Exhibit 1.1
CAPITAL ONE
AUTO FINANCE, INC.
CAPITAL ONE AUTO RECEIVABLES, LLC
$1,200,000,000 Class A Notes,
Series 2001-B
Capital One Auto Finance Trust 2001-B
UNDERWRITING AGREEMENT
December 13, 2001
Credit Suisse First Boston Corporation,
as Representative of the Underwriters
00 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 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 Credit Suisse First
Boston Corporation, Banc of America Securities LLC, Deutsche Banc Alex. Xxxxx
Inc. and First Union Securities, Inc. (collectively, the "Underwriters") as
follows:
The Seller proposes to sell to the Underwriters $ 180,000,000 principal
amount of its 1.85875% Class A-1 Notes (the "Class A-1 Notes"), $ 230,000,000
principal amount of its 2.60% Class A-2 Notes (the "Class A-2 Notes"), $
580,000,000 principal amount of its LIBOR + 0.22% Class A-3 Notes (the "Class
A-3 Notes") and $ 210,000,000 principal amount of its 4.88% Class A-4 Notes (the
"Class 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"), to be issued by Capital One Auto
Finance Trust 2001-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 XX Xxxxxx Chase Bank,
as indenture trustee (the "Indenture Trustee").
The Notes will be collateralized by the Trust Property (as defined below).
The Trust's assets (the "Trust Property") will include, among other things, a
pool of retail installment sales contracts and installment loans (consisting of
initial receivables (the "Initial Receivables") and subsequent receivables (the
"Subsequent Receivables", collectively, "Receivables")) originated or purchased
by COAF or its affiliates and secured by new and used automobiles and light
trucks (the "Financed Vehicles"), certain monies paid or payable on the
Receivables after the initial Cutoff Date or, with respect to Subsequent
Receivables, the applicable subsequent Cutoff Date, that are sold by COAF to the
Seller and contributed by the Seller to the Trust, such amounts as from time to
time may be held in the Collection Account and certain other accounts
established
and maintained by the Servicer pursuant to the Indenture (including all
investments in the Collection Account and such other accounts and all income
from the investment of funds therein and proceeds thereof), an assignment of
COAF's security interests in the Financed Vehicles, certain rights under the
Interest Rate Swap Agreement (as defined below) and payments made by Credit
Suisse First Boston International (the "Swap Counterparty") under the Interest
Rate Swap Agreement (as defined below), an assignment of the right to receive
proceeds from the exercise of rights against Dealers under agreements between
COAF and such Dealers (to the extent related to the Receivables) and the
assignment of rights in respect of each Receivable from the applicable Dealer to
COAF, an assignment of the right to receive the proceeds from claims on certain
insurance policies covering the Financed Vehicles or the Obligors, an assignment
of the rights of the Seller under the Transfer and Assignment Agreement (as
defined below) and certain other rights, as more fully described in the Transfer
and Assignment Agreement. In addition, the Trust Property will include monies on
deposit in the Reserve Fund (including all investments in such account and all
income from the investment of funds therein and all proceeds thereof), the funds
of which will be drawn upon to fund certain shortfalls in respect of Monthly
Available Funds.
The Initial Receivables and the related Trust Property will be conveyed to
the Seller by COAF pursuant to a transfer agreement, executed on or prior to the
Closing Date, between the Seller and COAF (the "Transfer and Assignment
Agreement") and, on the Closing Date, will be contributed by the Seller to the
Owner Trustee pursuant to the Contribution Agreement (the "Contribution
Agreement") dated as of the Closing Date, between the Seller and the Trust. The
Subsequent Receivables and the related Trust Property will be conveyed to the
Seller by COAF pursuant to the Transfer and Assignment Agreement and one or more
assignments (each, an "Assignment) executed after the Closing Date and on or
prior to the date which is three months after the Closing Date (the "Funding
Period"), and will be contributed by the Seller to the Trust pursuant to the
Contribution Agreement.
On the Closing Date, the Note Insurer will issue a note guaranty insurance
policy (the "Note Guaranty Insurance Policy") guaranteeing certain payments due
in respect of the Class A Notes.
On the Closing Date, the Owner Trustee will enter into an interest rate
swap agreement with the Swap Counterparty (the "Interest Rate Swap Agreement")
to hedge the floating interest rate on the Class A-3 Notes.
The terms of the Class A Notes are set forth in the Registration Statement
and the related Prospectus dated December 11, 2001, as supplemented by a
Prospectus Supplement dated the date hereof.
