a
material default under any agreement for borrowed money binding upon or
applicable to it or such of its property which is material to it, or any
law or governmental regulation or court decree applicable to it or such
material property, and this Agreement is the legal, valid and binding
obligation of the Owner Trustee enforceable in accordance with its terms
except as the same may be limited by insolvency, bankruptcy,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights or by general equity principles.
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(c) No Litigation. No litigation or administrative proceeding
of or before any court, tribunal or governmental body is presently
pending, or to the knowledge of the Owner Trustee threatened, against the
Owner Trustee or its properties or with respect to this Agreement, which,
if adversely determined would, in the opinion of the Owner Trustee, have
a material adverse effect on the transactions contemplated by this
Agreement.
(d) Business Purpose. The Owner Trustee will acquire the
Receivables for a bona fide business purpose and has undertaken the
transactions contemplated herein as principal rather than as agent for
the Seller or any other person.
Section 3.02 Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Owner
Trustee as of the Closing Date and each Funding Date:
(i) Organization, Etc. The Seller is a limited liability
company duly organized under the laws of the State of Delaware
pursuant to a Certificate of Formation and is validly existing as
a limited liability company and is in good standing under the laws
of the State of Delaware. The Seller has full power and authority
to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted and had at all relevant times, and has, the power,
authority and legal right to acquire and transfer the Receivables
acquired and transferred by the Seller.
(ii) Due Qualification. The Seller is duly qualified to
do business as a foreign limited liability company, in good
standing, and has obtained all necessary licenses and approvals,
in all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualifications.
(iii) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and to carry out
its terms; the Seller has full power and authority to transfer the
property transferred to the Owner Trustee and such transfer does
not and will not conflict with or result in a breach which would
constitute a material default under any agreement for borrowed
money binding upon or applicable to it or such of its property
which is material to it, or any law or governmental regulation or
court decree applicable to it or such material property, and this
Agreement is the legal, valid and binding obligation of the Seller
enforceable in accordance with its terms except as the same may be
limited by insolvency, bankruptcy, reorganization or other laws
relating to or affecting the enforcement of creditors' rights or
by general equity principles.
(iv) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms do
not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of
time) a default under the Certificate of Formation and the Limited
Liability Company Agreement of the Seller or any indenture,
agreement
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or other instrument to which the Seller is a party or by which it
is bound; nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this
Agreement); nor violate any law or, to the best of the Seller's
knowledge, any order, rule or regulation applicable to the Seller
of any court or of any federal or state regulatory body,
administrative agency, or other governmental instrumentality
having jurisdiction over the Seller or its properties.
(v) No Proceedings. There are no proceedings or
investigations pending, or, to the Seller's best knowledge,
threatened, before any court, regulatory body, administrative
agency or other governmental instrumentality having jurisdiction
over the Seller or its properties: (A) asserting the invalidity of
this Agreement; (B) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement; or (C) seeking
any determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or
the validity or enforceability of, this Agreement.
(vi) No Consents, Approvals. Neither the execution nor
the delivery by the Seller of this Agreement, nor the performance
of the Seller's obligations hereunder, require the consent or
approval of, the giving of notice to, the registration with, or
the taking of any other action with respect to, any governmental
authority or agency under any existing federal or state law
governing the Seller, except such as have been previously
obtained, made or taken.
(vii) Adequate Provisions for Taxes. The provisions for
taxes on the Seller's books are in accordance with generally
accepted accounting principles.
(viii) Trade Name. "Capital One Auto Receivables, LLC" is
the only trade name under which the Seller is currently operating
its business. For the six (6) years (or such shorter period of
time during which the Seller was in existence) preceding the date
hereof, the Seller operated its business under the trade name
"Capital One Auto Receivables, LLC." "Capital One Auto
Receivables, LLC" is the name of the Seller indicated on the
record of the Seller's jurisdiction of organization which shows
the Seller to have been organized.
(ix) Ability to Perform. There has been no material
impairment in the ability of the Seller to perform its obligations
under this Agreement.
(x) Valid Business Reasons; No Fraudulent Transfers. The
Seller has valid business reasons for contributing the Receivables
rather than obtaining a secured loan with the Receivables as
collateral. At the time of the transfer (A) the Seller contributed
the Receivables to the Owner Trustee without any intent to hinder,
delay, or defraud any current or future creditor of the Seller;
(B) the Seller was not insolvent or did not become insolvent as a
result of the transfer; (C) the Seller was not engaged and was not
about to engage in any business or transaction for which any
property remaining with the Seller was an unreasonably small
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capital or for which the remaining assets of the Seller were
unreasonably small in relation to the business of the Seller or
the transaction; (D) the Seller did not intend to incur, and did
not believe or reasonably should not have believed that it would
incur, debts beyond its ability to pay as they become due; and (E)
the consideration paid by the Owner Trustee to the Seller for the
Receivables transferred by the Seller hereunder was equivalent to
a fair market value of such Receivables under the circumstances of
the transaction, including but not limited to, timing of such
transfer.
