EXHIBIT 1.1
CAPITAL ONE AUTO FINANCE, INC.
CAPITAL ONE AUTO RECEIVABLES, LLC
$ Class A Notes,
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$ Class B Notes,
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Series
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Capital One Auto Finance Trust
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UNDERWRITING AGREEMENT
, 2003
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[NAME OF UNDERWRITER]
[ADDRESS]
as Representatives of the several Underwriters
[NAME OF UNDERWRITER]
[ADDRESS]
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 [NAMES OF
UNDERWRITERS] (collectively, the "Underwriters") as follows:
The Seller proposes to sell to the Underwriters $ principal
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amount of its % Class A-1 Notes (the "Class A-1 Notes"), $
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principal amount of its % Class A-2 Notes (the "Class A-2 Notes"),
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$ principal amount of its % Class A-3 Notes (the "Class A-3
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Notes"), $ principal amount of its % Class A-4 Notes (the "Class
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A-4 Notes" and together with the Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes, the "Class A Notes"). The Seller proposes to sell to[NAMES OF
UNDERWRITERS] $ principal amount of its % Class B Notes (the
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"Class B Notes" and, together with the Class A Notes, the "Notes"). The Notes
will be issued by Capital One Auto Finance Trust , a Delaware statutory
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trust (the "Issuer") under the Indenture (the "Indenture"), dated as of the
Closing Date, between the Issuer and [NAME OF INDENTURE TRUSTEE], as indenture
trustee (the "Indenture Trustee").
The Notes will be collateralized by the Trust Estate (as defined below).
The assets of the Issuer (the "Trust Estate") will include, among other things,
a pool of motor vehicle retail installment sales contracts and/or installment
loans (the "Receivables") originated by PeopleFirst (as defined below) secured
by new and used automobiles, light-duty trucks and motorcycles (the "Financed
Vehicles"), certain monies paid or payable on the Receivables after the Cut-off
Date that are conveyed to COAF by PeopleFirst, to the Seller by COAF and to the
Issuer by the Seller, 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 Sale and Servicing Agreement
(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 PeopleFirst's security interests in the Financed Vehicles and an
assignment of the rights of the Seller under the Purchase Agreement and the Sale
and Servicing Agreement (as defined below). In addition, the Trust Estate will
include monies on deposit in the Trust Accounts (including all investments in
such accounts 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 Available Funds (as defined below).
PeopleFirst Finance, LLC, a California limited liability company and a
wholly-owned subsidiary of COAF ("PeopleFirst"), is the originator of the
Receivables. PeopleFirst will transfer and assign the Receivables and other
Related Security originated by it to COAF pursuant to a sale agreement, executed
on the Closing Date, between PeopleFirst and COAF (the "Sale Agreement"). The
Receivables and other Purchased Assets will then be conveyed to the Seller by
COAF pursuant to a purchase agreement, executed on the Closing Date, between the
Seller and COAF (the "Purchase Agreement") and, on the Closing Date, the
Receivables and other Transferred Assets will be conveyed to the Issuer by the
Seller pursuant to the Sale and Servicing Agreement (the "Sale and Servicing
Agreement") dated as of the Closing Date, among the Seller, the Servicer, the
Indenture Trustee and the Issuer.
The terms of the Notes are set forth in the Registration Statement (as
defined below) and the related Prospectus (as defined below), as supplemented by
a Prospectus Supplement (as defined below).
The Underwriters, COAF and the Seller agree that no Term Sheets have been
or will be used in connection with the offering of the Notes.
Capitalized terms used herein but not defined herein shall have the
meanings given such terms in Appendix A to the Sale and Servicing Agreement or
the Indenture.
Pursuant to this Agreement, and subject to the terms hereof, the Seller
agrees to sell to the Underwriters, for whom you are acting as representatives
(the "Representatives"), U.S. $ aggregate initial principal amount of
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Class A Notes, Series , and the Seller agrees to sell to and
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U.S. $ aggregate initial principal amount of Class B
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Notes, Series . Concurrently with the sale of the Notes, the Seller will
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retain a certificate (the "Certificate"), representing the beneficial interest
in the Issuer.
