Exhibit 10.1
EXECUTION COPY
- --------------------------------------------------------------------------------
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 December 20, 2001
_____________________________________________
$1,277,830,000
CAPITAL ONE AUTO FINANCE TRUST 2001-B
AUTOMOBILE RECEIVABLE-BACKED NOTES, SERIES 2001-B
CLASS A NOTES AND CLASS B NOTES
- --------------------------------------------------------------------------------
2001-B Transfer and Assignment Agreement
TABLE OF CONTENTS
Page
----
ARTICLE I CERTAIN DEFINITIONS .......................................................... 1
ARTICLE II ASSIGNMENT AND ACQUISITION OF RECEIVABLES .................................... 3
Section 2.01 Assignment and Acquisition of Receivables ........................... 3
Section 2.02 The Closing ......................................................... 5
Section 2.03 Funding Dates ....................................................... 5
Section 2.04 [Reserved] .......................................................... 5
ARTICLE III REPRESENTATIONS AND WARRANTIES ............................................... 5
Section 3.01 Representations and Warranties of the Purchaser ..................... 5
Section 3.02 Representations and Warranties of the Transferor .................... 6
ARTICLE IV CONDITIONS ................................................................... 18
Section 4.01 Conditions to Obligation of the Purchaser ........................... 18
Section 4.02 Conditions to Obligation of the Transferor .......................... 20
ARTICLE V COVENANTS OF THE TRANSFEROR .................................................. 21
Section 5.01 Protection of Right, Title and Interest ............................. 21
Section 5.02 Other Liens or Interests ............................................ 21
Section 5.03 Principal Executive Office .......................................... 22
Section 5.04 Transfer Taxes ...................................................... 22
Section 5.05 Costs and Expenses .................................................. 22
Section 5.06 No Waiver ........................................................... 22
Section 5.07 Location of Servicer Files .......................................... 22
Section 5.08 [Reserved] .......................................................... 22
Section 5.09 Assignment of Receivables ........................................... 22
Section 5.10 Transferor's Records ................................................ 22
Section 5.11 [Reserved] .......................................................... 23
Section 5.12 Cooperation by Transferor ........................................... 23
Section 5.13 Assignment of Additional Receivables ................................ 23
Section 5.14 Notice of Breach .................................................... 24
ARTICLE VI [RESERVED] ................................................................... 24
ARTICLE VII MISCELLANEOUS PROVISIONS ..................................................... 24
Section 7.01 Obligations of Transferor ........................................... 24
i
Section 7.02 Repurchase Events ................................................... 24
Section 7.03 Purchaser's Assignment of Repurchased Receivables ................... 25
Section 7.04 Subsequent Transfer and Pledge ...................................... 25
Section 7.05 Amendment ........................................................... 26
Section 7.06 Waivers ............................................................. 26
Section 7.07 Notices ............................................................. 26
Section 7.08 Costs and Expenses .................................................. 27
Section 7.09 Representations ..................................................... 27
Section 7.10 Confidential Information ............................................ 27
Section 7.11 Headings and Cross-References ....................................... 27
Section 7.12 Governing Law ....................................................... 27
Section 7.13 Counterparts ........................................................ 27
Section 7.14 No Bankruptcy Petition Against the Owner Trustee or the Pu .......... 27
Section 7.15 Third Party Beneficiaries ........................................... 27
SCHEDULES AND EXHIBITS
- ----------------------
Schedule I Perfection Representations
Exhibit A Assignment
Exhibit B Sample Receivables - Forms
Exhibit C [Reserved]
Exhibit D Form of Certificate of Delivery
Exhibit E Form of Dealer's Agreement
ii
TRANSFER AND ASSIGNMENT AGREEMENT
This TRANSFER AND ASSIGNMENT AGREEMENT is made as of December 20, 2001,
by and between Capital One Auto Finance, Inc., a Texas corporation (the
"Transferor" or "COAF") and Capital One Auto Receivables, LLC, a Delaware
limited liability company (the "Purchaser").
WHEREAS, the Transferor has acquired and will acquire in the ordinary
course of business, certain Receivables (as defined herein), each secured by a
security interest granted by the related Obligors (as defined in the Indenture)
in the Financed Vehicles (as defined in the Indenture) financed thereby; and
WHEREAS, the Transferor and the Purchaser wish to set forth the terms
and provisions pursuant to which the Receivables are to be absolutely assigned
by the Transferor to the Purchaser on the Closing Date and on each Funding Date
(both as defined herein), which Receivables will then be transferred by the
Purchaser to Wilmington Trust Company (the "Owner Trustee") not in its
individual capacity but solely as Owner Trustee for Capital One Auto Finance
Trust 2001-B, as issuer (the "Issuer"), pursuant to the terms of that certain
Contribution Agreement dated of even date herewith (the "Contribution
Agreement") by and between the Purchaser and the Owner Trustee and Granted (as
defined in the Indenture) by the Owner Trustee to the Indenture Trustee for the
benefit of the Noteholders 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 JP Morgan Chase Bank, as indenture trustee (the "Indenture
Trustee").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Capitalized terms used but not defined in this Agreement shall have the
meanings set forth in the Indenture. As used in this Agreement, the following
terms shall, unless the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms of such
terms and to the masculine, feminine and neuter genders of such terms):
"Agreement" or "Transfer and Assignment Agreement" means this Transfer
and Assignment Agreement and all amendments and restatements hereof and
supplements hereto.
"Assignment" means the document of assignment substantially in the form
attached to this Agreement as Exhibit A.
"Closing Date" means December 20, 2001.
"COAF" means Capital One Auto Finance, Inc., a Texas corporation, its
successors and assigns.
"Custodian File" has the meaning set forth in Section 4.01(d) hereof.
"Eligible Receivable" means a Receivable which meets the requirements
and specifications set forth in Section 3.02(b) hereof.
"Funding Date" means a date occurring not more than once per calendar
week during the Funding Period and on which the Subsequent Receivables are
transferred and assigned by the Transferor to the Purchaser, contributed and
assigned by the Purchaser to the Owner Trustee and Granted by the Owner Trustee
to the Indenture Trustee.
"Indenture" means the Indenture dated of even date herewith by and
between the Owner Trustee and the Indenture Trustee, and all amendments and
supplements thereto and restatements thereof.
"Indenture Trustee" means JP Morgan Chase Bank, a New York banking
corporation, its successors and assigns, as indenture trustee pursuant to the
Indenture.
"Initial Receivables" means the Receivables acquired by the Purchaser,
transferred to the Owner Trustee and Granted to the Indenture Trustee on the
Closing Date.
"Perfection Representations" means the representations, warranties and
covenants set forth in Schedule I attached hereto.
"Purchaser" means Capital One Auto Receivables, LLC, a Delaware limited
liability company, its successors and assigns.
"Receivable" means the obligation of an Obligor, as evidenced by a
retail installment contract and security agreement substantially in one of the
forms included in Exhibit B hereto, as the case may be, or such other forms as
may be added by amendment or supplement to this Agreement.
"Repurchase Event" has the meaning specified in Section 7.02 hereof.
"Subsequent Receivables" means the Eligible Receivables acquired by the
Purchaser, contributed and assigned to the Owner Trustee and Granted to the
Indenture Trustee on a Funding Date.
"Transferor" means COAF.
"Transfer Taxes" means any tax, fee or governmental charge payable by
the Transferor, the Purchaser, the Owner Trustee or the Indenture Trustee to any
federal, state or local government attributable to the assignment of a
Receivable.
"Trust Property" has the meaning set forth in Section 2.01(a) hereof.
2
ARTICLE II
ASSIGNMENT AND ACQUISITION OF RECEIVABLES
Section 2.01 Assignment and Acquisition of Receivables. On the Closing Date
and on each Funding Date, subject to the terms and conditions of this Agreement,
the Transferor agrees to absolutely assign to the Purchaser, and the Purchaser
agrees to acquire from the Transferor, the Receivables and the other Trust
Property relating thereto.
(a) Initial Assignment of Receivables and Trust Property. On the
Closing Date and simultaneously with the transactions pursuant to the
Contribution Agreement and the Indenture, the Transferor shall transfer,
absolutely assign and otherwise convey to the Purchaser, without recourse
except as set forth herein, a 100% interest in (i) all right, title and
interest of the Transferor in and to the Initial Receivables identified on
the Schedule of Receivables delivered on the Closing Date, and all moneys
received thereon (including amounts received on any Extended Service
Agreements relating thereto), after the related Cutoff Date (except for
interest accrued as of the related Cutoff Date and actually received
subsequent to such Cutoff Date which shall be withdrawn from the Revenue
Fund, to the extent contained therein, and paid to the Transferor); (ii)
the security interest of the Transferor in the Financed Vehicles granted by
the Obligors pursuant to the Initial Receivables and the certificates of
title to such Financed Vehicles; (iii) the interest of the Transferor in
any proceeds from claims on any physical damage, credit life, risk default,
disability or other insurance policies covering the Financed Vehicles or
the Obligors or refunds in connection with Extended Service Agreements
relating to Defaulted Receivables from such Cutoff Date; (iv) any property
(including the right to receive future Liquidation Proceeds) that shall
secure an Initial Receivable; (v) all right, title and interest of the
Transferor in and to any recourse against any Dealer pursuant to the
applicable Dealer Agreement (the form of which is attached hereto as
Exhibit E); (vi) the original retail installment contracts and security
agreements evidencing the Initial Receivables; and (vii) the proceeds of
any and all of the foregoing. (All of the property identified in this
subsection (a) and the following subsection (c) shall constitute "Trust
Property".)