(xi) Principal Executive Office. Since its inception, the
Seller has maintained, and from the date of this Agreement shall
maintain, its principal executive office in the Commonwealth of
Virginia, and there has been no other jurisdiction in which the
Seller's principal executive office was located during the four
(4) months preceding the Closing Date.
(xii) No Omission or Misstatement. Neither this Agreement
nor any statement, report or other document furnished or to be
furnished pursuant to this Agreement by the Seller, or in
connection with the transactions contemplated hereby, contains any
untrue statement of fact or omits to state a fact necessary to
make the statements contained herein or therein not misleading
insofar as the same relates to the Seller. The Seller has good and
marketable title to, and is the owner of, each Receivable
transferred by the Seller hereunder and the indebtedness evidenced
by each such Receivable is subject to no Lien, charge, security
interest or encumbrance of any kind or nature and the Seller has
the unqualified right to transfer its ownership interest in each
such Receivable and the indebtedness evidenced thereby; the Seller
has not made any prior transfer of any Receivable or its rights
thereto or thereunder.
(xiii) Perfection Representations. The Perfection
Representations shall be a part of this Agreement for all
purposes.
(xiv) 1940 Act. The Seller is not an "investment company"
as such term is defined in the 1940 Act.
(b) The Seller hereby affirms that each of the representations
and warranties of the Transferor set forth in the Transfer and Assignment
Agreement is true and correct as of the Closing Date or Funding Date, as
the case may be, and each such representation and warranty is hereby
incorporated in this Contribution Agreement as if set forth herein in
full; provided, however, that in incorporating such representations and
warranties (a) each reference in such representations and warranties to
the Transferor shall be deemed to be a reference to the Seller and each
reference to the Seller shall be deemed to be a reference to the Owner
Trustee, (b) each reference in such representations and warranties to an
assignment of the Receivable from the Transferor to the Seller pursuant
to the Transfer and Assignment Agreement shall be deemed to be a
reference to the transfer of the Receivable from the Seller to the Owner
Trustee pursuant to this Contribution Agreement and (c) each reference in
such representations and warranties to the Transferor having good and
marketable title to the Receivable free and clear of Liens
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prior to the assignment from the Transferor to the Seller shall be deemed
to be a reference to the Seller having good and marketable title to the
Receivable free and clear of Liens prior to the transfer from the Seller
to the Owner Trustee.
ARTICLE IV
CONDITIONS
Section 4.01 Conditions to Obligation of the Owner Trustee. The
obligation of the Owner Trustee to accept the transfer of the Receivables is
subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Seller hereunder shall be true and correct on the
Closing Date or Funding Date, as the case may be, with the same effect as
if then made, and the Seller shall have performed all obligations to be
performed by it hereunder on or prior to the Closing Date or Funding
Date, as the case may be.
(b) Files Marked; Files and Records. The Seller shall, at its
own expense, on or prior to the Closing Date or Funding Date, as the case
may be, indicate in its files that the Receivables have been contributed
to the Owner Trustee pursuant to this Agreement and deliver to the Owner
Trustee a Schedule of Receivables certified by the Chairman, the
President, a Vice President or the Treasurer of the Seller to be true,
correct and complete. Further, the Seller hereby agrees that the computer
files and other physical records of the Receivables maintained by the
Seller will bear an indication reflecting that the Receivables were
transferred to the Owner Trustee.
(c) Documents to be Delivered by the Seller on or in connection
with the Closing Date or Funding Date.
(i) The Assignment. As of the Closing Date and each
Funding Date, the Seller shall execute an Assignment substantially
in the form of Exhibit A hereto of the Receivables, the security
interests in the related Financed Vehicles and the other Trust
Property being transferred by the Seller on such date (as
identified on the Schedule of Receivables attached to such
Assignment).
(ii) Evidence of UCC Filings. On or prior to the Closing
Date or Funding Date, as the case may be, the Seller shall provide
the Owner Trustee evidence that the Seller has recorded and filed,
at the expense of the Transferor, (A) Termination Statements in
each jurisdiction in which required by applicable law, if any, to
release any prior security interests in the Receivables granted by
the Seller and (B) UCC financing statements in each jurisdiction
in which required by applicable law, authorized by the Seller, as
seller or debtor, and naming the Owner Trustee, as purchaser or
secured party, identifying the Receivables and the other Trust
Property as collateral, meeting the requirements of the laws of
each such jurisdiction and in such manner as is necessary to
perfect the transfer of such Receivables to the Owner Trustee. The
Seller shall deliver the Perfection UCC's, or other evidence
satisfactory to the Owner Trustee of such filing, to the Indenture
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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 Owner Trustee.
