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EXHIBIT 1.1
CAPITAL ONE
AUTO FINANCE, INC.
CAPITAL ONE AUTO RECEIVABLES, LLC
$850,000,000 Class A Notes,
Series 2001-A
Capital One Auto Finance Trust 2001-A
UNDERWRITING AGREEMENT
July 12, 2001
Banc of America Securities LLC,
as Representative of the Underwriters
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Section 1. Introductory. Capital One Auto Receivables, LLC, a Delaware
limited liability company (the "Seller") and Capital One Auto Finance, Inc., a
Texas corporation, ("COAF"), confirm their agreement with Banc of America
Securities LLC, Credit Suisse First Boston Corporation, Deutsche ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ Inc. and First Union Securities, Inc. (collectively, the "Underwriters")
as follows:
The Seller proposes to sell to the Underwriters $126,500,000 principal
amount of its 3.75% Class A-l Notes (the "Class A-l Notes"), $234,500,000
principal amount of its 4.14% Class A-2 Notes (the "Class A-2 Notes"),
$241,500,000 principal amount of its 4.83% Class A-3 Notes (the "Class A-3
Notes") and $247,500,000 principal amount of its 5.40% Class A-4 Notes (the
"Class A-4 Notes" and, together with the Class A-l Notes, the Class A-2 Notes
and the Class A-3 Notes, the "Class A Notes"), to be issued by Capital One Auto
Finance Trust 2001-A, a Delaware common law trust (the "Trust") under the
Indenture (the "Indenture"), dated as of the Closing Date, between Wilmington
Trust Company, as owner trustee (the "Owner Trustee") and ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as indenture trustee (the "Indenture Trustee").
The Notes will be collateralized by the Trust Property (as defined
below) The Trust's assets (the "Trust Property") will include, among other
things, a pool of retail installment sales contracts and installment loans
(consisting of initial receivables (the "Initial Receivables") and subsequent
receivables (the "Subsequent Receivables", collectively, "Receivables"))
originated or purchased by COAF or its affiliates and secured by new and used
automobiles and light trucks (the "Financed Vehicles"), certain monies paid or
payable on the Receivables after the initial Cutoff Date or, with respect to
Subsequent Receivables, the applicable subsequent Cutoff Date, that are sold by
COAF to the Seller and contributed by the Seller to the Trust, such amounts as
from time to time may be held in the Collection Account and certain other
accounts established and maintained by the Servicer pursuant to the Indenture
(including all investments in the Collection Account and such other accounts and
all income from the investment of funds therein
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and proceeds thereof), an assignment of COAF's security interests in the
Financed Vehicles, an assignment of the right to receive proceeds from the
exercise of rights against Dealers under agreements between COAF and such
Dealers (to the extent related to the Receivables) and the assignment of rights
in respect of each Receivable from the applicable Dealer to COAF, an assignment
of the right to receive the proceeds from claims on certain insurance policies
covering the Financed Vehicles or the Obligors, an assignment of the rights of
the Seller under the Transfer and Assignment Agreement (as defined below) and
certain other rights, as more fully described in the Transfer and Assignment
Agreement. In addition, the Trust Property will include monies on deposit in the
Reserve Fund (including all investments in such account and all income from the
investment of funds therein and all proceeds thereof), the funds of which will
be drawn upon to fund certain shortfalls in respect of Monthly Available Funds.
The Initial Receivables and the related Trust Property will be conveyed
to the Seller by COAF pursuant to a transfer agreement, executed on or prior to
the Closing Date, between the Seller and COAF (the "Transfer and Assignment
Agreement") and, on the Closing Date, will be contributed by the Seller to the
Owner Trustee pursuant to the Contribution Agreement (the "Contribution
Agreement") dated as of the Closing Date, between the Seller and the Trust The
Subsequent Receivables and the related Trust Property will be conveyed to the
Seller by COAF pursuant to the Transfer and Assignment Agreement and one or more
assignments (each, an "Assignment") executed after the Closing Date and on or
prior to the date which is three months after the Closing Date (the "Funding
Period"), and will be contributed by the Seller to the Trust pursuant to the
Contribution Agreement.
On the Closing Date, the Note Insurer will issue a note guaranty
insurance policy (the "Note Guaranty Insurance Policy") guaranteeing certain
payments due in respect of the Class A Notes.
The terms of the Class A Notes are set forth in the Registration
Statement and the related Prospectus dated July 10, 2001, as supplemented by a
Prospectus Supplement dated the date hereof.
The Underwriters, COAF and the Seller agree that no Term Sheets have
been or will be used in connection with the offering of the Class A Notes.
Capitalized terms used herein but not defined herein shall have the
meanings given such terms in the Indenture. As used herein, the term
"Transaction Documents" shall mean the Indenture, the Transfer and Assignment
Agreement, the Contribution Agreement, the Trust Agreement, the Administration
Agreement and the Servicing Agreement.
Pursuant to this Agreement, and subject to the terms hereof, the Seller
agrees to sell to the Underwriters, for whom you are acting as representative
(the "Representative"), U.S. $850,000,000 aggregate initial principal amount of
Class A Notes, Series 2001-A (the "Class A Notes"). Concurrently with the sale
of the Class A Notes, the Seller will retain: (i) $60,382,514 aggregate initial
principal amount of Class B Notes, Series 2001-A (the "Class B Notes") and (ii)
a certificate (the "Equity Certificate"), representing the residual interest in
the Trust.