(b) Consideration for Initial Receivables. In consideration of the
absolute assignment by the Transferor to the Purchaser of the Initial
Receivables and the other Trust Property relating thereto described in
Section 2.01(a) the Purchaser shall pay or cause to be paid to the
Transferor, on the Closing Date, an amount equal to 98.5% of the
Receivables Purchase Price with respect to Initial Receivables acquired
from the Transferor on such date in the form of cash by federal wire
transfer (same day) funds and the Transferor shall make a capital
contribution to the Purchaser on the Closing Date of Initial Receivables in
an amount equal to 1.5% of the Receivables Purchase Price.
(c) Assignment of Subsequent Receivables and Trust Property. On each
Funding Date, the Transferor shall transfer, absolutely assign and
otherwise convey to the Purchaser, without recourse except as set forth
herein, a 100% interest in (i) all right, title and interest of the
Transferor in and to the Subsequent Receivables identified on a Schedule of
Receivables delivered on such Funding Date, and all moneys received
3
thereon (including amounts received on any Extended Service Agreements
relating thereto), after the respective Cutoff Date (except for interest
accrued as of the related Cutoff Date and actually received subsequent to
such Cutoff Date which shall be withdrawn from the Revenue Fund, to the
extent contained therein, and paid to the Transferor); (ii) the security
interest of the Transferor in the Financed Vehicles granted by the Obligors
pursuant to such Subsequent Receivables and the certificates of title to
such Financed Vehicles; (iii) the interest of the Transferor in any
proceeds from claims on any physical damage, credit life, risk default,
disability or other insurance policies covering the Financed Vehicles or
the Obligors or refunds in connection with Extended Service Agreements
relating to Defaulted Receivables from the related Cutoff Date; (iv) any
property (including the right to receive future Liquidation Proceeds) that
shall secure a Subsequent Receivable; (v) all right, title and interest of
the Transferor in and to any recourse against any Dealer pursuant to the
applicable Dealer Agreement; (vi) the original retail installment contracts
and security agreements evidencing the Subsequent Receivables; and (vii)
the proceeds of any and all of the foregoing; provided, however, that
Subsequent Receivables may not be acquired by the Purchaser, transferred by
the Purchaser to the Owner Trustee and Granted by the Owner Trustee to the
Indenture Trustee unless the addition of such Subsequent Receivables to the
Receivables Pool meets the requirements set forth in Section 2.16 of the
Indenture.
(d) Consideration for Subsequent Receivables. In consideration of the
absolute assignment by the Transferor to the Purchaser of the Subsequent
Receivables and other Trust Property relating thereto described in Section
2.01(c), the Purchaser shall, on the applicable Funding Date, pay or cause
to be paid to the Transferor an amount equal to 98.5% of the Receivables
Purchase Price with respect to the Subsequent Receivables acquired from the
Transferor on such date in the form of cash by federal wire transfer (same
day) funds and the Transferor shall make a capital contribution to the
Purchaser on the Closing Date of Initial Receivables in an amount equal to
1.5% of the Receivables Purchase Price.
(e) Absolute Assignment. It is the intention of the Transferor and the
Purchaser that each assignment, transfer and conveyance hereunder
constitute an absolute assignment of the Trust Property from the Transferor
to the Purchaser. If, notwithstanding the express intention of the parties,
this Agreement is deemed not to constitute a transfer, conveyance and
assignment of the Trust Property from the Transferor to the Purchaser, this
Agreement shall be deemed to be a security agreement within the meaning of
Article 8 and Article 9 of the Uniform Commercial Code as in effect in the
State of Texas and the conveyance provided for in this Section 2.01 shall
be deemed to be a grant by the Transferor to the Purchaser of a valid first
priority perfected security interest in all of the Transferor's right,
title and interest in and to the Trust Property.
Section 2.02 The Closing. The absolute assignment and purchase of the
Initial Receivables shall take place at a closing (the "Closing") at the offices
of Mayer, Brown & Platt, Chicago, Illinois, on the Closing Date, simultaneously
with the closings under the Contribution Agreement and the Indenture pursuant to
which (a) the Transferor will transfer and assign all of its right, title and
interest in and to the Initial Receivables and other Trust Property to the
4
Purchaser, (b) the Purchaser will contribute and absolutely assign all of its
right, title and interest in and to the Initial Receivable and other Trust
Property to the Owner Trustee, (c) the Owner Trustee will Grant all of its
right, title and interest in and to the Initial Receivables and other Trust
Property to the Indenture Trustee for the benefit of the Noteholders and the
Note Insurer, and (d) the Class A Notes and the Class B Notes will be issued.
Section 2.03 Funding Dates. The absolute assignment and purchase of the
Subsequent Receivables on each Funding Date shall take place at the offices of
the Indenture Trustee or such other location as the Purchaser and the Transferor
may reasonably agree. The assignment and purchase of the Subsequent Receivables
shall be made in accordance with Section 2.16 of the Indenture pursuant to which
(a) the Purchaser will transfer and assign all of its right, title and interest
in and to the Subsequent Receivables and other Trust Property to the Owner
Trustee, (b) the Purchaser will absolutely assign all of its right, title and
interest in and to the Initial Receivable and other Trust Property to the Owner
Trustee, and (c) the Owner Trustee will grant all of its right, title and
interest in and to the Subsequent Receivables and other Trust Property to the
Indenture Trustee for the benefit of the Noteholders and the Note Insurer.
Section 2.04 [Reserved].
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Transferor as of the date hereof and as of
the Closing Date and each Funding Date:
(a) Organization, Etc. The Purchaser is a limited liability company
duly organized under the laws of the State of Delaware pursuant to a
Certificate of Formation and is validly existing as a limited liability
company and is in good standing under the laws of the State of Delaware and
has full power and authority to execute and deliver this Agreement and to
perform the terms and provisions hereof; the Purchaser is duly qualified to
do business as a foreign business entity in good standing and has obtained
all required licenses and approvals, if any, in all jurisdictions in which
the ownership or lease of property or the conduct of its business requires
such qualifications except those jurisdictions in which failure to be so
qualified would not have a material adverse effect on the business or
operations of the Purchaser.
(b) Due Authorization. The execution, delivery and performance by the
Purchaser of this Agreement have been duly authorized by all necessary
corporate action, do not require any approval or consent of any Person, do
not and will not conflict with any provision of the Certification of
Formation or Limited Liability Company Agreement of the Purchaser and do
not and will not conflict with or result in a breach which would constitute
a material default under any agreement for borrowed money binding upon or
applicable to it or such of its property which is material to it, or any
law or governmental regulation or court decree applicable to it or such
material property, and this Agreement is the legal, valid and binding
obligation of the Purchaser enforceable in accordance with
5
its terms except as the same may be limited by insolvency, bankruptcy,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights or by general equity principles.
(c) No Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is presently pending, or to the
knowledge of the Purchaser threatened, against the Purchaser or its properties
or with respect to this Agreement, which, if adversely determined would, in the
opinion of the Purchaser, have a material adverse effect on the transactions
contemplated by this Agreement.
(d) Business Purpose. The Purchaser will acquire the Receivables for
a bona fide business purpose and has undertaken the transactions contemplated
herein as principal rather than as agent for the Transferor or any other person.
(e) Purchaser's Records. This Agreement and all related documents
describe the assignment of the Receivables to the Purchaser as a purchase by the
Purchaser from the Transferor and evidence the clear intention by the Purchaser
to effectuate a purchase of such Receivables. The financial statements and tax
returns of the Purchaser will disclose that, under generally accepted accounting
principles or for tax purposes, respectively, the Purchaser acquired ownership
of the Receivables.
Section 3.02 Representations and Warranties of the Transferor.
(a) The Transferor hereby represents and warrants to the Purchaser
and its successors and assigns as of the Closing Date and each Funding Date:
(i) Organization, Etc. The Transferor is a corporation duly
organized under the laws of the State of Texas and is validly existing
and in good standing under the laws of the State of Texas; the
Transferor has full power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted and had at all relevant times, and has,
the power, authority and legal right to acquire, own and sell the
Receivables acquired, owned and sold by the Transferor.
(ii) Due Qualification. The Transferor is duly qualified to
do business as a foreign corporation, in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires
such qualifications.
(iii) Power and Authority. The Transferor has the power and
authority to execute and deliver this Agreement and to carry out its
terms; the Transferor has full power and authority to sell and assign
the property sold and assigned to the Purchaser and has duly authorized
such sale and assignment to the Purchaser by all necessary corporate or
other action; the execution, delivery, and performance of this Agreement
have been duly authorized by the Transferor by all necessary corporate
or other action, do not require any approval or any consent of any
Person, do not conflict with any material provision of the Articles of
Incorporation or bylaws of the Transferor, and do not and will not
conflict with or
6
result in a breach which would constitute a material default under any
agreement for borrowed money binding upon or applicable to it or such of
its property which is material to it, or any law or governmental
regulation or court decree applicable to it or such material property,
and this Agreement is the legal, valid and binding obligation of the
Transferor enforceable in accordance with its terms except as the same
may be limited by insolvency, bankruptcy, reorganization or other laws
relating to or affecting the enforcement of creditors' rights or by
general equity principles.