(iii) Other Documents. Such other documents as the Owner
Trustee may reasonably request.
(d) Documents to be Delivered by the Seller In Connection with
the Closing Date or Funding Date. Within two (2) Business Days preceding
the Closing Date or Funding Date, as the case may be, the Seller shall
cause the Transferor to deliver to the Custodian the following documents
(with respect to each Receivable, a "Custodian File"):
(i) the sole original counterpart of the retail
installment contract and security agreement and/or installment
loans evidencing each such Receivable and any and all amendments
thereto; and
(ii) (A) the original Certificate of Title or copies of
correspondence to the appropriate State title registration agency,
and all enclosures thereto, for issuance of the original
Certificate of Title for the related Financed Vehicles or (B) if
the appropriate State title registration agency issues a letter or
other form of evidence of lien in lieu of a Certificate of Title,
the original lien entry letter or form or copies of correspondence
to such State title registration agency, and all enclosures
thereto, for issuance of the original lien entry letter or form
for the related Financed Vehicles.
Such delivery of Custodian Files shall be accompanied by a
Certificate of Delivery substantially in the form of Exhibit D to the
Transfer and Assignment Agreement if COAF is not the Servicer; provided,
however, that, with respect to the Custodian Files delivered pursuant to
this subsection (d) of this Section 4.01, any original Certificate of
Title or other evidence of the lien of the Transferor (or, in the case of
a Referral Receivable, the applicable Referral Originator) not so
delivered to the Custodian due to the fact that such title or other
evidence of lien has not yet been issued by a State title registration
agency and delivered to or on behalf of the Transferor shall be delivered
by the Transferor to the Custodian promptly following receipt thereof by
the Transferor but in no event later than 120 days following the Closing
Date or Funding Date, as the case may be; further provided, however,
that, for any original Certificate of Title or other evidence of lien of
the Transferor (or, in the case of a Referral Receivable, the applicable
Referral Originator) not so delivered to the Custodian, the Seller shall
be deemed to be in breach of its representations and warranties contained
in Section 3.02(b) hereof, and such occurrence shall constitute a
Repurchase Event pursuant to Section 7.02 hereof.
(e) Other Transactions. The transactions contemplated by the
Indenture, the Transfer and Assignment Agreement and the Servicing
Agreement shall be consummated on the Closing Date.
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Section 4.02 Conditions to Obligation of the Seller. The obligation of
the Seller to transfer the Receivables to the Owner Trustee on the Closing Date
or Funding Date, as the case may be, is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Owner Trustee 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 Owner Trustee shall have performed or
cause to be performed all obligations to be performed by it hereunder on
or prior to the Closing Date or Funding Date, as the case may be.
(b) Proceedings. All corporate and legal proceedings and all
instruments in connection with the transactions contemplated by this
Contribution Agreement shall be satisfactory in form and substance to the
Seller, and the Seller shall have received from the Trust or the Owner
Trustee copies of all documents (including, without limitation, records
of Seller proceedings) relevant to the transactions herein contemplated
as the Seller may reasonably have requested.
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Owner Trustee, the Note Insurer and the Swap
Counterparty as follows:
Section 5.01 Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause all financing statements
and continuation statements and any other necessary documents covering
the right, title and interest of the Owner Trustee in and to the
Receivables and the other Trust Property to be promptly filed, and at all
times to be kept recorded, registered and filed, all in such manner and
in such places as may be required by law fully to preserve and protect
the right, title and interest of the Owner Trustee or the Indenture
Trustee hereunder to the Receivables and the other Trust Property. The
Seller shall deliver or cause to be delivered to or at the direction of
the Owner Trustee, file-stamped copies of, or filing receipts for, any
document recorded, registered or filed as provided above, as soon as
available following such recordation, registration or filing. The Owner
Trustee shall cooperate fully with the Seller in connection with the
obligations set forth above and will execute any and all documents
reasonably required to fulfill the intent of this Section 5.01(a).
(b) Name Change. Within fifteen (15) days after the Seller
makes any change in its name, identity, jurisdiction of organization or
structure which would make any financing statement or continuation
statement filed in accordance with paragraph (a) above seriously
misleading within the applicable provisions of the UCC or any title
statute, the Seller shall give the Owner Trustee, the Note Insurer, the
Swap Counterparty (unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid
in full), the Transferor and the Indenture Trustee notice of any such
change and no later than five (5) days after the effective date thereof
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the Seller shall file such financing statements or amendments as may be
necessary to continue the perfection of the Owner Trustee's security
interest in the Trust Property.
