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 2002-C
Dated as of December 17, 2002
$842,553,191
CAPITAL AUTO FINANCE TRUST 2002-C
ASSET BACKED NOTES, SERIES 2002-C
CLASS A NOTES AND CLASS B NOTES
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TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS.............................................1
ARTICLE II CONTRIBUTION AND ACQUISITION OF RECEIVABLES.....................2
Section 2.01 Contribution and Acquisition of Receivables..................2
Section 2.02 The Closing..................................................3
Section 2.03 Funding Dates................................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES..................................4
Section 3.01 Representations and Warranties of the Owner Trustee..........4
Section 3.02 Representations and Warranties of the Seller.................5
ARTICLE IV CONDITIONS......................................................8
Section 4.01 Conditions to Obligation of the Owner Trustee................8
Section 4.02 Conditions to Obligation of the Seller......................10
ARTICLE V COVENANTS OF THE SELLER........................................10
Section 5.01 Protection of Right, Title and Interest.....................10
Section 5.02 Other Liens or Interests....................................11
Section 5.03 Principal Executive Office..................................11
Section 5.04 Full Force and Effect.......................................11
Section 5.05 Costs and Expenses..........................................11
Section 5.06 No Waiver...................................................11
Section 5.07 Location of Servicer Files..................................11
Section 5.08 [Reserved]..................................................11
Section 5.09 Transfer of Receivables.....................................11
Section 5.10 Seller's Records............................................11
Section 5.11 [Reserved]..................................................11
Section 5.12 Cooperation by Seller.......................................11
Section 5.13 Transfer of Additional Receivables..........................12
Section 5.14 Notice of Breach............................................12
Section 5.15 No Violation................................................12
ARTICLE VI [RESERVED].....................................................13
ARTICLE VII MISCELLANEOUS PROVISIONS.......................................13
Section 7.01 Obligations of Seller.......................................13
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TABLE OF CONTENTS
(continued)
Page
Section 7.02 Repurchase Events...........................................13
Section 7.03 Owner Trustee's Assignment of Repurchased Receivables.......14
Section 7.04 Subsequent Pledge...........................................14
Section 7.05 Amendment...................................................14
Section 7.06 Waivers.....................................................15
Section 7.07 Notices.....................................................15
Section 7.08 [Reserved]..................................................15
Section 7.09 Representations.............................................16
Section 7.10 Confidential Information....................................16
Section 7.11 Headings and Cross-References...............................16
Section 7.12 Governing Law...............................................16
Section 7.13 Counterparts................................................16
Section 7.14 No Bankruptcy Petition Against the Trust....................16
Section 7.15 Third Party Beneficiaries...................................16
Section 7.16 Limitation on Seller's Liability............................17
Section 7.17 Limitations of Owner Trustee's Liability....................17
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CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT is made as of this December 17, 2002, by and
between Capital One Auto Receivables, LLC, a Delaware limited liability company
(the "Seller"), and WILMINGTON TRUST COMPANY, a Delaware banking corporation not
in its individual capacity but solely as Owner Trustee for Capital One Auto
Finance Trust 2002-C (the "Owner Trustee"), a Delaware common law trust (the
"Trust").
WHEREAS, the Seller has acquired and will acquire in the ordinary course of
business, certain Receivables (as defined in the Indenture described below),
each secured by a security interest granted by the related Obligors (as defined
in the Indenture) in the Financed Vehicles (as defined in the Indenture)
financed thereby from Capital One Auto Finance, Inc., a Texas corporation (the
"Transferor"), pursuant to the terms of that certain Transfer and Assignment
Agreement dated of even date herewith (the "Transfer and Assignment Agreement")
by and between the Transferor and the Seller; and
WHEREAS, the Seller and the Owner Trustee wish to set forth the terms and
provisions pursuant to which the Receivables are to be transferred by the Seller
to the Owner Trustee on the Closing Date and on each Funding Date (both as
defined in the Indenture), which Receivables will then be Granted (as defined in
the Indenture) by the Owner Trustee to the Indenture Trustee for the benefit of
the Noteholders and the Note Insurer (both as defined in the Indenture), as
their interests appear, pursuant to the terms of that certain Indenture dated of
even date herewith (the "Indenture") by and between the Owner Trustee and
JPMorgan Chase Bank, as indenture trustee (the "Indenture Trustee").
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Capitalized terms used but not defined in this Agreement shall have the
meanings set forth in the Indenture. As used in this Agreement, the following
terms shall, unless the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms of such
terms and to the masculine, feminine and neuter genders of such terms):
"Agreement" or "Contribution Agreement" means this Contribution Agreement
and all amendments and restatements hereof and supplements hereto.
"Assignment" means the document of assignment substantially in the form
attached to this Agreement as Exhibit A.
"Perfection Representations" means the representations, warranties and
covenants set forth in Schedule 1 attached hereto.
ARTICLE II
CONTRIBUTION AND ACQUISITION OF RECEIVABLES
Section 2.01. Contribution and Acquisition of Receivables. On the Closing
Date and on each Funding Date, subject to the terms and conditions of this
Agreement, the Seller agrees to contribute and assign to the Owner Trustee, and
the Owner Trustee agrees to acquire from the Seller, the Receivables and the
other Trust Property relating thereto.
(a) Initial Contribution of Receivables and Trust Property. On the
Closing Date and simultaneously with the transactions pursuant to the
Transfer and Assignment Agreement and the Indenture, the Seller shall
contribute and assign to the Owner Trustee, without recourse except as set
forth herein, all of the Seller's right, title and interest, whether now or
hereafter existing, in and to (i) the Initial Receivables identified on a
Schedule of Receivables delivered on the Closing Date, and all moneys
received thereon (including amounts received on any Extended Service
Agreements relating thereto), after the related Cutoff Date (except for
interest accrued as of the related Cutoff Date and actually received
subsequent to such Cutoff Date which shall be withdrawn from the Revenue
Fund, to the extent contained therein, and paid to the Seller); (ii) the
security interest in the Financed Vehicles granted by the Obligors pursuant
to such Receivables and the Certificates of Title to such Financed
Vehicles; (iii) the interest of the Seller in any proceeds from claims on
any physical damage, credit life, risk default, disability or other
insurance policies covering the Financed Vehicles or the Obligors or
refunds in connection with Extended Service Agreements relating to
Defaulted Receivables from such Cutoff Date; (iv) any property (including
the right to receive future Liquidation Proceeds) that shall secure an
Initial Receivable; (v) all right, title and interest of the Seller in and
to any recourse against COAF or any Dealer pursuant to the Transfer and
Assignment Agreement or the applicable Dealer Agreement, respectively; (vi)
the original retail installment contracts and security agreements and/or
installment loans evidencing the Initial Receivables; and (vii) the
proceeds of any and all of the foregoing. (All of the property identified
in this subsection (a) and the following subsection (c) shall constitute
"Trust Property".)