(iv) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
do not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time)
a default under, the certificate of incorporation of the Transferor, or
any indenture, agreement or other instrument to which the Transferor is
a party or by which it is bound; nor result in the creation or
imposition of any lien upon any of its properties pursuant to the terms
of any such indenture, agreement or other instrument (other than this
Agreement); nor violate any law or any order, rule or regulation
applicable to the Transferor of any court or of any federal or state
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Transferor or its
properties.
(v) No Proceedings. There are no proceedings or
investigations pending, or, to the best of its knowledge, threatened,
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Transferor or
its properties: (A) asserting the invalidity of this Agreement; (B)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement; or (C) seeking any determination or
ruling that might materially and adversely affect the performance by the
Transferor of its obligations under, or the validity or enforceability
of, this Agreement.
(vi) No Consents, Approvals. Neither the execution nor the
delivery by the Transferor of this Agreement, nor the performance of the
Transferor's obligations hereunder, require the consent or approval of,
the giving of notice to, the registration with, or the taking of any
other action with respect to, any governmental authority or agency under
any existing federal or state law governing the Transferor, except such
as have been previously obtained, made or taken.
(vii) No Unpaid Taxes. All tax returns required to be filed by
the Transferor in any jurisdiction have in fact been filed, and all
taxes, assessments, fees and other governmental charges upon it or any
subsidiary or upon any of its properties, income or franchises, shown to
be due and payable on such returns have been paid. To the best of the
Transferor's knowledge all such tax returns were true and correct and
neither it nor any subsidiary knows of any proposed
7
additional tax assessment against it in any material amount or of any basis
therefor.
(viii) Adequate Provisions for Taxes. The provisions for taxes on the
Transferor's books are in accordance with generally accepted accounting
principles.
(ix) Pension/Profit Sharing Plans. No contribution failure has
occurred with respect to any pension or profit sharing plan of the Transferor
and all such plans have been fully funded as of the date of this Agreement.
(x) Trade Name. "Capital One Auto Finance, Inc." is the only trade
name under which the Transferor is currently operating its business. For the six
(6) years (or such shorter period of time during which the Transferor was in
existence) preceding the date hereof, the Transferor operated its business under
the trade name "Capital One Auto Finance, Inc." or "Summit Acceptance
Corporation" or that of its predecessor, "Summit Acceptance Finance, L.L.C." or
that of its predecessor, "Summit Finance, L.L.C." "Capital One Auto Finance,
Inc." is the name of the Transferor indicated on the public record of the
Transferor's jurisdiction of organization which shows the Transferor to have
been organized.
(xi) Ability to Perform. There has been no material impairment in the
ability of the Transferor to perform its obligations under this Agreement.
(xii) Valid Business Reasons; No Fraudulent Transfers. The Transferor
has valid business reasons for assigning the Receivables rather than obtaining a
secured loan with the Receivables as collateral. At the time of the assignment:
(A) the Transferor absolutely assigned the Receivables to the Purchaser without
any intent to hinder, delay, or defraud any current or future creditor of the
Transferor; (B) the Transferor was not insolvent or did not become insolvent as
a result of the assignment; (C) the Transferor was not engaged and was not about
to engage in any business or transaction for which any property remaining with
the Transferor was an unreasonably small capital or for which the remaining
assets of the Transferor were unreasonably small in relation to the business of
the Transferor or the transaction; (D) the Transferor did not intend to incur,
and did not believe or reasonably should not have believed that it would incur,
debts beyond its ability to pay as they become due; and (E) the consideration
paid by the Purchaser to the Transferor for the Receivables absolutely assigned
by the Transferor hereunder was equivalent to a fair market value of such
Receivables under the circumstances of the transaction, including but not
limited to, timing of such assignment.
(xiii) Principal Executive Office. Since its inception, the Transferor
has maintained its principal executive office in the State of Texas.
8
(xiv) No Omission or Misstatement. Neither this Agreement nor
any statement, report or other document furnished or to be furnished
pursuant to this Agreement by the Transferor, or in connection with the
transactions contemplated hereby, contains any untrue statement of fact
or omits to state a fact necessary to make the statements contained
herein or therein, in light of the circumstances under which they were
made, not misleading insofar as the same relates to the Transferor. The
Transferor has good and marketable title to, and is the owner of, each
Receivable absolutely assigned by the Transferor hereunder and the
indebtedness evidenced by each such Receivable is subject to no lien,
charge, security interest or encumbrance of any kind or nature and the
Transferor has the unqualified right to contribute, transfer, convey and
assign its ownership interest in each such Receivable and the
indebtedness evidenced thereby; the Transferor has not made any prior
assignment of any Receivable or its rights thereto or thereunder except
to existing lenders, the lien of which lenders will be released in
connection with the transactions hereunder.
(xv) Perfection Representations. The Perfection
Representations shall be a part of this Transfer and Assignment
Agreement for all purposes.
(b) The Transferor makes the following representations and
warranties as to the Receivables absolutely assigned hereunder by the Transferor
on which representations and warranties the Purchaser relies in acquiring the
Receivables. Such representations and warranties speak as of the execution and
delivery of this Agreement and as of the Closing Date or Funding Date, as the
case may be, but shall survive the absolute assignment of the Receivables to the
Purchaser and the subsequent transfer of the Receivables by the Purchaser to the
Owner Trustee pursuant to the Contribution Agreement and Grant of the
Receivables by the Owner Trustee to the Indenture Trustee pursuant to the
Indenture:
(i) Characteristics of Receivables. Each Receivable (A) to
the extent originated by COAF has been originated in the United States
of America by COAF through a Dealer approved by COAF under COAF's
approved form of Dealer Agreement (a copy of which is attached hereto as
Exhibit E), in the ordinary course of COAF's business, and has been
fully and properly executed by the parties thereto, (B) to the extent
originated by COAF, has been assigned, together with the security
interest in the related Financed Vehicle, by the applicable Dealer to
COAF, (C) has created or creates a valid, subsisting, and enforceable
first priority security interest (1) in favor of COAF in the related
Financed Vehicle or (2) in the case of a Referral Receivable or in the
case of a Receivable originated by Capital One F.S.B., in favor of the
applicable Referral Originator or Capital One F.S.B. in the related
Financed Vehicle which has been validly assigned by such Referral
Originator or Capital One F.S.B. to the Transferor, in each case which
security interest is being transferred and assigned by the Transferor to
the Purchaser in accordance with the terms of this Transfer and
Assignment Agreement and contributed and assigned by the Purchaser to
the Owner Trustee in accordance with the terms of the Contribution
Agreement and Granted by the Owner Trustee to the Indenture Trustee in
accordance with the
9
terms of the Indenture, (D) contains customary and enforceable
provisions such that the rights and remedies of the holder thereof are
adequate for realization against the collateral of the benefits of the
security, (E) is denominated in U.S. dollars and provides for level
monthly payments (provided that the payment in the first or last payment
period in the life of the Receivable may be minimally different from the
level payment) that fully amortize the Amount Financed by maturity and
yield interest at the applicable Contract Rate (as determined in
accordance with the definition of Scheduled Interest Receivables and
Simple Interest Receivables), and (F) to the best knowledge of COAF, is
due from an Obligor which is a citizen of the United States.
(ii) Schedule of Receivables. The information set forth in
the Schedule of Receivables is true and correct in all material respects
as of the close of business on the applicable Cutoff Date, no selection
procedures believed to be adverse to the Purchaser have been utilized in
selecting the Receivables and the geographic distribution of the
Obligors with respect to the Receivables or the credit quality
characteristics of the Receivables assigned hereunder are not materially
different from the Transferor's existing core portfolio. The information
on the computer tape regarding the Receivables made available to the
Purchaser and its assigns is true and correct in all material respects.
(iii) Form of Receivables. Each of the Receivables is
substantially in one of the forms included in Exhibit B attached hereto.
Any modifications or deviations from the applicable form set forth in
such Exhibit will not have a material adverse effect on the Noteholders
or the Note Insurer and will not reduce the Scheduled Payment or other
amounts due under such Receivable.
(iv) Compliance with Law. Each Receivable, the sale of the
related Financed Vehicle and any Extended Service Agreement complied at
the time it was originated or made and on the Closing Date or Funding
Date, as the case may be, 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 Magnuson-Moss 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.
(v) Binding Obligation. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the
Obligor, enforceable by the owner thereof in accordance with its terms.
(vi) No Government Obligor. The Receivables are not due from
the United States of America or any State or from any agency, department
or instrumentality of the United States of America or any State.