Section 5.02 Other Liens or Interests. Except for the transfers
hereunder, the Seller will not sell, pledge, assign or transfer to any other
person, or grant, create, incur, assume or suffer to exist any Lien on, any
interest therein, and the Seller shall defend the right, title, and interest of
the Owner Trustee in, to and under such Receivables against all claims of third
parties claiming through or under the Seller; provided, however, that the
Seller's obligations under this Section 5.02 shall terminate upon the
termination of the Indenture.
Section 5.03 Principal Executive Office. Since its inception, the
Seller has maintained and, from the date of this Agreement, shall maintain its
principal executive office in the Commonwealth of Virginia and shall not change
its jurisdiction of organization.
Section 5.04 Full Force and Effect. The Seller shall keep in full force
and effect its existence, rights and franchises as a limited liability company
under the laws of the State of Delaware.
Section 5.05 Costs and Expenses. The Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection, as against
all third parties, of the transfer to the Owner Trustee of the Seller's right,
title and interest in and to the Receivables.
Section 5.06 No Waiver. The Seller shall not waive any default, breach,
violation or event permitting acceleration under the terms of any Receivable.
Section 5.07 Location of Servicer Files. The Servicer Files, exclusive
of the Custodian Files, are to be kept at the Servicer's principal executive
office. The Custodian Files are to be kept at the principal executive office of
the Custodian or such other office of the Custodian as specified in the
Indenture.
Section 5.08 [Reserved].
Section 5.09 Transfer of Receivables. The Seller will take no action
inconsistent with the transfer of the Receivables to the Owner Trustee for
financial accounting purposes.
Section 5.10 Seller's Records. The financial statements of the Seller
will disclose that, under generally accepted accounting principles, the Seller
transferred the Receivables to the Owner Trustee. The Seller will file all tax
returns and reports in a manner consistent with the transfer to the Seller of
the Receivables for federal income tax purposes.
Section 5.11 [Reserved].
Section 5.12 Cooperation by Seller.
(a) The Seller will cooperate fully and in a timely manner
with the Owner Trustee, the Trust, the Servicer or the Indenture
Trustee in connection with (i) the filing of any claims with an insurer
or any agent of any insurer under any insurance policy affecting an
Obligor or any of the Financed Vehicles; (ii) supplying any additional
11
information as may be requested by the Owner Trustee, the Trust, the
Servicer, the Indenture Trustee or any such agent or insurer in
connection with the processing of any such claim; and (iii) the
execution or endorsement of any check or draft made payable to the
Seller representing proceeds from any such claim. The Seller shall take
all such actions as may be requested by the Owner Trustee, the Trust,
the Servicer or the Indenture Trustee to protect the rights of the
Owner Trustee or the Indenture Trustee on behalf of the Noteholders,
the Swap Counterparty (unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid
in full) and the Note Insurer in and to any proceeds under any and all
of the foregoing insurance policies. The Seller shall not take or cause
to be taken any action which would impair the rights of the Owner
Trustee or the Indenture Trustee on behalf of the Noteholders, the Swap
Counterparty (unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid
in full) and the Note Insurer in and to any proceeds under any of the
foregoing insurance policies.
(b) The Seller shall, within two (2) Business Days of receipt
thereof, endorse any check or draft payable to the Seller representing
insurance proceeds and (i) in the event there are no other payees on
such check or draft, forward, via hand delivery, such endorsed check or
draft to the Servicer for deposit into the Collection Account and (ii)
in the event such check or draft is also payable to the Indenture
Trustee on behalf of the Noteholders, the Swap Counterparty (unless the
Interest Rate Swap Agreement has been terminated and all amounts owed
to the Swap Counterparty have been paid in full) and the Note Insurer,
forward, via overnight courier, to the Indenture Trustee with a copy of
such endorsed check or draft to the Servicer. The Seller will hold in
trust and remit to the Indenture Trustee, within two (2) Business Days
of receipt thereof, any funds received with respect to the Receivables
after the Cutoff Date.
Section 5.13 Transfer of Additional Receivables. The Seller shall use
its best efforts in good faith to make available for transfer to the Owner
Trustee on each Funding Date during the Funding Period, all Receivables acquired
by the Seller which meet the eligibility criteria set forth herein as of such
date. This covenant and agreement shall be for the benefit of the Owner Trustee,
the Note Insurer, the Swap Counterparty (unless the Interest Rate Swap Agreement
has been terminated and all amounts owed to the Swap Counterparty have been paid
in full) and the Indenture Trustee or, if a Note Insurer Default has occurred
and is continuing, the Holders of the Notes and any such Person may enforce its
legal or equitable rights, remedies or claims hereunder.
