Exhibit 10.1
EXECUTION COPY
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SALE AGREEMENT
dated as of March 27, 2003
between
PEOPLEFIRST FINANCE, LLC,
as Originator
and
CAPITAL ONE AUTO FINANCE, INC.,
as Purchaser
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TABLE OF CONTENTS
Page
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 ................. 3
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 ......................................... 6
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 .................................................... 8
SECTION 4.4 Headings ......................................................... 8
SECTION 4.5 Counterparts ..................................................... 8
SECTION 4.6 Amendment ........................................................ 8
SECTION 4.7 Waivers .......................................................... 9
SECTION 4.8 Entire Agreement ................................................. 9
SECTION 4.9 Severability of Provisions ....................................... 9
SECTION 4.10 Binding Effect; Assignability .................................... 10
SECTION 4.11 Acknowledgment and Agreement ..................................... 10
SECTION 4.12 No Waiver; Cumulative Remedies ................................... 10
SECTION 4.13 Nonpetition Covenant ............................................. 10
SECTION 4.14 Submission to Jurisdiction ....................................... 10
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EXHIBITS
Exhibit A Form of Assignment
Schedule I Representations and Warranties
ii
THIS SALE AGREEMENT is made and entered into as of March 27, 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 sales
contracts and/or 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 2003-1, 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.
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
agrees to transfer, assign, set over, sell 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,
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 transfer, assignment and conveyance made
hereunder will 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 and 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
agrees to transfer, assign, set over, sell 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, 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 transfer, assignment and conveyance made
hereunder will 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 and 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 $1,000,000,647.18,
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 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, to the conveyance of the Sold Assets
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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) seeking to
prevent the issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the other Transaction Documents, (iii)
seeking any determination or ruling that would materially and adversely affect
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the performance by the Originator of its obligations under this Agreement or any
of the other Transaction Documents, or (iv) relating 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 as to the Receivables transferred, assigned, set over, sold and otherwise
conveyed to the Purchaser on which such representations and warranties the
Purchaser relies in acquiring the Receivables. Such representations and
warranties speak, with respect to any Receivable, as of the applicable Cut-Off
Date for such Receivable, 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 transactions
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 set forth in Section 3.2 at the time such representations and
warranties were made which materially and adversely affects the interests of the
Issuer or the Noteholders, the party discovering such breach or receiving such
notice shall give prompt written notice thereof to the other party; provided,
that the failure to give such notice shall not affect any obligation of the
Originator hereunder. If the Originator does not correct or cure such breach
prior to the end of the Collection Period which includes the 60th day (or, if
the Seller elects, an earlier date) after the date that the Originator became
aware or was notified of such breach, then the Originator shall purchase any
Receivable affected by such breach which materially and adversely affects the
interests of the Issuer and the Noteholders from the Purchaser on the Payment
Date following the end of such Collection Period. Any such breach or failure
will not be deemed to have a material and adverse effect if such breach or
failure does not affect the ability of the Purchaser (or its assignee) to
receive and retain timely payment in full on such Receivable. Any such purchase
by the Originator shall be at a price equal to the Repurchase Price. In
consideration for such repurchase, the Originator shall make (or shall cause to
be made) a payment to the Purchaser equal to the Repurchase Price by depositing
such amount into the Collection Account prior to noon, New York City time on
such Payment Date. Upon payment of such Repurchase Price by the Originator, the
Purchaser shall release and shall execute and deliver such instruments of
release, transfer or assignment, in each case without recourse or
representation, as shall be reasonably necessary to vest in the Originator or
its designee any Receivable repurchased pursuant hereto. It is understood and
agreed that the obligation of the Originator to purchase any Receivable as
described above shall constitute the sole remedy respecting such breach
available to the Purchaser.
SECTION 3.4 Protection of Title.