The Underwriters, COAF and the Seller agree that no Term Sheets have been
or will be used in connection with the offering of the Class A Notes.
Capitalized terms used herein but not defined herein shall have the
meanings given such terms in the Indenture. As used herein, the term
"Transaction Documents" shall mean the Indenture, the Transfer and Assignment
Agreement, the Contribution Agreement, the Trust Agreement, the Administration
Agreement, the Interest Rate Swap Agreement and the Servicing Agreement.
Pursuant to this Agreement, and subject to the terms hereof, the Seller
agrees to sell to the Underwriters, for whom you are acting as representative
(the "Representative"), U.S. $1,200,000,000 aggregate initial principal amount
of Class A Notes, Series 2001-B (the "Class A
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Notes"). Concurrently with the sale of the Class A Notes, the Seller will
retain: (i) $ 77,830,000 aggregate initial principal amount of Class B Notes,
Series 2001-B (the "Class B Notes") and (ii) a certificate (the "Equity
Certificate"), representing the residual interest in the Trust.
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. 333-54736),
including a prospectus and such amendments thereto as may have been required to
the date hereof, relating to the offering of notes as described therein from
time to time in accordance with Rule 415 under the Securities Act of 1933 (the
"Act") has been filed with the Securities and Exchange Commission (the
"Commission") (which may have included one or more preliminary prospectuses and
prospectus supplements (each, a "Preliminary Prospectus") meeting the
requirements of Rule 430 of the Act) and such registration statement, as
amended, has become effective; such registration statement, as amended, and the
prospectus relating to the sale of the Class A Notes offered thereby by the
Seller constituting a part thereof, as from time to time amended or supplemented
(including any prospectus filed with the Commission pursuant to Rule 424(b) of
the rules and regulations of the Commission (the "Rules and Regulations") under
the Act), are respectively referred to herein as the "Registration Statement"
and the "Prospectus"; provided that a supplement to the Prospectus prepared
pursuant to Section 5(a) shall be deemed to have supplemented the Prospectus
only with respect to the offering of the Series of the Notes to which it
relates; and the conditions to the use of a registration statement on Form S-3
under the Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 under the Act, have been satisfied with respect to the
Registration Statement. No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose has
been instituted or threatened by the Commission. Copies of such registration
statement and prospectus, any such amendment or supplement and all documents
incorporated by reference therein that were filed with the Commission on or
prior to the date it is first used in connection with the offering of the Notes
(including one fully conformed copy of the registration statement and of each
amendment thereto for each of the Underwriters, and for counsel for the
Underwriters) have been delivered to the Representative. Any reference herein to
the Registration Statement, the Prospectus, any amendment or supplement thereto
or any Preliminary Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement or Prospectus shall be deemed to refer to and include the filing after
the execution hereof of any document with the Commission deemed to be
incorporated by reference therein. (i)
(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
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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 Trust to issue the Class A
Notes.
(c) The execution, delivery and performance by the Seller or COAF, as
applicable, of this Agreement and each Transaction Document to which it is a
party, and the issuance and sale of the Class A Notes, the Class B Notes and the
Equity Certificate, and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all necessary limited liability company
or corporate action on the part of the Seller or COAF, as applicable. Neither
the execution and delivery by the Seller or COAF, as applicable, of such
instruments, nor the performance by the Seller or COAF, as applicable, the
transactions herein or therein contemplated, nor the compliance by the Seller or
COAF, as applicable, with the provisions hereof or thereof, will (i) conflict
with or result in a breach of any of the terms and provisions of, or constitute
a default under, any of the provisions of the operating agreement, certificate
of formation, Articles of Incorporation or By-laws of such entity, (ii) result
in a material conflict with any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Seller or COAF, as
applicable, or its properties, or (iii) conflict
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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 Trust, and (iii)
the Seller has authorized the Trust to issue and sell the Class A Notes.
(f) Except as set forth in or contemplated in the Prospectus, there
has been no material adverse change in the condition (financial or otherwise) of
COAF or the Seller since September 30, 2001 which would reasonably be expected
to have a material adverse effect on either (A) the ability of COAF or the
Seller to consummate the transactions contemplated by, or to perform its
respective obligations hereunder, or under any of the Transaction Documents to
which it is a party or (B) the Receivables.