(b) Consideration for Initial Receivables. In consideration of the
Receivables and the Trust Property described in Section 2.01(a), the Seller
shall, on the Closing Date, receive an amount equal to the Receivables
Purchase Price in the form of cash by federal wire transfer funds and the
Seller shall make a capital contribution to the Trust on the Closing Date
of Initial Receivables in an amount equal to 1.00% of the Aggregate
Receivables Balance of such Receivables as of the applicable Cutoff Date.
(c) Contribution of Subsequent Receivables and Trust Property. On each
Funding Date, the Seller shall contribute and assign to the Owner Trustee,
without recourse except as set forth herein, all of the Seller's right,
title and interest, whether now or hereafter existing, in and to (i) the
Subsequent Receivables identified on a Schedule of Receivables delivered on
such Funding Date, and all moneys received thereon (including amounts
received on any Extended Service Agreements relating thereto), after the
respective Cutoff Date (except for interest accrued as of the related
Cutoff Date and actually received subsequent to the related Cutoff Date
which shall be withdrawn from
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the Revenue Fund, to the extent contained therein, and paid to the
Transferor); (ii) the security interest of the Seller in the Financed
Vehicles granted by the Obligors, related Dealer or Referral Originator to
COAF pursuant to such Subsequent Receivables and the certificates of title
to such Financed Vehicles; (iii) the interest of the Seller in any proceeds
from claims on any physical damage, credit life, risk default, disability
or other insurance policies covering the Financed Vehicles or the Obligors
or refunds in connection with Extended Service Agreements relating to
Defaulted Receivables from the related Cutoff Date; (iv) any property
(including the right to receive future Liquidation Proceeds) that shall
secure a Subsequent Receivable; (v) all right, title and interest of the
Seller in and to any recourse against the Transferor or any Dealer pursuant
to the Transfer and Assignment Agreement or the applicable Dealer
Agreement, respectively; (vi) the original retail installment contracts and
security agreements and/or installment loans evidencing the Subsequent
Receivables; and (vii) the proceeds of any and all of the foregoing;
provided, however, that Subsequent Receivables may not be acquired by the
Seller from the Transferor, contributed and assigned by the Seller to the
Owner Trustee and Granted by the Owner Trustee to the Indenture Trustee
unless the addition of such Subsequent Receivables to the Receivables Pool
meets the requirements set forth in Section 2.16 of the Indenture.
(d) Consideration for Subsequent Receivables. Upon two (2) Business
Days' prior written notice given by the Owner Trustee to the Indenture
Trustee, the Owner Trustee shall cause the Indenture Trustee, on the
applicable Funding Date, to pay to the Seller an amount equal to the
Receivables Purchase Price with respect to the Subsequent Receivables
acquired from the Seller on such date in cash by federal wire transfer
funds and the Seller shall make a capital contribution to the Trust on such
Funding Date of Subsequent Receivables in an amount equal to 1.00% of the
Aggregate Receivables Balance of such Subsequent Receivables as of the
applicable Cutoff Date. The Seller acknowledges that funds to transfer the
Subsequent Receivables and the other Trust Property relating thereto on
each Funding Date shall be disbursed by the Indenture Trustee solely from
the Issuance Fund pursuant to Section 5.06 of the Indenture.
(e) Absolute Assignment. It is the intention of the Seller and the
Owner Trustee that each contribution, assignment and conveyance hereunder
constitute an absolute assignment of the Trust Property from the Seller to
the Owner Trustee. If, notwithstanding the express intention of the
parties, this Agreement is deemed not to constitute an absolute assignment
of the Trust Property from the Seller to the Owner Trustee, this Agreement
shall be deemed to be a security agreement within the meaning of Article 8
and Article 9 of the Uniform Commercial Code as in effect in the
Commonwealth of Virginia and the State of Delaware and the conveyance
provided for in this Section 2.01 shall be deemed to be a grant by the
Seller to the Owner Trustee of a valid first priority perfected security
interest in all of the Seller's right, title and interest in and to the
Trust Property.
Section 2.02 The Closing. The transfer of the Initial Receivables shall
take place at a closing (the "Closing") at the offices of Mayer, Brown, Rowe &
Maw, Chicago, Illinois on the Closing Date, simultaneously with the closings
under the Transfer and Assignment Agreement and the Indenture pursuant to which
(a) the Transferor will absolutely assign all of its right, title
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and interest in and to the Initial Receivables and other Trust Property to the
Seller, (b) the Seller will absolutely assign all of its right, title and
interest in and to the Initial Receivables and other Trust Property to the Owner
Trustee, (c) the Owner Trustee will Grant all of its right, title and interest
in and to the Initial Receivables and other Trust Property to the Indenture
Trustee for the benefit of the Noteholders, the Swap Counterparty and the Note
Insurer, and (d) the Class A Notes and the Class B Notes will be issued.
Section 2.03 Funding Dates. The transfer of the Subsequent Receivables on a
Funding Date shall take place at the offices of the Indenture Trustee or such
other location as the Seller and the Owner Trustee may reasonably agree. The
transfer of the Subsequent Receivables shall be made in accordance with Section
2.16 of the Indenture pursuant to which (a) the Transferor will absolutely
assign all of its right, title and interest in and to the Subsequent Receivables
and other Trust Property to the Seller, (b) the Seller will transfer all of its
right, title and interest in and to the Subsequent Receivables and other Trust
Property to the Owner Trustee, and (c) the Owner Trustee will Grant all of its
right, title and interest in and to the Subsequent Receivables and other Trust
Property to the Indenture Trustee for the benefit of the Noteholders, the Swap
Counterparty (unless the Interest Rate Swap Agreement has been terminated and
all amounts owed to the Swap Counterparty have been paid in full) and the Note
Insurer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Owner Trustee. The Owner
Trustee hereby represents and warrants to the Seller as of the date hereof and
as of the Closing Date and each Funding Date:
(a) Organization, Etc. The Owner Trustee is a banking corporation in
good standing under the laws of the State of Delaware with full power and
authority to execute and deliver this Agreement and to perform the terms
and provisions hereof. The Owner Trustee is duly qualified to do business
as a foreign business entity in good standing and has obtained all required
licenses and approvals, if any, in all jurisdictions in which the ownership
or lease of property or the conduct of its business requires such
qualification except those jurisdictions in which failure to be so
qualified would not have a material adverse effect on the business or
operations of the Owner Trustee.