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(a) The Originator shall authorize and file such financing statements and
cause to be authorized and filed such continuation and other statements, all in
such manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of the Purchaser under this Agreement in the
Receivables. The Originator shall deliver (or cause to be delivered) to the
Purchaser file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) The Originator shall not change its name, identity, organizational
structure or jurisdiction of organization in any manner that would make any
financing statement or continuation statement filed by the Originator in
accordance with paragraph (a) above "seriously misleading" within the meaning of
Sections 9-506, 9-507 or 9-508 of the UCC, unless it shall have given the
Purchaser at least five days' prior written notice thereof and, to the extent
necessary, shall have promptly filed amendments to previously filed financing
statements or continuation statements described in paragraph (a) above.
(c) The Originator shall give the Purchaser at least five days' prior
written notice of any change of location of the Originator for purposes of
Section 9-307 of the UCC and shall have taken all action prior to making such
change (or shall have made arrangements to take such action substantially
simultaneously with such change, if it is not possible to take such action in
advance) reasonably necessary or advisable in the opinion of the Purchaser to
amend all previously filed financing statements or continuation statements
described in paragraph (a) above.
(d) If at any time the Originator shall propose to sell, grant a security
interest in or otherwise transfer any interest in motor vehicle receivables to
any prospective purchaser, lender or other transferee, the Originator shall give
to such prospective purchaser, lender or other transferee computer tapes,
records or printouts (including any restored from backup archives) that, if they
shall refer in any manner whatsoever to any Receivable, shall indicate clearly
that such Receivable has been sold and is owned by the Purchaser (or any
subsequent assignee of the Purchaser).
SECTION 3.5 Other Liens or Interests. Except for the conveyances and grants
of security interests pursuant to this Agreement and the other Transaction
Documents, the Originator shall not sell, pledge, assign or transfer the
Receivables or other property transferred to the Purchaser to any other Person,
or grant, create, incur, assume or suffer to exist any Lien (other than
Permitted Liens) on any interest therein, and the Originator shall defend the
right, title and interest of the Purchaser in, to and under such Receivables or
other property transferred to the Purchaser against all claims of third parties
claiming through or under the Originator.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Transfers Intended as Sale; Security Interest.
(a) Each of the parties hereto expressly intends and agrees that the
transfers contemplated and effected under this Agreement are complete and
absolute sales and transfers
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rather than pledges or assignments of only a security interest and shall be
given effect as such for all purposes. It is further the intention of the
parties hereto that the Receivables and related Sold Assets shall not be part of
the Originator's estate in the event of a bankruptcy or insolvency of the
Originator. The sales and transfers by the Originator of the Receivables and
related Sold Assets hereunder are and shall be without recourse to, or
representation or warranty (express or implied) by, the Originator, except as
otherwise specifically provided herein. The limited rights of recourse specified
herein against the Originator are intended to provide a remedy for breach of
representations and warranties relating to the condition of the property sold,
rather than to the collectibility of the Receivables.
(b) Notwithstanding the foregoing, in the event that the Receivables and
other Sold Assets are held to be property of the Originator, or if for any
reason this Agreement is held or deemed to create indebtedness or a security
interest in the Receivables and other Sold Assets, then it is intended that:
(i) This Agreement shall be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and
the Uniform Commercial Code of any other applicable jurisdiction;
(ii) The conveyances provided for in Section 2.1 and Section 2.2
shall be deemed to be a grant by the Originator of, and the Originator
hereby grants to the Purchaser, a security interest in all of its right
(including the power to convey title thereto), title and interest, whether
now owned or hereafter acquired, in and to the Receivables and other Sold
Assets, to secure such indebtedness and the performance of the obligations
of the Originator hereunder;
(iii) The possession by the Purchaser or its agent of the Receivables
files and any other property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by the purchaser or a person designated by such
purchaser, for purposes of perfecting the security interest pursuant to the
New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and
(iv) Notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, bailees or agents (as applicable) of the
Purchaser for the purpose of perfecting such security interest under
Applicable Law.