Section 2. Representation and Warranties of the Seller and COAF. Each
of the Seller and COAF severally represents and warrants (as to itself) to the
Underwriters, as of the date hereof and as of the Closing Date, as follows:
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(a) (i) A registration statement on Form S-3 (No. 333-54736),
including a prospectus and such amendments thereto as may have been required to
the date hereof, relating to the offering of notes as described therein from
time to time in accordance with Rule 415 under the Securities Act of 1933 (the
"Act") has been filed with the Securities and Exchange Commission (the
"Commission") (which may have included one or more preliminary prospectuses and
prospectus supplements (each, a "Preliminary Prospectus") meeting the
requirements of Rule 430 of the Act) and such registration statement, as
amended, has become effective; such registration statement, as amended, and the
prospectus relating to the sale of the Class A Notes offered thereby by the
Seller constituting a part thereof, as from time to time amended or supplemented
(including any prospectus filed with the Commission pursuant to Rule 424(b) of
the rules and regulations of the Commission (the "Rules and Regulations") under
the Act), are respectively referred to herein as the "Registration Statement"
and the "Prospectus"; provided that a supplement to the Prospectus prepared
pursuant to Section 5(a) shall be deemed to have supplemented the Prospectus
only with respect to the offering of the Series of the Notes to which it
relates; and the conditions to the use of a registration statement on Form S-3
under the Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 under the Act, have been satisfied with respect to the
Registration Statement. No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose has
been instituted or threatened by the Commission. Copies of such registration
statement and prospectus, any such amendment or supplement and all documents
incorporated by reference therein that were filed with the Commission on or
prior to the date it is first used in connection with the offering of the Notes
(including one fully conformed copy of the registration statement and of each
amendment thereto for each of the Underwriters, and for counsel for the
Underwriters) have been delivered to the Representative. Any reference herein to
the Registration Statement, the Prospectus, any amendment or supplement thereto
or any Preliminary Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement or Prospectus shall be deemed to refer to and include the filing after
the execution hereof of any document with the Commission deemed to be
incorporated by reference therein.
(ii) As of the Closing Date, the Registration Statement
and the Prospectus, except with respect to any modification to
which the Representative has agreed in writing, shall be in
all substantive respects in the form furnished to the
Representative before such date or, to the extent not
completed on such date, shall contain only such specific
additional information and other changes (beyond that
contained in the latest Preliminary Prospectus that has
previously been furnished to the Representative) as the Seller
or COAF has advised the Representative, before such time, will
be included or made therein.
(iii) On the effective date of the Registration Statement,
the Registration Statement conformed in all material respects
with the applicable requirements of the Act and the Rules and
Regulations, and did not include any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading and, on the Closing Date, the Registration
Statement and the Prospectus will conform in all material
respects with the applicable requirements of the Act and the
Rules and Regulations, and (i) the Registration Statement will
not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading and
(ii) the Prospectus will not contain any untrue statement of a
material fact or omit to
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state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that the foregoing does not apply to (x)
that part of the Registration Statement which constitutes the
Statements of Eligibility of Qualification (Form T-l) of the
Indenture Trustee or other indenture trustees under the Trust
Indenture Act or (y) information contained in or omitted from
either of the documents based upon written information
furnished to the Seller by the Underwriters through the
Representative specifically for use in connection with the
preparation of the Registration Statement or the Prospectus.
(iv) The documents incorporated by reference in the
Registration Statement, the Prospectus, any amendment or
supplement thereto or any Preliminary Prospectus, when they
became or become effective under the Act or were or are filed
with the Commission under the Securities Exchange Act of 1934
("Exchange Act"), as the case may be, conformed or will
conform in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder.
(b) The Seller or COAF, as applicable, has been duly organized
and is validly existing as a Delaware limited liability company or Texas
corporation, as applicable, in good standing under the laws of its jurisdiction
The Seller or COAF, as applicable, has, in all material respects, full power and
authority to execute, deliver and perform its obligations under this Agreement
and each Transaction Document to which it is a party, own its properties and
conduct its business as described in the Prospectus, is duly qualified to do
business and is in good standing (or is exempt from such requirements), and has
obtained all necessary material licenses and approvals (except with respect to
the state securities or Blue Sky laws of various jurisdictions), in each
jurisdiction in which failure to so qualify or obtain such licenses and
approvals would have a material adverse effect on the interests of holders of
the Class A Notes. The Seller has full power and authority to cause the Trust to
issue the Class A Notes.
(c) The execution, delivery and performance by the Seller or
COAF, as applicable, of this Agreement and each Transaction Document to which it
is a party, and the issuance and sale of the Class A Notes, the Class B Notes
and the Equity Certificate, and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
limited liability company or corporate action on the part of the Seller or COAF,
as applicable. Neither the execution and delivery by the Seller or COAF, as
applicable, of such instruments, nor the performance by the Seller or COAF, as
applicable, the transactions herein or therein contemplated, nor the compliance
by the Seller or COAF, as applicable, with the provisions hereof or thereof,
will (i) conflict with or result in a breach of any of the terms and provisions
of, or constitute a default under, any of the provisions of the operating
agreement, certificate of formation, Articles of Incorporation or By-laws of
such entity, (ii) result in a material conflict with any of the provisions of
any law, governmental rule, regulation, judgment, decree or order binding on the
Seller or COAF, as applicable, or its properties, or (iii) conflict with any of
the provisions of any material indenture, mortgage, agreement, contract or other
instrument to which the Seller or COAF, as applicable, is a party or by which it
is bound, (iv) contravene or constitute a violation of any law, statute,
ordinance, rule or regulation to which it is subject, or (v) result in the
creation or imposition of any lien, charge or encumbrance upon any of the
Seller's or COAF's, as applicable, property pursuant to the terms of any such
indenture, mortgage, contract or other instrument.