(b) Due Authorization. The execution, delivery and performance by the
Owner Trustee of this Agreement have been duly authorized by all necessary
action, do not require any approval or consent of any Person, do not and
will not conflict with any material provision of the Certificate of
Incorporation or bylaws of the Owner Trustee, and do not and will not
conflict with or result in a breach which would constitute a material
default under any agreement for borrowed money binding upon or applicable
to it or such of its property which is material to it, or any law or
governmental regulation or court decree applicable to it or such material
property, and this Agreement is the legal, valid and binding obligation of
the Owner Trustee enforceable in accordance with its terms except as the
same may be limited by insolvency, bankruptcy, reorganization or other laws
relating to or affecting the enforcement of creditors' rights or by general
equity principles.
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(c) No Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is presently pending, or to
the knowledge of the Owner Trustee threatened, against the Owner Trustee or
its properties or with respect to this Agreement, which, if adversely
determined would, in the opinion of the Owner Trustee, have a material
adverse effect on the transactions contemplated by this Agreement.
(d) Business Purpose. The Owner Trustee will acquire the Receivables
for a bona fide business purpose and has undertaken the transactions
contemplated herein as principal rather than as agent for the Seller or any
other person.
Section 3.02 Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Owner Trustee as
of the Closing Date and each Funding Date:
(i) Organization, Etc. The Seller is a limited liability company
duly organized under the laws of the State of Delaware pursuant to a
Certificate of Formation and is validly existing as a limited
liability company and is in good standing under the laws of the State
of Delaware. The Seller has full power and authority to own its
properties and to conduct its business as such properties are
currently owned and such business is presently conducted and had at
all relevant times, and has, the power, authority and legal right to
acquire and transfer the Receivables acquired and transferred by the
Seller.
(ii) Due Qualification. The Seller is duly qualified to do
business as a foreign limited liability company, in good standing, and
has obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. The Seller has the power and authority
to execute and deliver this Agreement and to carry out its terms; the
Seller has full power and authority to transfer the property
transferred to the Owner Trustee and such transfer does not and will
not conflict with or result in a breach which would constitute a
material default under any agreement for borrowed money binding upon
or applicable to it or such of its property which is material to it,
or any law or governmental regulation or court decree applicable to it
or such material property, and this Agreement is the legal, valid and
binding obligation of the Seller enforceable in accordance with its
terms except as the same may be limited by insolvency, bankruptcy,
reorganization or other laws relating to or affecting the enforcement
of creditors' rights or by general equity principles.
(iv) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms do not
conflict with, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time) a default
under the Certificate of Formation and the Limited Liability Company
Agreement of the Seller or any indenture, agreement
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or other instrument to which the Seller is a party or by which it is
bound; nor result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this Agreement); nor violate
any law or, to the best of the Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court or of any federal or
state regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its properties.
(v) No Proceedings. There are no proceedings or investigations
pending, or, to the Seller's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties:
(A) asserting the invalidity of this Agreement; (B) seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement; or (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement.
(vi) No Consents, Approvals. Neither the execution nor the
delivery by the Seller of this Agreement, nor the performance of the
Seller's obligations hereunder, require the consent or approval of,
the giving of notice to, the registration with, or the taking of any
other action with respect to, any governmental authority or agency
under any existing federal or state law governing the Seller, except
such as have been previously obtained, made or taken.
(vii) Adequate Provisions for Taxes. The provisions for taxes on
the Seller's books are in accordance with generally accepted
accounting principles.
(viii) Trade Name. "Capital One Auto Receivables, LLC" is the
only trade name under which the Seller is currently operating its
business. For the six (6) years (or such shorter period of time during
which the Seller was in existence) preceding the date hereof, the
Seller operated its business under the trade name "Capital One Auto
Receivables, LLC." "Capital One Auto Receivables, LLC" is the name of
the Seller indicated on the record of the Seller's jurisdiction of
organization which shows the Seller to have been organized.
(ix) Ability to Perform. There has been no material impairment in
the ability of the Seller to perform its obligations under this
Agreement.
(x) Valid Business Reasons; No Fraudulent Transfers. The Seller
has valid business reasons for contributing the Receivables rather
than obtaining a secured loan with the Receivables as collateral. At
the time of the transfer (A) the Seller contributed the Receivables to
the Owner Trustee without any intent to hinder, delay, or defraud any
current or future creditor of the Seller; (B) the Seller was not
insolvent or did not become insolvent as a result of the transfer; (C)
the Seller was not engaged and was not about to engage in any business
or transaction for which any property remaining with the Seller was an
unreasonably small
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capital or for which the remaining assets of the Seller were
unreasonably small in relation to the business of the Seller or the
transaction; (D) the Seller did not intend to incur, and did not
believe or reasonably should not have believed that it would incur,
debts beyond its ability to pay as they become due; and (E) the
consideration paid by the Owner Trustee to the Seller for the
Receivables transferred by the Seller hereunder was equivalent to a
fair market value of such Receivables under the circumstances of the
transaction, including but not limited to, timing of such transfer.
(xi) Principal Executive Office. Since its inception, the Seller
has maintained, and from the date of this Agreement shall maintain,
its principal executive office in the Commonwealth of Virginia, and
there has been no other jurisdiction in which the Seller's principal
executive office was located during the four (4) months preceding the
Closing Date.
(xii) No Omission or Misstatement. Neither this Agreement nor any
statement, report or other document furnished or to be furnished
pursuant to this Agreement by the Seller, or in connection with the
transactions contemplated hereby, contains any untrue statement of
fact or omits to state a fact necessary to make the statements
contained herein or therein not misleading insofar as the same relates
to the Seller. The Seller has good and marketable title to, and is the
owner of, each Receivable transferred by the Seller hereunder and the
indebtedness evidenced by each such Receivable is subject to no Lien,
charge, security interest or encumbrance of any kind or nature and the
Seller has the unqualified right to transfer its ownership interest in
each such Receivable and the indebtedness evidenced thereby; the
Seller has not made any prior transfer of any Receivable or its rights
thereto or thereunder.