SECTION 4.2 Notices, Etc. All demands, notices and communications hereunder
shall be in writing and shall be delivered or mailed by registered or certified
first-class United States mail, postage prepaid, hand delivery, prepaid courier
service, or by Electronic Transmission, and addressed in each case as follows:
(i) if to the Issuer, c/o the Owner Trustee, at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇),
Attention: Corporate Trust Department, with a copy to the Administrator, at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇),
Attention: Manager of Securitization, with a copy to Capital One Auto Finance,
Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Funding Counsel, with
a copy to the Indenture Trustee, at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Structured Finance
Administration - Capital One Prime Auto Receivables Trust 2003-1; (ii) if to the
Indenture Trustee, at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Structured Finance Administration -
Capital One Prime Auto Receivables Trust 2003-1; (iii) if to the Purchaser, at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇),
Attention: Capital Markets; (iv) if to the Originator, at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention:
Manager of Securitization, with a copy to Capital One Auto Finance, Inc., at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Funding Counsel; (v) if to COAF, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Chief Financial Officer, with
a copy to Capital One Auto Finance, Inc., at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Legal Department; (vi) if to
Moody's, to ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ABS Monitoring Group;
(vii) if to S&P, to Standard & Poor's Ratings Services, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Asset Backed
Surveillance Group; or (viii) at such other address as shall be designated by
any of the foregoing in a written notice to the other parties hereto. Any notice
required or permitted to be mailed to a Noteholder shall be given by first class
mail, postage prepaid, at the address of such Noteholder as shown in the Note
Register. Delivery shall occur only upon receipt or reported tender of such
communication by an officer of the recipient entitled to receive such notices
located at the address of such recipient for notices hereunder; provided,
however, that any notice to a Noteholder mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given, whether
or not the Noteholder shall receive such notice.
SECTION 4.3 Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO CONFLICTS OF LAW AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 4.4 Headings. The section headings hereof have been inserted for
convenience only and shall not be construed to affect the meaning, construction
or effect of this Agreement.
SECTION 4.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all of such counterparts shall together constitute but one and the same
instrument.
SECTION 4.6 Amendment.
(a) Any term or provision of this Agreement may be amended by the
Originator and the Purchaser without the consent of the Indenture Trustee, any
Noteholder, the Issuer or the Owner Trustee; provided that such amendment shall
not, as evidenced by an Opinion of Counsel
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delivered to the Indenture Trustee materially and adversely affect the interests
of the Noteholders.
(b) Any term or provision of this Agreement may be amended by the
Originator and the Purchaser but without the consent of the Indenture Trustee,
any Noteholder, the Issuer, the Owner Trustee or any other Person to add, modify
or eliminate any provisions as may be necessary or advisable in order to enable
the Seller, the Servicer or any of their Affiliates to comply with or obtain
more favorable treatment under any law or regulation or any accounting rule or
principle, it being a condition to any such amendment that the Rating Agency
Condition shall have been satisfied.
(c) This Agreement may also be amended from time to time by the Originator
and the Purchaser, with the consent of the Holders of Notes evidencing not less
than a majority of the aggregate principal amount of the Outstanding Notes,
voting as a single class, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders. It will not be
necessary for the consent of Noteholders to approve the particular form of any
proposed amendment or consent, but it will be sufficient if such consent
approves the substance thereof. The manner of obtaining such consents (and any
other consents of Noteholders provided for in this Agreement) and of evidencing
the authorization of the execution thereof by Noteholders will be subject to
such reasonable requirements as the Indenture Trustee may prescribe, including
the establishment of record dates pursuant to the Note Depository Agreement.
(d) Prior to the execution of any such amendment, the Originator shall
provide written notification of the substance of such amendment to each Rating
Agency; and promptly after the execution of any such amendment or consent, the
Originator shall furnish a copy of such amendment or consent to each Rating
Agency and the Indenture Trustee.
(e) Prior to the execution of any amendment to this Agreement, the
Purchaser, the Owner Trustee and the Indenture Trustee shall be entitled to
receive and conclusively rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement and
that all conditions precedent to the execution and delivery of such amendment
have been satisfied. The Owner Trustee and the Indenture Trustee may, but shall
not be obligated to, enter into any such amendment which adversely affects the
Owner Trustee's or the Indenture Trustee's, as applicable, own rights, duties or
immunities under this Agreement.