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(d) The Seller or COAF, as applicable, has duly executed and
delivered this Agreement and each Transaction Document to which it is a party.
(e) (i) COAF has authorized the conveyance of the Receivables
to the Seller and related collateral to the Seller; (ii) the Seller has
authorized the contribution of the Receivables and related collateral to the
Trust, and (iii) the Seller has authorized the Trust to issue and sell the Class
A Notes.
(f) Except as set forth in or contemplated in the Prospectus,
there has been no material adverse change in the condition (financial or
otherwise) of COAF or the Seller since March 31, 2001 which would reasonably be
expected to have a material adverse effect on either (A) the ability of COAF or
the Seller to consummate the transactions contemplated by, or to perform its
respective obligations hereunder, or under any of the Transaction Documents to
which it is a party or (B) the Receivables.
(g) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance by the Seller or COAF of
this Agreement and each Transaction Document to which it is a party shall have
been paid or will be paid by the Seller or COAF, as applicable, at or before the
Closing Date to the extent then due.
(h) The Class A Notes, when validly issued in accordance with
the Indenture and sold to the Underwriters pursuant to this Agreement will
conform in all material respects to the descriptions thereof contained in the
Prospectus and will be validly issued and entitled to the benefits and security
afforded by the Indenture. When executed and delivered by the parties thereto,
each of the Indenture and each Transaction Document to which it is a party will
constitute the legal, valid and binding obligation of the Seller or COAF, as
applicable, enforceable against such entity in accordance with its terms, except
to the extent that the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, receivership, conservatorship, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights in general
and to general principles of equity. All approvals, authorizations, consents,
filings, orders or other actions of any person, corporation or other
organization, or of any court, governmental agency or body or official (except
with respect to the state securities or Blue Sky laws of various jurisdictions),
required in connection with the valid and proper authorization, issuance and
sale of the Class A Notes pursuant to this Agreement and the Indenture have been
or will be taken or obtained on or before the Closing Date. The Owner Trustee's
pledge of the Receivables and related collateral to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the benefit of
the Noteholders and the Note Insurer, a first priority perfected security
interest therein, subject to no prior lien, mortgage security interest, pledge
adverse claim, charge or other encumbrance.
(i) Neither the Seller nor the Trust is now, and following the
issuance of the Class A Notes, the Class B Notes or the Equity Certificate, will
be, an "investment company" that is registered or required to be registered
under, or is otherwise subject to the restrictions of, the Investment Company
Act of 1940, as amended (the "1940 Act").
(j) Except for the Underwriters, neither the Seller, the Owner
Trustee nor COAF has employed or retained a broker, finder, commission agent or
other person in connection with the sale of the Class A Notes, and neither the
Seller, the Owner Trustee nor COAF is under any obligation to pay any broker's
fee or commission in connection with such sale.
(k) The Indenture has been duly qualified under the Test
Indenture Act.
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(l) Based on information currently available to, and in the
reasonable belief of, the management of the Seller or COAF, as applicable, such
entity is not engaged (whether as defendant or otherwise) in, nor has such
entity knowledge of the existence of, or any threat of, any legal, arbitration,
administrative or other proceedings the result of which might have a material
adverse effect on the Class A Noteholders.
(m) The representations and warranties of the Seller, the
Owner Trustee or COAF (both in its capacities as Transferor and as Servicer), as
applicable, in each Transaction Document to which it is a party are true and
correct in all material respects.
(n) There are no contracts or documents that are required to
be filed as exhibits to the Registration Statement that have not been so filed.
(o) The Receivables are chattel paper or accounts as defined
in the Uniform Commercial Code as in effect in the state of Texas.
(p) No Event of Default or Event of Servicing Default, or an
event which after any applicable grace period or the giving of notice which
would constitute an Event of Default or Event of Servicing Default, has
occurred.
Section 3. Purchase, Sale and Issuance of Class A Notes (a) Subject to
the terms and conditions and in reliance upon the covenants, representations and
warranties herein set forth, the Seller agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase the respective
initial principal amount of the Class A Notes set forth opposite such
Underwriter's name on Annex I hereto. The Class A Notes will bear interest at
the applicable rate set forth therein The sale and purchase of the Class A Notes
shall take place at a closing (the "Closing") at the offices of ▇▇▇▇▇, Brown &
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, at 10 00 am, Chicago time,
on July 26, 2001 (the "Closing Date"). The purchase price for the Class A Notes
shall be equal to 100% of the aggregate initial principal amount of the Class A
Notes On the Closing Date, against delivery of the Class A Notes as set forth in
clause (b) below, each Underwriter agrees, severally and not jointly, to pay (or
cause to be paid) the purchase price to an account to be designated by the
Seller. The underwriting discount to the Underwriters, the selling concessions
that the Underwriters may allow to certain dealers, and the discounts that such
dealers may reallow to certain other dealers, each expressed as a percentage of
the initial principal amount of the Class A Notes, shall be as set forth in
Annex I hereto.
