Exhibit 1.1
CAPITAL ONE
AUTO FINANCE, INC.
CAPITAL ONE AUTO RECEIVABLES, LLC
$1,200,000,000 Class A Notes,
Series 2002-A
Capital One Auto Finance Trust 2002-A
UNDERWRITING AGREEMENT
April 16, 2002
Deutsche Bank Securities Inc.
as Representative of the Underwriters
00 Xxxx 00xx Xxxxxx
00xx 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 Deutsche Bank
Securities Inc., Credit Suisse First Boston Corporation, Banc of America
Securities LLC, and X.X. Xxxxxx Securities Inc. (collectively, the
"Underwriters") as follows:
The Seller proposes to sell to the Underwriters $ 209,000,000 principal
amount of its 1.98% Class A-1 Notes (the "Class A-1 Notes"), $ 349,000,000
principal amount of its 2.99% Class A-2 Notes (the "Class A-2 Notes"), $
320,000,000 principal amount of its 4.03% Class A-3 Notes (the "Class A-3
Notes") and $ 322,000,000 principal amount of its 4.79% 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 2002-A, a Delaware common law trust (the "Trust") under the
Indenture (the "Indenture"), dated as of the Closing Date, between Wilmington
Trust Company, as owner trustee (the "Owner Trustee") and JPMorgan 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, an assignment of the right
to receive proceeds from the exercise of rights against Dealers under agreements
between COAF and such Dealers (to the extent related to the Receivables) and the
assignment of rights in respect of each Receivable from the applicable Dealer to
COAF, an assignment of the right to receive the proceeds from claims on certain
insurance policies covering the Financed Vehicles or the Obligors, an assignment
of the rights of the Seller under the Transfer and Assignment Agreement (as
defined below) and certain other rights, as more fully described in the Transfer
and Assignment Agreement. In addition, the Trust Property will include monies on
deposit in the Reserve Fund (including all investments in such account and all
income from the investment of funds therein and all proceeds thereof), the funds
of which will be drawn upon to fund certain shortfalls in respect of Monthly
Available Funds.
The Initial Receivables and the related Trust Property will be conveyed to
the Seller by COAF pursuant to a transfer agreement, executed on or prior to the
Closing Date, between the Seller and COAF (the "Transfer and Assignment
Agreement") and, on the Closing Date, will be contributed by the Seller to the
Owner Trustee pursuant to the Contribution Agreement (the "Contribution
Agreement") dated as of the Closing Date, between the Seller and the Trust. The
Subsequent Receivables and the related Trust Property will be conveyed to the
Seller by COAF pursuant to the Transfer and Assignment Agreement and one or more
assignments (each, an "Assignment) executed after the Closing Date and on or
prior to the date which is three months after the Closing Date (the "Funding
Period"), and will be contributed by the Seller to the Trust pursuant to the
Contribution Agreement.
On the Closing Date, the Note Insurer will issue a note guaranty insurance
policy (the "Note Guaranty Insurance Policy") guaranteeing certain payments due
in respect of the Class A Notes.
The terms of the Class A Notes are set forth in the Registration Statement
and the related Prospectus dated April 15, 2002, as supplemented by a Prospectus
Supplement dated the date hereof.
The Underwriters, COAF and the Seller agree that no Term Sheets have been
or will be used in connection with the offering of the Class A Notes.
Capitalized terms used herein but not defined herein shall have the
meanings given such terms in the Indenture. As used herein, the term
"Transaction Documents" shall mean the Indenture, the Transfer and Assignment
Agreement, the Contribution Agreement, the Trust Agreement, the Administration
Agreement and the Servicing Agreement.
Pursuant to this Agreement, and subject to the terms hereof, the Seller
agrees to sell to the Underwriters, for whom you are acting as representative
(the "Representative"), U.S. $1,200,000,000 aggregate initial principal amount
of Class A Notes, Series 2002-A (the "Class A Notes"). Concurrently with the
sale of the Class A Notes, the Seller will retain: (i) $65,040,000 aggregate
initial principal amount of Class B Notes, Series 2002-A (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:
-2-
(a) (i) A registration statement on Form S-3 (No. 333-54736),
including a prospectus and such amendments thereto as may have been required to
the date hereof, relating to the offering of notes as described therein from
time to time in accordance with Rule 415 under the Securities Act of 1933 (the
"Act") has been filed with the Securities and Exchange Commission (the
"Commission") (which may have included one or more preliminary prospectuses and
prospectus supplements (each, a "Preliminary Prospectus") meeting the
requirements of Rule 430 of the Act) and such registration statement, as
amended, has become effective; such registration statement, as amended, and the
prospectus relating to the sale of the Class A Notes offered thereby by the
Seller constituting a part thereof, as from time to time amended or supplemented
(including any prospectus filed with the Commission pursuant to Rule 424(b) of
the rules and regulations of the Commission (the "Rules and Regulations") under
the Act), are respectively referred to herein as the "Registration Statement"
and the "Prospectus"; provided that a supplement to the Prospectus prepared
pursuant to Section 5(a) shall be deemed to have supplemented the Prospectus
only with respect to the offering of the Series of the Notes to which it
relates; and the conditions to the use of a registration statement on Form S-3
under the Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 under the Act, have been satisfied with respect to the
Registration Statement. No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose has
been instituted or threatened by the Commission. Copies of such registration
statement and prospectus, any such amendment or supplement and all documents
incorporated by reference therein that were filed with the Commission on or
prior to the date it is first used in connection with the offering of the Notes
(including one fully conformed copy of the registration statement and of each
amendment thereto for each of the Underwriters, and for counsel for the
Underwriters) have been delivered to the Representative. Any reference herein to
the Registration Statement, the Prospectus, any amendment or supplement thereto
or any Preliminary Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement or Prospectus shall be deemed to refer to and include the filing after
the execution hereof of any document with the Commission deemed to be
incorporated by reference therein.
