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EXHIBIT 10.1
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SALE AGREEMENT
dated as of September 23, 2003
between
PEOPLEFIRST FINANCE, LLC,
as Originator
and
CAPITAL ONE AUTO FINANCE, INC.,
as Purchaser
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Sale Agreement
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS AND
USAGE..............................................................1
SECTION 1.1
Definitions................................................................1
SECTION 1.2 Other Interpretive
Provisions..............................................1
ARTICLE II
PURCHASE..........................................................................2
SECTION 2.1 Agreement to Sell and
Contribute on the Closing Date.......................2
SECTION 2.2 Agreement to Sell and
Contribute on the Funding Dates......................2
SECTION 2.3 Consideration and
Payment..................................................2
SECTION 2.4 Consideration and
Payment for the Subsequent Sold Assets...................2
ARTICLE III REPRESENTATIONS, WARRANTIES AND
COVENANTS........................................2
SECTION 3.1 Representations and
Warranties of the Originator...........................2
SECTION 3.2 Representations and
Warranties of the Originator as to each Receivable.....4
SECTION 3.3 Repurchase upon
Breach.....................................................4
SECTION 3.4 Protection of
Title........................................................5
SECTION 3.5 Other Liens or
Interests...................................................5
ARTICLE IV
MISCELLANEOUS.....................................................................6
SECTION 4.1 Transfers Intended as
Sale; Security Interest..............................6
SECTION 4.2 Notices,
Etc...............................................................7
SECTION 4.3 Choice of
Law..............................................................7
SECTION 4.4
Headings...................................................................7
SECTION 4.5
Counterparts...............................................................7
SECTION 4.6
Amendment..................................................................7
SECTION 4.7
Waivers....................................................................8
SECTION 4.8 Entire
Agreement...........................................................9
SECTION 4.9 Severability of
Provisions.................................................9
SECTION 4.10 Binding Effect;
Assignability..............................................9
SECTION 4.11 Acknowledgment and
Agreement...............................................9
SECTION 4.12 No Waiver; Cumulative
Remedies.............................................9
SECTION 4.13 Nonpetition
Covenant.......................................................9
SECTION 4.14 Submission to
Jurisdiction................................................10
SECTION 4.15 Limitation of
Rights......................................................10
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Sale Agreement
i
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EXHIBITS
Exhibit A Form of Assignment
Sale Agreement
ii
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THIS SALE
AGREEMENT is made and entered into as of September 23, 2003 (as
amended from time to time, this
"Agreement") by PEOPLEFIRST FINANCE, LLC, a
California limited liability company (the
"Originator"), and CAPITAL ONE AUTO
FINANCE, INC., a Texas corporation (the
"Purchaser").
WITNESSETH:
WHEREAS, the
Purchaser desires to purchase from the Originator a portfolio
of motor vehicle receivables, including
motor vehicle retail installment loans
that are secured by new and used
automobiles, light duty trucks and motorcycles;
and
WHEREAS, the
Originator is willing to sell such portfolio of motor vehicle
receivables and related property to the
Purchaser on the terms and conditions
set forth in this Agreement.
NOW, THEREFORE,
in consideration of the premises and the mutual agreements
set forth herein, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS AND USAGE
SECTION 1.1
Definitions. Except as otherwise defined herein or as the
context may otherwise require, capitalized
terms used but not otherwise defined
herein are defined in Appendix A to the
Sale and Servicing Agreement dated as of
the date hereof (as from time to time
amended, supplemented or otherwise
modified and in effect, the "Sale and
Servicing Agreement") among Capital One
Prime Auto Receivables Trust 2003-2, the
Purchaser, as servicer, Capital One
Auto Receivables, LLC, as seller, and
JPMorgan Chase Bank, as indenture trustee,
which also contains rules as to usage that
are applicable herein.