(b) The Seller shall deliver (or shall cause the Owner Trustee
to deliver on behalf of the Trust) the Class A Notes to the Representative of
the respective accounts of the several Underwriters though the facilities of The
Depository Trust Company ("DTC"). The Class A Notes shall be global certificates
registered in the name of Cede & Co, as nominee for DTC. The interests of
beneficial owners of the Class A Notes will be represented by book entries on
the records of DTC and participating members thereof. The number and
denominations of definitive notes so delivered shall be as specified by DTC. The
definitive notes for the Class A Notes will be made available for inspection by
the Representative at the offices of ▇▇▇▇▇, Brown & ▇▇▇▇▇, at the address set
forth above, not later than 1:00 p.m., Chicago time, or as the Representative
and the Seller shall agree, on the Business Day before the Closing Date.
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Section 4. Offering by Underwriters.
(a) The Seller authorizes each Underwriter to take all such
action as it may deem advisable in respect of all matters pertaining to sales of
the Class A Notes to dealers and to retail purchasers and to member firms and
specialists, including the right to make variations in the selling arrangements
with respect to such sales. Upon the authorization by the Representative of the
release of the Class A Notes, each Underwriter proposes to offer the Class A
Notes for sale upon the terms and conditions set forth in the Prospectus. If the
Prospectus specifies an initial public offering price or a method by which the
price at which such Class A Notes are to be sold, then after the Class A Notes
are released for sale to the public, the Underwriters may vary from time to time
the public offering price, selling concessions and reallowances to dealers that
are members of the National Association of Securities Dealers, Inc. ("NASD") and
other terms of sale hereunder and under such selling arrangements.
(b) Notwithstanding the foregoing, each Underwriter agrees
that it will not offer or sell any Class A Notes within the United States, its
territories or possession or to persons who are citizens thereof or residents
therein, except in transactions that are not prohibited by any applicable
securities, bank regulatory or other applicable law.
(c) Each Class A Underwriter agrees that:
(i) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 and
the Public Offers of Securities Regulations 1995 (the
"Regulations") with respect to anything done by it in relation
to the Class A Notes in, from or otherwise involving the
United Kingdom;
(ii) it has only issued or passed on and will only
issue or pass on in the United Kingdom any document received
by it in connection with the issue or sale of the Class A
Notes to a person who is of a kind described in Article 11(3)
of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom such document
may otherwise lawfully be issued or passed on;
(iii) if it is an authorized person under Chapter III
of part I of the Financial Services Act 1986, it has only
promoted and will only promote (as that term is defined in
Regulation 1.02(2) of the Financial Services (Promotion of
Unregulated Schemes) Regulations 1991) to any person in the
United Kingdom the scheme described in the Prospectus
Supplement and the Prospectus if that person is of a kind
described either in section 76(2) of the Financial Services
Act 1986 or in Regulation 1.04 of the Financial Services
(Promotion of Unregulated Schemes) Regulations 1991; and
(iv) it is a person of a kind described in
Article 11(3) of the Financial Services Act 1986 (investment
Advisements) (Exemptions) Order 1996.
Section 5. Covenants. The Seller or COAF, as the case may be, covenants
and agrees with each Underwriter that:
(a) The Seller will prepare a Prospectus Supplement setting
forth the amount of Class A Notes covered thereby and the terms thereof not
otherwise specified in the Prospectus, the price at which the Class A Notes are
to be purchased by the Underwriters from the Seller, the
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initial public offering price at which the Class A Notes are to be sold, the
selling concessions and allowances, if any, and such other information as the
Seller deems appropriate in connection with the offering of the Class A Notes,
but the Seller will not file any amendments to the Registration Statement as in
effect with respect to the Class A Notes, or any amendments or supplements to
the Prospectus, without the Representative's prior consent (which consent shall
not be unreasonably withheld or delayed), the Seller will immediately advise the
Representative and its counsel (i) when notice is received from the Commission
that any post-effective amendment to the Registration Statement has become or
will become effective and (ii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale of the
Class A Notes or of any proceedings or examinations that may lead to such an
order or communication, whether by or of the Commission or any authority
administering any state securities or Blue Sky law, as soon as practicable after
the Seller is advised thereof, and will use its reasonable efforts to prevent
the issuance of any such aider or communication and to obtain as soon as
possible its lifting, if issued.
(b) Within the time period during which a prospectus relating
to the Class A Notes is required to be delivered under the Act, the Seller will
comply with all requirements imposed upon it by the Act and by the Rules and
Regulations, as from time to time in force, so far as necessary to permit the
continuance of sales of or dealings in the Class A Notes as contemplated by the
provisions hereof and the Prospectus. If, at any time when a Prospectus relating
to the Class A Notes is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it is necessary at any time to
amend or supplement the Prospectus to comply with the Act or the Rules and
Regulations, the Seller will promptly prepare and (subject to review and no
reasonable objection by the Representative as described in Section 5(a)) file
with the Commission, an amendment or supplement that will correct such statement
or omission or an amendment that will effect such compliance, provided, however,
that the Representative's consent to any amendment shall not constitute a waiver
of any of the conditions of Section 6.