(xiii) Perfection Representations. The Perfection Representations
shall be a part of this Agreement for all purposes.
(xiv) 1940 Act. The Seller is not an "investment company" as such
term is defined in the 1940 Act.
(b) The Seller hereby affirms that each of the representations and
warranties of the Transferor set forth in the Transfer and Assignment
Agreement is true and correct as of the Closing Date or Funding Date, as
the case may be, and each such representation and warranty is hereby
incorporated in this Contribution Agreement as if set forth herein in full;
provided, however, that in incorporating such representations and
warranties (a) each reference in such representations and warranties to the
Transferor shall be deemed to be a reference to the Seller and each
reference to the Seller shall be deemed to be a reference to the Owner
Trustee, (b) each reference in such representations and warranties to an
assignment of the Receivable from the Transferor to the Seller pursuant to
the Transfer and Assignment Agreement shall be deemed to be a reference to
the transfer of the Receivable from the Seller to the Owner Trustee
pursuant to this Contribution Agreement and (c) each reference in such
representations and warranties to the Transferor having good and marketable
title to the Receivable free and clear of Liens
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prior to the assignment from the Transferor to the Seller shall be deemed
to be a reference to the Seller having good and marketable title to the
Receivable free and clear of Liens prior to the transfer from the Seller to
the Owner Trustee.
ARTICLE IV
CONDITIONS
Section 4.01 Conditions to Obligation of the Owner Trustee. The obligation
of the Owner Trustee to accept the transfer of the Receivables is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct on the Closing
Date or Funding Date, as the case may be, with the same effect as if then
made, and the Seller shall have performed all obligations to be performed
by it hereunder on or prior to the Closing Date or Funding Date, as the
case may be.
(b) Files Marked; Files and Records. The Seller shall, at its own
expense, on or prior to the Closing Date or Funding Date, as the case may
be, indicate in its files that the Receivables have been contributed to the
Owner Trustee pursuant to this Agreement and deliver to the Owner Trustee a
Schedule of Receivables certified by the Chairman, the President, a Vice
President or the Treasurer of the Seller to be true, correct and complete.
Further, the Seller hereby agrees that the computer files and other
physical records of the Receivables maintained by the Seller will bear an
indication reflecting that the Receivables were transferred to the Owner
Trustee.
(c) Documents to be Delivered by the Seller on or in connection with
the Closing Date or Funding Date.
(i) The Assignment. As of the Closing Date and each Funding Date,
the Seller shall execute an Assignment substantially in the form of
Exhibit A hereto of the Receivables, the security interests in the
related Financed Vehicles and the other Trust Property being
transferred by the Seller on such date (as identified on the Schedule
of Receivables attached to such Assignment).
(ii) Evidence of UCC Filings. On or prior to the Closing Date or
Funding Date, as the case may be, the Seller shall provide the Owner
Trustee evidence that the Seller has recorded and filed, at the
expense of the Transferor, (A) Termination Statements in each
jurisdiction in which required by applicable law, if any, to release
any prior security interests in the Receivables granted by the Seller
and (B) UCC financing statements in each jurisdiction in which
required by applicable law, authorized by the Seller, as seller or
debtor, and naming the Owner Trustee, as purchaser or secured party,
identifying the Receivables and the other Trust Property as
collateral, meeting the requirements of the laws of each such
jurisdiction and in such manner as is necessary to perfect the
transfer of such Receivables to the Owner Trustee. The Seller shall
deliver the Perfection UCC's, or other evidence satisfactory to the
Owner Trustee of such filing, to the Indenture
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Trustee within thirty (30) days following the Closing Date or Funding
Date, as the case may be, or promptly following such later date as
such file-stamped copies or other evidence is received by or on behalf
of the Owner Trustee.
(iii) Other Documents. Such other documents as the Owner Trustee
may reasonably request.
(d) Documents to be Delivered by the Seller In Connection with the
Closing Date or Funding Date. Within two (2) Business Days preceding the
Closing Date or Funding Date, as the case may be, the Seller shall cause
the Transferor to deliver to the Custodian the following documents (with
respect to each Receivable, a "Custodian File"):
(i) the sole original counterpart of the retail installment
contract and security agreement and/or installment loans evidencing
each such Receivable and any and all amendments thereto; and
(ii) (A) the original Certificate of Title or copies of
correspondence to the appropriate State title registration agency, and
all enclosures thereto, for issuance of the original Certificate of
Title for the related Financed Vehicles or (B) if the appropriate
State title registration agency issues a letter or other form of
evidence of lien in lieu of a Certificate of Title, the original lien
entry letter or form or copies of correspondence to such State title
registration agency, and all enclosures thereto, for issuance of the
original lien entry letter or form for the related Financed Vehicles.
Such delivery of Custodian Files shall be accompanied by a Certificate
of Delivery substantially in the form of Exhibit D to the Transfer and
Assignment Agreement if COAF is not the Servicer; provided, however, that,
with respect to the Custodian Files delivered pursuant to this subsection
(d) of this Section 4.01, any original Certificate of Title or other
evidence of the lien of the Transferor (or, in the case of a Referral
Receivable, the applicable Referral Originator) not so delivered to the
Custodian due to the fact that such title or other evidence of lien has not
yet been issued by a State title registration agency and delivered to or on
behalf of the Transferor shall be delivered by the Transferor to the
Custodian promptly following receipt thereof by the Transferor but in no
event later than 180 days following the Closing Date or Funding Date, as
the case may be; further provided, however, that, for any original
Certificate of Title or other evidence of lien of the Transferor (or, in
the case of a Referral Receivable, the applicable Referral Originator) not
so delivered to the Custodian, the Seller shall be deemed to be in breach
of its representations and warranties contained in Section 3.02(b) hereof,
and such occurrence shall constitute a Repurchase Event pursuant to Section
7.02 hereof.
(e) Other Transactions. The transactions contemplated by the
Indenture, the Transfer and Assignment Agreement and the Servicing
Agreement shall be consummated on the Closing Date.