(g) Any taxes, fees and other governmental charges in connection with
the execution, delivery and performance by the Seller or COAF of this Agreement
and each Transaction Document to which it is a party shall have been paid or
will be paid by the Seller or COAF, as applicable, at or before the Closing Date
to the extent then due.
(h) The Class A Notes, when validly issued in accordance with the
Indenture and sold to the Underwriters pursuant to this Agreement will conform
in all material respects to the descriptions thereof contained in the Prospectus
and will be validly issued and entitled to the benefits and security afforded by
the Indenture. When executed and delivered by the parties thereto, each of the
Indenture and each Transaction Document to which it is a party will constitute
the legal, valid and binding obligation of the Seller or COAF, as applicable,
enforceable against such entity in accordance with its terms, except to the
extent that the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights in general and to
general principles of equity. All approvals, authorizations, consents, filings,
orders or other actions of any person, corporation or other organization, or of
any court, governmental agency or body or official (except with respect to the
state securities or Blue Sky laws of various jurisdictions), required in
connection with the valid and proper authorization, issuance and sale of the
Class A Notes pursuant to this Agreement and the Indenture have been or will be
taken or obtained on or before the Closing Date. The Owner Trustee's pledge of
the Receivables and related collateral to the Indenture Trustee pursuant to the
Indenture will vest in the Indenture Trustee, for the benefit of the Noteholders
and the Note Insurer, a first priority perfected security interest therein,
subject to no prior lien, mortgage security interest, pledge adverse claim,
charge or other encumbrance.
(i) Neither the Seller nor the Trust is now, and following the
issuance of the Class A Notes, the Class B Notes or the Equity Certificate, will
be, an "investment company" that is registered or required to be registered
under, or is otherwise subject to the restrictions of, the Investment Company
Act of 1940, as amended (the "1940 Act").
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(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.
(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
Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, at 10:00
a.m., Chicago time, on December 20, 2001 (the "Closing Date"). The purchase
price for the Class A Notes shall be equal to 100% of the aggregate initial
principal amount of the Class A Notes. On the Closing Date, against delivery of
the Class A Notes as set forth in clause (b) below, each Underwriter agrees,
severally and not jointly, to pay (or cause to be paid) the purchase price to an
account to be designated by the Seller. The underwriting discount to the
Underwriters, the selling concessions that the Underwriters may allow to certain
dealers, and the discounts that such dealers may reallow to certain other
dealers, each expressed as a percentage of the initial principal amount of the
Class A Notes, shall be as set forth in Annex I hereto.
(b) The Seller shall deliver (or shall cause the Owner
Trustee to deliver on behalf of the Trust) the Class A Notes to the
Representative 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
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Notes will be made available for inspection by the Representative at the offices
of Xxxxx, Xxxxx & Xxxxx, 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 Class A 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;
(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 Certificates in
circumstances in which section 21(1) of the FSMA does not apply
to the Issuer and shall procure that the Class A Notes are not
offered or sold in the United Kingdom other than to persons
authorized under the FSMA or otherwise having professional
experience in matters relating to investments and qualifying as
investment professionals under Article 19 or persons qualifying
as high net worth persons under Articles 48 or 49 of the
Financial Services and Markets Xxx 0000 (Financial Promotion)
Order 2001, as amended; 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 Class A Notes in, from or otherwise
involving the United Kingdom.
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Section 5. Covenants. The Seller or COAF, as the case may be,
covenants and agrees with each Underwriter that:
(a) The Seller will prepare a Prospectus Supplement setting
forth the amount of Class A Notes covered thereby and the terms thereof not
otherwise specified in the Prospectus, the price at which the Class A Notes are
to be purchased by the Underwriters from the Seller, the 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 and Regulations, the Seller will promptly prepare and (subject
to review and no reasonable objection by the Representative as described in
Section 5(a)) file with the Commission, an amendment or supplement that will
correct such statement or omission or an amendment that will effect such
compliance; provided, however, that the Representative's consent to any
amendment shall not constitute a waiver of any of the conditions of Section 6.
(c) The Seller will make generally available to the holders
of the Class A Notes (the "Class A Noteholders") (the sole Class A Noteholders
being the applicable clearing agency in the case of Book-Entry Certificates), in
each case as soon as practicable, a statement which will satisfy the provisions
of Section I (a) of the Act and Rule 158 of the Commission with respect to the
Class A Notes.
(d) The Seller will furnish to the Representative copies of
the Registration Statement (at least one copy to be delivered to the
Representative will be conformed and will include all documents and exhibits
thereto or incorporated by reference therein), the Prospectus, and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representative reasonably requests.
