EXHIBIT 1.1
CAPITAL ONE AUTO FINANCE, INC.
CAPITAL ONE AUTO RECEIVABLES, LLC
$977,500,000 Class A Notes,
$22,500,000 Class B Notes,
Series 2003-2
Capital One Prime Auto Receivables Trust 2003-2
UNDERWRITING AGREEMENT
September 10, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
Barclays Capital Inc.
as Representatives of the several Underwriters
c/o Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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 Banc of America
Securities LLC, Barclays Capital Inc., Credit Suisse First Boston LLC, Deutsche
Bank Securities Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇ Brothers Inc. and
Wachovia Capital Markets, LLC (collectively, the "Underwriters") as follows:
The Seller proposes to sell to the Underwriters $216,000,000 principal
amount of its 1.13813% Class A-1 Notes (the "Class A-1 Notes"), $228,000,000
principal amount of its 1.43% Class A-2 Notes (the "Class A-2 Notes"),
$303,000,000 principal amount of its LIBOR + 0.08% Class A-3 Notes (the "Class
A-3 Notes"), $230,500,000 principal amount of its 2.88% Class A-4 Notes (the
"Class A-4 Notes" and together with the Class A-1 Notes, the Class A-2 Notes and
the Class A-3 Notes, the "Class A Notes"). The Seller proposes to sell to Banc
of America Securities LLC and Barclays Capital Inc. $22,500,000 principal amount
of its 2.46% 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 2003-2, 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 installment loans (the "Receivables") originated by
PeopleFirst (as defined below) and COAF and 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 originated by COAF
and certain receivables 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, an assignment of the
rights of the Seller under the Purchase Agreement and the Sale and Servicing
Agreement (as defined below) an assignment of rights under the Interest Rate
Swap Agreement (as defined below) and payments made by the Swap Counterparty (as
defined below) thereunder. 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) and the Issuer's rights under the Swap
Agreement (as defined below).
PeopleFirst Finance, LLC, a California limited liability company and a
wholly-owned subsidiary of COAF ("PeopleFirst") and COAF are the originators 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. On the Closing Date, the Issuer will enter
into an interest rate swap agreement with the Swap Counterparty (the "Swap
Counterparty") to hedge the floating interest rate on the Class A-3 Notes (the
"Swap Agreement").
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 2003-2, and the Seller agrees to sell to Banc of America
Securities LLC and Barclays Capital Inc. U.S. $22,500,000 aggregate initial
principal amount of Class B Notes, Series 2003-2. The Seller will act as the
residual interest holder 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:
(i) A registration statement on Form S-3 (No. 333-106575), 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 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 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 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 conflict in any
material respect with any of the provisions of any 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) conflict with, 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 Issuer 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 June
30, 2003 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 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
and the Swap Counterparty, 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 application of the proceeds therefrom 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 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, ▇▇▇▇ & Maw LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, at 10:00 a.m., Chicago time, on September 23, 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.
(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, ▇▇▇▇ & Maw LLP, at the address set forth above,
not later than 1:00 p.m., Chicago time, or as the Representatives and the Seller
shall agree, on the Business Day before the Closing Date.
Section 4. Offering by Underwriters.
(a) The Seller authorizes each Underwriter to take all such action as
it may deem advisable in respect of all matters pertaining to sales of the Notes
to dealers and to retail purchasers and to member firms and specialists,
including the right to make variations in the selling arrangements with respect
to such sales. Upon the authorization by the Representatives of the release of
the Notes, each Underwriter proposes to offer the Notes for sale upon the terms
and conditions set forth in the Prospectus. If the Prospectus specifies an
initial public offering price or a method by which the price at which such Notes
are to be sold, then after the Notes are released for sale to the public, the
Underwriters may vary from time to time the public offering price, selling
concessions and reallowances to dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") and other terms of sale
hereunder and under such selling arrangements.