Section 5.14 Notice of Breach. The Owner Trustee and the Seller shall
notify the Indenture Trustee, the Note Insurer, the Swap Counterparty (unless
the Interest Rate Swap Agreement has been terminated and all amounts owed to the
Swap Counterparty have been paid in full), the Owner Trustee and the Trust
promptly, in writing, of any breach of the representations and warranties or
covenants of the Seller or the Owner Trustee contained herein.
Section 5.15 No Violation. The Seller will not take any action which
would result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of
12
time) a default under, the Limited Liability Company Agreement of the Seller or
Section 3.10(b)(x) of the Indenture.
ARTICLE VI
[RESERVED]
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
Section 7.02 Repurchase Events. The Seller hereby covenants and agrees
to deliver to the Owner Trustee and the Trust, 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 prompt written
notice of the occurrence of a breach of any of the representations and
warranties of the Seller contained or deemed to be contained in Section 3.02(b)
hereof with respect to a Receivable transferred hereunder.
(a) Upon discovery by any of the Transferor, the Seller, the
Owner Trustee, the Trust, the Indenture Trustee, the Note Insurer or
the Servicer of (i) a Nonconforming Receivable or (ii) either (A)
failure to deliver to the Custodian any document required to be
included in the Custodian File or (B) failure to deliver to the
Indenture Trustee the Perfection UCCs, pursuant to Section 7.18 of the
Indenture the party discovering such breach or failure to deliver shall
give prompt written notice to each of the other foregoing parties.
Except as specifically provided in the Servicing Agreement or the
Indenture, the Indenture Trustee has no obligation to review or monitor
the Trust Property for compliance with representations and warranties,
delivery requirements or payments. If (i) the breach of representations
or warranties causing such Receivable to be a Nonconforming Receivable
shall not have been (A) cured within thirty (30) days following notice
thereof or (B) waived by the Note Insurer following notice thereof or
(ii) the failure to deliver to the Custodian the Custodian File
documents or to the Indenture Trustee the Perfection UCCs shall not
have been cured within seven (7) calendar days following notice thereof
(the occurrence of any of the foregoing constitutes a "Repurchase
Event"), the Owner Trustee shall transfer to the Seller and the Seller
shall assign to the Transferor the Receivable and the other related
items of the Trust Property affected by such breach or failure to
deliver and the Seller hereby agrees to accept such transfer from the
Owner Trustee and to deposit or cause to be deposited the Repurchase
Price with respect to such Receivable in the Collection Account within
five (5) Business Days following the applicable cure period or two (2)
Business Days following receipt by the Seller of notice from the Note
Insurer that the Note Insurer will not waive the breach of
representations or warranties causing such Receivable to be a
Nonconforming Receivable; provided that such transfer and assignment
shall only be made upon receipt by the Owner Trustee of notice from the
Servicer (pursuant to the terms of the Servicing Agreement) that the
Repurchase Price has been remitted to the Servicer and deposited into
the Collection Account. In consideration of the removal of such
Receivable and the other related items of the Trust Property, the Owner
Trustee shall cause the Seller and the
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Seller shall cause the Transferor, no later than the fifth Business Day
following such cure period, if any, to pay the Repurchase Price to the
Servicer for deposit into the Collection Account. The Owner Trustee
shall be entitled to enforce the obligations of the Seller, the
Transferor and the applicable Dealer under this Contribution Agreement,
the Transfer and Assignment Agreement and the applicable Dealer
Agreement, respectively, to remit the Repurchase Price to the Servicer
for deposit into the Collection Account. The Indenture Trustee and the
Note Insurer are authorized to take action on behalf of the Trust to
enforce the obligations of the Seller and the Transferor to repurchase
such Receivable under this Contribution Agreement or the Transfer and
Assignment Agreement, respectively, and to enforce the obligation of a
Dealer to repurchase such Receivable under the applicable Dealer
Agreement.
(b) The obligations of the Transferor, the Seller and the
Owner Trustee to remove any Receivable and the other related items of
the Trust Property and to remit the Repurchase Price with respect to a
Nonconforming Receivable or as to which a failure to deliver has
occurred and is continuing shall constitute the sole remedy, except for
the indemnification provisions expressly set forth in the Indenture,
the Servicing Agreement, this Contribution Agreement, the Transfer and
Assignment Agreement and the Insurance Agreement, against the
Transferor, the Seller and the Owner Trustee for such breach or failure
to deliver available to the Indenture Trustee or the Noteholders.
Section 7.03 Owner Trustee's Assignment of Repurchased Receivables.
With respect to any Receivable reacquired by the Seller pursuant to this
Agreement, the Owner Trustee shall assign, without recourse, representation or
warranty, to the Seller all the Owner Trustee's right, title and interest in and
to such Receivable, and all security and documents relating thereto.