10
(vii) Security Interest in Financed Vehicle. Immediately prior
to the assignment thereof, (1) each Receivable was secured by a first
priority security interest in the related Financed Vehicle in favor of
the Transferor as secured party, (2) in the case of a Referral
Receivable, such Referral Receivable was secured by a first priority
security interest in the related Financed Vehicle in favor of the
Referral Originator thereof which security interest has been validly
assigned by such Referral Originator to the Transferor, (3) in the
case of a Receivable originated by Capital One F.S.B., such Receivable
was secured by a first priority security interest in the related
Financed Vehicle in favor of Capital One F.S.B. thereof which security
interest has been validly assigned by Capital One F.S.B. to the
Transferor or (4) all necessary and appropriate actions have been
commenced that would result in the valid perfection of a first
priority security interest in the Financed Vehicle in favor of the
Transferor (or the applicable Referral Originator) upon completion of
processing by the applicable state agency and the Servicer has a clear
legal right to repossess the Financed Vehicle upon the occurrence of
certain matters including non-payment under the Receivable. The
Transferor warrants that it will defend its security interest in the
Financed Vehicle that has been assigned hereunder against all Persons.
(viii) Receivables in Force. The Receivables have not been
satisfied, subordinated or rescinded, nor has the related Financed
Vehicle been released from the lien granted by the Receivable in whole
or in part.
(ix) No Waiver. No provision of the Receivables has been
waived, impaired, altered or modified in any respect except in
accordance with the Servicing Agreement, the substance of which is
reflected in the Schedule of Receivables as it relates to the
information included thereon.
(x) No Amendments. The Receivables have not been amended such
that either the original Receivable Balance was modified or reduced or
the number of the originally scheduled due dates has been increased
except as permitted under the terms of the Collection Policy.
(xi) No Defenses. The Receivables are not subject to any right
of rescission, recoupment, setoff, counterclaim or defense.
(xii) No Liens. No liens or claims have been filed for work,
labor or materials relating to the Financed Vehicle that would be
Liens prior to, or equal or concordant with, the security interest in
the Financed Vehicle granted by the related Obligor pursuant to the
related Receivable, there is no lien against the Financed Vehicle for
delinquent taxes nor has such Receivable been satisfied, subordinated
or rescinded.
(xiii) No Default. Except for payment delinquencies continuing
for a period of not more than thirty (30) days as of the applicable
Cutoff Date, no default, breach, violation or event permitting
acceleration under the terms of such Receivable has occurred; and no
continuing condition that with notice or the lapse
11
of time would constitute a default, breach, violation or event
permitting acceleration under the terms of such Receivable has arisen,
and the Transferor has not waived any of the foregoing. As of the
applicable Cutoff Date, the Transferor has no knowledge of why such
Receivable would not be paid in full. The Obligor is not an obligor
under any other existing receivable payable to the Transferor or the
Servicer which is in default or is more than thirty (30) days past
due; to the best knowledge of the Transferor, the Obligor was not an
obligor under any prior receivable which was in default.
(xiv) Origination Date. All of the Receivables assigned
hereunder have been originated on or before the applicable Cutoff
Date.
(xv) Insurance. In connection with the purchase of a
Receivable, the Servicer required that it be furnished evidence that
the related Financed Vehicle was covered by a comprehensive and
collision policy subject to a deductibility not in excess of $500 (i)
naming the Servicer as a loss payee and (ii) insuring against loss and
damage due to fire, theft, transportation, collision and other risks
generally covered by comprehensive and collision coverage.
(xvi) Title. It is the intention of the Transferor that the
transfer and assignment contemplated herein constitute an absolute
assignment of each Receivable from the Transferor to the Purchaser and
that the beneficial interest in and title to such Receivable not be
property of the Transferor for any purpose under state or federal law.
Immediately prior to the transfer and assignment contemplated herein,
the Transferor had good and marketable title to each Receivable free
and clear of all Liens and, immediately upon the transfer thereof, the
Purchaser will have good and marketable title to each Receivable, free
and clear of all Liens, except any Lien which will be released prior
to assignment hereunder and the Lien created by the Indenture; and the
security interest in each Receivable has been validly perfected under
the UCC and other applicable law, if any.
(xvii) Lawful Assignment. The Receivables have not been
originated in, and are not subject to the laws of, any jurisdiction
under which the contribution, assignment or pledge of the Receivable
hereunder or the Contribution Agreement or Indenture would be
unlawful, void or voidable.
(xviii) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Indenture Trustee a first priority perfected security interest in each
Receivable have been made.
(xix) One Original. There is only one manually executed
original of the retail installment contract and security agreement or
similar agreement evidencing each of the Receivables. All items
required to be in the Custodian File with respect to such Receivable
have been delivered to the Custodian.
12
(xx) Maturity of Receivables. Each of the Receivables has an
original term of no more than 72 months, such Receivable calls for
level monthly payments (provided that the payment in the first or last
payment period in the life of such Receivable may be minimally
different from the level payment), is fully amortizing and the final
Scheduled Payment on such Receivable is due on or before March 20,
2008. As of the Closing Date or Funding Dates, as the case may be, (i)
the aggregate Receivable Balance which relates to Receivables
originated under the lowest two tiers of the Credit Policy is no more
than 30% of the Aggregate Receivable Balance, (ii) the aggregate
Receivable Balance which relates to Receivables with an original term
of greater than 60 payments is no more than 60% of the Aggregate
Receivable Balance, (iii) the aggregate Receivable Balance which
relates to Receivables with an original term of greater than 60
payments and which were originated under the two lowest tiers of the
Credit Policy is no more than 25% of the aggregate Receivable Balance
of Receivables with an original term of greater than 60 payments and
(iv) the aggregate Receivable Balance which relates to Receivables
with an original term of greater than 66 payments is no more than 60%
of the aggregate Receivable Balance of Receivables with an original
term of greater than 60 payments.
(xxi) Extensions; Modifications. No extension or modification
has been made with respect to any of the Receivables except as
permitted by the terms of the Collection Policy.
(xxii) Contract Rate. Each of the Receivables has a Contract
Rate of 8.95% or higher.
(xxiii) Outstanding Receivable Balance; Down Payment. Receivables
constituting no more than 1% of the Receivables Pool each have an
outstanding balance of $3,000 or less; the Receivables constituting
the remainder of the Receivables Pool each have an outstanding balance
of greater than $3,000 and no more than $40,000; and the related
Obligor has paid the entire amount of the down payment required in
COAF's Credit Policy.
(xxiv) Financing. Each of the Receivables is a Simple Interest
Receivable or a Scheduled Interest Receivable.
(xxv) Bankruptcy Proceeding. As of the applicable Cutoff Date,
each of the Receivables was not noted in the Transferor's records as a
dischargeable debt under a bankruptcy proceeding and none of the
Receivables have been reduced or discharged in any bankruptcy
proceeding.
(xxvi) Chattel Paper, Marking of Records. Each of the
Receivables constitutes "chattel paper" as defined in the UCC. The
Transferor's electronic or other ledgers have been marked to reflect
the transfer and assignment of each Receivable to the Purchaser, the
contribution and assignment thereof by the Purchaser to the Owner
Trustee and the Grant thereof by the Owner Trustee to the Indenture
Trustee.
13
(xxvii) Age of Financed Vehicles. As of the Closing Date or
Funding Dates, as the case may be, the aggregate Receivable Balance
which relates to new Financed Vehicles represents at least 20% of the
Aggregate Receivable Balance.
(xxviii) No Future Advances. The full principal amount of each
Receivable has been advanced to the related Obligor or advanced in
accordance with the directions of such Obligor, and there is no
requirement for future advances thereunder. The Obligor with respect
to a Receivable does not have any options under such Receivable to
borrow from any Person additional funds secured by the Financed
Vehicle. The Receivable Balance as of the Closing Date or Funding
Date, as the case may be, is fully secured by the related Financed
Vehicle.
(xxix) Underwriting Guidelines. Each of the Receivables has
been originated in accordance with the Credit Policy, a copy of which
is attached to the Servicing Agreement as Exhibit D and which shall
not be materially altered during the Funding Period.
(xxx) Receivable Balance. The Receivables do not have a
Receivable Balance which includes capitalized interest, physical
damage insurance or late charges.
(xxxi) Servicing. At the applicable Cutoff Date, each of the
Receivables was being serviced by the Servicer.
(xxxii) Agreement. The representations and warranties of the
Transferor herein are true.
(xxxiii) No Proceedings. There are no proceedings or
investigations pending, or, to the best knowledge of the Transferor,
threatened, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the
Transferor or its properties: (A) asserting the invalidity, illegality
or lack of enforceability of the Receivables; (B) seeking to prevent
the enforcement of the Receivable; (C) seeking any determination or
ruling that might materially and adversely affect the payment on or
enforceability of each Receivable; or (D) relating to the bankruptcy
or insolvency of the related Obligor.
(xxxiv) Collection Procedures. The collection practices utilized
by any person servicing the Receivable in seeking payment under the
documentation evidencing such Receivable have been in accordance with
the Collection Policy and in all respects legal, proper, prudent and
customary in the automobile loan servicing business.
(xxxv) Aggregate Balances. Neither the Obligor under a
Receivable nor any of its affiliates is the Obligor under a Receivable
or Receivables with an aggregate Receivable Balance greater than
$40,000 as of the applicable Cutoff Date.
14
(xxxvi) No Litigation. None of the Receivables has been in
litigation or restructured.