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Section 4.02 Conditions to Obligation of the Seller. The obligation of the
Seller to transfer the Receivables to the Owner Trustee on the Closing Date or
Funding Date, as the case may be, is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Owner Trustee hereunder shall be true and correct on the
Closing Date or Funding Date, as the case may be, with the same effect as
if then made, and the Owner Trustee shall have performed or cause to be
performed all obligations to be performed by it hereunder on or prior to
the Closing Date or Funding Date, as the case may be.
(b) Proceedings. All corporate and legal proceedings and all
instruments in connection with the transactions contemplated by this
Contribution Agreement shall be satisfactory in form and substance to the
Seller, and the Seller shall have received from the Trust or the Owner
Trustee copies of all documents (including, without limitation, records of
Seller proceedings) relevant to the transactions herein contemplated as the
Seller may reasonably have requested.
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Owner Trustee, the Note Insurer and the Swap
Counterparty as follows:
Section 5.01 Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause all financing statements and
continuation statements and any other necessary documents covering the
right, title and interest of the Owner Trustee in and to the Receivables
and the other Trust Property to be promptly filed, and at all times to be
kept recorded, registered and filed, all in such manner and in such places
as may be required by law fully to preserve and protect the right, title
and interest of the Owner Trustee or the Indenture Trustee hereunder to the
Receivables and the other Trust Property. The Seller shall deliver or cause
to be delivered to or at the direction of the Owner Trustee, file-stamped
copies of, or filing receipts for, any document recorded, registered or
filed as provided above, as soon as available following such recordation,
registration or filing. The Owner Trustee shall cooperate fully with the
Seller in connection with the obligations set forth above and will execute
any and all documents reasonably required to fulfill the intent of this
Section 5.01(a).
(b) Name Change. Within fifteen (15) days after the Seller makes any
change in its name, identity, jurisdiction of organization or structure
which would make any financing statement or continuation statement filed in
accordance with paragraph (a) above seriously misleading within the
applicable provisions of the UCC or any title statute, the Seller shall
give the Owner Trustee, the Note Insurer, the Swap Counterparty (unless the
Interest Rate Swap Agreement has been terminated and all amounts owed to
the Swap Counterparty have been paid in full), the Transferor and the
Indenture Trustee notice of any such change and no later than five (5) days
after the effective date thereof
10
the Seller shall file such financing statements or amendments as may be
necessary to continue the perfection of the Owner Trustee's security
interest in the Trust Property.
Section 5.02 Other Liens or Interests. Except for the transfers hereunder,
the Seller will not sell, pledge, assign or transfer to any other person, or
grant, create, incur, assume or suffer to exist any Lien on, any interest
therein, and the Seller shall defend the right, title, and interest of the Owner
Trustee in, to and under such Receivables against all claims of third parties
claiming through or under the Seller; provided, however, that the Seller's
obligations under this Section 5.02 shall terminate upon the termination of the
Indenture.
Section 5.03 Principal Executive Office. Since its inception, the Seller
has maintained and, from the date of this Agreement, shall maintain its
principal executive office in the Commonwealth of Virginia and shall not change
its jurisdiction of organization.
Section 5.04 Full Force and Effect. The Seller shall keep in full force and
effect its existence, rights and franchises as a limited liability company under
the laws of the State of Delaware.
Section 5.05 Costs and Expenses. The Seller agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all third
parties, of the transfer to the Owner Trustee of the Seller's right, title and
interest in and to the Receivables.
Section 5.06 No Waiver. The Seller shall not waive any default, breach,
violation or event permitting acceleration under the terms of any Receivable.
Section 5.07 Location of Servicer Files. The Servicer Files, exclusive of
the Custodian Files, are to be kept at the Servicer's principal executive
office. The Custodian Files are to be kept at the principal executive office of
the Custodian or such other office of the Custodian as specified in the
Indenture.
Section 5.08 [Reserved].
Section 5.09 Transfer of Receivables. The Seller will take no action
inconsistent with the transfer of the Receivables to the Owner Trustee for
financial accounting purposes.
Section 5.10 Seller's Records. The financial statements of the Seller will
disclose that, under generally accepted accounting principles, the Seller
transferred the Receivables to the Owner Trustee. The Seller will file all tax
returns and reports in a manner consistent with the transfer to the Seller of
the Receivables for federal income tax purposes. Section 5.11 [Reserved].
Section 5.11 [Reserved].
Section 5.12 Cooperation by Seller.
(a) The Seller will cooperate fully and in a timely manner with the
Owner Trustee, the Trust, the Servicer or the Indenture Trustee in
connection with (i) the filing of any claims with an insurer or any agent
of any insurer under any insurance policy affecting an Obligor or any of
the Financed Vehicles; (ii) supplying any additional
11
information as may be requested by the Owner Trustee, the Trust, the
Servicer, the Indenture Trustee or any such agent or insurer in connection
with the processing of any such claim; and (iii) the execution or
endorsement of any check or draft made payable to the Seller representing
proceeds from any such claim. The Seller shall take all such actions as may
be requested by the Owner Trustee, the Trust, the Servicer or the Indenture
Trustee to protect the rights of the Owner Trustee or the Indenture Trustee
on behalf of the Noteholders, the Swap Counterparty (unless the Interest
Rate Swap Agreement has been terminated and all amounts owed to the Swap
Counterparty have been paid in full) and the Note Insurer in and to any
proceeds under any and all of the foregoing insurance policies. The Seller
shall not take or cause to be taken any action which would impair the
rights of the Owner Trustee or the Indenture Trustee on behalf of the
Noteholders, the Swap Counterparty (unless the Interest Rate Swap Agreement
has been terminated and all amounts owed to the Swap Counterparty have been
paid in full) and the Note Insurer in and to any proceeds under any of the
foregoing insurance policies.
(b) The Seller shall, within two (2) Business Days of receipt thereof,
endorse any check or draft payable to the Seller representing insurance
proceeds and (i) in the event there are no other payees on such check or
draft, forward, via hand delivery, such endorsed check or draft to the
Servicer for deposit into the Collection Account and (ii) in the event such
check or draft is also payable to the Indenture Trustee on behalf of the
Noteholders, the Swap Counterparty (unless the Interest Rate Swap Agreement
has been terminated and all amounts owed to the Swap Counterparty have been
paid in full) and the Note Insurer, forward, via overnight courier, to the
Indenture Trustee with a copy of such endorsed check or draft to the
Servicer. The Seller will hold in trust and remit to the Indenture Trustee,
within two (2) Business Days of receipt thereof, any funds received with
respect to the Receivables after the Cutoff Date.