SECTION 1.2
Other Interpretive Provisions. For purposes of this Agreement,
unless the context otherwise requires: (a)
accounting terms not otherwise
defined in this Agreement, and accounting
terms partly defined in this Agreement
to the extent not defined, shall have the
respective meanings given to them
under generally accepted accounting
principles; (b) terms defined in Article 9
of the UCC as in effect in the relevant
jurisdiction and not otherwise defined
in this Agreement are used as defined in
that Article; (c) the words "hereof,"
"herein" and "hereunder" and words of
similar import refer to this Agreement as
a whole and not to any particular provision
of this Agreement; (d) references to
any Article, Section, Schedule, Appendix or
Exhibit are references to Articles,
Sections, Schedules, Appendices and
Exhibits in or to this Agreement and
references to any paragraph, subsection,
clause or other subdivision within any
Section or definition refer to such
paragraph, subsection, clause or other
subdivision of such Section or definition;
(e) the term "including" means
"including without limitation"; (f) except
as otherwise expressly provided
herein, references to any law or regulation
refer to that law or regulation as
amended from time to time and include any
successor law or regulation; (g)
references to any Person include that
Person's successors and assigns; and (h)
headings are for purposes of reference only
and shall not otherwise affect the
meaning or interpretation of any provision
hereof.
Sale Agreement
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ARTICLE II
PURCHASE
SECTION 2.1
Agreement to Sell and Contribute on the Closing Date. On the
terms and subject to the conditions set
forth in this Agreement, the Originator
does hereby irrevocably sell, transfer,
assign and otherwise convey to the
Purchaser without recourse (subject to the
obligations herein) on the Closing
Date all of its right, title and interest
in, to and under the Receivables, the
Collections after the Initial Cut-Off Date
and the Related Security relating
thereto, whether now owned or hereafter
acquired, described in an Assignment in
the form of Exhibit A delivered on the
Closing Date (collectively, the "Initial
Sold Assets"), which sale shall be
effective as of the Initial Cut-Off Date. The
sale , transfer, assignment and conveyance
made hereunder does constitute and is
not intended to result in an assumption by
the Purchaser of any obligation of
the Originator to the Obligors, the Dealers
or any other Person in connection
with the Receivables or the other assets
and properties conveyed hereunder or
any agreement, document or instrument
related thereto.
SECTION 2.2
Agreement to Sell and Contribute on the Funding Dates. On the
terms and subject to the conditions set
forth in this Agreement, the Originator
does hereby sell, transfer, assign and
otherwise convey to the Purchaser on each
Funding Date all of its right, title and
interest in, to and under the
Receivables, and the Collections after the
related Subsequent Cut-Off Date and
the Related Security relating thereto,
whether now owned or hereafter acquired,
described in an Assignment in the form of
Exhibit A delivered on such Funding
Date (collectively, the "Subsequent Sold
Assets" and, together with the Initial
Sold Assets, and all proceeds of the
foregoing, the "Sold Assets"). The sale,
transfer, assignment and conveyance made
hereunder does not constitute and is
not intended to result in an assumption by
the Purchaser of any obligation of
the Originator to the Obligors, the Dealers
or any other Person in connection
with the Receivables or the other assets
and properties conveyed hereunder or
any agreement, document or instrument
related thereto.
SECTION 2.3
Consideration and Payment. In consideration of the sale of the
Initial Sold Assets sold to the Purchaser
on the Closing Date, the Purchaser
shall pay to the Originator on such date an
amount equal to $874,060,679.67,
representing the estimated fair market
value of the Initial Sold Assets on the
Closing Date.
SECTION 2.4
Consideration and Payment for the Subsequent Sold Assets. In
consideration of the sale of the Subsequent
Sold Assets sold to the Purchaser on
each Funding Date, the Purchaser shall pay
to the Originator on such date an
amount equal to the estimated fair market
value of the related Subsequent Sold
Assets on such Funding Date.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.1
Representations and Warranties of the Originator. The
Originator makes the following
representations and warranties as of the Closing
Date and as of each Funding Date on which
the Purchaser will be deemed to have
relied in acquiring the Sold Assets.
The
Sale Agreement
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representations and warranties speak as of
the execution and delivery of this
Agreement and will survive the conveyance
of the Sold Assets to the Purchaser,
the conveyance of the Transferred Assets to
the Issuer pursuant to the Sale and
Servicing Agreement and the pledge thereof
by the Issuer to the Indenture
Trustee pursuant to the Indenture:
(a) Existence
and Power. The Originator is a limited liability company
validly existing and in good standing under
the laws of its state of
organization and has, in all material
respects, full power and authority to own
its assets and operate its business as
presently owned or operated, and to
execute, deliver and perform its
obligations under the Transaction Documents to
which it is a party or affect the
enforceability or collectibility of the
Receivables or any other part of the Sold
Assets. The Originator has obtained
all necessary licenses and approvals in
each jurisdiction where the failure to
do so would materially and adversely affect
the ability of the Originator to
perform its obligations under the
Transaction Documents or affect the
enforceability or collectibility of the
Receivables or any other part of the
Sold Assets.
