EXHIBIT 1.1
September 4, 2002
CAPITAL ONE
AUTO FINANCE, INC.
CAPITAL ONE AUTO RECEIVABLES, LLC
$1,100,000,000 Class A Notes,
Series 2002-B
Capital One Auto Finance Trust 2002-B
UNDERWRITING AGREEMENT
September 4, 2002
Wachovia Securities, Inc.
as Representative of the Underwriters
0 Xxxxxxxx Xxxxxx, XX0000
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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 Wachovia Securities,
Inc., Banc of America Securities LLC, Barclays Capital, Inc., Credit Suisse
First Boston Corporation and Deutsche Bank Securities Inc. (collectively, the
"Underwriters") as follows:
The Seller proposes to sell to the Underwriters $204,000,000 principal
amount of its 1.76% Class A-1 Notes (the "Class A-1 Notes"), $187,000,000
principal amount of its 2.06% Class A-2-A Notes (the "Class A-2-A Notes"),
$120,000,000 principal amount of its LIBOR + 0.15% Class A-2-B Notes (the "Class
A-2-B Notes"), $190,000,000 principal amount of its 2.71% Class A-3-A Notes (the
"Class A-3-A Notes"), $105,000,000 principal amount of its LIBOR + 0.25% Class
A-3-B Notes (the "Class A-3-B Notes"), $132,500,000 principal amount of its
3.32% Class A-4-A Notes (the "Class A-4-A Notes"), $161,500,000 principal amount
of its LIBOR + 0.33% Class A-4-B Notes (the "Class A-4-B Notes" and, together
with the Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes, the
Class A-3-A Notes, the Class A-3-B Notes, the Class A-4-A Notes, the "Class A
Notes"), to be issued by Capital One Auto Finance Trust 2002-B, 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 JPMorgan Chase Bank, as indenture trustee (the "Indenture
Trustee").
The Notes will be collateralized by the Trust Property (as defined below).
The assets of the Owner Trustee (the "Trust Property") will include, among other
things, a pool of retail installment sales contracts and installment loans
(consisting of receivables (the "Receivables"))
originated or purchased by COAF or its affiliates and secured by new and used
automobiles and light-duty trucks (the "Financed Vehicles"), certain monies paid
or payable on the Receivables after the initial Cutoff Date, that are sold by
COAF to the Seller and contributed by the Seller to the Owner Trustee, 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 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), an assignment of
rights under the Interest Rate Swap Agreement (as defined below) and payments
made by the Swap Counterparty (as defined below) thereunder 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 and the Trust's
rights under the Swap Agreements (as defined below).
Capital One F.S.B. ("FSB"), a federal savings bank and an affiliate of
COAF, is an originator with respect to a portion of the Receivables. FSB will
transfer and assign that portion of Receivables and related Trust Property
originated by it to COAF pursuant to an intercompany transfer and assignment
agreement, executed on the Closing Date, between COAF and FSB (the "Intercompany
Transfer and Assignment Agreement"). The Receivables and the related
Trust Property will then be conveyed to the Seller by COAF pursuant to a
transfer agreement, executed on 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 Owner Trustee.
On the Closing Date, the Owner Trustee will enter into an interest rate
swap agreement to hedge the floating interest rate on the Class A-2-B Notes, the
Class A-3-B Notes, and the Class A-4-B Notes, (the "Swap 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 June 14, 2002, 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.
-2-
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 Intercompany Transfer and
Assignment Agreement, the Transfer and Assignment Agreement, the Contribution
Agreement, the Trust Agreement, the Administration Agreement, the Servicing
Agreement, the Swap Agreement and the Policies.
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. $1,100,000,000 aggregate initial principal amount
of Class A Notes, Series 2002-B (the "Class A Notes"). Concurrently with the
sale of the Class A Notes, (i) the Trust will issue $54,030,000 of 8.09% Class B
Notes, some or all of which may be sold in a private placement for which
Wachovia Securities, Inc. will act as initial purchaser with respect to some or
all of the Class B Notes (the "Class B Notes") and (ii) the Seller will retain a
certificate (the "Equity Certificate"), representing the residual interest in
the Owner Trustee.