(ii) As of the Closing Date, the Registration Statement and the
Prospectus, except with respect to any modification to which the
Representative has agreed in writing, shall be in all substantive
respects in the form furnished to the Representative before such date
or, to the extent not completed on such date, shall contain only such
specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus that has previously
been furnished to the Representative) as the Seller or COAF has
advised the Representative, before such time, will be included or made
therein.
(iii) On the effective date of the Registration Statement, the
Registration Statement conformed in all material respects with the
applicable requirements of the Act and the Rules and Regulations, and
did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading and, on the Closing Date,
the Registration Statement and the Prospectus will conform in all
material respects with the applicable requirements of the Act and the
Rules and Regulations, and (i) the Registration Statement will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) the Prospectus will not
contain any untrue statement of a material fact or omit to
-3-
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 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.
-4-
(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 December 31, 2001 which would reasonably be expected to
have a material adverse effect on either (A) the ability of COAF or the Seller
to consummate the transactions contemplated by, or to perform its respective
obligations hereunder, or under any of the Transaction Documents to which it is
a party or (B) the Receivables.
(g) Any taxes, fees and other governmental charges in connection with
the execution, delivery and performance by the Seller or COAF of this Agreement
and each Transaction Document to which it is a party shall have been paid or
will be paid by the Seller or COAF, as applicable, at or before the Closing Date
to the extent then due.
(h) The Class A Notes, when validly issued in accordance with the
Indenture and sold to the Underwriters pursuant to this Agreement will conform
in all material respects to the descriptions thereof contained in the Prospectus
and will be validly issued and entitled to the benefits and security afforded by
the Indenture. When executed and delivered by the parties thereto, each of the
Indenture and each Transaction Document to which it is a party will constitute
the legal, valid and binding obligation of the Seller or COAF, as applicable,
enforceable against such entity in accordance with its terms, except to the
extent that the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights in general and to
general principles of equity. All approvals, authorizations, consents, filings,
orders or other actions of any person, corporation or other organization, or of
any court, governmental agency or body or official (except with respect to the
state securities or Blue Sky laws of various jurisdictions), required in
connection with the valid and proper authorization, issuance and sale of the
Class A Notes pursuant to this Agreement and the Indenture have been or will be
taken or obtained on or before the Closing Date. The Owner Trustee's pledge of
the Receivables and related collateral to the Indenture Trustee pursuant to the
Indenture will vest in the Indenture Trustee, for the benefit of the Noteholders
and the Note Insurer, a first priority perfected security interest therein,
subject to no prior lien, mortgage security interest, pledge adverse claim,
charge or other encumbrance.
(i) Neither the Seller nor the Trust is now, and following the
issuance of the Class A Notes, the Class B Notes or the Equity Certificate, will
be, an "investment company" that is registered or required to be registered
under, or is otherwise subject to the restrictions of, the Investment Company
Act of 1940, as amended (the "1940 Act").
(j) Except for the Underwriters, neither the Seller, the Owner Trustee
nor COAF has employed or retained a broker, finder, commission agent or other
person in connection with the sale of the Class A Notes, and neither the Seller,
the Owner Trustee nor COAF is under any obligation to pay any broker' s fee or
commission in connection with such sale.
(k) The Indenture has been duly qualified under the Trust Indenture
Act.
-5-
(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 Mayer,
Brown, Xxxx & Maw, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, at 10:00 a.m.,
Chicago time, on April 23, 2002 (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. (a)
(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 Notes will be made available for inspection by
the Representative at the offices of Mayer, Brown, Xxxx & Maw, at the address
set forth above, not later than 1:00 p.m., Chicago time, or as the
Representative and the Seller shall agree, on the Business Day before the
Closing Date.
-6-
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.
Section 5. Covenants. The Seller or COAF, as the case may be, covenants and
agrees with each Underwriter that:
-7-
(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 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
-8-
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
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
-9-
before the Closing Date, (iii) the Registration Statement has been declared
effective, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are threatened by the Commission, and (iv) since the date of the
Prospectus, there has been no material adverse change in the condition
(financial or otherwise) of the Seller's or COAF's, as applicable, automobile
loan business, except as set forth in or contemplated in the Prospectus
(references to the Prospectus in this clause include any supplements thereto).