SECTION 4.7 Waivers. No failure or delay on the part of the Purchaser, the
Servicer, the Originator, the Issuer or the Indenture Trustee in exercising any
power or right hereunder (to the extent such Person has any power or right
hereunder) shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
the Purchaser or the Originator in any case shall entitle it to any notice or
demand in similar or other circumstances. No waiver or approval by the Purchaser
under this Agreement shall, except as may otherwise be stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval under
this Agreement shall require any similar or dissimilar waiver or approval
thereafter to be granted hereunder.
-8-
SECTION 4.8 Entire Agreement. The Transaction Documents contain a final and
complete integration of all prior expressions by the parties hereto with respect
to the subject matter thereof and shall constitute the entire agreement among
the parties hereto with respect to the subject matter thereof, superseding all
prior oral or written understandings. There are no unwritten agreements among
the parties.
SECTION 4.9 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 4.10 Binding Effect; Assignability. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until such time as the parties hereto
shall agree.
SECTION 4.11 Acknowledgment and Agreement. By execution below, the
Originator expressly acknowledges and consents to the sale of the Sold Assets
and the assignment of all rights and obligations of the Originator related
thereto by the Purchaser to the Seller pursuant to the Purchase Agreement and by
the Seller to the Issuer pursuant to the Sale and Servicing Agreement and the
pledge, assignment and grant of a security interest in the Receivables and the
other Sold Assets by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders. In addition, the Originator hereby
acknowledges and agrees that for so long as the Notes are outstanding, the
Indenture Trustee will have the right to exercise all powers, privileges and
claims of the Purchaser under this Agreement.
SECTION 4.12 No Waiver; Cumulative Remedies. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
SECTION 4.13 Nonpetition Covenant. Each party hereto agrees that, prior to
the date which is one year and one day after payment in full of all obligations
of each Bankruptcy Remote Party in respect of all securities issued by any
Bankruptcy Remote Party (i) such party hereto shall not authorize any Bankruptcy
Remote Party to commence a voluntary winding-up or other voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect in any jurisdiction or seeking the
appointment of an administrator, a trustee, receiver, liquidator, custodian or
other similar official with respect to such Bankruptcy Remote Party or any
substantial part of its property or to consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against such Bankruptcy Remote Party, or to make a
general assignment for the benefit of its creditors generally, any party hereto
or any other creditor of such Bankruptcy Remote Party, and (ii) none of the
parties hereto shall commence or join with any other Person in commencing any
proceeding against such Bankruptcy Remote Party under any bankruptcy,
reorganization, liquidation or insolvency law or statute now or hereafter in
effect in any jurisdiction. This Section shall survive the termination of this
Agreement.
-9-
SECTION 4.14 Submission to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement or any documents executed and delivered in connection
herewith, or for recognition and enforcement of any judgment in respect thereof,
to the nonexclusive general jurisdiction of the courts of the State of New York,
the courts of the United States of America for the Southern District of New York
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its
address determined in accordance with Section 3.3 of this Agreement; and
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to ▇▇▇ in
any other jurisdiction.
[Remainder of Page Intentionally Left Blank]
10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
PEOPLEFIRST FINANCE, LLC
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
Address:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Capital Markets
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-1
CAPITAL ONE AUTO FINANCE, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager of Securitization
Address:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Capital Markets
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-2
EXHIBIT A
FORM OF
ASSIGNMENT PURSUANT TO SALE AGREEMENT
For value received, in accordance with the Sale Agreement (the
"Agreement"), dated as of _______, 2003, between PeopleFirst Finance, LLC, a
California limited liability company (the "Originator"), and Capital One Auto
Finance, Inc., a Texas corporation (the "Purchaser"), on the terms and subject
to the conditions set forth in the Agreement, the Originator agrees to transfer,
assign, set over, sell and otherwise convey to the Purchaser on ________, 2003,
all of its right, title and interest in, to and under the Receivables set forth
on the schedule of Receivables delivered by the Originator to the Purchaser on
the date hereof (such schedule, together with any other Schedule of Receivables
delivered by the Originator to the Purchaser pursuant to the Agreement, the
"Schedule of Receivables"), and the Collections after the related Cut-Off Date
and the Related Security relating thereto, which sale shall be effective as of
such Cut-Off Date.