(c) The Seller will make generally available to the holders of
the Class A Notes (the "Class A Noteholders") (the sole Class A Noteholders
being the applicable clearing agency in the case of Book-Entry Certificates), in
each case as soon as practicable, a statement which will satisfy the provisions
of Section I(a) of the Act and Rule 158 of the Commission with respect to the
Class A Notes.
(d) The Seller will furnish to the Representative copies of
the Registration Statement (at least one copy to be delivered to the
Representative will be conformed and will include all documents and exhibits
thereto or incorporated by reference therein), the Prospectus, and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representative reasonably requests.
(e) The Seller will assist the Underwriters in arranging for
the qualification of the Class A Notes for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as the
Representative may designate and will continue to assist the Underwriters in
maintaining such qualifications in effect so long as required for the
distribution, provided, however, that neither the Seller nor the Trust shall be
required to qualify to do business in any jurisdiction where it is now not
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction in which it is now not subject to service
of process.
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(f) If filing of the Prospectus is required under Rule 424(b)
of the Commission, the Seller will file the Prospectus, properly completed, and
any supplement thereto, pursuant to Rule 424(b) within the prescribed time
period and will provide evidence satisfactory to the Representative of such
timely filing.
(g) So long as any of the Class A Notes are outstanding, the
Seller or COAF, as applicable, will furnish to the Underwriters, by first-class
mail, as soon as practicable, (i) all documents required to be distributed to
the Class A Noteholders and (ii) from time to time, such other information
concerning the Seller, COAF or the Trust, as the Underwriters may reasonably
request.
(h) The Seller and COAF will apply the net proceeds from the
sale of the Class A Notes as set forth in the Prospectus.
(i) On or before the final transfer of Subsequent Receivables
to the Trust and the expiration of the Pre-Funding Period, if COAF is required
by the Note Insurer to obtain a letter from ▇▇▇▇▇ & Young LLP, as independent
auditors for COAF, to the effect that such accountants have performed certain
specified procedures, all of which have been agreed to by COAF, as a result of
which they have determined, having examined in accordance with such agreed upon
procedures, that the Subsequent Receivables conform to the related requirements
described in the Prospectus, COAF shall deliver a copy of such letter, addressed
to the Representative. The foregoing letter shall be at the expense of COAF.
(j) At the time of the execution and delivery of each
Subsequent Transfer, the Subsequent Receivables will have been duly and validly
assigned to the Indenture Trustee in accordance with the Indenture, and when
such assignment is effected, a duly and validly perfected transfer of all such
Subsequent Receivables subject to no prior lien, mortgage, security interest,
pledge charge or other encumbrance created by COAF or the Seller will have
occurred. As of the related Funding Date, each of the Subsequent Receivables
will meet the eligibility criteria described in the Prospectus.
Section 6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Class A Notes will
be subject to the accuracy of the representations and warranties on the part of
the Seller and COAF herein as of the date hereof and the Closing Date, to the
accuracy of the representations and warranties of the Owner Trustee contained in
each Transaction Document to which it is a party as of the Closing Date, to the
accuracy of the statements of the Seller and COAF made pursuant to the
provisions thereof, to the performance by the Seller and COAF in all material
respects of the obligations hereunder and to the following additional conditions
precedent:
(a) The Representative shall have received, with respect to
each of the Seller and COAF, a certificate, dated the Closing Date, of an
authorized officer of each of the Seller and COAF, as applicable, in which such
officer, to the best of his or her knowledge after reasonable investigation,
shall state that: (i) the representations and warranties of the Seller or COAF,
as applicable, in this Agreement are true and correct in all material respects
on and as of the Closing Date, (ii) the Seller or COAF, as applicable, has
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or before the
Closing Date, (iii) the Registration Statement has been declared effective, no
stop older suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
threatened by the Commission, and (iv) since the date of the Prospectus, there
has been no material adverse change in the condition (financial or
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otherwise) of the Seller's or COAF's, as applicable, automobile loan business,
except as set forth in or contemplated in the Prospectus (references to the
Prospectus in this clause include any supplements thereto).
(b) The Representative shall have received an opinion of
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special counsel to COAF and the Seller, dated the Closing
Date, in form and substance satisfactory to the Representative and its counsel,
to the effect that the statements in the Prospectus under the heading "Certain
Legal Aspects of the Receivables -- Transfer of Receivables," to the extent they
constitute matters of Texas law or legal conclusions with respect to Texas law,
have been reviewed by such counsel and are correct in all material respects. In
rendering such opinion counsel may (i) as to matters involving the application
of laws other than the laws of any jurisdiction other than the State of Texas,
assume the conformity of such laws with the laws of the State of Texas and (ii)
rely as to matters of fact, to the extent deemed proper and as stated therein,
on certificates of responsible officers of the Trust, the Seller and public
officials.