(xxxvii) No Charge Off. None of the Receivables has been charged
off for accounting purposes by the Transferor.
(xxxviii) Normal Procedures. Each of the Receivables has been
originated, serviced and administered pursuant to the Transferor's
normal credit, administration, collection and charge-off procedures.
(xxxix) No Fraud, Misrepresentation. None of the Receivables
has been originated with any fraud or misrepresentation.
(xl) Payments Received. The Transferor has not received any
payment with respect to any Receivable from any payor affiliated with
the Transferor.
(xli) Dealer's Agreements. The Dealer that sold a Receivable
to the Transferor has entered into a Dealer's Agreement with the
Transferor and such Dealer's Agreement constitutes the entire
agreement between the Transferor and the related Dealer with respect
to the sale of such Receivable to the Transferor. Such Dealer's
Agreement is in full force and effect and is the legal, valid and
binding obligation of such Dealer; there have been no material
defaults by such Dealer or by the Transferor under such Dealer's
Agreement; the Transferor has fully performed all of its obligations
under such Dealer's Agreement; the Transferor has not made any
statements or representations to such Dealer (whether written or oral)
inconsistent with any term of such Dealer's Agreement; the purchase
price (as specified in the applicable Dealer Agreement) for such
Receivable has been paid in full by the Transferor; there is no other
payment due to such Dealer from the Transferor for the purchase of
such Receivable; such Dealer has no right, title or interest in or to
any Receivable; there is no prior course of dealing between such
Dealer and the Transferor which will affect the terms of such Dealer's
Agreement. The Receivable was originated in the United States for the
retail sale of the Financed Vehicle in the ordinary course of the
Dealer's business.
(xlii) Obligor Responsibility. Each of the Receivables
contains provisions requiring the Obligor (A) to assume all risk of
loss or malfunction of the related Financed Vehicle, (B) to maintain
liability and collision insurance with respect thereto, (C) to pay all
sales, use, property, excise and other similar taxes imposed on or
with respect to the related Financed Vehicle and (D) to be liable for
all payments required to be made thereunder, without any setoff,
counterclaim or defense for any reason whatsoever.
(xliii) Substitution, Etc. None of the Receivables provides for
the substitution, exchange or addition of any Financed Vehicle subject
to such Receivable.
15
(xliv) Assignments. The rights with respect to a Receivable
are assignable without the consent of any Person other than consents
which will have been obtained on or before the Closing Date or Funding
Date, as the case may be.
(xlv) Previous Repossession. The Receivables are not secured
by a security interest in a related Financed Vehicle which has been
repossessed and is subject to redemption by the related Obligor; to
the best knowledge of the Transferor, the Receivables are not secured
by a security interest in a related Financed Vehicle which has been
previously repossessed and redeemed by the original obligor unless
approved in writing by the Note Insurer.
(xlvi) Receivables Pool. The inclusion of any Receivable in
the Receivables Pool after the Closing Date will not (a) reduce the
weighted average Contract Rate of the Receivables included in the
Receivables Pool to less than 16.5%, (b) increase the weighted average
remaining term to maturity of the Receivables included in the
Receivables Pool to greater than 63 months, (c) in the case of
Receivables originated by COAF, increase the average Loan to Value
Ratio of Receivables included in the Receivables Pool as of a Funding
Date to greater than 115%, (d) cause the aggregate Receivable Balances
of all Referral Receivables to exceed 5% of the Aggregate Receivable
Balance, or (e) in the case of the inclusion of a Subsequent
Receivable in the Receivables Pool, result in a material reduction in
the overall credit quality of the Receivables Pool.
(xlvii) Parties. As of the date of origination, the parties to
the Receivables were the related Dealer, Referral Originator or
Capital One F.S.B. and the Obligors.
(xlviii) Submission of Titles. All documents necessary to permit
the Indenture Trustee to submit the certificate of title for the
related Financed Vehicle to the applicable Department of Motor
Vehicles for retitling in the name of the Indenture Trustee as secured
party have been delivered to the Custodian.
(xlix) Transferor Fulfilled All Obligations. The Transferor
and the Servicer have duly fulfilled all obligations to be fulfilled
under or in connection with the origination, acquisition and
assignment of the Receivables, including, without limitation, giving
any notices or consents necessary to effect the Grant of the
Receivables to the Indenture Trustee, and have done nothing to impair
the rights of the Indenture Trustee, the Note Insurer or the
Noteholders in payments with respect thereto. The Transferor has
obtained all necessary licenses, permits and charters required to be
obtained by the Transferor, which failure to obtain would render any
portion of the documents executed in connection with the assignment
from the Transferor to the Purchaser and the transfer from the
Purchaser to the Owner Trustee of the Receivables and the issuance and
sale of the Notes secured thereby unenforceable or would have a
material adverse effect on the Note Insurer or the Noteholders.
16
(l) Not Subject to Transfer Taxes. The assignment of the
Receivables by the Transferor pursuant to this Transfer and Assignment
Agreement is not subject to and will not result in any Transfer Taxes
other than Transfer Taxes which have been or will be paid by the
Transferor as due.
(li) Complete and Accurate Information. The computer tape from
which the selection was made of the Receivables being assigned on the
Closing Date or Funding Date, as applicable, has been made available
to any firm performing agreed upon procedures with respect to any
information contained in the Registration Statement, and such
information was complete and accurate as of its date and includes a
description of the same Receivables that are described on the Schedule
of Receivables and the payments due thereunder as of the Closing Date
or Funding Date, as applicable.
(lii) No Early Termination or Prepayment. None of the
Receivables permits early termination or prepayment unless the amount
to be paid by or on behalf of the Obligor in respect of such
prepayment or termination is at all times equal to or in excess of the
principal value of any Receivable.
(liii) No Purchase After Cutoff Date. None of the Receivables was
purchased by the Transferor after the applicable Cutoff Date.
(liv) Extended Service Agreements. (A) All rights of the
Transferor under each Extended Service Agreement relating to the
Financed Vehicles have been assigned by the Transferor to the
Purchaser, transferred by the Purchaser to the Issuer, and Granted by
the Issuer to the Indenture Trustee; and (B) the Indenture Trustee
will be entitled to receive all amounts due to an Obligor or
lienholder upon cancellation of an Extended Service Agreement by an
Obligor with respect to a Defaulted Receivable.
ARTICLE IV
CONDITIONS
Section 4.01 Conditions to Obligation of the Purchaser. The obligation of
the Purchaser to acquire the Receivables is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Transferor hereunder shall be true and correct on the
Closing Date or Funding Date, as the case may be, with the same effect as
if then made, and the Transferor shall have performed all obligations to be
performed by it hereunder on or prior to the Closing Date or Funding Date,
as the case may be.
(b) Files Marked; Files and Records Owned by Purchaser. The
Transferor shall, at its own expense, on or prior to the Closing Date or
Funding Date, as the case may be, indicate in its files that the
Receivables have been absolutely assigned to the Purchaser pursuant to this
Agreement and the Transferor shall deliver to the Purchaser a Schedule of
Receivables certified by the Chairman, the President, a Vice President or
the
17
Treasurer of the Transferor to be true, correct and complete. Further, the
Transferor hereby agrees that the computer files and other physical records
of the Receivables maintained by the Transferor will bear an indication
reflecting that the Receivables are owned by the Purchaser.
(c) Documents to be Delivered by the Transferor on or in connection
with the Closing Date or Funding Date.
(i) The Assignment. As of the Closing Date and each Funding
Date, the Transferor shall execute an Assignment substantially in the
form of Exhibit A hereto of the Receivables, the security interests in
the related Financed Vehicles and the other Trust Property being
absolutely assigned by the Transferor on such date (as identified on
the Schedule of Receivables attached to such Assignment).
(ii) Evidence of UCC Filings. On or prior to the Closing Date or
Funding Date, as the case may be, the Transferor shall provide the
Purchaser evidence that the Transferor has recorded and filed, at its
own expense, (A) Termination Statements in each jurisdiction in which
required by applicable law, to release any prior security interests in
the Receivables granted by the Transferor and (B) UCC financing
statements in each jurisdiction in which required by applicable law,
authorized by the Transferor, as transferor or debtor, and naming the
Purchaser, as purchaser or secured party, identifying the Receivables
and the other Trust Property as collateral, meeting the requirements
of the laws of each such jurisdiction and in such manner as is
necessary to perfect the contribution, transfer, assignment and
conveyance of such Receivables to the Purchaser. The Transferor shall
deliver the Perfection UCC's, or other evidence satisfactory to the
Purchaser of such filing, to the Indenture Trustee within thirty (30)
days following the Closing Date or Funding Date, as the case may be,
or promptly following such later date as such file-stamped copies or
other evidence is received by or on behalf of the Purchaser.
(iii) Other Documents. Such other documents as the Purchaser may
reasonably request.