Section 2. Representations and Warranties of the Seller and COAF. Each of
the Seller and COAF severally represents and warrants 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
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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 to the date hereof, has become
effective; such registration statement, as amended to the date hereof, is
hereinafter referred to as the "Registration Statement", and the prospectus
included in such Registration Statement, as supplemented to reflect the terms of
the Notes as first filed with the Commission after the date of this Agreement
pursuant to and in accordance with Rule 424(b) of the rules and regulations of
the Commission (the "Rules and Regulations") under the Act ("Rule 424(b)"),
including all material incorporated by reference therein, is referred to herein
as 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 Representatives. 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
Representatives have agreed in writing, shall be in all substantive
respects in the form furnished to the Representatives 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
Representatives) as the Seller or COAF has advised the Representatives,
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 on the date hereof and on the Closing Date the
Prospectus will conform in all material respects with the
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applicable requirements of the Act and the Rules and Regulations, and (x)
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 (y)
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 (I) 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 (II)
information contained in or omitted from either of the documents based upon
written information furnished to the Seller by the Underwriters through the
Representatives specifically for use in connection with the preparation of
the Registration Statement or the Prospectus, it being understood and
agreed that the only such information is that described as such in Section
8(b) hereof.
(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 after 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,
respectively, in good standing under the laws of its jurisdiction of
organization. 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 Notes. The Seller has full power and authority to
cause the Issuer to issue the 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 Notes and the issuance of the
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, respectively. 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,
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any of the provisions of the operating agreement, certificate of formation,
Articles of Incorporation or By-laws, as applicable, 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, (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) PeopleFirst has authorized the conveyance of the Receivables and
other Related Security to COAF; (ii) COAF has authorized the conveyance of the
Receivables and other Purchased Assets to the Seller; (iii) the Seller has
authorized the conveyance of the Receivables and other Transferred Assets to the
Issuer: and (iv) the Seller has authorized the Owner Trustee to issue and sell
the Notes.
(f) Except as set forth in or contemplated in the Prospectus or which has
been publicly disclosed by the Seller, COAF, PeopleFirst or Capital One
Financial Corporation ("COFC"), there has been no material adverse change in the
condition (financial or otherwise) of COAF, PeopleFirst or the Seller since
which would reasonably be expected to have a material adverse effect
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on either (A) the ability of COAF, PeopleFirst 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 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
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jurisdictions), required in connection with the valid and proper authorization,
issuance and sale of the Notes pursuant to this Agreement and the Indenture have
been or will be taken or obtained on or before the Closing Date. The Issuer's
pledge of the Trust Estate to the Indenture Trustee pursuant to the Indenture
will vest in the Indenture Trustee, for the benefit of the Noteholders, 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 Issuer is now, nor following the issuance of
the Notes or the 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 Issuer nor COAF
has employed or retained a broker, finder, commission agent or other person in
connection with the sale of the Notes, and neither the Seller, the Issuer 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 Noteholders.
(m) The representations and warranties of the Seller, the Issuer,
PeopleFirst or COAF (both in its capacities as seller under the Purchase
Agreement 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, the state of California and
the state of Delaware.
(p) No Event of Default or Servicer Termination Event, or an event which
after any applicable grace period or the giving of notice which would constitute
an Event of Default or Servicer Termination Event, has occurred.
Section 3. Purchase, Sale and Issuance of the 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 Notes set forth opposite such Underwriter's name
on Annex I hereto. The Notes will bear interest at the applicable rate set forth
therein. The sale and purchase of the Notes shall
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take place at a closing (the "Closing") at the offices of Mayer, Brown, Xxxx &
Maw LLP, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, at 10:00 a.m., Chicago
time, on (the "Closing Date"). The purchase price for the Notes
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shall be as set forth on Annex I hereto. On the Closing Date, against delivery
of the 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
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 Issuer) the Notes to the Representatives for the respective
accounts of the several Underwriters through the facilities of The Depository
Trust Company ("DTC"). The Notes shall be global certificates registered in the
name of Cede & Co., as nominee for DTC. The interests of beneficial owners of
the 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 Notes
will be made available for inspection by the Representatives at the offices of
Mayer, Brown, Xxxx & Maw LLP, at the address set forth above, not later than
1:00 p.m., Chicago time, or as the Representatives 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 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 Representatives of the release of the
Notes, each Underwriter proposes to offer the 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 Notes are to
be sold, then after the 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 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 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
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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 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 or to any other person to
whom the Notes may otherwise lawfully be offered or to whom such invitation
or inducement to engage in investment activity in connection with the issue
or sale of the Notes may otherwise lawfully be communicated or caused to be
communicated; 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 Notes covered thereby and the terms
thereof not otherwise specified in the Prospectus. the price at which the Notes
are to be purchased by the Underwriters from the Seller, the initial public
offering price at which the 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 Notes, but the Seller will not file any
amendments to the Registration Statement as in effect with respect to the Notes,
or any amendments or supplements to the Prospectus, without the Representatives'
prior consent (which consent shall not be unreasonably withheld or delayed); the
Seller will immediately advise the Representatives and their 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
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and sale of the 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 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 Notes as contemplated by the provisions hereof and
the Prospectus. If, at any time when a Prospectus relating to the 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
Representatives 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
Representatives' 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 Notes
(the "Noteholders") (the sole 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 Notes.
