EXHIBIT 1.1
EXECUTION COPY
CAPITAL ONE AUTO FINANCE, INC.
CAPITAL ONE AUTO RECEIVABLES, LLC
$1,400,000,000 Notes,
Series 2005-D
Capital One Auto Finance Trust 2005-D
UNDERWRITING
AGREEMENT
November 22 2005
Barclays Capital Inc.
Deutsche Bank Securities
Inc.
as Representatives of the several
Underwriters
c/o Barclays Capital Inc.
200 Park Avenue, 5
th
Floor
New York, NY 10166
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
Barclays Capital Inc., Deutsche Bank Securities Inc., Citigroup
Global Capital Markets Inc., Credit Suisse First Boston LLC,
Greenwich Capital Markets, Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated and SG Americas Securities, LLC (collectively, the
“ Underwriters ”) as follows:
The Seller proposes to sell to the
Underwriters $249,000,000 principal amount of its 4.4275%
Class A-1 Notes (the “ Class A-1 Notes ”),
$427,000,000 principal amount of its 4.790% Class A-2 Notes
(the “ Class A-2 Notes ”), $221,000,000
principal amount of its 4.810% Class A-3 Notes (the “
Class A-3 Notes ”) and $503,000,000 principal amount
of its LIBOR plus 0.04% 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 “ Notes ”), to be
issued by Capital One Auto Finance Trust 2005-D, a Delaware
statutory trust (the “ Issuer ”) under the
Indenture (the “ Indenture ”), dated as of the
Closing Date, between the Issuer and JPMorgan Chase Bank, N.A., 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 ”) consist of all money,
accounts, chattel paper, general intangibles, goods, instruments,
investment property and other property of the Issuer, including
without
limitation (i) the Receivables acquired by
the Issuer under the Sale and Servicing Agreement, dated as of the
Closing Date, by and among the Seller, the Issuer, COAF and the
Indenture Trustee (the “ Sale and Servicing Agreement
”), (ii) the Receivable Files, (iii) the security
interests in the Financed Vehicles and all certificates of title in
the Financed Vehicles, (iv) any proceeds from claims on any
Insurance Policy and refunds in connection with extended service
agreements relating to Receivables which became Defaulted
Receivables after the applicable Cut-Off Date, (v) any other
property securing the Receivables, (vi) the rights of the
Issuer to the funds on deposit from time to time in the Trust
Accounts and any other account or accounts established pursuant to
the Indenture or Sale and Servicing Agreement and all cash,
investment property and other property from time to time credited
thereto and all proceeds thereof (including investment earnings,
net of losses and investment expenses, on amounts on deposit
therein), (vii) the rights of the Seller, as buyer, under the
Purchase Agreement, (viii) rights under the Sale and Servicing
Agreement, the Limited Guaranty and the Interest Rate Swap
Agreement and (ix) all proceeds of the foregoing.
The Receivables and related property
will be conveyed to the Seller by COAF pursuant to the Purchase
Agreement, dated as of the Closing Date, between the Seller and
COAF (the “ Purchase Agreement ”) and will be
conveyed to the Issuer by the Seller pursuant to the Sale and
Servicing Agreement.
On the Closing Date, the Issuer will
enter into an interest rate swap agreement with Deutsche Bank AG,
New York Branch to hedge the floating interest rate on the
Class A-4 Notes (the “ Swap Agreement
”).
On the Closing Date, the Note
Insurer will issue a note guaranty insurance policy (the “
Note Insurance Policy ”) guaranteeing certain payments
due in respect of the Notes.
The terms of the Notes are set forth
in the Registration Statement (as defined below) and the related
Prospectus (as defined below) dated June 17, 2005, as
supplemented by a Prospectus Supplement (as defined
below).
Capitalized terms used herein but
not defined herein shall have the meanings given such terms in
Appendix A to the Sale and Servicing Agreement.
Pursuant to this Underwriting
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.
$1,400,000,000 Initial Note Balance of Notes.
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 (unless specified otherwise)
and as of the Closing Date, as follows:
(a) (i) A registration statement on
Form S-3 (No. 333-125612), 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 Underwriting 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 (if requested
by the Representatives) 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 or its counsel 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 the Registration
Statement or the Prospectus based upon written information
furnished to the Seller by the Note Insurer or 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, with respect to the Underwriters,
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
(other than documents filed by Persons other than the Seller), when
they became or become effective under the Act or were or are filed
with the Commission under the Securities Exchange Act of 1934, as
amended (the “ 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 Underwriting 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 securities laws
of any foreign jurisdiction or 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
Underwriting 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, respectively, of 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 limited liability company agreement,
certificate of formation, Articles of
Incorporation or By-laws, as applicable, of such entity,
(ii) result in a material conflict with any of the provisions
of any 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 Underwriting
Agreement and, as of the Closing Date, has duly executed and
delivered each Transaction Document to which it is a
party.