(c) The Representative shall have received an opinion of
▇▇▇▇▇, Brown & ▇▇▇▇▇, special counsel to COAF and the Seller, dated the Closing
Date, in form and substance satisfactory to the Representative and its counsel,
with respect to: certain corporate matters, perfection matters, matters related
to the creation of a security interest, securities law matters, Investment
Company Act matters, tax matters and enforceability matters (including with
respect to the guaranty, dated the Closing Date (the "Guaranty") of Capital One
Financial Corporation ("COFC"), in favor of the Indenture Trustee)
(d) The Representative shall have received an opinion or
opinions of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the Seller and COAF, dated
the Closing Date, in form and substance satisfactory to the Representative and
its counsel, substantially to the effect that: (i) the transfer of the
Receivables by COAF to the Seller and by the Seller to the Trust would be
characterized as a true sale or contribution thereof and (ii) in the event of an
involuntary or voluntary bankruptcy case of COAF under the United States
Bankruptcy Code, a bankruptcy court would not disregard the separate existence
of COAF and the Seller so as to order the substantive consolidation of the
assets and liabilities of the Seller with the bankruptcy estate of COAF.
(e) The Representative shall have received from Dechert, a
favorable opinion dated the Closing Date, with respect to such matters as the
Representative may reasonably require; and the Seller and COAF shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass on all such matters.
(f) The Representative shall have received an opinion from
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., General Counsel to COFC, COAF and the Seller, dated the
Closing Date, in form and substance satisfactory to the Representative and its
counsel, with respect to certain corporate matters relating to COFC, COAF and
the Seller.
(g) The Representative shall have received an opinion or
opinions from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Seller,
dated the Closing Date, in form and substance satisfactory to the Representative
and its counsel, with respect to: (i) certain matters under Delaware law with
respect to the Seller and the authority of the Seller to file a voluntary
bankruptcy petition, (ii) certain corporate matters with respect to the Seller,
(iii) certain
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matters with respect to the security interest of the Owner Trustee and the
Indenture Trustee, respectively, in the Receivables.
(h) At the Closing Date, Ernst & Young, LLP, shall have
furnished to the Representative a letter or letters, dated as of the Closing
Date, in form and substance satisfactory to the Representative and its counsel,
confirming that they are certified independent public accountants and stating in
effect that they have performed certain specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Trust, COAF and
the Seller) set forth in the Prospectus Supplement, agrees with the accounting
records of the Trust, COAF and the Seller, excluding any questions of legal
interpretation.
(i) The Representative shall have received evidence
satisfactory to it that, on or before the Closing Date, UCC-1 financing
statements have been filed (or are being filed on the Closing Date) in the
offices of the State Corporation Commission of the Commonwealth of Virginia, the
Secretary of State of Delaware and the Secretary of State of Texas, reflecting
the transfer of the Receivables and related collateral from COAF to the Seller,
the Seller to the Owner Trustee and the Owner Trustee to the Indenture Trustee.
(j) The Representative shall have received evidence
satisfactory to it that on or before the Closing Date, all applicable UCC
termination statements or releases terminating liens on the Receivables of
creditors of the Seller, the Owner Trustee, COAF or any other person have been
filed in the appropriate filing offices.
(k) The Representative shall have received an opinion of
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Indenture Trustee, dated the Closing Date, in
form and substance satisfactory to the Representative and its counsel.
(1) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee, dated the Closing Date,
in form and substance satisfactory to the Representative and its counsel.
(m) The Representative shall have received the opinion of
counsel to the Note Insurer, dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel.
(n) The Representative shall have received an opinion of
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ for COAF, special counsel to the and the Seller and COAF,
dated the Closing Date, with respect to certificate of title matters in the
state of Texas, in form and substance satisfactory to the Representative and its
counsel.
(o) The Class A Notes shall be rated at the time of issuance
in the highest rating category by each of S&P, ▇▇▇▇▇'▇, and Fitch and shall not
have been placed on any credit watch with a negative implication for downgrade.
(p) At or before the closing of the Class A Notes, the Trust
shall have issued $60,382,514 aggregate principal amount of the Class B Notes
and shall have issued the Equity Certificate.
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(q) The Representative shall have received such information,
certificates and documents as the Representative and its counsel may reasonably
request.
(r) On the Closing Date, the Representative shall have
received a fully executed copy of each of the Transaction Documents.
(s) On the Closing Date, the Representative shall have
received evidence satisfactory to the Representative that the Note Insurer shall
have issued the Note Guaranty Insurance Policy to the Indenture Trustee for the
benefit of the Class A Noteholders, as defined in the Indenture, in form and
substance satisfactory to the Representative.
(t) The Representative shall have received a certificate of
▇▇▇▇▇ ▇▇▇▇ for the Note Insurer, to the effect that the section of the Offering
Memorandum titled "The Note Guaranty Insurance Policy and the Note Insurer" does
not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(u) The Indemnification Agreement, dated as of the date
hereof, between the Note Insurer and the Representative shall have been executed
and delivered by the parties thereto, and the Representative shall have received
a copy thereof.
(v) The Owner Trustee shall have delivered to DTC (or an
approved custodian therefor) each of the global Class A Notes described in
Section 3(b) above, duly executed by the Trust and authenticated by the
Indenture Trustee.
(w) The Indenture Trustee and the Owner Trustee shall have
executed and delivered to DTC a standard "letter of representations" sufficient
to cause DTC to qualify each Class of Class A Notes for inclusion in DTC's
book-entry registration and transfer system.
(x) The Collection Account, the Pre-Funding Account and the
Reserve Fund shall have been established in accordance with the terms of the
Indenture.