Section 7.04 Subsequent Pledge. The Seller acknowledges that (i) the
Owner Trustee will Grant the Receivables and the other Trust Property along with
the Owner Trustee's rights and benefits under this Contribution Agreement and
under the Transfer and Assignment Agreement to the Indenture Trustee pursuant to
the terms of the Indenture and (ii) the terms and provisions hereof are intended
to benefit the Noteholders, the Swap Counterparty (unless the Interest Rate Swap
Agreement has been terminated and all amounts owed to the Swap Counterparty has
been paid in full) and the Note Insurer. The Seller hereby consents to such
Grant.
Section 7.05 Amendment. This Agreement may be amended, restated or
supplemented from time to time by a written agreement duly executed and
delivered by the Seller and the Owner Trustee, but only with (a) fifteen (15)
days' prior written notice to the Rating Agencies, (b) the prior written consent
of the Class B Noteholder and the Note Insurer and (c) if adversely affected
thereby, the prior written consent of the Swap Counterparty (unless the Interest
Rate Swap Agreement has been terminated and all amounts owed to the Swap
Counterparty have been paid in full). No amendment to this Agreement shall be
effective as to the Servicer, to the extent such amendment is disadvantageous in
any respect to the Servicer, unless the Servicer has given its written consent
to the amendment. The Seller shall deliver to the Persons identified on a list
provided to the Seller by the Indenture Trustee, as such list may be amended
from time to time, a copy of any amendment to this Agreement.
14
Section 7.06 Waivers. No failure or delay on the part of the Owner
Trustee or Note Insurer in exercising any power, right or remedy under this
Agreement or an Assignment shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude any other
or further exercise thereof or the exercise of any other power, right or remedy.
Any waiver of the terms and provisions hereof must be in writing and must be
consented to in writing by the Indenture Trustee, the Note Insurer and, if
adversely affected thereby, the Swap Counterparty.
Section 7.07 Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered personally
or mailed by first-class registered or certified mail, postage prepaid, or by
telephonic facsimile transmission and overnight delivery service, postage
prepaid, to any party at the address set forth below or at such other address as
may be designated by it by notice to the other party and shall be deemed given
when so delivered, or if mailed. Any notice to the Note Insurer shall be given
in accordance with the terms of the Insurance Agreement. Any notice given to the
Swap Counterparty shall be given to its address set forth in the Interest Rate
Swap Agreement.
If to the Seller:
Capital One Auto Receivables, LLC
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Manager of Securitization - Copy to: Legal Department
If to the Owner Trustee:
Wilmington Trust Company as owner trustee of
Capital One Auto Finance Trust 0000-X
Xxxxxx Xxxxxx North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
With Copies to:
Capital One Auto Finance, Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Manager of Securitization - Copy to: Legal Department
Mayer, Brown, Xxxx & Maw
000 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Section 7.08 [Reserved].
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Section 7.09 Representations. The respective agreements, representations,
warranties and other statements by the Seller and the Owner Trustee 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.
Section 7.10 Confidential Information. The Owner Trustee agrees that it
will neither use nor disclose to any person other than the Note Insurer, the
Indenture Trustee, the Owner Trustee and the Holders of the Notes the names and
addresses of the Obligors, except in connection with the enforcement of the
Owner Trustee's rights hereunder, under the Receivables, or any agreement
relating to the Receivables or as required by law.
Section 7.11 Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
Section 7.12 Governing Law. This Agreement and the Assignment shall be
governed by and construed in accordance with the internal laws of the State of
Texas.
Section 7.13 Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
Section 7.14 No Bankruptcy Petition Against the Trust. The Seller agrees
that, prior to the date that is one year and one day after the payment in full
of all amounts payable with respect to the Class A Notes and the Class B Notes,
it will not institute against the Owner Trustee or the Seller, or join any other
Person in instituting against the Owner Trustee, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
the laws of the United States or any state of the United States. This Section
7.14 shall survive the termination of the Indenture.
