Exhibit 10.2
EXECUTION COPY
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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 2001-B
Dated as of December 20, 2001
__________________________________
$1,277,830,000
CAPITAL AUTO FINANCE TRUST 2001-B
AUTOMOBILE RECEIVABLE-BACKED NOTES, SERIES 2001-B
CLASS A NOTES AND CLASS B NOTES
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2001-B Contribution Agreement
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 ....................................... 9
ARTICLE V COVENANTS OF THE SELLER ............................................................... 10
Section 5.01 Protection of Right, Title and Interest ...................................... 10
Section 5.02 Other Liens or Interests ..................................................... 10
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 ................................................................. 12
ARTICLE VI [RESERVED] ............................................................................ 12
ARTICLE VII MISCELLANEOUS PROVISIONS .............................................................. 12
Section 7.01 Obligations of Seller ........................................................ 12
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TABLE OF CONTENTS
Page
Section 7.02 Repurchase Events ............................................................ 12
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 ...................................................................... 14
Section 7.07 Notices ...................................................................... 14
Section 7.08 [Reserved] ................................................................... 15
Section 7.09 Representations .............................................................. 15
Section 7.10 Confidential Information ..................................................... 15
Section 7.11 Headings and Cross-References ................................................ 15
Section 7.12 Governing Law ................................................................ 15
Section 7.13 Counterparts ................................................................. 15
Section 7.14 No Bankruptcy Petition Against the Trust ..................................... 15
Section 7.15 Third Party Beneficiaries .................................................... 16
Section 7.16 Limitation on Liability ...................................................... 16
Section 7.17 Limitations of Liability ..................................................... 16
SCHEDULE I PERFECTION REPRESENTATIONS
EXHIBIT A FORM OF ASSIGNMENT
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CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT is made as of this December 20, 2001, 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 2001-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 Wells
Fargo Bank Minnesota, National Association, 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.
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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, a 100% interest in (i) all right, title and
interest of the Seller in and to 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 to the Initial Receivables assigned by the
related Dealer, Capital One F.S.B. or Referral Originator to COAF in
the Financed Vehicles and transferred by COAF to the Seller 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 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 98.5%
of 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
1.5% of the Receivables Purchase Price.
(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, a 100%
interest in (i) all right, title and interest of the Seller in and to
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
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received subsequent to the related 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 Seller 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 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 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
98.5% of 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 1.5% of the Receivables Purchase Price for such Subsequent
Receivables. 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 & Platt,
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 and
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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 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
and the Note Trust.
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
5
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 prior to the assignment from the
Transferor to the Seller shall be deemed to be a reference
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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 Trustee within
thirty (30) days following the Closing Date or Funding Date, as
the
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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 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; 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 and the Note Insurer 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
Transferor and the Indenture Trustee notice of any such change and no
later than five (5) days after the effective date thereof 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.
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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 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
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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
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 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 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 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 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 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 and the Note Insurer prompt
written notice of the occurrence of
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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 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
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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 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 and (b) the prior written
consent of the Class B Noteholder and the Note Insurer. 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.
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 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 Seller:
Capital One Auto Receivables, LLC
8000 Jones Branch Drive
McLean, Virginia 22042
Attention: Director of Securitization - Copy to: Legal Department
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If to the Owner Trustee:
Wilmington Trust Company as owner trustee of
Capital One Auto Finance Trust 2001-B
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Jeanne Oller
With Copies to:
Capital One Auto Finance, Inc.
8000 Jones Branch Drive
McLean, Virginia 22042
Attention: Director of Securitization - Copy to: Legal Department
Mayer, Brown & Platt
190 South LaSalle
Chicago, Illinois 60603
Attention: Stuart M. Litwin
Section 7.08 [Reserved].
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
15
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 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, 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, 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.
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
December 20, 2001 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
16
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/ Jeffery Elswick
-------------------------------------
Name: Jeffery Elswick
--------------------------------
Title:President
-------------------------------
S-1
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Owner Trustee for Capital
One Auto Finance Trust 2001-B
By: /s/ Patricia A. Evans
____________________________________________
Authorized Officer
S-2
SCHEDULE I
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained
in the Contribution Agreement, the Seller hereby represents, warrants, and
covenants to the Owner Trustee as to itself as follows on the Closing Date and
on each Payment Date thereafter:
1. The Contribution Agreement creates a valid and continuing security
interest (as defined in UCC Section 9-102) in the Receivables 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 constitute "tangible chattel paper" within the
meaning of UCC Section 9-102.
3. COAF 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 Seller 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 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 Receivables from COAF 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 Seller nor the Servicer has authorized the filing of, or
is aware of any financing statements against either 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 sale of Receivables by the Transferor to the Seller under the
Transfer and Assignment Agreement, (ii) relating to the contribution of
Receivables 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.
I-1
8. Neither the Seller nor the Servicer is aware of any judgment, ERISA
or tax lien filings against either the Seller or the Transferor.
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
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 ________, 2001 in accordance with
terms of the Contribution Agreement dated as of December 20, 2001 (the
"Contribution Agreement") by and between Capital One Auto Finance Trust 2001-B,
as Seller (the "Seller"), and Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee to Capital One Auto Finance Trust 2001-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), on and 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 Transferor); (ii) a security interest in the Financed
Vehicle granted by the Obligors 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 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 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