Section 5.13 Transfer of Additional Receivables. The Seller shall use its
best efforts in good faith to make available for transfer to the Owner Trustee
on each Funding Date during the Funding Period, all Receivables acquired by the
Seller which meet the eligibility criteria set forth herein as of such date.
This covenant and agreement shall be for the benefit of the Owner Trustee, the
Note Insurer, the Swap Counterparty (unless the Interest Rate Swap Agreement has
been terminated and all amounts owed to the Swap Counterparty have been paid in
full) and the Indenture Trustee or, if a Note Insurer Default has occurred and
is continuing, the Holders of the Notes and any such Person may enforce its
legal or equitable rights, remedies or claims hereunder.
Section 5.14 Notice of Breach. The Owner Trustee and the Seller shall
notify the Indenture Trustee, the Note Insurer, the Swap Counterparty (unless
the Interest Rate Swap Agreement has been terminated and all amounts owed to the
Swap Counterparty have been paid in full), the Owner Trustee and the Trust
promptly, in writing, of any breach of the representations and warranties or
covenants of the Seller or the Owner Trustee contained herein.
Section 5.15 No Violation. The Seller will not take any action which would
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of
12
time) a default under, the Limited Liability Company Agreement of the Seller or
Section 3.10(b)(x) of the Indenture.
ARTICLE VI
[RESERVED]
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
Section 7.02 Repurchase Events. The Seller hereby covenants and agrees to
deliver to the Owner Trustee and the Trust, the Swap Counterparty (unless the
Interest Rate Swap Agreement has been terminated and all amounts owed to the
Swap Counterparty have been paid in full) and the Note Insurer prompt written
notice of the occurrence of a breach of any of the representations and
warranties of the Seller contained or deemed to be contained in Section 3.02(b)
hereof with respect to a Receivable transferred hereunder.
(a) Upon discovery by any of the Transferor, the Seller, the Owner
Trustee, the Trust, the Indenture Trustee, the Note Insurer or the Servicer
of (i) a Nonconforming Receivable or (ii) either (A) failure to deliver to
the Custodian any document required to be included in the Custodian File or
(B) failure to deliver to the Indenture Trustee the Perfection UCCs,
pursuant to Section 7.18 of the Indenture the party discovering such breach
or failure to deliver shall give prompt written notice to each of the other
foregoing parties. Except as specifically provided in the Servicing
Agreement or the Indenture, the Indenture Trustee has no obligation to
review or monitor the Trust Property for compliance with representations
and warranties, delivery requirements or payments. If (i) the breach of
representations or warranties causing such Receivable to be a Nonconforming
Receivable shall not have been (A) cured within thirty (30) days following
notice thereof or (B) waived by the Note Insurer following notice thereof
or (ii) the failure to deliver to the Custodian the Custodian File
documents or to the Indenture Trustee the Perfection UCCs shall not have
been cured within seven (7) calendar days following notice thereof (the
occurrence of any of the foregoing constitutes a "Repurchase Event"), the
Owner Trustee shall transfer to the Seller and the Seller shall assign to
the Transferor the Receivable and the other related items of the Trust
Property affected by such breach or failure to deliver and the Seller
hereby agrees to accept such transfer from the Owner Trustee and to deposit
or cause to be deposited the Repurchase Price with respect to such
Receivable in the Collection Account within five (5) Business Days
following the applicable cure period or two (2) Business Days following
receipt by the Seller of notice from the Note Insurer that the Note Insurer
will not waive the breach of representations or warranties causing such
Receivable to be a Nonconforming Receivable; provided that such transfer
and assignment shall only be made upon receipt by the Owner Trustee of
notice from the Servicer (pursuant to the terms of the Servicing Agreement)
that the Repurchase Price has been remitted to the Servicer and deposited
into the Collection Account. In consideration of the removal of such
Receivable and the other related items of the Trust Property, the Owner
Trustee shall cause the Seller and the
13
Seller shall cause the Transferor, no later than the fifth Business Day
following such cure period, if any, to pay the Repurchase Price to the
Servicer for deposit into the Collection Account. The Owner Trustee shall
be entitled to enforce the obligations of the Seller, the Transferor and
the applicable Dealer under this Contribution Agreement, the Transfer and
Assignment Agreement and the applicable Dealer Agreement, respectively, to
remit the Repurchase Price to the Servicer for deposit into the Collection
Account. The Indenture Trustee and the Note Insurer are authorized to take
action on behalf of the Trust to enforce the obligations of the Seller and
the Transferor to repurchase such Receivable under this Contribution
Agreement or the Transfer and Assignment Agreement, respectively, and to
enforce the obligation of a Dealer to repurchase such Receivable under the
applicable Dealer Agreement.
(b) The obligations of the Transferor, the Seller and the Owner
Trustee to remove any Receivable and the other related items of the Trust
Property and to remit the Repurchase Price with respect to a Nonconforming
Receivable or as to which a failure to deliver has occurred and is
continuing shall constitute the sole remedy, except for the indemnification
provisions expressly set forth in the Indenture, the Servicing Agreement,
this Contribution Agreement, the Transfer and Assignment Agreement and the
Insurance Agreement, against the Transferor, the Seller and the Owner
Trustee for such breach or failure to deliver available to the Indenture
Trustee or the Noteholders.
Section 7.03 Owner Trustee's Assignment of Repurchased Receivables. With
respect to any Receivable reacquired by the Seller pursuant to this Agreement,
the Owner Trustee shall assign, without recourse, representation or warranty, to
the Seller all the Owner Trustee's right, title and interest in and to such
Receivable, and all security and documents relating thereto.
Section 7.04 Subsequent Pledge. The Seller acknowledges that (i) the Owner
Trustee will Grant the Receivables and the other Trust Property along with the
Owner Trustee's rights and benefits under this Contribution Agreement and under
the Transfer and Assignment Agreement to the Indenture Trustee pursuant to the
terms of the Indenture and (ii) the terms and provisions hereof are intended to
benefit the Noteholders, the Swap Counterparty (unless the Interest Rate Swap
Agreement has been terminated and all amounts owed to the Swap Counterparty has
been paid in full) and the Note Insurer. The Seller hereby consents to such
Grant.