(b)
Authorization and No Contravention. The execution, delivery and
performance by the Originator of the
Transaction Documents to which it is a
party have been duly authorized by all
necessary action on the part of the
Originator and do not contravene or
constitute a default under (i) any
applicable law, rule or regulation, (ii)
its organizational documents or (iii)
any material indenture or material
agreement or instrument to which the
Originator is a party or by which its
properties are bound (other than
violations of such laws, rules,
regulations, indentures or agreements which do
not affect the legality, validity or
enforceability of any of such agreements
and which, individually or in the
aggregate, would not materially and adversely
affect the transactions contemplated by, or
the Originator's ability to perform
its obligations under, the Transaction
Documents).
(c) No Consent
Required. No approval or authorization by, or filing with,
any Governmental Authority is required in
connection with the execution,
delivery and performance by the Originator
of any Transaction Document other
than (i) UCC filings, (ii) approvals and
authorizations that have previously
been obtained and filings that have
previously been made and (iii) approval,
authorizations or filings which, if not
obtained or made, would not have a
material adverse effect on the
enforceability or collectibility of the
Receivables or any other part of the Sold
Assets or would materially and
adversely affect the ability of the
Originator to perform its obligations under
the Transaction Documents.
(d) Binding
Effect. Each Transaction Document to which the Originator is a
party constitutes the legal, valid and
binding obligation of the Originator
enforceable against the Originator in
accordance with its terms, except as such
enforceability may be limited by applicable
bankruptcy, insolvency,
reorganization, moratorium, receivership,
conservatorship or other similar laws
affecting the enforcement of creditors'
rights generally and, if applicable, the
rights of creditors of limited liability
companies from time to time in effect
or by general principles of equity.
(e) No
Proceedings. There are no actions, suits or proceedings pending
or,
to the knowledge of the Originator,
threatened against the Originator before or
by any Governmental Authority that (i)
assert the invalidity or unenforceability
of this Agreement or any of the other
Transaction Documents, (ii) seek to
prevent the issuance of the Notes or the
consummation of
Sale Agreement
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any of the transactions contemplated by
this Agreement or any of the other
Transaction Documents, (iii) seek any
determination or ruling that would
materially and adversely affect the
performance by the Originator of its
obligations under this Agreement or any of
the other Transaction Documents or
have a material adverse effect on the
Noteholders, or (iv) relate to the
Originator that would materially and
adversely affect the federal or Applicable
Tax State income, excise, franchise or
similar tax attributes of the Notes.
(f) Lien Filings. The
Originator is not aware of any material judgment,
ERISA or tax lien filings against the
Originator.
SECTION 3.2
Representations and Warranties of the Originator as to each
Receivable. On the date hereof or on each
Funding Date, as the case may be, the
Originator hereby makes the representations
and warranties set forth on Schedule
I to the Sale and Servicing Agreement as to
the Receivables sold, transferred,
assigned and otherwise conveyed to the
Purchaser under this Agreement on which
such representations and warranties the
Purchaser relies in acquiring the
Receivables. Such representations and
warranties as to each Receivable relate to
the characteristics of such Receivable as
of the applicable Cut-Off Date for
such Receivable (unless Schedule I to the
Sale and Servicing Agreement
specifically identifies a different date as
applying to a particular
representation or warranty), but shall
survive the sale of such Receivables to
the Seller under the Purchase Agreement, to
the Issuer under the Sale and
Servicing Agreement, and the Grant of the
Receivables by the Issuer to the
Indenture Trustee pursuant to the
Indenture. Notwithstanding any statement to
the contrary contained herein or in any
other Transaction Document, the
Originator shall not be required to notify
any insurer with respect to any
Insurance Policy obtained by an Obligor or
to notify any Dealer about any aspect
of the transaction contemplated by the
Transaction Documents.
SECTION 3.3
Repurchase upon Breach. Upon discovery by or notice to the
Purchaser or the Originator of a breach of
any of the representations and
warranties referred to in Section 3.2 at
the time