(b) Notwithstanding the foregoing, each Underwriter agrees that (i) 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 and (ii) it will not offer or sell any Notes
in any other country, its territories or possessions 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 ▇▇▇ ▇▇▇▇
(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 ▇▇▇ ▇▇▇▇ (Promotion of Collective
Investment Schemes) (Exemptions) Order 2001 ("CIS Order") or to
persons qualifying as high net worth persons under Article 22 of the
CIS Order or to any other person to whom the Notes may otherwise
lawfully be offered or to whom such invitation or inducement to engage
in investment activity in connection with the issue or sale of the
Notes may otherwise lawfully be communicated or caused to be
communicated; and
(iii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to the Notes in, from or otherwise involving the United Kingdom.
Section 5. Covenants. The Seller or COAF, as the case may be, covenants and
agrees with each Underwriter that:
(a) The Seller will prepare a prospectus supplement (the "Prospectus
Supplement") setting forth the amount of Notes covered thereby and the terms
thereof not otherwise specified in the Prospectus, the price at which the Notes
are to be purchased by the Underwriters from the Seller, the initial public
offering price at which the Notes are to be sold, the selling concessions and
allowances, if any, and such other information as the Seller deems appropriate
in connection with the offering of the Notes, but the Seller will not file any
amendments to the Registration Statement as in effect with respect to the Notes,
or any amendments or supplements to the Prospectus, without the Representatives'
prior consent (which consent shall not be unreasonably withheld or delayed); the
Seller will immediately advise the Representatives and their counsel: (i) when
notice is received from the Commission that any post-effective amendment to the
Registration Statement has become or will become effective and (ii) of any order
or communication suspending or preventing, or threatening to suspend or prevent,
the offer and sale of the Notes or of any proceedings or examinations that may
lead to such an order or communication, whether by or of the Commission or any
authority administering any state securities or Blue Sky law, as soon as
practicable after the Seller is advised thereof, and will use its reasonable
efforts to prevent the issuance of any such order or communication and to obtain
as soon as possible its lifting, if issued.
(b) Within the time period during which a prospectus relating to the
Notes is required to be delivered under the Act, the Seller will comply with all
requirements imposed upon it by the Act and by the Rules and Regulations, as
from time to time in force, so far as necessary to permit the continuance of
sales of or dealings in the Notes as contemplated by the provisions hereof and
the Prospectus. If, at any time when a Prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act or the Rules and Regulations, the Seller
will promptly prepare and (subject to review and no reasonable objection by the
Representatives as described in Section 5(a)) file with the Commission, an
amendment or supplement that will correct such statement or omission or an
amendment that will effect such compliance; provided, however, that the
Representatives' consent to any amendment shall not constitute a waiver of any
of the conditions of Section 6.
(c) The Seller will make generally available to the holders of the
Notes (the "Noteholders") (the sole Noteholders being the applicable clearing
agency in the case of Book-Entry Notes), in each case as soon as practicable, a
statement which will satisfy the provisions of Section 11 (a) of the Act and
Rule 158 of the Commission with respect to the Notes.
(d) The Seller will furnish to the Representatives copies of the
Registration Statement (at least one copy to be delivered to the Representatives
will be conformed and will include all documents and exhibits
thereto or incorporated by reference therein), the Prospectus, and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representatives reasonably request.
(e) The Seller will assist the Underwriters in arranging for the
qualification of the Notes for sale and the determination of their eligibility
for investment under the laws of such jurisdictions as the Representatives may
designate and will continue to assist the Underwriters in maintaining such
qualifications in effect so long as required for the distribution; provided,
however, that neither the Seller nor the Issuer shall be required to qualify to
do business in any jurisdiction where it is now not qualified or to take any
action which would subject it to general or unlimited service of process in any
jurisdiction in which it is now not subject to service of process.
(f) If filing of the Prospectus is required under Rule 424(b) of the
Commission, the Seller will file the Prospectus, properly completed, and any
supplement 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, ▇▇▇▇ & Maw LLP, special counsel to COAF, PeopleFirst and the Seller,
dated the Closing Date, in form and substance satisfactory to the
Representatives and their counsel, with respect to: certain corporate matters,
perfection matters, matters related
to the creation of a security interest, securities law matters, Investment
Company Act matters, tax matters and enforceability matters (including with
respect to the Limited Guaranty.