Section 7.15 Third Party Beneficiaries. This Agreement shall inure to the
benefit of the Note Insurer, the Swap Counterparty (unless the Interest Rate
Swap Agreement has been terminated and all amounts owed to the Swap Counterparty
have been paid in full), the Indenture Trustee and their respective successors
and assigns and, if a Note Insurer Default has occurred and is continuing or if
the Aggregate Outstanding Principal Balance of the Class A Notes (and all
interest accrued thereon) has been reduced to zero and all Reimbursement
Obligations and reimbursement of all Swap Termination Payments paid under the
Swap Policy due to the Note Insurer shall have been paid in full, the Class B
Noteholders. Without limiting the generality of the foregoing, all
representations, covenants and agreements in this Agreement which expressly
confer rights upon the Owner Trustee, the Note Insurer or the Indenture Trustee
shall be for the benefit of and run directly to the Owner Trustee, the Indenture
Trustee, the Swap Counterparty (unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid in full)
and the Note Insurer or, if a Note Insurer Default has occurred and is
continuing, the Aggregate Outstanding Principal Balance of the Class A Notes
(and all interest accrued thereon) has been reduced to zero and all
Reimbursement Obligations and reimbursement of all Swap Termination Payments
paid under the Swap Policy due to the
16
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, the Aggregate Outstanding Principal Balance of the
Class A Notes (and all interest accrued thereon) has been reduced to zero and
all Reimbursement Obligations and reimbursement of all Swap Termination Payments
paid under the Swap Policy due to the Note Insurer shall have been paid in full,
the Class B Noteholders, shall be entitled to rely on and enforce such
representations, covenants and agreements to the same extent as if it were a
party hereto.
Section 7.16 Limitation on Liability. Notwithstanding anything to the
contrary contained in this Agreement, the obligations of the Seller under this
Agreement are solely the obligations of the Seller and shall be payable by the
Seller solely to the extent that it receives additional funds designated for
such purposes or to the extent that it has additional funds available that would
be in excess of amounts that would be necessary to pay the debt and other
obligations of such entity incurred in accordance with its Limited Liability
Company Agreement and all financing documents to which it is a party as they
come due. In addition, no amount owing by the Seller hereunder in excess of the
liabilities that it is required to pay in accordance with the preceding sentence
shall constitute a "claim" (as defined in Section 101(5) of the Bankruptcy Code)
against it. No recourse shall be had for the payment of any amount owing
hereunder or any other obligation of, or claim against, the Seller arising out
of or based upon this Agreement against any member, employee, officer, agent,
director or authorized person of the Seller; provided, however, that the
foregoing shall not relieve any such person or entity of any liability they
might otherwise have as a result of fraudulent actions or omissions taken by
them nor shall the foregoing relieve any person of any liability expressly
undertaken by such person under the Transaction Documents.
Section 7.17 Limitations of Liability. It is expressly understood and
agreed by and between the parties hereto that (i) this Agreement is executed and
delivered by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee under the Amended and Restated Trust Agreement dated as of
September 16, 2002 with Capital One Auto Receivables, LLC (the "Trust
Agreement") in the exercise of the power and authority conferred and vested in
it as such Owner Trustee, (ii) each of the representations, undertakings and
agreements made herein by the Owner Trustee are not personal representations,
undertakings and agreements of Wilmington Trust company, but are binding only on
the trust estate created pursuant to the Trust Agreement, (iii) nothing
contained herein shall be construed as creating any liability on Wilmington
Trust Company, individually or personally, to perform any covenant of the Owner
Trustee either expressed or implied contained herein, all such liability, if
any, being expressly waived by the parties hereto and by any person claiming by,
through or under any such party, and (iv) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any
indebtedness or expense of the Owner Trustee or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Owner Trustee under this Agreement.
17
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
CAPITAL ONE AUTO RECEIVABLES, LLC,
as Seller
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
S-1
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee for Capital One Auto Finance
Trust 2002-B
By: /s/ Xxxxxx X. XxxXxxxxx
-------------------------------------
Authorized Officer
S-2
SCHEDULE I
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in
the Indenture, the Owner Trustee hereby represents, warrants, and covenants to
the Indenture Trustee as to itself as follows on the Closing Date and on each
Payment Date thereafter:
General
1. The Contribution Agreement creates a valid and continuing security interest
(as defined in UCC Section 9-102) in the Collateral in favor of the Owner
Trustee, which security interest is prior to all other Liens, and is enforceable
as such as against creditors of and purchasers from the Seller.
2. The Receivables (except for the Interest Rate Swap Agreement) constitute
"tangible chattel paper" within the meaning of UCC Section 9-102.
3. The rights of the Owner Trustee under the Interest Rate Swap Agreement
constitute "general intangibles" within the meaning of the applicable UCC.
4. COAF has taken all steps necessary to perfect its security interest against
the Obligor in the property securing the Receivables that constitute chattel
paper.
Creation
5. The Seller owns and has good and marketable title to the Collateral free
and clear of any Lien, claim or encumbrance of any Person, excepting only liens
for taxes, assessments or similar governmental charges or levies incurred in the
ordinary course of business that are not yet due and payable or as to which any
applicable grace period shall not have expired, or that are being contested in
good faith by proper proceedings and for which adequate reserves have been
established, but only so long as foreclosure with respect to such a lien is not
imminent and the use and value of the property to which the Lien attaches is not
impaired during the pendency of such proceeding.