The foregoing sale does not constitute and is not intended to result in any
assumption by the Purchaser of any obligation of the undersigned to the
Obligors, insurers or any other Person in connection with the Receivables, 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
Agreement and is governed by the Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Agreement.
[Remainder of page intentionally left blank]
A-1
IN WITNESS HEREOF, the undersigned has caused this assignment to be duly
executed as of March 27, 2003.
PEOPLEFIRST FINANCE, LLC
By:__________________________
Name:
Title:
S-2
SCHEDULE I
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO RECEIVABLES
(a) Characteristics of Receivables. Each Receivable:
(i) has been fully and properly executed by the Obligor thereto;
(ii) has been originated directly by the Originator in accordance with
its customary practices;
(iii) as of the Closing Date or Subsequent Funding Date, as applicable, is
secured by a first priority validly perfected security interest in
the Financed Vehicle in favor of the Originator, as secured party,
or all necessary actions with respect to the Receivable has been
taken or will be taken to perfect a first priority security interest
in the Financed Vehicle in favor of the Originator, as secured
party, which security interest, in either case, is assignable and
has been so assigned by the Originator to COAF, by COAF to the
Seller and by the Seller to the Issuer;
(iv) contains customary and enforceable provisions such that the rights
and remedies of the holder thereof are adequate for realization
against the collateral of the benefits of the security;
(v) provided, at origination, for level monthly payments which fully
amortize the initial Principal Balance over the original term;
provided, that the amount of the first or last payment may be
different but in no event more than three times the level monthly
payment;
(vi) provides for interest at the Contract Rate specified in the Schedule
of Receivables; and
(vii) was originated in the United States;
(b) Individual Characteristics. Each Receivables has the following individual
characteristics as of its respective Cut-Off Date:
(i) each Receivable is secured by a new or used automobile, light-duty
truck or motorcycle;
(ii) each Receivable has a Contract Rate of no less than 3.40% and not
more than 9.50%;
(iii) each Receivable had an original term to maturity of not more than 72
months and not less than 12 months and each Receivable has a
remaining term to maturity, as of its respective Cut-Off Date, of
four months or more;
(iv) each Receivable had an original Principal Balance less than or equal
to $100,000;
Schedule I-1
(v) each Receivable has a Principal Balance on its respective Cut-Off
Date of greater than or equal to $500;
(vi) no Receivable has a scheduled maturity date later than May 31, 2009;
(vii) no Receivable was more than 30 days past due as of the Cut-Off Date;
(viii) the Originator has not received notice that any Obligor under a
Receivable has filed for bankruptcy, and to the best of the
Originator's knowledge without any independent investigation, no
Obligor was the subject of any pending bankruptcy or insolvency
proceeding;
(ix) no Receivable is subject to a force placed Insurance Policy on the
related Financed Vehicle;
(x) each Receivable is a Simple Interest Receivable, and scheduled
payments under each Receivable have been applied in accordance with
the method for allocating principal and interest set forth in the
Receivable; and
(xi) each of the Receivables were selected using no materially adverse
selection procedures.
(c) Schedule of Receivables. The information with respect to a Receivable
transferred on the Closing Date or on any Funding Date set forth in the
Schedule of Receivables for such date was true and correct in all material
respects as of the respective Cut-Off Date for such Receivable.
(d) Compliance with Law. The Receivable complied at the time it was originated
or made, and the transfer of that Receivable to the Purchaser complied at
the time of transfer, in all material respects with all requirements of
applicable federal, state and local laws, and regulations thereunder,
including, to the extent applicable, usury laws, the Federal Truth in
Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting
Act, the Federal Trade Commission Act, the Fair Debt Collection Practices
Act, the Fair Credit Billing Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, Federal
Reserve Board Regulations B and Z, the Soldiers' and Sailors' Civil Relief
Act of 1940, state adaptations of the National Consumer Act and of the
Uniform Consumer Credit Code and any other consumer credit, equal
opportunity and disclosure laws applicable to that Receivable.