(y) The Prospectus shall have been filed as required by
Section 2(a) hereof, and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the Seller, COAF or any
Underwriter, threatened by the Commission, and any request of the Commission for
additional information (to be included in the Prospectus or the Registration
Statement or otherwise) shall have been complied with to the satisfaction of the
Representative.
(z) The Representative shall have received an executed copy of
the Guaranty.
(aa) All actions required to be taken and all filings required
to be made by the Owner Trustee, the Seller and COAF under the Securities Act
before the Closing Date for the issuance of the Class A Notes shall have been
duly taken or made; and before the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Seller or COAF, threatened by the Commission.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions or certificates
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mentioned above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Representative and
its counsel, this Agreement and all its obligations hereunder may be canceled
at, or at any time before, the Closing Date by the Representative Notice of such
cancellation shall be given to the Trust, the Seller and COAF in writing or by
telephone or telecopy confirmed in writing.
Section 7. Expenses. Except as expressly set forth in this Agreement,
COAF and the Seller, jointly and severally, will pay all expenses incidental to
the performance of its obligations hereunder and will reimburse each Underwriter
for any expense reasonably incurred by it in connection with (i) the
qualification of the Class A Notes and determination of their eligibility for
investment under the laws of such jurisdictions as the Representative may
designate (including the reasonable fees and disbursements of its counsel), (ii)
the printing of memoranda related thereto, (iii) for any fees charged by credit
rating agencies for the rating of the Class A Notes and (iv) expenses incurred
in distributing the Prospectus (including any amendments and supplements
thereto). Except as specifically provided in this Section 7 and in Section 8 of
this Agreement, each Underwriter will pay all of its own costs and expenses
(including the fees and disbursements of counsel), transfer taxes on resales of
Class A Notes by it and any advertising expenses connected with any offers it
may make. If the sale of the Class A Notes provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 is not satisfied or because of any refusal, inability or
failure on the part of the Seller or COAF to perform any agreement herein or to
comply with any provision hereof other than by reason of a default by any
Underwriter, the Seller and COAF will reimburse the Underwriters upon demand for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by the Underwriters in connection with
the proposed purchase, sale and offering of the Class A Notes. Neither the
Seller nor COAF shall be liable to the Underwriters for loss of anticipated
profits from the transactions covered by this Agreement.
Section 8. Indemnification and Contribution. (a) The Seller and COAF,
jointly and severally, will indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the Act
or the Exchange Act and the respective officers, directors and employees of
each such person, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter or such controlling person may become
subject, under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and will reimburse each Underwriter and each such officer, director,
employee or controlling person for any legal or other expenses reasonably
incurred by each Underwriter and each such officer, director, employee or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action, provided, however, that (i) neither the
Seller nor COAF will be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement in or omission or alleged omission made in
any such documents in reliance upon and in conformity with written information
furnished to the Sellers by any Underwriter specifically for use therein, and
(ii) neither the Seller nor COAF shall be liable to any Underwriter to the
extent that any such loss, claim, damage or liability of such Underwriter arises
as a result of a misstatement or omission or alleged misstatement or omission in
the Preliminary Prospectus that was corrected in the Prospectus (and copies of
which Prospectus were furnished to such Underwriter) and such Underwriter, if
required by law, failed to give or send to the purchaser, at or before the
written
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confirmation of sale, a copy of the Prospectus This indemnity agreement will be
in addition to any liability which the Seller or COAF may otherwise have.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Seller and COAF, and each person, if any, who
controls the Seller or COAF within the meaning of the Act or the Exchange Act
and the respective officers, directors, and employees of each such person,
against any losses, claims, damages or liabilities to which any Seller may
become subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Seller or COAF by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Seller or COAF, and each such officer, director,
employee or controlling person, as the case may be, in connection with
investigating or defending any such loss, claim, damage, liability or action.
Each of the Seller and COAF agrees with each Underwriter that the only
information furnished to the Seller and COAF by the Underwriters specifically
for use in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, is the information
set forth in the second paragraph (regarding concessions and discounts) and the
first sentence of the eighth paragraph (regarding market making) under the
caption "Underwriting" in the Prospectus Supplement. This indemnity agreement
will be in addition to any liability that each Underwriter may otherwise have.
(c) [Intentionally omitted.]
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under clause (a), (b) or (c), notify the indemnifying party of the commencement
thereof, but the omission and/or delay so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under clause (a), (b) or (c). In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may elect by written notice, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying par@ will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with
defense thereof other than reasonable costs of investigation If the defendants
in any action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties No indemnifying party shall, without
the prior written consent of the indemnified party, effect
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any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then such indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in this Section, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Seller and COAF on the one hand and relevant Underwriter on the other from the
offering of the Class A Notes or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Seller and COAF on the one hand and the relevant
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations The relative benefits received by the Seller
and COAF on the one hand and the relevant Underwriter on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Seller and COAF bear to the total
underwriting discounts and commissions received by the relevant Underwriter The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Seller, COAF or by any Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
clause (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim (which shall be limited as provided in subsection (d) above
if the indemnifying party has assumed the defense of any such action in
accordance with the provisions thereof) which is the subject of this clause (e)
Notwithstanding the provisions of this clause (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which such Class A Notes underwritten by such Underwriter and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission No
person guilty of fraudulent misrepresentation (within the meaning of Section 11
(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation The obligation of each Underwriter
under this Section 8(e) shall be several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the indemnifying party under this
Section shall be in addition to any liability which the indemnifying party may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the indemnifying party within the meaning of the
Act.