(d) The Seller will furnish to the Representatives copies of the
Registration Statement (at least one copy to be delivered to the Representatives
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 Representatives reasonably request.
(e) The Seller will assist the Underwriters in arranging for the
qualification of the Notes for sale and the determination of their eligibility
for investment under the laws of such jurisdictions as the Representatives 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 Issuer 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
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thereto, pursuant to Rule 424(b) within the prescribed time period and will
provide evidence satisfactory to the Representatives of such timely filing.
(g) So long as any of the 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 Noteholders;
and (ii) from time to time, such other information concerning the Seller, COAF
or the Issuer as the Underwriters may reasonably request.
(h) The Seller and COAF will apply the net proceeds from the sale of the
Notes as set forth in the Prospectus.
Section 6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the 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 Issuer contained in each
Transaction Document to which it is a party as of the Closing Date, to the
accuracy of the representations and warranties of PeopleFirst 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 Representatives shall have received, with respect to each of the
Seller, PeopleFirst and COAF, a certificate, dated the Closing Date, of an
authorized officer of each of the Seller, PeopleFirst 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, PeopleFirst 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, PeopleFirst'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) [Intentionally omitted]
(c) The Representatives shall have received an opinion of Mayer, Brown,
Xxxx & Maw LLP, special counsel to COAF, PeopleFirst and the Seller, dated the
Closing Date, in form and substance satisfactory to the Representatives and
their 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 Limited Guaranty).
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(d) The Representatives shall have received an opinion or opinions of
Mayer, Brown, Xxxx & Maw LLP, special counsel for COAF, PeopleFirst and the
Seller, dated the Closing Date, in form and substance satisfactory to the
Representatives and their counsel, substantially to the effect that: (i) the
transfer of the Receivables by PeopleFirst to COAF would be viewed as a true
sale or an absolute transfer thereof, (ii) the transfer of the Receivables by
COAF to the Seller would be characterized as a true sale or absolute transfer
thereof and (iii) in the event of an involuntary or voluntary bankruptcy case of
COAF or PeopleFirst under the United States Bankruptcy Code, a bankruptcy court
would not disregard the separate existence of COAF or PeopleFirst on one hand,
and the Seller or the Issuer, on the other, so as to order the substantive
consolidation of the assets and liabilities of the Seller or the Issuer, as the
case may be, with the bankruptcy estate of either COAF or PeopleFirst.
(e) The Representatives shall have received from Dechert LLP, a favorable
opinion dated the Closing Date, with respect to such matters as the
Representatives 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 Representatives shall have received an opinion from a General
Counsel, a Deputy General Counsel or an Associate General Counsel to COFC, and
counsel to COAF, the Seller and PeopleFirst, dated the Closing Date, in form and
substance satisfactory to the Representatives and their counsel, with respect to
certain corporate matters relating to COFC, COAF, the Seller and PeopleFirst.
(g) The Representatives 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 Representatives and
their 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 Issuer and
the Indenture Trustee, respectively, in the Trust Estate.
(h) At the Closing Date, Ernst & Young, LLP, shall have furnished to the
Representatives a letter or letters, dated as of the Closing Date, in form and
substance satisfactory to the Representatives and their 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 Issuer, COAF and the Seller)
set forth in the Prospectus Supplement, agrees with the accounting records of
the Issuer, COAF and the Seller, excluding any questions of legal
interpretation.
(i) The Representatives shall have received evidence satisfactory to the
Representatives and their counsel 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, the Secretary of the State of California and
the Secretary of State of
11
Texas, reflecting the transfer of the Receivables and other Related Security
from PeopleFirst to COAF, the transfer of Receivables and other Purchased Assets
from COAF to the Seller, the transfer of Receivables and other Transferred
Assets from the Seller to the Issuer, and the pledge of the Trust Estate from
the Issuer to the Indenture Trustee.
(j) The Representatives shall have received evidence satisfactory to them
that on or before the Closing Date, all applicable UCC termination statements or
releases terminating liens of creditors of the Seller, the Issuer, PeopleFirst,
COAF or any other person on the Receivables have been filed in the appropriate
filing offices.
(k) The Representatives 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 Representatives and their counsel.
(l) The Representatives shall have received an opinion of Xxxxxxxx, Xxxxxx
& Finger, counsel to the Issuer, dated the Closing Date, in form and substance
satisfactory to the Representatives and their counsel.