(d) Documents to be Delivered by the Transferor in Connection with the
Closing Date or Funding Date. Within two (2) Business Days preceding the
Closing Date or Funding Date, as the case may be, the Transferor shall
deliver or cause to be delivered to the Custodian or its designated bailee
thereof, the following documents (with respect to each Receivable, a
"Custodian File"):
(i) the sole original counterpart of the retail installment
contract and security agreement evidencing each such Receivable and
any and all amendments thereto; and
(ii) (A) the original Certificate of Title or copies of
correspondence to the appropriate State title registration agency, and
all enclosures thereto, for issuance of the original Certificate of
Title for the related Financed Vehicle or (B)
18
if the appropriate State title registration agency issues a letter or
other form of evidence of lien in lieu of a Certificate of Title, the
original lien entry letter or form or copies of correspondence to such
State title registration agency, and all enclosures thereto, for
issuance of the original lien entry letter or form for the related
Financed Vehicle.
Such delivery of Custodian Files shall be accompanied by a Certificate of
Delivery substantially in the form of Exhibit D hereto; provided, however, that,
with respect to the Custodian Files delivered pursuant to this subsection (d) of
this Section 4.01, any original Certificate of Title or other evidence of lien
of the Transferor (or, in the case of a Referral Receivable, the applicable
Referral Originator) not so delivered to the Custodian due to the fact that such
title or other evidence of lien has not yet been issued by a State Title
Registration Agency and delivered to or on behalf of the Transferor shall be
delivered by the Transferor to the Custodian promptly following receipt thereof
by the Transferor but in no event later than 120 days following the Closing Date
or Funding Date, as the case may be; further provided, however, that for any
original Certificate of Title or other document evidencing the Transferor's (or,
in the case of a Referral Receivable, the applicable Referral Originator's)
status as lienholder not so delivered to the Custodian, the Transferor shall be
deemed to be in breach of its representations and warranties contained in
Section 3.02(b) hereof, and such occurrence shall constitute a Repurchase Event
pursuant to Section 7.02 hereof.
(e) Other Transactions. The transactions contemplated by the
Indenture, the Contribution Agreement and the Servicing Agreement shall be
consummated on the Closing Date.
Section 4.02 Conditions to Obligation of the Transferor. The obligation of
the Transferor to absolutely assign the Receivables to the Purchaser on the
Closing Date or a Funding Date, as the case may be, is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The warranties of the
Purchaser hereunder shall be true and correct on the Closing Date or
Funding Date, as the case may be, with the same effect as if then made, and
the Purchaser shall have performed all obligations to be performed by it
hereunder on or prior to the Closing Date or Funding Date, as the case may
be.
(b) Proceedings. All corporate and legal proceedings and all
instruments in connection with the transactions contemplated by this
Transfer and Assignment Agreement shall be satisfactory in form and
substance to the Transferor, and the Transferor shall have received from
the Purchaser copies of all documents (including, without limitation,
records of applicable proceedings) relevant to the transactions herein
contemplated as the Transferor may reasonably have requested.
ARTICLE V
COVENANTS OF THE TRANSFEROR
The Transferor agrees with the Purchaser as follows:
19
Section 5.01 Protection of Right, Title and Interest.
(a) Filings. The Transferor shall cause all financing statements and
continuation statements and any other necessary documents covering the
right, title and interest of the Purchaser in and to the Receivables and
the other Trust Property to be promptly filed, and at all times to be kept
recorded, registered and filed, all in such manner and in such places as
may be required by law fully to preserve and protect the right, title and
interest of the Purchaser hereunder or the Indenture Trustee to the
Receivables and the other Trust Property. The Transferor shall deliver or
cause to be delivered to or at the direction of the Purchaser, file-stamped
copies of, or filing receipts for, any document recorded, registered or
filed as provided above, as soon as available following such recordation,
registration or filing. The Purchaser shall cooperate fully with the
Transferor in connection with the obligations set forth above and will
authorize any and all documents reasonably required to fulfill the intent
of this Section 5.01(a).
(b) Name Change. Within fifteen (15) days after the Transferor makes
any change in its name, identity, jurisdiction of organization or corporate
structure which would make any financing statement or continuation
statement filed in accordance with paragraph (a) above seriously misleading
within the applicable provisions of the UCC or any title statute, the
Transferor shall give the Purchaser, the Note Insurer, the Issuer and the
Indenture Trustee notice of any such change and no later than five (5) days
after the effective date thereof the Transferor shall file such financing
statements or amendments as may be necessary to continue the perfection of
the Purchaser's security interest in the Trust Property.
Section 5.02 Other Liens or Interests. Except for the assignments
hereunder, the Transferor will not sell, pledge, assign or transfer to any other
person, or grant, create, incur, assume or suffer to exist any Lien on, any
interest therein, and the Transferor shall defend the right, title, and interest
of the Purchaser in, to and under the Receivables against all claims of third
parties claiming through or under the Transferor and the Transferor warrants
that it will defend the security interest of the Indenture Trustee in the
Financed Vehicles against all Persons; provided, however, that the Transferor's
obligations under this Section 5.02 shall terminate upon the termination of the
Indenture.
Section 5.03 Principal Executive Office. Since its inception, the
Transferor has maintained its principal executive office in the State of Texas.
Section 5.04 Transfer Taxes. In the event that the Purchaser, the Issuer or
the Indenture Trustee receives actual notice of any Transfer Taxes arising out
of the transfer, assignment and conveyance of the Receivables on written demand
by the Purchaser, the Owner Trustee, the Issuer or the Indenture Trustee, or
upon the Transferor's otherwise being given notice thereof by the Purchaser, the
Owner Trustee, the Issuer or the Indenture Trustee, the Transferor shall pay,
and otherwise indemnify and hold the Purchaser, the Owner Trustee, the Issuer,
the Indenture Trustee and the Note Insurer harmless, on an after-tax basis, from
and against any and all such Transfer Taxes (it being understood that the
Noteholders, the Indenture Trustee, the Owner Trustee, the Issuer, the Purchaser
and the Note Insurer shall have no obligation to pay such Transfer Taxes).
20
Section 5.05 Costs and Expenses. The Transferor agrees to pay
all reasonable costs and disbursements in connection with the perfection, as
against all third parties, of the absolute assignment to the Purchaser of the
Transferor's right, title and interest in and to the Receivables.
Section 5.06 No Waiver. The Transferor shall not waive any
default, breach, violation or event permitting acceleration under the terms of
any Receivable.
Section 5.07 Location of Servicer Files. The Servicer Files,
exclusive of the Custodian Files, are to be kept at the Servicer's principal
executive office. The Custodian Files are to be kept at the Custodian's
principal executive office or such other office of the Custodian as specified in
the Indenture.
Section 5.08 [Reserved].
Section 5.09 Assignment of Receivables. The Transferor will
take no action inconsistent with the Purchaser's ownership of the Receivables.
If a third party, including a potential purchaser of the Receivables, should
inquire, the Transferor will promptly indicate that ownership of the Receivables
has been absolutely assigned to the Purchaser.
Section 5.10 Transferor's Records. This Agreement and all
related documents describe the transfer of the Receivables from the Transferor
as an absolute assignment by the Transferor to the Purchaser and evidence the
clear intention by the Transferor to effectuate an absolute assignment of such
Receivables. The financial statements and tax returns of the Transferor will
disclose that, under generally accepted accounting principles, and for federal
income tax purposes, the Transferor transferred ownership of the Receivables to
the Purchaser.
Section 5.11 [Reserved].
Section 5.12 Cooperation by Transferor.
(a) The Transferor will cooperate fully and in a timely
manner with the Purchaser, the Servicer, the Owner Trustee or the
Indenture Trustee in connection with: (i) the filing of any claims with
an insurer or any agent of any insurer under any insurance policy
affecting an Obligor or any of the Financed Vehicles; (ii) supplying any
additional information as may be requested by the Purchaser, the
Indenture Trustee, the Servicer, the Owner Trustee, the Indenture
Trustee or any such agent or insurer in connection with the processing
of any such claim; and (iii) the execution or endorsement of any check
or draft made payable to the Transferor representing proceeds from any
such claim. The Transferor shall take all such actions as may be
reasonably requested by the Purchaser, the Owner Trustee, the Servicer,
the Note Insurer or the Indenture Trustee to protect the rights of the
Purchaser or the Indenture Trustee on behalf of the Noteholders and the
Note Insurer in and to any proceeds under any and all of the foregoing
insurance policies. The Transferor shall not take or cause to be taken
any action which would impair the rights of the Purchaser or the
Indenture Trustee on behalf of the Noteholders and the Note Insurer in
and to any proceeds under any of the foregoing insurance policies.
21
(b) The Transferor shall, within two (2) Business Days of
receipt thereof, endorse any check or draft payable to the Transferor
representing insurance proceeds and (i) in the event there are no other
payees on such check or draft, deposit such check or draft into the
Collection Account and (ii) in the event such check or draft is also
payable to the Indenture Trustee on behalf of the Noteholders and the
Note Insurer, forward, via overnight courier, such endorsed check or
draft to the Indenture Trustee for endorsement and return. The
Transferor will hold in trust and remit to the Indenture Trustee, within
two (2) Business Days of receipt thereof, any funds received with
respect to the Receivables after the Cutoff Date.
Section 5.13 Assignment of Additional Receivables. The
Transferor shall use its best efforts in good faith to make available for
assignment to the Purchaser, on each Funding Date, all Receivables acquired by
the Transferor which meet the eligibility criteria set forth herein as of such
date. This covenant and agreement shall be for the benefit of the Purchaser, the
Owner Trustee, the Indenture Trustee and the Note Insurer or, if a Note Insurer
Default has occurred and is continuing, the Holders of the Notes, and any such
Person may enforce its legal or equitable rights, remedies or claims hereunder.