Perfection
6. The Seller has caused or will have caused, within ten days after the
effective date of the Contribution Agreement, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the contribution and sale
of the Trust Property from COAF to the Seller, the transfer and sale of the
Trust Property from the Seller to the Owner Trustee, and the security interest
in the Collateral granted to the Indenture Trustee hereunder.
7. With respect to Collateral that constitutes tangible chattel paper, such
tangible chattel paper is in the possession of the Custodian and the Indenture
Trustee has received a written acknowledgment from the Custodian that the
Custodian is holding such tangible chattel paper solely on behalf and for the
benefit of the Indenture Trustee.
I-1
Priority
8. Neither the Seller, the Servicer nor the Owner Trustee has authorized the
filing of, or is aware of any financing statements against either the Seller,
the Transferor or the Owner Trustee that include a description of the
Collateral, the Trust Property and proceeds related thereto other than any
financing statement (i) relating to the sale of Trust Property by the Transferor
to the Seller under the Transfer and Assignment Agreement, (ii) relating to the
contribution of Trust Property by the Seller to the Owner Trustee under the
Contribution Agreement, (iii) relating to the security interest granted to the
Indenture Trustee hereunder, or (iv) that has been terminated.
9. Neither the Seller, the Transferor nor the Owner Trustee is aware of any
judgment, ERISA or tax lien filings against either the Seller, the Transferor or
the Owner Trustee.
10. None of the tangible chattel paper that constitute or evidence the
Receivables has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Indenture Trustee.
Survival of Perfection Representations
11. Notwithstanding any other provision of the Transfer and Assignment
Agreement, the Contribution Agreement, the Indenture or any other Transaction
Document, the Perfection Representations contained in this Schedule shall be
continuing, and remain in full force and effect (notwithstanding any replacement
of the Servicer or termination of Servicer's rights to act as such) until such
time as all obligations under the Transfer and Assignment Agreement,
Contribution Agreement and the Indenture have been finally and fully paid and
performed.
No Waiver
12. The parties hereto: (i) shall not, without obtaining a confirmation of the
then-current rating of the Class A Notes, waive any of the Perfection
Representations; (ii) shall provide the Ratings Agencies with prompt written
notice of any breach of the Perfection Representations, and shall not, without
obtaining a confirmation of the then-current rating of the Class A Notes (as
determined after any adjustment or withdrawal of the ratings following notice of
such breach) waive a breach of any of the Perfection Representations.
I-2
EXHIBIT A
ASSIGNMENT
For value received this ___ day of ________, 2002 in accordance with terms
of the Contribution Agreement dated as of September 16, 2002 (the "Contribution
Agreement") by and between Capital One Auto Receivables, LLC, as Seller (the
"Seller"), and Wilmington Trust Company, not in its individual capacity but
solely as Owner Trustee to Capital One Auto Finance Trust 2002-B, (the "Owner
Trustee"), the undersigned does hereby transfer unto the Trust, without
recourse, a 100% interest in and to (i) the [Subsequent] Receivables identified
on the Schedule of Receivables attached hereto and all moneys received thereon
(including amounts received on any Extended Service Agreements relating
thereto), after the respective Cutoff Date (except for interest accrued as of
the Cutoff Date and actually received subsequent to the Cutoff Date which will
be withdrawn from the Revenue Fund, to the extent contained therein, and paid to
the Seller); (ii) the security interest in the Financed Vehicles granted by the
Obligors pursuant to such Receivables and the Certificates of Title to such
Financed Vehicles; (iii) the interest of the Seller in any proceeds from claims
on any physical damage, credit life, risk default or other insurance policies
covering the Financed Vehicles or the Obligors or refunds in connection with
Extended Service Agreements relating to Defaulted Receivables from the
applicable Cutoff Date; (iv) any property (including the right to receive future
Liquidation Proceeds) that shall secure a [Subsequent] Receivable; (v) all
right, title and interest of the Seller in and to any recourse against the
Transferor or any Dealer pursuant to the Transfer and Assignment Agreement or
the applicable Dealer Agreement, respectively; (vi) the original retail
installment contracts and security agreements and/or installment loans
evidencing the [Subsequent] Receivables; and (vii) the proceeds of any and all
of the foregoing. The foregoing transfer does not constitute and is not intended
to result in any assumption by the Owner Trustee of any obligation of the
undersigned to the Obligors, insurers or any other person in connection with the
Receivables, Servicer Files (as defined in the Servicing Agreement), any
insurance policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Contribution Agreement and is to be governed by the Contribution Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Contribution Agreement.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of the date first written above.
CAPITAL ONE AUTO RECEIVABLES, LLC, as
Seller
By: _______________________________________
Name:
Title:
A-2