(d) The Representatives shall have received an opinion or opinions of
Mayer, Brown, ▇▇▇▇ & Maw LLP, special counsel for COAF, PeopleFirst and the
Seller, dated the Closing Date, in form and substance satisfactory to the
Representatives and their counsel, substantially to the effect that: (i) the
transfer of the Receivables by PeopleFirst to COAF would be viewed as a true
sale or an absolute transfer thereof, (ii) the transfer of the Receivables by
COAF to the Seller would be characterized as a true sale or absolute transfer
thereof and (iii) in the event of an involuntary or voluntary bankruptcy case of
COAF or PeopleFirst under the United States Bankruptcy Code, a bankruptcy court
would not disregard the separate existence of COAF or PeopleFirst on one hand,
and the Seller or the Issuer, on the other, so as to order the substantive
consolidation of the assets and liabilities of the Seller or the Issuer, as the
case may be, with the bankruptcy estate of either COAF or PeopleFirst.
(e) The Representatives shall have received from Dechert LLP, a
favorable opinion dated the Closing Date, with respect to such matters as the
Representatives may reasonably require; and the Seller and COAF shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass on all such matters.
(f) The Representatives shall have received an opinion from a General
Counsel, a Deputy General Counsel or an Associate General Counsel to COFC, and
counsel to COAF, the Seller and PeopleFirst, dated the Closing Date, in form and
substance satisfactory to the Representatives and their counsel, with respect to
certain corporate matters relating to COFC, COAF, the Seller and PeopleFirst.
(g) The Representatives shall have received an opinion or opinions
from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 ▇▇▇▇▇▇ &
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, counsel to the Issuer, dated the Closing Date, in form and
substance satisfactory to the Representatives and their counsel.
(m) The Representatives shall have received an opinion of Mayer,
Brown, ▇▇▇▇ & Maw LLP, special counsel to the Seller and COAF, dated the Closing
Date, with respect to certificate of title matters in the state of California,
in form and substance satisfactory to the Representatives and their counsel.
(n) The Class A Notes shall be rated at the time of issuance in the
highest rating category by each of S&P, ▇▇▇▇▇'▇ and Fitch. The Class B Notes
shall be rated at the time of issuance "A" by S&P, "A3" by ▇▇▇▇▇'▇ and "A" by
Fitch. The Notes shall not have been placed on any credit watch with a negative
implication for downgrade.
(o) The Representatives shall have received such information,
certificates and documents as the Representatives or their counsel may
reasonably request.
(p) On the Closing Date, the Representatives shall have received a
fully executed copy of each of the Transaction Documents.
(q) 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.
(r) 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.
(s) The Trust Accounts shall have been established in accordance with
the terms of the Sale and Servicing Agreement.
(t) 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.
(u) All actions required to be taken and all filings required to be
made by the Owner Trustee, the Seller and COAF under the Securities Act before
the Closing Date for the issuance of the Notes shall have been duly taken or
made; and before the Closing Date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Seller or COAF,
threatened by the Commission.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions or certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
its obligations hereunder may be canceled at, or at any time before, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Issuer, the Seller and COAF in writing or by telephone or telecopy confirmed in
writing.
Section 7. Expenses. Except as expressly set forth in this Agreement, COAF
and the Seller, jointly and severally, will pay all expenses incidental to the
performance of its obligations hereunder and will reimburse each Underwriter for
any expense reasonably incurred by it in connection with (i) the qualification
of the Notes and determination of their eligibility for investment under the
laws of such jurisdictions as the Representatives may designate (including the
reasonable fees and disbursements of their counsel), (ii) the printing of
memoranda related thereto, (iii) any fees charged by credit rating agencies for
the rating of the Notes, and (iv) expenses incurred in distributing the
Prospectus (including any amendments and supplements thereto) to the
Underwriters. Except as specifically provided in this Section 7 and in Section 8
of this Agreement, each Underwriter will pay all of its own costs and expenses
(including the fees and disbursements of counsel), transfer taxes on resales of
Notes by it and any advertising expenses connected with any offers it may make.
