EXHIBIT 1.1
Execution Copy
CAPITAL ONE AUTO FINANCE, INC.
CAPITAL ONE AUTO RECEIVABLES, LLC
$977,500,000 Class A Notes,
$22,500,000 Class B Notes,
Series 2003-1
Capital One Prime Auto Receivables Trust 2003-1
UNDERWRITING AGREEMENT
March 14, 2003
Credit Suisse First Boston LLC
Wachovia Securities, Inc.
as Representatives of the several Underwriters
c/o Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Section 1. Introductory. Capital One Auto Receivables, LLC, a Delaware
limited liability company (the "Seller") and Capital One Auto Finance, Inc., a
Texas corporation, ("COAF"), confirm their agreement with Credit Suisse First
Boston LLC, Wachovia Securities, Inc., Banc of America Securities LLC, Barclays
Capital Inc., Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc., and
Xxxxxx Brothers Inc. (collectively, the "Underwriters") as follows:
The Seller proposes to sell to the Underwriters $220,000,000 principal
amount of its 1.25938% Class A-1 Notes (the "Class A-1 Notes"), $215,000,000
principal amount of its 1.44% Class A-2 Notes (the "Class A-2 Notes"),
$350,000,000 principal amount of its 1.97% Class A-3 Notes (the "Class A-3
Notes"), $192,500,000 principal amount of its 2.59% 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"). The Seller proposes to sell to Credit
Suisse First Boston LLC and Wachovia Securities, Inc. $22,500,000 principal
amount of its 2.33% Class B Notes (the "Class B Notes" and, together with the
Class A Notes, the "Notes"). The Notes will be issued by Capital One Prime Auto
Receivables Trust 2003-1, a Delaware statutory trust (the "Issuer") under the
Indenture (the "Indenture"), dated as of the Closing Date, between the Issuer
and JPMorgan Chase Bank, 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. $977,500,000 aggregate initial principal amount of
Class A Notes, Series 2003-1, and the Seller agrees to sell to Credit Suisse
First Boston LLC and Wachovia Securities, Inc. U.S. $22,500,000 aggregate
initial principal amount of Class B Notes, Series 2003-1. Concurrently with the
sale of the Notes, the Seller will 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 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
2
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 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 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, 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
3
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, 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
December 31, 2002 which would reasonably be expected to have a material adverse
effect 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
4
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 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 or 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 take place at a closing (the
"Closing") at the offices of Mayer, Brown, Xxxx & Maw, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx, at 10:00 a.m., Chicago time, on March 27, 2003 (the "Closing
Date"). The purchase price for the Notes 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.
5
(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, 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 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
6
(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 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
7
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
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, 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.
(d) The Representatives shall have received an opinion or
opinions of Mayer, Brown, Xxxx & Maw, 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
8
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 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.
9
(m) The Representatives shall have received an opinion of Mayer,
Brown, Xxxx & Maw, special counsel to the Seller and COAF, dated the Closing
Date, with respect to certificate of title matters in the state of 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.
(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
10
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.
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. (a)
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Seller and COAF, and each person, if any, who controls the
Seller or COAF within the meaning of the Act or the Exchange Act and the
respective officers, directors, and employees of each such person, against any
losses, claims, damages or liabilities to which any Seller or COAF may become
subject, under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Seller or COAF by such Underwriter through the Representatives 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
11
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 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
12
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 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
13
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 (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.
14
Very truly yours,
CAPITAL ONE AUTO
RECEIVABLES, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
CAPITAL ONE AUTO FINANCE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Manager of Securitization
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC
By /s/ Xxxx X. XxXxxxxxxx, XX
-----------------------------
Name: Xxxx X. XxXxxxxxxx, XX
Title: Managing Director
WACHOVIA SECURITIES, INC.
By /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Director
For themselves and the other several Underwriters named in Annex I to the
foregoing Agreement.
15
ANNEX I
Underwriting Liability Class A
Notes
Class A-1 Class A-2 Class A-3 Class A-4
--------- --------- --------- ---------
Credit Suisse First Boston LLC. $ 88,000,000 $ 86,000,000 $140,000,000 $77,000,000
Wachovia Securities, Inc. $ 88,000,000 $ 86,000,000 $140,000,000 $77,000,000
Banc of America Securities LLC $ 8,800,000 $ 8,600,000 $ 14,000,000 $ 7,700,000
Barclays Capital Inc $ 8,800,000 $ 8,600,000 $ 14,000,000 $ 7,700,000
Deutsche Bank Securities Inc. $ 8,800,000 $ 8,600,000 $ 14,000,000 $ 7,700,000
X.X. Xxxxxx Securities Inc. $ 8,800,000 $ 8,600,000 $ 14,000,000 $ 7,700,000
Xxxxxx Brothers Inc. $ 8,800,000 $ 8,600,000 $ 14,000,000 $ 7,700,000
----------- ----------- ------------ ----------
Total Amount $220,000,000 $215,000,000 $350,000,000 192,500,000
Underwriting Liability Class B
Notes
Class B
-------
Credit Suisse First Boston LLC. $11,250,000
Wachovia Securities, Inc. $11,250,000
-----------
Total Amount $22,500,000
Class A-1 Class A-2 Class A-3 Class A-4 Class B
--------- --------- --------- --------- --------
Purchase Price 99.88000% 99.81630% 99.77038% 99.71501% 99.63868%
---------------------------------------------------------------------------------------------------------------