(e) The Seller will assist the Underwriters in arranging for
the qualification of the Class A Notes for sale and the determination of their
eligibility for investment under the
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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.
(i) On or before the final transfer of Subsequent
Receivables to the Trust and the expiration of the Pre-Funding Period, if COAF
is required by the Note Insurer to obtain a letter from Ernst & Young LLP, as
independent auditors for COAF, to the effect that such accountants have
performed certain specified procedures, all of which have been agreed to by
COAF, as a result of which they have determined, having examined in accordance
with such agreed upon procedures, that the Subsequent Receivables conform to the
related requirements described in the Prospectus, COAF shall deliver a copy of
such letter, addressed to the Representative. The foregoing letter shall be at
the expense of COAF.
(j) At the time of the execution and delivery of each
Subsequent Transfer, the Subsequent Receivables will have been duly and validly
assigned to the Indenture Trustee in accordance with the Indenture; and when
such assignment is effected, a duly and validly perfected transfer of all such
Subsequent Receivables subject to no prior lien, mortgage, security interest,
pledge charge or other encumbrance created by COAF or the Seller will have
occurred. As of the related Funding Date, each of the Subsequent Receivables
will meet the eligibility criteria described in the Prospectus.
Section 6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Class A Notes will
be subject to the accuracy of the representations and warranties on the part of
the Seller and COAF herein as of the date hereof and the Closing Date, to the
accuracy of the representations and warranties of the Owner Trustee contained in
each Transaction Document to which it is a party as of the Closing Date, to the
accuracy of the statements of the Seller and COAF made pursuant to the
provisions thereof, to the performance by the Seller and COAF in all material
respects of the obligations hereunder and to the following additional conditions
precedent:
(a) The Representative shall have received, with respect to
each of the Seller and COAF, a certificate, dated the Closing Date, of an
authorized officer of each of the Seller and COAF, as applicable, in which such
officer, to the best of his or her knowledge after reasonable investigation,
shall state that: (i) the representations and warranties of the Seller or COAF,
as
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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
Xxxxx, Xxxxx & Xxxxx, special counsel to COAF and the Seller, dated the Closing
Date, in form and substance satisfactory to the Representative and its counsel,
to the effect that the statements in the Prospectus under the heading "Certain
Legal Aspects of the Receivables -- Transfer of Receivables," to the extent they
constitute matters of Texas law or legal conclusions with respect to Texas law,
have been reviewed by such counsel and are correct in all material respects. In
rendering such opinion counsel may (i) as to matters involving the application
of laws other than the laws of any jurisdiction other than the State of Texas,
assume the conformity of such laws with the laws of the State of Texas and (ii)
rely as to matters of fact, to the extent deemed proper and as stated therein,
on certificates of responsible officers of the Trust, the Seller and public
officials.
(c) The Representative shall have received an opinion of
Xxxxx, Xxxxx & Xxxxx, special counsel to COAF and the Seller, dated the Closing
Date, in form and substance satisfactory to the Representative and its counsel,
with respect to: certain corporate matters, perfection matters, matters related
to the creation of a security interest, securities law matters, Investment
Company Act matters, tax matters and enforceability matters (including with
respect to the guaranty, dated the Closing Date (the "Guaranty") of Capital One
Financial Corporation ("COFC"), in favor of the Indenture Trustee).
(d) The Representative shall have received an opinion or
opinions of Xxxxx, Xxxxx & Xxxxx, special counsel for the Seller and COAF, dated
the Closing Date, in form and substance satisfactory to the Representative and
its counsel, substantially to the effect that: (i) the transfer of the
Receivables by COAF to the Seller and by the Seller to the Trust would be
characterized as a true sale or contribution thereof and (ii) in the event of an
involuntary or voluntary bankruptcy case of COAF under the United States
Bankruptcy Code, a bankruptcy court would not disregard the separate existence
of COAF and the Seller so as to order the substantive consolidation of the
assets and liabilities of the Seller with the bankruptcy estate of COAF.
(e) The Representative shall have received from Dechert, a
favorable opinion dated the Closing Date, with respect to such matters as the
Representative may reasonably require; and the Seller and COAF shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass on all such matters.
(f) The Representative shall have received an opinion from
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.
-10-
(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 Trust, COAF and the Seller)
set forth in the Prospectus Supplement, agrees with the accounting records of
the Trust, COAF and the Seller, excluding any questions of legal interpretation.