(e) (i) COAF has authorized the
conveyance of the Receivables and other related property to the
Seller; and (ii) the Seller has authorized the conveyance of
the Receivables and other related property to the
Issuer.
(f) Except as set forth in or
contemplated in the Prospectus or as has been publicly disclosed by
the Seller, COAF, or Capital One Financial Corporation (“
COFC ”), there has been no material adverse change in
the condition (financial or otherwise) of COAF or the Seller since
September 30, 2005 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 hereby, 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 Underwriting 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
pursuant to the Indenture and sold to the Underwriters pursuant to
this Underwriting 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 the Seller or COAF 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 securities
laws of any foreign jurisdiction or 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 Underwriting Agreement and the Indenture have been
or will be taken or obtained on or before the Closing Date. As of
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,
the Swap Counterparty 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, except as may be permitted by the terms of the
Transaction Documents.
(i) Neither the Seller nor the
Issuer is now, and following the issuance of the Notes 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) As of the Closing Date, the
Indenture has been duly qualified under the Trust Indenture
Act.
(l) Based on information currently
available to, and in the reasonable belief of, the management of
the Seller or COAF, as applicable, such entity is not engaged
(whether as defendant or otherwise) in, nor has such entity
knowledge of the existence of, or any threat of, any legal,
arbitration, administrative or other proceedings, the result of
which could reasonably have a material adverse effect on the
Noteholders.
(m) As of the Closing Date, the
representations and warranties (other than the representations and
warranties concerning the characteristics of the Receivables which
representations and warranties will be true and correct in all
material respects as of the date set forth in the applicable
Transaction Document) of the Seller, the Issuer or COAF (both in
its individual capacity and as Servicer), as applicable, in each
Transaction Document to which it is a party will be true and
correct in all material respects.
(n) As of the Closing Date, 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) 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 Notes.
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 Note Balance 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,
Rowe & Maw LLP, 71 South Wacker Drive, 39
th
Floor, Chicago, Illinois
on December 1, 2005 (the “ Closing Date ”).
The net purchase price for the Notes, expressed as a percentage of
the Initial Note Balance of the
applicable class of Notes, shall be as set forth
on Annex I hereto. On the Closing Date, as consideration for the
delivery of the Notes as set forth in this Section 3, each
Underwriter agrees, severally and not jointly, to pay (or cause to
be paid) the net 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 Note
Balance of the applicable class of Notes, shall be as set forth in
Annex I hereto. The Seller shall deliver (or shall cause the Issuer
to deliver) 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 notes 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,
Rowe & Maw LLP, at the address set forth above, not later
than 1:00 p.m., Chicago time on the Business Day before the Closing
Date, or such other date and time as the Representatives and the
Seller may agree.
Section 4. Offering by
Underwriters.
(a) The Seller authorizes each
Underwriter to take all such action as it may deem advisable in
respect of all matters pertaining to sales of the Notes to dealers
and to retail purchasers and to member firms and specialists,
including the right to make variations in the selling arrangements
with respect to such sales. Upon the authorization by the
Representatives of the release of the Notes, each Underwriter
proposes to offer the Notes for sale upon the terms and conditions
set forth in the Prospectus. If the Prospectus specifies an initial
public offering price or a method by which the price at which such
Notes are to be sold, then after the Notes are released for sale to
the public, the Underwriters may vary from time to time the public
offering price, selling concessions and reallowances to dealers
that are members of the National Association of Securities Dealers,
Inc. (“ NASD ”) and other terms of sale
hereunder and under such selling arrangements.
(b) Notwithstanding the foregoing,
each Underwriter agrees that it has not and will not offer or sell
any Notes within the United States, 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) Notwithstanding the foregoing,
each Underwriter agrees that it has not and will not violate any
applicable securities laws in its offer or sale of any Notes within
any other country, its territories or possessions or to persons who
are citizens thereof or residents therein.
(d) Each Underwriter agrees
that:
(i) it has not offered or sold, and
prior to the date which is six months after 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 (the
“ Regulations ”) and the Financial Services and
Markets Act 2000, as amended (the “ FSMA
”);
(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 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 Act 2000 (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 Act 2000 (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;
(iii) it has complied and will
comply with all applicable provisions of the Regulations and the
FSMA with respect to anything done by it in relation to the Notes
in, from or otherwise involving the United Kingdom; and
(iv) after the Closing Date, it will
provide the Seller with a list of all foreign jurisdictions related
to any written confirmations of sale of Notes it has
sent.
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 com