Section 7.05 Amendment. This Agreement may be amended, restated or
supplemented from time to time by a written agreement duly executed and
delivered by the Seller and the Owner Trustee, but only with (a) fifteen (15)
days' prior written notice to the Rating Agencies, (b) the prior written consent
of the Class B Noteholder and the Note Insurer and (c) if adversely affected
thereby, the prior written consent of the Swap Counterparty (unless the Interest
Rate Swap Agreement has been terminated and all amounts owed to the Swap
Counterparty have been paid in full). No amendment to this Agreement shall be
effective as to the Servicer, to the extent such amendment is disadvantageous in
any respect to the Servicer, unless the Servicer has given its written consent
to the amendment. The Seller shall deliver to the Persons identified on a list
provided to the Seller by the Indenture Trustee, as such list may be amended
from time to time, a copy of any amendment to this Agreement.
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Section 7.06 Waivers. No failure or delay on the part of the Owner Trustee
or Note Insurer in exercising any power, right or remedy under this Agreement or
an Assignment shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy. Any waiver
of the terms and provisions hereof must be in writing and must be consented to
in writing by the Indenture Trustee, the Note Insurer and, if adversely affected
thereby, the Swap Counterparty.
Section 7.07 Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered personally
or mailed by first-class registered or certified mail, postage prepaid, or by
telephonic facsimile transmission and overnight delivery service, postage
prepaid, to any party at the address set forth below or at such other address as
may be designated by it by notice to the other party and shall be deemed given
when so delivered, or if mailed. Any notice to the Note Insurer shall be given
in accordance with the terms of the Insurance Agreement. Any notice given to the
Swap Counterparty shall be given to its address set forth in the Interest Rate
Swap Agreement.
If to the Seller:
Capital One Auto Receivables, LLC
1680 Capital One Drive
McLean, Virginia 22102
Attention: Manager of Securitization - Copy to: Legal Department
If to the Owner Trustee:
Wilmington Trust Company as owner trustee of
Capital One Auto Finance Trust 2002-C
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Jeanne Oller
With Copies to:
Capital One Auto Finance, Inc.
1680 Capital One Drive
McLean, Virginia 22102
Attention: Manager of Securitization - Copy to: Legal Department
Mayer, Brown, Rowe & Maw
190 South LaSalle
Chicago, Illinois 60603
Attention: Stuart M. Litwin
Section 7.08 [Reserved].
15
Section 7.09 Representations. The respective agreements, representations,
warranties and other statements by the Seller and the Owner Trustee set forth in
or made pursuant to this Agreement shall remain in full force and effect and
will survive the Closing Date under Section 2.02 hereof and each Funding Date.
Section 7.10 Confidential Information. The Owner Trustee agrees that it
will neither use nor disclose to any person other than the Note Insurer, the
Indenture Trustee, the Owner Trustee and the Holders of the Notes the names and
addresses of the Obligors, except in connection with the enforcement of the
Owner Trustee's rights hereunder, under the Receivables, or any agreement
relating to the Receivables or as required by law.
Section 7.11 Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
Section 7.12 Governing Law. This Agreement and the Assignment shall be
governed by and construed in accordance with the internal laws of the State of
Texas.
Section 7.13 Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
Section 7.14 No Bankruptcy Petition Against the Trust. The Seller agrees
that, prior to the date that is one year and one day after the payment in full
of all amounts payable with respect to the Class A Notes and the Class B Notes,
it will not institute against the Owner Trustee or the Seller, or join any other
Person in instituting against the Owner Trustee, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
the laws of the United States or any state of the United States. This Section
7.14 shall survive the termination of the Indenture.
Section 7.15 Third Party Beneficiaries. This Agreement shall inure to the
benefit of the Note Insurer, the Swap Counterparty (unless the Interest Rate
Swap Agreement has been terminated and all amounts owed to the Swap Counterparty
have been paid in full), the Indenture Trustee and their respective successors
and assigns and, if a Note Insurer Default has occurred and is continuing or if
the Aggregate Outstanding Principal Balance of the Class A Notes (and all
interest accrued thereon) has been reduced to zero and all Reimbursement
Obligations and reimbursement of all Swap Termination Payments paid under the
Swap Policy due to the Note Insurer shall have been paid in full, the Class B
Noteholders. Without limiting the generality of the foregoing, all
representations, covenants and agreements in this Agreement which expressly
confer rights upon the Owner Trustee, the Note Insurer or the Indenture Trustee
shall be for the benefit of and run directly to the Owner Trustee, the Indenture
Trustee, the Swap Counterparty (unless the Interest Rate Swap Agreement has been
terminated and all amounts owed to the Swap Counterparty have been paid in full)
and the Note Insurer or, if a Note Insurer Default has occurred and is
continuing, the Aggregate Outstanding Principal Balance of the Class A Notes
(and all interest accrued thereon) has been reduced to zero and all
Reimbursement Obligations and reimbursement of all Swap Termination Payments
paid under the Swap Policy due to the
16
Note Insurer shall have been paid in full, the Class B Noteholders. The
Indenture Trustee, the Swap Counterparty (unless the Interest Rate Swap
Agreement has been terminated and all amounts owed to the Swap Counterparty have
been paid in full) and the Note Insurer or, if a Note Insurer Default has
occurred and is continuing, the Aggregate Outstanding Principal Balance of the
Class A Notes (and all interest accrued thereon) has been reduced to zero and
all Reimbursement Obligations and reimbursement of all Swap Termination Payments
paid under the Swap Policy due to the Note Insurer shall have been paid in full,
the Class B Noteholders, shall be entitled to rely on and enforce such
representations, covenants and agreements to the same extent as if it were a
party hereto.
Section 7.16 Limitation on Seller's 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 Owner Trustee's 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 17, 2002 with Capital One Auto Receivables, LLC
(the "Trust Agreement") in the exercise of the power and authority conferred and
vested in it as such Owner Trustee, (ii) each of the representations,
undertakings and agreements made herein by the Owner Trustee are not personal
representations, undertakings and agreements of Wilmington Trust company, but
are binding only on the trust estate created pursuant to the Trust Agreement,
(iii) nothing contained herein shall be construed as creating any liability on
Wilmington Trust Company, individually or personally, to perform any covenant of
the Owner Trustee either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
person claiming by, through or under any such party, and (iv) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expense of the Owner Trustee or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Owner Trustee under this Agreement.