(i) The Representative shall have received evidence satisfactory to it
that, on or before the Closing Date, UCC- 1 financing statements have been filed
(or are being filed on the Closing Date) in the Secretary of State of Delaware
and the Secretary of State of Texas, reflecting the transfer of the Receivables
and related collateral from COAF to the Seller, the Seller to the Owner Trustee
and the Owner Trustee to the Indenture Trustee.
(j) The Representative shall have received evidence satisfactory to it
that on or before the Closing Date, all applicable UCC termination statements or
releases terminating liens on the Receivables of creditors of the Seller, the
Owner Trustee, COAF or any other person have been filed in the appropriate
filing offices.
(k) The Representative shall have received an opinion of Xxxxxxx &
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 Xxxxx, Xxxxx
& Xxxxx for COAF, 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.
-11-
(p) At or before the closing of the Class A Notes, the Trust shall
have issued $77,830,000 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 and its counsel may reasonably
request.
(r) On the Closing Date, the Representative shall have received a
fully executed copy of each of the Transaction Documents.
(s) On the Closing Date, the Representative shall have received
evidence satisfactory to the Representative that the Note Insurer shall have
issued the Note Guaranty Insurance Policy to the Indenture Trustee for the
benefit of the Class A Noteholders, as defined in the Indenture, in form and
substance satisfactory to the Representative.
(t) The Representative shall have received a certificate of Xxxxx
Xxxx for the Note Insurer, to the effect that the section of the Offering
Memorandum titled "The Note Guaranty Insurance Policy and the Note Insurer" does
not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(u) The Indemnification Agreement, dated as of the date hereof,
between the Note Insurer and the Representative shall have been executed and
delivered by the parties thereto, and the Representative shall have received a
copy thereof.
(v) The Owner Trustee shall have delivered to DTC (or an approved
custodian therefor) each of the global Class A Notes described in Section 3(b)
above, duly executed by the Trust and authenticated by the Indenture Trustee.
(w) The Indenture Trustee and the Owner Trustee shall have executed
and delivered to DTC a standard "letter of representations" sufficient to cause
DTC to qualify each Class of Class A Notes for inclusion in DTC's book-entry
registration and transfer system.
(x) The Collection Account, the Pre-Funding Account and the Reserve
Fund shall have been established in accordance with the terms of the Indenture.
(y) The Prospectus shall have been filed as required by Section 2(a)
hereof, and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Seller, COAF or any Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the Prospectus or the Registration Statement or
otherwise) shall have been complied with to the satisfaction of the
Representative.
(z) The Representative shall have received an executed copy of the
Guaranty.
(aa) The Interest Rate Swap Agreement shall have been executed and
delivered by the parties thereto, and the Representative shall have received a
copy thereof.
(bb) 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
-12-
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) for any fees charged by credit
rating agencies for the rating of the Class A Notes and (iv) expenses incurred
in distributing the Prospectus (including any amendments and supplements
thereto) 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 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,
-13-
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement in or omission or alleged omission made in any such
documents in reliance upon and in conformity with written information furnished
to the Sellers by any Underwriter specifically for use therein, and (ii) neither
the Seller nor COAF shall be liable to any Underwriter to the extent that any
such loss, claim, damage or liability of such Underwriter arises as a result of
a misstatement or omission or alleged misstatement or omission in the
Preliminary Prospectus that was corrected in the Prospectus (and copies of which
Prospectus were furnished to such Underwriter) and such Underwriter, if required
by law, failed to give or send to the purchaser, at or before the written
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 may become subject,
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Seller or COAF by such Underwriter through the Representative specifically
for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Seller or COAF, and each such officer, director, employee or
controlling person, as the case may be, in connection with investigating or
defending any such loss, claim, damage, liability or action. Each of the Seller
and COAF agrees with each Underwriter that the only information furnished to the
Seller and COAF by the Underwriters specifically for use in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, is the information set forth in the second
paragraph (regarding concessions and discounts) and the first sentence of the
eighth paragraph (regarding market making) under the caption "Underwriting" in
the Prospectus Supplement. This indemnity agreement will be in addition to any
liability that each Underwriter may otherwise have.
(c) [Intentionally omitted.]