Section 2. Representations 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:
(a) (i) A registration statement on Form S-3 (No. 333-89452),
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 forms of 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.
-3-
(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 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-1)
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 Owner Trustee to issue the
Class A Notes.
-4-
(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
issuance of 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.
(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 Owner Trustee; and
(iii) the Seller has authorized the Owner Trustee to issue and sell the Class A
Notes.
(f) Except as set forth in or contemplated in the Prospectus or which
has been publicly disclosed by the Seller, COAF or Capital One Financial
Corporation ("COFC"), there has been no material adverse change in the condition
(financial or otherwise) of COAF or the Seller since June 30, 2002 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,
-5-
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, the Swap Counterparty 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, except as may be
permitted by the terms of the Transaction Documents.
(i) Neither the Seller nor the Owner Trustee 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 Trust Indenture
Act.
(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 and the state of
Delaware.
(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 Mayer,
Brown, Xxxx & Maw, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, at 10:00 a.m.,
Chicago time, on September 16, 2002 (the "Closing Date"). The
-6-
purchase price for the Class A Notes shall be as set forth on Annex I hereto. 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 Owner Trustee) the Class A Notes to the Representative
for the respective accounts of the several Underwriters through 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 Mayer, Brown, Xxxx & Maw, 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.
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 not offered or sold and prior to the expiry of a
period of six months from the Closing Date, will not offer or sell
any Notes to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing, or
disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities
Regulations 1995, as amended;
(ii) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation
or
-7-
inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Act 2000 (the "FSMA")
received by it in connection with the issue or sale of any Notes in
circumstances in which section 21(1) of the FSMA does not apply to the
Issuer and shall procure that the Notes are not offered or sold in the
United Kingdom other than to persons authorised under the FSMA or to
persons otherwise having professional experience in matters relating
to investments and qualifying as investment professionals under
Article 19 of the Financial Services and Markets Xxx 0000 (Financial
Promotion) Order 2001, as amended or to persons qualifying as high net
worth persons under Article 49 of that Order or, if distributed in the
United Kingdom by authorised persons, only to persons qualifying as
investment professionals under Article 14 of the Financial Services
and Markets Xxx 0000 (Promotion of Collective Investment Schemes)
(Exemptions) Order 2001 ("CIS Order") or to persons qualifying as high
net worth persons under Article 22 of the CIS Order, and
(iii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to the Notes in, from or otherwise involving the United Kingdom.
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 (the "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
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 order 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
-8-
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 Notes), in each case as
soon as practicable, a statement which will satisfy the provisions of Section 11
(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.
(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.
-9-
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 order 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 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 Mayer, Brown,
Xxxx & Maw, 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 "Material Legal
Aspects of the Receivables -- Security Interests in the Financed Vehicles" 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 Owner
Trustee, the Seller and public officials.
(c) The Representative shall have received an opinion of Mayer, Brown,
Xxxx & Maw, 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 COFC in favor of the
Indenture Trustee).
-10-
(d) The Representative shall have received an opinion or opinions of
Mayer, Brown, Xxxx & Maw, 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 Owner Trustee 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. The
Representative shall have also received an opinion or opinions of Mayer, Brown,
Xxxx & Maw, dated the Closing Date, in form and substance satisfactory to the
Representative and its counsel addressing certain FDIC matters relating to the
transfer of Receivables by FSB to 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 Xxxx X.
Xxxxxxxx, Xx., 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 Xxxxxxxx, Xxxxxx & 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 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 Owner Trustee, COAF and the
Seller) set forth in the Prospectus Supplement, agrees with the accounting
records of the Owner Trustee, 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 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
-11-
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 Xxxxxx &
Xxxxxx LLP, counsel to the Indenture Trustee, dated the Closing Date, in form
and substance satisfactory to the Representative and its counsel.