Section 9. Survival of Representations and Obligations. The respective
agreements, representations, warranties and other statements made by the Seller
and COAF or their officers, including any such agreements, representations,
warranties and other statements relating to the
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Trust, and of the Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of the Underwriters,
the Seller, COAF or any of their respective officers or directors or any
controlling person, and will survive delivery of and payment of the Class A
Notes The provisions of Section 7 and Section 8 shall survive the termination or
cancellation of this Agreement.
Section 10. Notices. All communications hereunder shall be in writing
and effective only on receipt, and, if to the Representative or the
Underwriters, will be mailed, delivered or telecopied and confirmed to the
address for the Representative set forth on the first page hereof, if sent to
the Seller, will be mailed, delivered or telecopied and confirmed to Capital One
Auto Receivables, LLC, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Director of Securitization, with a copy to the General Counsel, and
if sent to COAF, will be mailed, delivered or telecopied and confirmed to
Capital One Auto Finance, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Director of Securitization, with a copy to the General Counsel.
Section 11. Applicable Law, Entire Agreement. This Agreement will be
governed by and construed in accordance with the law of the State of New York.
This Agreement supersedes all prior agreements and understandings relating to
the subject matter hereof.
Section 12. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof, and
their successors and assigns, and no other person will have any right or
obligation hereunder.
Section 13. Waivers, Headings. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
Section 14. Termination of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Class A Notes on the Closing
Date shall be terminable by the Representative by written notice delivered to
the Seller if at any time on or before the Closing Date (a) trading in
securities generally on the New York Stock Exchange shall have been suspended or
materially limited, or there shall have been any setting of minimum prices for
trading on such exchange, (b) a general moratorium on commercial banking
activities in New York, Texas or Virginia shall have been declared by any of
Federal, New York state, Texas state or Virginia state authorities, (c) there
shall have occurred any material outbreak or escalation of hostilities or other
calamity or crisis, the effect of which on the financial markets of the United
States is such as to make it, in the Underwriter's judgment, impracticable to
market the Class A Notes on the terms and in the manner contemplated in the
Prospectus or (d) any change or any development involving a prospective change,
materially and adversely affecting (i) the Trust Property taken as a whole or
(ii) the business or properties of the Seller or COAF occurs, which, in the
Underwriter's judgment, in the case of either clause (i) or (ii), makes it
impracticable to market the Class A Notes on the terms and in the manner
contemplated in the Prospectus Upon such notice being given, the parties to this
Agreement shall (except for the liability of the Sellers under Section 7 and
Section 8 and the liability of each Underwriter under Section 15) be released
and discharged from their respective obligations under this Agreement.
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Section 15. Electronic Copy of Preliminary Prospectus. Each Underwriter
represents that it has furnished or will furnish a printed copy of the
Preliminary Prospectus to all persons to whom it has furnished or will furnish
an electronic copy of the Preliminary Prospectus.
Section 16. Representation of Underwriters. The Representative will act
for the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding upon all the
Underwriters.
Section 17. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Class A Notes agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Class A Notes set forth opposite their names on Annex I hereto bears to the
aggregate amount of Class A Notes set forth opposite the names of all the
remaining Underwriters) the Class A Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase, provided, however, that if the
aggregate amount of Class A Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 25% of the aggregate
principal amount of Class A Notes set forth on Annex I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Class A Notes, and if such nondefaulting
Underwriters do not purchase all the Class A Notes, this Agreement will
terminate without liability to any nondefaulting Underwriter, the Seller or COAF
In the event of a default by any Underwriter as set forth in this Section 17,
the Closing Date shall be postponed for such period, not exceeding seven days,
as the Underwriters shall determine in order that the required changes in the
Registration Statement and the Prospectus (and any supplements thereto) or in
any other documents or arrangements may be effected Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Seller, COAF and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
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If you are in agreement with the foregoing, please sign a counterpart hereof and
return it to the Seller and COAF, whereupon this letter and your acceptance
shall become a binding agreement among the Seller, COAF and the Underwriters.
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Very truly yours,
CAPITAL ONE AUTO
RECEIVABLES, LLC, as Seller
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary
CAPITAL ONE AUTO FINANCE, INC.
By /s/ ▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇
Title: Director of Securitization
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
BANC OF AMERICA SECURITIES LLC,
as Representative of the Underwriters
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
For itself and the other several Underwriters named in Annex I to the foregoing
Agreement.
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ANNEX I
UNDERWRITING LIABILITY
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4
--------- ------------ ------------ ------------
Banc of America Securities LLC 75,800,000 140,600,000 144,900,000 148,500,000
Credit Suisse First Boston
Corporation 16,900,000 31,300,000 32,200,000 33,000,000
Deutsche ▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ Inc. 16,900,000 31,300,000 32,200,000 33,000,000
First Union Securities, Inc. 16,900,000 31,300,000 32,200,000 33,000,000
$126,500,000 $234,500,000 $241,500,000 $247,500,000
TOTAL AMOUNT
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4
--------- ------------ ------------ ------------
Gross Underwriting Discount 0.140% 0.195% 0.210% 0.225%
Selling Concession 0.085% 0.120% 0.125% 0.135%
Reallowance 0.070% 0.095% 0.100% 0.110%
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