(b) The Representative shall have received an opinion of Mayer, Brown,
Xxxx & Maw, special counsel to COAF and the Seller, dated the Closing Date, in
form and substance satisfactory to the Representative and its counsel, to the
effect that the statements in the Prospectus under the heading "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 Mayer, Brown,
Xxxx & Maw, special counsel to COAF and the Seller, dated the Closing Date, in
form and substance satisfactory to the Representative and its counsel, with
respect to: certain corporate matters, perfection matters, matters related to
the creation of a security interest, securities law matters, Investment Company
Act matters, tax matters and enforceability matters (including with respect to
the guaranty, dated the Closing Date (the "Guaranty") of Capital One Financial
Corporation ("COFC"), in favor of the Indenture Trustee).
(d) The Representative shall have received an opinion or opinions of
Mayer, Brown, Xxxx & Maw, special counsel for the Seller and COAF, dated the
Closing Date, in form and substance satisfactory to the Representative and its
counsel, substantially to the effect that: (i) the transfer of the Receivables
by COAF to the Seller and by the Seller to the 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.
(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
-10-
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 Xxxxxx &
Xxxxxx LLP, counsel to the Indenture Trustee, dated the Closing Date, in form
and substance satisfactory to the Representative and its counsel.
(l) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, counsel to the Owner Trustee, dated the Closing Date, in form
and substance satisfactory to the Representative and its counsel.
(m) The Representative shall have received the opinion of counsel to
the Note Insurer, dated the Closing Date, in form and substance satisfactory to
the Representative and its counsel.
(n) The Representative shall have received an opinion of Mayer, Brown,
Xxxx & Maw 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.
(p) At or before the closing of the Class A Notes, the Trust shall
have issued $65,040,000 aggregate principal amount of the Class B Notes and
shall have issued the Equity Certificate.
-11-
(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) All actions required to be taken and all filings required to be
made by the Owner Trustee, the Seller and COAF under the Securities Act before
the Closing Date for the issuance of the Class A Notes shall have been duly
taken or made; and before the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Seller or COAF, threatened by the Commission.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions or certificates
-12-
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, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement in or omission or
alleged omission made in any such documents in reliance upon and in conformity
with written information furnished to the Seller by any Underwriter specifically
for use therein, and (ii) neither the Seller nor COAF shall be liable to any
Underwriter to the extent that any such loss, claim, damage or liability of such
Underwriter arises as a result of a misstatement or omission or alleged
misstatement or omission in the Preliminary Prospectus that was corrected in the
Prospectus (and copies of which Prospectus were furnished to such
-13-
Underwriter) and such Underwriter, if required by law, failed to give or send to
the purchaser, at or before the written confirmation of sale, a copy of the
Prospectus. This indemnity agreement will be in addition to any liability which
the Seller or COAF may otherwise have.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Seller and COAF, and each person, if any, who controls the
Seller or COAF within the meaning of the Act or the Exchange Act and the
respective officers, directors, and employees of each such person, against any
losses, claims, damages or liabilities to which any Seller or COAF may become
subject, under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Seller or COAF by such Underwriter through the 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 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.
-14-
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.
(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,
-15-
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 an outbreak or escalation of hostilities or a declaration by
the United States of a national emergency or war or any other major act of
terrorism involving the United States, or any other substantial national or
international calamity, emergency or crisis, the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representative, impracticable or inadvisable to market the Class A Notes on
the terms and in the manner contemplated in the Prospectus or (d) any change or
any development involving a prospective change, materially and adversely
affecting (i) the Trust Property taken as a whole or (ii) the business or
properties of the Seller or COAF occurs, which, in the judgment of the
Representative, in the case of either clause (i) or (ii), makes it impracticable
or inadvisable to market the Class A Notes on the terms and in the manner
contemplated in the Prospectus. Upon such notice being given, the parties to
this Agreement shall
-16-
(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
-------------------------------
Name:
Title:
CAPITAL ONE AUTO FINANCE, INC.
By
-------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
DEUTSCHE BANK SECURITIES INC.,
as Representative of the Underwriters
By
------------------------------
Name:
Title:
By
------------------------------
Name:
Title:
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
------------ ------------ ------------ ------------
Deutsche Bank Securities Inc. $125,600,000 $209,500,000 $192,200,000 $193,300,000
Banc of America Securities LLC $ 27,800,000 $ 46,500,000 $ 42,600,000 $ 42,900,000
Credit Suisse First Boston $ 27,800,000 $ 46,500,000 $ 42,600,000 $ 42,900,000
Corporation
X.X. Xxxxxx Securities Inc. $ 27,800,000 $ 46,500,000 $ 42,600,000 $ 42,900,000
------------ ------------ ------------ ------------
Total Amount $209,000,000 $349,000,000 $320,000,000 $322,000,000
Class A-1 Class A-2 Class A-3 Class A-4
--------- --------- --------- ---------
Gross Underwriting Discount 0.1250% 0.1800% 0.2200% 0.2500%
Selling Concession 0.0750% 0.1100% 0.1300% 0.1500%
Reallowance 0.0700% 0.1000% 0.1000% 0.1250%