(l) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & 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 Mayer,
Brown, Xxxx & Maw, special counsel to the Seller and COAF, dated the Closing
Date, with respect to certificate of title matters in the state of Texas and in
the state of California, 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, Xxxxx'x, 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 Owner Trustee
shall have issued $54,030,000 aggregate principal amount of the Class B Notes
and shall have issued the Equity Certificate.
(q) The Representative shall have received such information,
certificates and documents as the Representative or 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 Xxxxx
Xxxx for the Note Insurer, to the effect that the section of the Prospectus
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.
-12-
(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 Owner Trustee 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 Revenue Fund, 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 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) 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) to the
Underwriters. 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
-13-
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 through the Representative 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 Seller 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 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. (a)
(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 or COAF 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
-14-
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 ninth 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) or (b), 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) or (b). 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 party 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 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) or (b) 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
-15-
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 Owner Trustee, 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, Attention: Xxxx Xxxxxx if
sent to the Seller, will be mailed, delivered or telecopied and confirmed to
Capital One Auto Receivables, LLC, 0000 Xxxxx Xxxxxx Xxxxx, XxXxxx, Xxxxxxxx
00000, Attention: Director of Capital Markets, 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., 0000 Xxxxx Xxxxxx Xxxxx, XxXxxx,
Xxxxxxxx 00000, Attention: Director of Capital Markets, 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.
-16-
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 an outbreak or escalation of hostilities or a declaration by
the United States of a national emergency or war or any other major act of
terrorism involving the United States, or any other substantial national or
international calamity, emergency or crisis, the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representative, impracticable or inadvisable 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 judgment of the
Representative, in the case of either clause (i) or (ii), makes it impracticable
or inadvisable 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 Seller and COAF under
Section 7 and Section 8 and the liability of each Underwriter under Section 17)
be released and discharged from their respective obligations under this
Agreement.
Section 15. Electronic Copy of Preliminary Prospectus. Each Underwriter
represents that it has furnished or will furnish a printed copy of the
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
-17-
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.
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.
-18-
Very truly yours,
CAPITAL ONE AUTO
RECEIVABLES, LLC, as Seller
By /s/ Xxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
CAPITAL ONE AUTO FINANCE, INC.
By /s/ Xxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxx
Title: Manager of Securitization
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
WACHOVIA SECURITIES, INC.,
as Representative of the Underwriters
By /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Director
For itself and the other several Underwriters named in Annex I to the foregoing
Agreement.
-19-
ANNEX I
Underwriting Liability
Class A-1 Class A-2-A Class A-2-B Class A-3-A Class A-3-B Class A-4-A Class A-4-B
--------- ----------- ----------- ----------- ----------- ----------- -----------
Wachovia Securities, Inc. 122,400,000 112,200,000 72,000,000 114,000,000 63,000,000 79,500,000 96,900,000
Banc of America Securities LLC 20,400,000 18,700,000 12,000,000 19,000,000 10,500,000 13,250,000 16,150,000
Barclays Capital, Inc. 20,400,000 18,700,000 12,000,000 19,000,000 10,500,000 13,250,000 16,150,000
Credit Suisse First Boston 20,400,000 18,700,000 12,000,000 19,000,000 10,500,000 13,250,000 16,150,000
Corporation
Deutsche Bank Securities Inc. 20,400,000 18,700,000 12,000,000 19,000,000 10,500,000 13,250,000 16,150,000
Total Amount 204,000,000 187,000,000 120,000,000 190,000,000 105,000,000 132,500,000 161,500,000
Class A-1 Class A-2-A Class A-2-B Class A-3-A Class A-3-B Class A-4-A Class A-4-B
--------- ----------- ----------- ----------- ----------- ----------- -----------
Purchase Price 99.88000% 99.81987% 99.82000% 99.77105% 99.78000% 99.73417% 99.74000%
------------------------------------------------------------------------------------------------------------------------------------