Section 5.14 Notice of Breach. The Purchaser and the
Transferor shall notify the Indenture Trustee, the Owner Trustee, the Note
Insurer and the Owner Trustee promptly, in writing, of any breach of the
representations and warranties or covenants of the Transferor or the Purchaser
contained herein.
ARTICLE VI
[RESERVED]
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Obligations of Transferor. The obligations of
the Transferor under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Receivable.
Section 7.02 Repurchase Events. The Transferor hereby
covenants and agrees to deliver to the Purchaser and the Note Insurer prompt
written notice of the occurrence of a breach of any of the representations and
warranties of the Transferor contained in Section 3.02(b) hereof with respect to
a Receivable absolutely assigned hereunder.
(a) Upon discovery by any of the Transferor, the Purchaser,
the Owner Trustee, the Issuer, the Indenture Trustee, the Note Insurer
or the Servicer of (i) a Nonconforming Receivable or (ii) failure to
deliver to the Custodian either (A) any document required to be included
in the Custodian File or (B) failure to deliver to the Indenture Trustee
the Perfection UCCs, pursuant to Section 7.18 of the Indenture
origination of such Receivable on or before sixty (60) days after the
due date of such Scheduled the party discovering such breach or failure
to deliver shall give prompt
22
written notice to each of the other foregoing parties. Except as
specifically provided in the Servicing Agreement or Indenture, the
Indenture Trustee has no obligation to review or monitor the Trust
Property for compliance with representations and warranties, delivery
requirements or payments. If (i) the breach of representations or
warranties causing such Receivable to be a Nonconforming Receivable
shall not have been (A) cured within thirty (30) days following notice
thereof or (B) waived by the Note Insurer following notice thereof or
(ii) the failure to deliver to the Custodian the Custodian File
documents or the Perfection UCCs shall not have been cured within seven
(7) calendar days following notice thereof (the occurrence of any of the
foregoing constitutes a "Repurchase Event"), the Owner Trustee shall
assign to the Purchaser and the Purchaser shall assign to the Transferor
the Receivable and the other related items of the Trust Property
affected by such breach, failure to deliver or non-payment and the
Transferor shall accept such assignment from the Purchaser and deposit
the Repurchase Price with respect to such Receivable into the Collection
Account within five (5) Business Days following the applicable cure
period or two (2) Business Days following receipt by the Transferor of
notice from the Note Insurer that the Note Insurer will not waive the
breach of representations or warranties causing such Receivable to be a
Nonconforming Receivable; provided that such transfer and assignment
shall only be made upon receipt by the Owner Trustee of notice from the
Servicer (pursuant to the terms of the Servicing Agreement) that the
Repurchase Price has been remitted to the Servicer and deposited into
the Collection Account. In consideration of the removal of such
Receivable and the other related items of the Trust Property, the Owner
Trustee shall cause the Purchaser and the Purchaser shall cause the
Transferor, no later than the fifth Business Day following such cure
period, if any, to pay the Repurchase Price to the Servicer for deposit
into the Collection Account. The Owner Trustee shall be entitled to
enforce the obligations of the Purchaser, the Transferor and the
applicable Dealer under the Contribution Agreement, this Transfer and
Assignment Agreement and the Dealer's Agreements, respectively, to remit
the Repurchase Price to the Servicer for deposit into the Collection
Account no later than the last day of the Collection Period following
such date. The Indenture Trustee and the Note Insurer are authorized to
take action on behalf of the Owner Trustee to enforce the obligations of
the Purchaser and the Transferor to repurchase such Receivable under the
Contribution Agreement or this Transfer and Assignment Agreement,
respectively, and to enforce the obligation of a Dealer to repurchase
such Receivable under the applicable Dealer Agreement.
(b) The obligations of the Transferor, the Purchaser and the
Owner Trustee to remove any Receivable and the other related items of
the Trust Property and to remit the Repurchase Price with respect to a
Nonconforming Receivable or as to which a failure to deliver has
occurred and is continuing shall constitute the sole remedy, except for
the indemnification provisions expressly set forth in the Indenture, the
Servicing Agreement, the Contribution Agreement, this Transfer and
Assignment Agreement and the Insurance Agreement, against the
Transferor, the Purchaser and the Owner Trustee for such breach or
failure to deliver available to the Indenture Trustee or the
Noteholders.
Section 7.03 Purchaser's Assignment of Repurchased
Receivables. With respect to any Receivable repurchased by the Transferor
pursuant to this Agreement, the Purchaser shall assign, without recourse,
representation or warranty, to the Transferor all the
23
Purchaser's right, title and interest in and to such Receivable, and all
security and documents relating thereto.
Section 7.04 Subsequent Transfer and Pledge. The Transferor
acknowledges that (a) the Purchaser will absolutely assign the Receivables and
the other Trust Property along with the Purchaser's rights and benefits
hereunder to the Owner Trustee pursuant to the terms of the Contribution
Agreement, (b) the Owner Trustee will Grant the Receivables and the other Trust
Property along with the Owner Trustee's rights and benefits under the
Contribution Agreement and hereunder to the Indenture Trustee pursuant to the
terms of the Indenture and (c) the terms and provisions hereof are intended to
benefit the Noteholders and the Note Insurer. The Transferor hereby consents to
such assignments and Grants.
Section 7.05 Amendment. This Agreement may be amended,
restated or supplemented from time to time by a written agreement duly executed
and delivered by the Transferor and the Purchaser, but only with (a) fifteen
(15) days' prior written notice to the Rating Agencies and (b) the prior written
consent of the Note Insurer. The Transferor shall deliver to the Persons
identified on a list provided to the Transferor by the Indenture Trustee, as
such list may be amended from time to time, a copy of any amendment to this
Agreement.
Section 7.06 Waivers. No failure or delay on the part of the
Purchaser or 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.
Section 7.07 Notices. All notices, requests, consents and
other communications hereunder shall be in writing and shall be delivered
personally or mailed by first-class registered or certified mail, postage
prepaid, or by telephonic facsimile transmission and overnight delivery service,
postage prepaid, to any party at the address set forth below or at such other
address as may be designated by it by notice to the other party and shall be
deemed given when so delivered, or if mailed. Any notice to the Note Insurer
shall be given in accordance with the terms of the Insurance Agreement.
If to the Transferor:
8000 Jones Branch Drive
McLean, Virginia 22102
Attention: Director of Securitization
Copy to: Legal Department
If to the Purchaser:
8000 Jones Branch Drive
McLean, Virginia 22102
Attention: Director of Securitization
24
Copy to: Legal Department
With a Copy to:
Mayer, Brown & Platt
190 S. LaSalle Street
Chicago, Illinois 60603
Attention: Stuart M. Litwin
Section 7.08 Costs and Expenses. The Transferor shall pay all
expenses, including fees and expenses of counsel, incident to the performance of
its obligations under this Agreement and the Transferor agrees to pay all
reasonable out-of-pocket costs and expenses, including reasonable attorneys fees
in connection with the enforcement of any obligation of the Transferor
hereunder. The Purchaser shall pay all expenses, including fees and expenses of
counsel, incident to the performance of its obligations under this Agreement.
Section 7.09 Representations. The respective agreements,
representations, warranties and other statements by the Transferor and the
Purchaser set forth in or made pursuant to this Agreement shall remain in full
force and effect and will survive the Closing Date under Section 2.02 hereof and
each Funding Date under Section 2.03.
Section 7.10 Confidential Information. The Purchaser agrees
that it will neither use nor disclose to any person other than the Note Insurer,
the Indenture Trustee, the Owner Trustee, the Issuer and the Holders of the
Notes the names and addresses of the Obligors, except in connection with the
enforcement of the Purchaser's rights hereunder, under the Receivables, or any
agreement relating to the Receivables or as required by law.
Section 7.11 Headings and Cross-References. The various
headings in this Agreement are included for convenience only and shall not
affect the meaning or interpretation of any provision of this Agreement.
References in this Agreement to Section names or numbers are to such Sections of
this Agreement.
Section 7.12 Governing Law. This Agreement and the Assignment
shall be governed by and construed in accordance with the internal laws of the
State of Texas.
Section 7.13 Counterparts. This Agreement may be executed in
two or more counterparts and by different parties on separate counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
Section 7.14 No Bankruptcy Petition Against the Owner Trustee
or the Purchaser. The Transferor agrees that, prior to the date that is one year
and one day after the payment in full of all amounts payable with respect to the
Class A Notes and the Class B Notes, it will not institute against the Owner
Trustee or the Purchaser, or join any other Person in instituting against the
Owner Trustee or the Purchaser, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under the laws of the
United States or any state of the United States. This Section 7.14 shall survive
the termination of the Indenture.