If the sale of the Notes provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 is not
satisfied or because of any refusal, inability or failure on the part of the
Seller or COAF to perform any agreement herein or to comply with any provision
hereof other than by reason of a default by any Underwriter, the Seller and COAF
will reimburse the Underwriters upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by the Underwriters in connection with the proposed purchase, sale and
offering of the Notes. Neither the Seller nor COAF shall be liable to the
Underwriters for loss of anticipated profits from the transactions covered by
this Agreement.
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 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 (i) 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, (ii)
the use of counsel chosen by the indemnifying party to represent the indemnified
party would represent such counsel with a conflict of interest that is not
waived by the affected parties or (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action, 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 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, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Director of Capital Markets, with a
copy to the General Counsel.
Section 11. Applicable Law, Entire Agreement. This Agreement will be
governed by and construed in accordance with the law of the State of New York.
This Agreement supersedes all prior agreements and understandings relating to
the subject matter hereof.
Section 12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof, and
their successors and assigns, and no other person will have any right or
obligation hereunder.
Section 13. Waivers; Headings. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
Section 14. Termination of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Notes on the Closing Date shall
be terminable by the Representatives by written notice delivered to the Seller
if at any time on or before the Closing Date: (a) trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited, or there shall have been any setting of minimum prices for trading on
such exchange, (b) a general moratorium on commercial banking activities in New
York, Texas or Virginia shall have been declared by any of Federal, New York
state, Texas state or Virginia state authorities, (c) there shall have occurred
an outbreak or escalation of hostilities or a declaration by the United States
of a national emergency or war or any other major act of terrorism involving the
United States, or any other substantial national or international calamity,
emergency or crisis, the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Notes on the terms and in the manner
contemplated in the Prospectus, (d) commercial banking securities settlement or
clearance services have been suspended or materially limited or (e) 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.
Very truly yours,
CAPITAL ONE AUTO RECEIVABLES, LLC
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
CAPITAL ONE AUTO FINANCE, INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer,
Treasurer and Secretary
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
BANC OF AMERICA SECURITIES LLC
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
BARCLAYS CAPITAL INC.
By /s/ ▇▇▇ ▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇
Title: Director
For themselves and the other several Underwriters named in Annex I to the
foregoing Agreement.
EXHIBIT 1.1
ANNEX I
Underwriting Liability Class A
Notes
Class A-1 Class A-2 Class A-3 Class A-4
------------ ------------ ------------ ------------
Banc of America Securities LLC $ 87,000,000 $ 92,000,000 $122,000,000 $ 93,000,000
Barclays Capital Inc. $ 87,000,000 $ 92,000,000 $122,000,000 $ 93,000,000
Credit Suisse First Boston LLC $ 8,400,000 $ 8,800,000 $ 11,800,000 $ 8,900,000
Deutsche Bank Securities Inc. $ 8,400,000 $ 8,800,000 $ 11,800,000 $ 8,900,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 8,400,000 $ 8,800,000 $ 11,800,000 $ 8,900,000
▇▇▇▇▇▇ Brothers Inc. $ 8,400,000 $ 8,800,000 $ 11,800,000 $ 8,900,000
Wachovia Capital Markets, LLC $ 8,400,000 $ 8,800,000 $ 11,800,000 $ 8,900,000
------------ ------------ ------------ ------------
Total Amount $216,000,000 $228,000,000 $303,000,000 $230,500,000
Underwriting Liability Class B
Notes
Class B
-----------
Banc of America Securities LLC $11,250,000
Barclays Capital 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% 99.81397% 99.78000% 99.71602% 99.63356%
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