17
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
CAPITAL ONE AUTO RECEIVABLES, LLC,
as Seller
By: /s/ Jeffery A. Elswick
------------------------------
Name: Jeffery A. Elswick
Title: President
S-1
WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Owner Trustee for Capital One
Auto Finance Trust 2002-C
By: /s/ Donald G. Mackelcan
------------------------------
Authorized Officer
S-2
SCHEDULE I
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in
the Indenture, the Owner Trustee hereby represents, warrants, and covenants to
the Indenture Trustee as to itself as follows on the Closing Date and on each
Payment Date thereafter:
General
1. The Contribution Agreement creates a valid and continuing security interest
(as defined in UCC Section 9-102) in the Collateral in favor of the Owner
Trustee, which security interest is prior to all other Liens, and is enforceable
as such as against creditors of and purchasers from the Seller.
2. The Receivables (except for the Interest Rate Swap Agreement) constitute
"tangible chattel paper" within the meaning of UCC Section 9-102.
3. The rights of the Owner Trustee under the Interest Rate Swap Agreement
constitute "general intangibles" within the meaning of the applicable UCC.
4. COAF has taken all steps necessary to perfect its security interest against
the Obligor in the property securing the Receivables that constitute chattel
paper.
Creation
5. The Seller owns and has good and marketable title to the Collateral free and
clear of any Lien, claim or encumbrance of any Person, excepting only liens for
taxes, assessments or similar governmental charges or levies incurred in the
ordinary course of business that are not yet due and payable or as to which any
applicable grace period shall not have expired, or that are being contested in
good faith by proper proceedings and for which adequate reserves have been
established, but only so long as foreclosure with respect to such a lien is not
imminent and the use and value of the property to which the Lien attaches is not
impaired during the pendency of such proceeding.
Perfection
6. The Seller has caused or will have caused, within ten days after the
effective date of the Contribution Agreement, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the contribution and sale
of the Trust Property from COAF to the Seller, the transfer and sale of the
Trust Property from the Seller to the Owner Trustee, and the security interest
in the Collateral granted to the Indenture Trustee hereunder.
7. With respect to Collateral that constitutes tangible chattel paper, such
tangible chattel paper is in the possession of the Custodian and the Indenture
Trustee has received a written acknowledgment from the Custodian that the
Custodian is holding such tangible chattel paper solely on behalf and for the
benefit of the Indenture Trustee.
I-1
Priority
8. Neither the Seller, the Servicer nor the Owner Trustee has authorized the
filing of, or is aware of any financing statements against either the Seller,
the Transferor or the Owner Trustee that include a description of the
Collateral, the Trust Property and proceeds related thereto other than any
financing statement (i) relating to the sale of Trust Property by the Transferor
to the Seller under the Transfer and Assignment Agreement, (ii) relating to the
contribution of Trust Property by the Seller to the Owner Trustee under the
Contribution Agreement, (iii) relating to the security interest granted to the
Indenture Trustee hereunder, or (iv) that has been terminated.
9. Neither the Seller, the Transferor nor the Owner Trustee is aware of any
judgment, ERISA or tax lien filings against either the Seller, the Transferor or
the Owner Trustee.
10. None of the tangible chattel paper that constitute or evidence the
Receivables has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Indenture Trustee.
Survival of Perfection Representations
11. Notwithstanding any other provision of the Transfer and Assignment
Agreement, the Contribution Agreement, the Indenture or any other Transaction
Document, the Perfection Representations contained in this Schedule shall be
continuing, and remain in full force and effect (notwithstanding any replacement
of the Servicer or termination of Servicer's rights to act as such) until such
time as all obligations under the Transfer and Assignment Agreement,
Contribution Agreement and the Indenture have been finally and fully paid and
performed.
No Waiver
12. The parties hereto: (i) shall not, without obtaining a confirmation of the
then-current rating of the Class A Notes, waive any of the Perfection
Representations; (ii) shall provide the Ratings Agencies with prompt written
notice of any breach of the Perfection Representations, and shall not, without
obtaining a confirmation of the then-current rating of the Class A Notes (as
determined after any adjustment or withdrawal of the ratings following notice of
such breach) waive a breach of any of the Perfection Representations.
I-2
EXHIBIT A
ASSIGNMENT
For value received this day of , 2002 in accordance with terms
--- -------
of the Contribution Agreement dated as of December 17, 2002 (the "Contribution
Agreement") by and between Capital One Auto Receivables, LLC, as Seller (the
"Seller"), and Wilmington Trust Company, not in its individual capacity but
solely as Owner Trustee to Capital One Auto Finance Trust 2002-C, (the "Owner
Trustee"), the undersigned does hereby transfer unto the Trust, without
recourse, a 100% interest in and to (i) the [Subsequent] Receivables identified
on the Schedule of Receivables attached hereto and all moneys received thereon
(including amounts received on any Extended Service Agreements relating
thereto), after the respective Cutoff Date (except for interest accrued as of
the Cutoff Date and actually received subsequent to the Cutoff Date which will
be withdrawn from the Revenue Fund, to the extent contained therein, and paid to
the Seller); (ii) the security interest in the Financed Vehicles granted by the
Obligors pursuant to such Receivables and the Certificates of Title to such
Financed Vehicles; (iii) the interest of the Seller in any proceeds from claims
on any physical damage, credit life, risk default or other insurance policies
covering the Financed Vehicles or the Obligors or refunds in connection with
Extended Service Agreements relating to Defaulted Receivables from the
applicable Cutoff Date; (iv) any property (including the right to receive future
Liquidation Proceeds) that shall secure a [Subsequent] Receivable; (v) all
right, title and interest of the Seller in and to any recourse against the
Transferor or any Dealer pursuant to the Transfer and Assignment Agreement or
the applicable Dealer Agreement, respectively; (vi) the original retail
installment contracts and security agreements and/or installment loans
evidencing the [Subsequent] Receivables; and (vii) the proceeds of any and all
of the foregoing. The foregoing transfer does not constitute and is not intended
to result in any assumption by the Owner Trustee of any obligation of the
undersigned to the Obligors, insurers or any other person in connection with the
Receivables, Servicer Files (as defined in the Servicing Agreement), any
insurance policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Contribution Agreement and is to be governed by the Contribution Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Contribution Agreement.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of the date first written above.
CAPITAL ONE AUTO RECEIVABLES, LLC,
as Seller
By:
------------------------------
Name:
Title:
A-2