(e) Binding Obligation. The Receivable constitutes the legal, valid and binding
payment obligation in writing of the Obligor, enforceable in all respects
by the holder thereof in accordance with its terms, subject, as to
enforcement, to applicable bankruptcy, insolvency, reorganization,
liquidation or other similar laws and equitable principles relating to or
affecting the enforcement of creditors' rights generally.
(f) Receivable in Force. The Receivable has not been satisfied, subordinated or
rescinded nor has the related Financed Vehicle been released from the lien
granted by the Receivable in whole or in part.
Schedule I-2
(g) No Waiver. Since its respective Cut-Off Date, no provision of a Receivable
has been waived.
(h) No Default. Except for payment delinquencies continuing for a period of not
more than 30 days as of the applicable Cut-Off Date, the Originator has no
knowledge that a default, breach, violation or event permitting
acceleration under the terms of the Receivable existed at the applicable
Cut-Off Date or that any continuing condition that with notice or lapse of
time, or both, would constitute a default, breach, violation or event
permitting acceleration under the terms of the Receivable had arisen as of
the applicable Cut-Off Date, and the Originator has not waived any of the
foregoing.
(i) Insurance. The Receivable requires that the Obligor thereunder obtain
comprehensive and collision insurance covering the Financed Vehicle.
(j) No Government Obligor. The Obligor on the Receivable is not the United
States of America or any state thereof or any local government, or any
agency, department, political subdivision or instrumentality of the United
States of America or any state thereof or any local government.
(k) Assignment. No Receivable has been originated in, or is subject to the laws
of, any jurisdiction under which the sale, transfer, assignment, conveyance
or pledge of such Receivable would be unlawful, void, or voidable. The
Originator has not entered into any agreement with any Obligor that
prohibits, restricts or conditions the assignment of the related
Receivable.
(l) Good Title. It is the intention of the Originator that the sale, transfer,
assignment and conveyance herein contemplated constitute an absolute sale,
transfer, assignment and conveyance of the Receivables and that the
Receivables not be part of the Originator's estate in the event of the
filing of a bankruptcy petition by or against the Originator under any
bankruptcy law. No Receivable has been sold, transferred, assigned,
conveyed or pledged to any Person other than pursuant to the Transaction
Documents. As of the Closing Date or Subsequent Funding Date, as
applicable, and immediately prior to the sale and transfer herein
contemplated, the Originator had good and marketable title to and was the
sole owner of each Receivable free and clear of all Liens, and, immediately
upon the sale and transfer thereof, COAF will have good and marketable
title to each Receivable, free and clear of all Liens.
(m) Filings. All filings (including, without limitation, UCC filings) necessary
in any jurisdiction to give the Issuer a first priority, validly perfected
ownership interest in the Receivables (other than the Related Security with
respect thereto), and to give the Indenture Trustee a first priority
perfected security interest therein, will be made within ten days of the
Closing Date.
(n) Priority. The Receivable is not pledged, assigned, sold, subject to a
security interest, or otherwise conveyed other than pursuant to the
Transaction Documents. The Originator has not authorized the filing of and
is not aware of any financing statements against the Originator, COAF or
the Seller that include a description of collateral covering the
Schedule I-3
Receivables other than any financing statement relating to security
interests granted under the Transaction Documents or that have been
terminated. The Sale Agreement creates a valid and continuing security
interest in the Receivable (other than the Related Security with respect
thereto) in favor of the Purchaser which security interest is prior to all
other Liens and is enforceable as such against all other creditors of and
purchasers and assignees from the Originator.
(o) Characterization of Receivables. Each Receivable constitutes either
"tangible chattel paper", an "account", a "promissory note" or a "payment
intangible", each as defined in the UCC.
(p) One Original. There is only one original executed copy of each Receivable
in existence. The Servicer (or its agent) has possession of such original.
If such original has been marked, then such original does not have any
marks or notations indicating that it has been pledged, assigned or
otherwise conveyed to any Person other than to a party to the Transaction
Documents.
(q) No Offset or Counterclaim. As of the Closing Date or Subsequent Funding
Date, as applicable, there are no rights of rescission, offset, claim,
counterclaim or defense, and the Originator has no knowledge of the same
being asserted or threatened, with respect to any Receivable.
Schedule I-4