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
clause (a), (b) or (c), notify the indemnifying party of the commencement
thereof, but the omission and/or delay so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under clause (a), (b) or (c). In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may elect by written notice, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or
-14-
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), (b) or (c) above, then such indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in this Section, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Seller and COAF on the one hand and relevant Underwriter on the other from the
offering of the Class A Notes or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Seller and COAF on the one hand and the relevant
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Seller
and COAF on the one hand and the relevant Underwriter on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Seller and COAF bear to the total
underwriting discounts and commissions received by the relevant Underwriter. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Seller, COAF or by any Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this clause (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim (which shall be limited as provided in
subsection (d) above if the indemnifying party has assumed the defense of any
such action in accordance with the provisions thereof) which is the subject of
this clause (e). Notwithstanding the provisions of this clause (e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which such Class A Notes underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11 (f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligation of each
Underwriter under this Section 8(e) shall be several in proportion to their
respective underwriting obligations and not joint.
-15-
(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 Trust, and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of the Underwriters, the Seller, COAF or any of their
respective officers or directors or any controlling person, and will survive
delivery of and payment of the Class A Notes. The provisions of Section 7 and
Section 8 shall survive the termination or cancellation of this Agreement.
Section 10. Notices. All communications hereunder shall be in writing and
effective only on receipt, and, if to the Representative or the Underwriters,
will be mailed, delivered or telecopied and confirmed to the address for the
Representative set forth on the first page hereof, Attention: Transactions
Advisory Group, 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 Securitization, with a copy to
the General Counsel, and if sent to COAF, will be mailed, delivered or
telecopied and confirmed to: Capital One Auto Finance, Inc., 0000 Xxxxx Xxxxxx
Xxxxx, XxXxxx, Xxxxxxxx 00000, Attention: Director of Securitization, with a
copy to the General Counsel.
Section 11. Applicable Law, Entire Agreement. This Agreement will be
governed by and construed in accordance with the law of the State of New York.
This Agreement supersedes all prior agreements and understandings relating to
the subject matter hereof.
Section 12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof, and
their successors and assigns, and no other person will have any right or
obligation hereunder.
Section 13. Waivers; Headings. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
Section 14. Termination of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Class A Notes on the Closing
Date shall be terminable by the Representative by written notice delivered to
the Seller if at any time on or before the Closing Date: (a) trading in
securities generally on the New York Stock Exchange shall have been suspended or
materially limited, or there shall have been any setting of minimum prices for
trading on such exchange, (b) a general moratorium on commercial banking
activities in New York, Texas or Virginia shall have been declared by any of
Federal, New York state, Texas state or Virginia state authorities, (c) there
shall have occurred any material outbreak or escalation of hostilities, act of
terrorism, or other calamity or crisis, the effect of which on the financial
markets of the United States is such as to make it, in the Underwriter's
judgment, impracticable to market the Class A Notes on the terms and in the
manner contemplated in the Prospectus or (d) any
-16-
change or any development involving a prospective change, materially and
adversely affecting (i) the Trust Property taken as a whole or (ii) the business
or properties of the Seller or COAF occurs, which, in the Underwriter's
judgment, in the case of either clause (i) or (ii), makes it impracticable to
market the Class A Notes on the terms and in the manner contemplated in the
Prospectus. Upon such notice being given, the parties to this Agreement shall
(except for the liability of the Sellers under Section 7 and Section 8 and the
liability of each Underwriter under Section 15) be released and discharged from
their respective obligations under this Agreement.
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 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.
-17-
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.
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Representative of the Underwriters
By /s/ Xxxx X. XxXxxxxxxx, XX
-----------------------------------
Name: Xxxx X. XxXxxxxxxx, XX
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 Class A-3 Class A-4
--------- --------- --------- ---------
Credit Suisse First Boston 108,000,000 138,000,000 348,000,000 126,000,000
Corporation
Banc of America Securities LLC 24,000,000 30,666,667 77,333,333 28,000,000
Deutsche Banc Alex. Xxxxx Inc. 24,000,000 30,666,667 77,333,333 28,000,000
First Union Securities, Inc. 24,000,000 30,666,667 77,333,333 28,000,000
---------- ---------- ---------- ----------
Total Amount $180,000,000 $230,000,000 $580,000,000 $210,000,000
Class A-1 Class A-2 Class A-3 Class A-4
--------- --------- --------- ---------
Gross Underwriting Discount 0.140% 0.200% 0.210% 0.230%
Selling Concession 0.085% 0.120% 0.130% 0.140%
Reallowance 0.070% 0.095% 0.100% 0.110%
-20-