(m) The Representatives shall have received an opinion of Mayer, Brown,
Xxxx & Maw LLP, special counsel to the Seller and COAF, dated the Closing Date,
with respect to certificate of title matters in the state of California, in form
and substance satisfactory to the Representatives and their counsel.
(n) The Class A Notes shall be rated at the time of issuance in the highest
rating category by each of S&P and Xxxxx'x. The Class B Notes shall be rated at
the time of issuance "A" by S&P and "A3" by Xxxxx'x. The Notes shall not have
been placed on any credit watch with a negative implication for downgrade.
(o) At or before the closing of the Notes, the Owner Trustee shall have
issued the Certificate.
(p) The Representatives shall have received such information, certificates
and documents as the Representatives or their counsel may reasonably request.
(q) On the Closing Date, the Representatives shall have received a fully
executed copy of each of the Transaction Documents.
(r) The Issuer shall have delivered to DTC (or an approved custodian
therefor) each of the global Notes described in Section 3(b) above, duly
executed by the Owner Trustee and authenticated by the Indenture Trustee.
(s) The Indenture Trustee and the Issuer shall have executed and delivered
to DTC a standard "letter of representations" sufficient to cause DTC to qualify
each Class of Notes for inclusion in DTC's book-entry registration and transfer
system.
(t) The Trust Accounts shall have been established in accordance with the
terms of the Sale and Servicing Agreement.
12
(u) 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
Representatives.
(v) 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 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 Representatives and their counsel, this Agreement and all
its obligations hereunder may be canceled at, or at any time before, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Issuer, 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 Notes and determination of their eligibility for investment under the
laws of such jurisdictions as the Representatives may designate (including the
reasonable fees and disbursements of their counsel), (ii) the printing of
memoranda related thereto, (iii) any fees charged by credit rating agencies for
the rating of the 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
Notes by it and any advertising expenses connected with any offers it may make.
If the sale of the 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 Notes. Neither the Seller nor COAF shall be liable to the
Underwriters for loss of anticipated profits from the transactions covered by
this Agreement.
13
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 Representatives 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, it being understood and agreed that the only such information
is that described as such in Section 8(b) hereof, 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.
(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 Representatives specifically
for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Seller or COAF, and each such
14
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 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
15
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 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 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 Notes. The
16
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 Representatives or the Underwriters,
will be mailed, delivered or telecopied and confirmed to the address for the
Representatives set forth on the first page hereof, Attention: Transactions
Advisory Group; if sent to the Seller, will be mailed, delivered or telecopied
and confirmed to Capital One Auto Receivables, LLC, 0000 Xxxxxxx Xxx 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 Xxxxxxx Xxx
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.
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 Notes on the Closing Date shall
be terminable by the Representatives 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 Representatives,
impracticable or inadvisable to market the 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 Estate
taken as a whole or (ii) the business or properties of the Seller, PeopleFirst
or COAF occurs, which, in the judgment of the Representatives, in the case of
either clause
17
(i) or (ii), makes it impracticable or inadvisable to market the 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 Representatives will act
for the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representatives 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 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 Notes set forth
opposite their names on Annex I hereto bears to the aggregate amount of Notes
set forth opposite the names of all the remaining Underwriters) the Notes which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that if the aggregate amount of Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 25% of
the aggregate principal amount of 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 Notes, and if such nondefaulting
Underwriters do not purchase all the 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
By
-------------------------------------
Name:
Title:
The foregoing Agreement is CAPITAL ONE AUTO FINANCE, INC.
hereby confirmed and accepted
as of the date first above written.
By
-------------------------------------
Name:
Title:
[NAME OF UNDERWRITER]
By
----------------------------------
Name:
Title:
[NAME OF UNDERWRITER]
By
----------------------------------
Name:
Title:
For themselves and the other several Underwriters named in Annex I to the
foregoing Agreement.
Form of Underwriting Agreement
ANNEX I
Underwriting Liability Class A Notes
Class A-1 Class A-2 Class A-3 Class A-4
--------- --------- --------- ---------
$ $ $ $
----------------------
$ $ $ $
----------------------
$ $ $ $
----------------------
$ $ $ $
----------------------
$ $ $ $
----------------------
$ $ $ $
----------------------
$ $ $ $
----------------------
Total Amount $
Underwriting Liability Class B Notes
Class B
$
----------------------
$
----------------------
Total Amount $
Class A-1 Class A-2 Class A-3 Class A-4 Class A-5
--------- --------- --------- --------- ---------
Purchase Price % % % % %
-------------------------------------------------------------------------------
20