25
Section 7.15 Third Party Beneficiaries. This Agreement shall inure to the
benefit of the Note Insurer, the Indenture Trustee and their respective
successors and assigns and if a Note Insurer Default has occurred and is
continuing or if the Aggregate Outstanding Principal Balance of the Class A
Notes (and all interest accrued thereon) has been reduced to zero and all
Reimbursement Obligations due to the Note Insurer shall have been paid in full,
the Class B Noteholders. Without limiting the generality of the foregoing, all
representations, covenants and agreements in this Agreement which expressly
confer rights upon the Owner Trustee, the Note Insurer or the Indenture Trustee
shall be for the benefit of and run directly to the Owner Trustee, the Indenture
Trustee and the Note Insurer or, if a Note Insurer Default has occurred and is
continuing or if the Aggregate Outstanding Principal Balance of the Class A
Notes (and all interest accrued thereon) has been reduced to zero and all
Reimbursement Obligations due to the Note Insurer shall have been paid in full,
the Class B Noteholders. The Indenture Trustee and the Note Insurer or, if a
Note Insurer Default has occurred and is continuing or if the Aggregate
Outstanding Principal Balance of the Class A Notes (and all interest accrued
thereon) has been reduced to zero and all Reimbursement Obligations due to the
Note Insurer shall have been paid in full, the Class B Noteholders shall be
entitled to rely on and enforce such representations, covenants and agreements
to the same extent as if it were a party hereto.
26
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/ Jeffery Elswick
-----------------------------------------
Name: Jeffery Elswick
Title: Manager of Securitization
CAPITAL ONE AUTO RECEIVABLES, LLC,
as Purchaser
By: /s/ Jeffery Elswick
-----------------------------------------
Name: Jeffery Elswick
Title: President
S-1
SCHEDULE I
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained
in the Transfer and Assignment Agreement, the Transferor hereby represents,
warrants, and covenants to the Seller as to itself as follows on the Closing
Date and on each Payment Date thereafter:
1. The Transfer and Assignment Agreement creates a valid and continuing
security interest (as defined in UCC Section 9-102) in the Receivables in favor
of the Seller, which security interest is prior to all other Liens, and is
enforceable as such as against creditors of and purchasers from the Transferor.
2. The Receivables constitute "tangible chattel paper" within the
meaning of UCC Section 9-102.
3. The Transferor has taken all steps necessary to perfect its security
interest against the Obligor in the property securing the Receivables that
constitute chattel paper.
4. The Transferor owns and has good and marketable title to the
Receivables free and clear of any Lien, claim or encumbrance of any Person,
excepting only liens for taxes, assessments or similar governmental charges or
levies incurred in the ordinary course of business that are not yet due and
payable or as to which any applicable grace period shall not have expired, or
that are being contested in good faith by proper proceedings and for which
adequate reserves have been established, but only so long as foreclosure with
respect to such a lien is not imminent and the use and value of the property to
which the Lien attaches is not impaired during the pendency of such proceeding.
5. The Transferor has caused or will have caused, within ten days after
the effective date of the Indenture, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the contribution and sale of the Receivables
from the Transferor to the Seller, the transfer and sale of the Receivables from
the Seller to the Owner Trustee, and the security interest in the Receivables
granted to the Indenture Trustee hereunder.
6. With respect to Receivables that constitute tangible chattel paper,
such tangible chattel paper is in the possession of the Custodian and the
Indenture Trustee has received a written acknowledgment from the Custodian that
the Custodian is holding such tangible chattel paper solely on behalf and for
the benefit of the Indenture Trustee.
7. Neither the Transferor, the Seller, nor the Servicer has authorized
the filing of, or is aware of any financing statements against either the
Transferor, the Seller or the Servicer that include a description of collateral
covering the Receivables, the Trust Property and proceeds related thereto other
than any financing statement (i) relating to the contribution of Receivables by
the Transferor to the Seller under the Transfer and Assignment Agreement, (ii)
relating to the sale of Receivables by the Seller to the Owner Trustee under the
Contribution Agreement, (iii)
I-1
relating to the security interest granted to the Indenture Trustee hereunder, or
(iv) that has been terminated.
8. Neither the Transferor, the Seller nor the Servicer is aware of any
judgment, ERISA or tax lien filings against either the Transferor, the Seller or
the Servicer.
9. None of the tangible chattel paper that constitute or evidence the
Receivables has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Indenture Trustee.
10. Survival of Perfection Representations. Notwithstanding any other
--------------------------------------
provision of the Transfer and Assignment Agreement, the Contribution Agreement,
the Indenture or any other Transaction Document, the Perfection Representations
contained in this Schedule shall be continuing, and remain in full force and
effect (notwithstanding any replacement of the Servicer or termination of the
Servicer's rights to act as such) until such time as all obligations under the
Transfer and Assignment Agreement, Contribution Agreement and the Indenture have
been finally and fully paid and performed.
11. No Waiver. The parties hereto (i) shall not, without obtaining a
---------
confirmation of the then-current rating of the Class A Notes, waive any of the
Perfection Representations, (ii) shall provide the Ratings Agencies with prompt
written notice of any breach of the Perfection Representations, and (iii) shall
not, without obtaining a confirmation of the then-current rating of the Class A
Notes (as determined after any adjustment or withdrawal of the ratings following
notice of such breach), waive a breach of any of the Perfection Representations.
I-2
EXHIBIT A
ASSIGNMENT
For value received this ___ day of ____________, 200_, in the form of
cash, in accordance with terms of the Transfer and Assignment Agreement dated as
of December 20, 2001 (the "Transfer and Assignment Agreement") by and between
Capital One Auto Finance, Inc., as transferor (the "Transferor"), and Capital
One Auto Receivables, LLC, as purchaser (the "Purchaser"), the undersigned does
hereby contribute, assign, transfer and otherwise convey unto the Purchaser,
without recourse, a 100% interest in and to (i) the [Subsequent] Receivables
identified on the Schedule of Receivables and all moneys received thereon
(including amounts received on any Extended Service Agreements relating
thereto), on and after the respective Cutoff Date (except for interest accrued
as of the respective Cutoff Date and actually received subsequent to such Cutoff
Date which will be withdrawn from the Revenue Fund, to the extent contained
therein, and paid to the Transferor), (ii) a security interest in the Financed
Vehicles granted by the Obligors pursuant to such [Subsequent] Receivables and
the certificates of title to such Financed Vehicles; (iii) the interest of the
Transferor in any proceeds from claims on any physical damage, credit life, risk
default, disability or other insurance policies covering the Financed Vehicles
or the Obligors or refunds in connection with Extended Service Agreements
relating to Defaulted Receivables from the applicable Cutoff Date; (iv) any
property (including the right to receive future Liquidation Proceeds) that shall
secure a [Subsequent] Receivable, (v) all right, title and interest of the
Transferor in and to any recourse against any Dealer pursuant to the applicable
Dealer's Agreement; (vi) the original retail installment contracts and security
agreements evidencing the [Subsequent] Receivables; and (vii) the proceeds of
any and all of the foregoing. The foregoing contribution, assignment, transfer
and conveyance does not constitute and is not intended to result in any
assumption by the Purchaser of any obligation of the undersigned to the
Obligors, insurers or any other person in connection with the [Subsequent]
Receivables, Servicer Files (as defined in the Servicing Agreement), any
insurance policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Transfer and Assignment Agreement and is to be governed by the Transfer and
Assignment Agreement.
Capitalized terms used herein and not otherwise defined herein shall
have the meaning assigned to them in the Transfer and Assignment Agreement.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of the date first written above.
CAPITAL ONE AUTO FINANCE, INC.
By: ____________________________________
Name:
Title:
S-1
EXHIBIT B
SAMPLE RECEIVABLES - FORMS
[On file with the Registrant]
B-1
EXHIBIT C
[RESERVED]
C-1
EXHIBIT D
FORM OF CERTIFICATE OF DELIVERY
In connection with the absolute assignment of certain auto loan receivables
by Capital One Auto Finance, Inc. (the "Transferor") to Capital One Auto
Receivables, LLC the undersigned, as servicer (the "Servicer"), hereby certifies
that the documents listed below are included in the Custodian File (as defined
below) delivered to Capital One Auto Finance, Inc., as Custodian ("Custodian")
on behalf of JPMorgan Chase Bank, as indenture trustee ("Indenture Trustee")
pursuant to the terms of that certain Indenture dated as of December 20, 2001 by
and between Capital One, Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee for Capital One Auto Finance Trust 2001-B,
and the Indenture Trustee (the "Indenture") for each of the Receivables listed
on the attached Schedule of Receivables. Unless otherwise defined herein,
capitalized terms have the meanings set forth in the Indenture.
(i) the sole original counterpart of the retail installment
contract and security agreement evidencing each such Receivable and
any and all amendments thereto; and
(ii) (A) the original Certificate of Title or copies of
correspondence to the appropriate State title registration agency, and
all enclosures thereto, for issuance of the original Certificate of
Title or (B) if the appropriate State title registration agency issues
a letter or other form of evidence of lien in lieu of a Certificate of
Title, the original lien entry letter or form or copies of
correspondence to such State title registration agency, and all
enclosures thereto, for issuance of the original lien entry letter or
form.
CAPITAL ONE AUTO FINANCE, INC.
Date: ___________, 200___ By: ________________________________
Name: ________________________________
Title: ________________________________
D-1
EXHIBIT E
FORM OF DEALER'S AGREEMENT
[On file with the Registrant]
E-1