Exhibit 1.1
$500,000,000
CAPITAL ONE CAPITAL
IV
6.745% Capital
Securities
(Liquidation Amount of $1,000 per
Security)
Fully and unconditionally
guaranteed on a junior subordinated basis,
as described in the Prospectus,
by
CAPITAL ONE FINANCIAL
CORPORATION
UNDERWRITING
AGREEMENT
January 29,
2007
J.P. Morgan Securities
Inc.
270 Park Avenue
New York, New York 10017
Banc of America Securities
LLC
9 West 57
th
Street
New York, New York 10019
Credit Suisse Securities (USA)
LLC
Eleven Madison Avenue
New York, New York 10010
Wachovia Capital Markets,
LLC
301 South College Street
Charlotte, North Carolina 28288
As Representatives of the
several
Underwriters named in Schedule I
hereto
Dear Sirs:
Capital One Capital IV (the
“Trust”), a statutory trust organized under the
Statutory Trust Act (the “Delaware Act”) of the State
of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
§3801 et seq.), a subsidiary of Capital One Financial
Corporation, a Delaware corporation (the “Company” and,
together with the Trust, the “Offerors”), proposes to
issue and sell to the several underwriters named in Schedule
I
hereto (the “Underwriters”), for
which you are acting as representatives (the
“Representatives”), the respective liquidation amount
of 6.745% Capital Securities (liquidation amount of $1,000 per
security) issued by the Trust (the “Securities”) as set
forth in Schedule I attached hereto.
The Securities are to be issued
under an amended and restated declaration of trust (the
“Declaration”), to be dated as of February 5,
2007, among the Company, as sponsor, The Bank of New York, as
institutional trustee (the “Institutional Trustee”),
The Bank of New York (Delaware), as Delaware trustee (the
“Delaware Trustee”), and two individuals who are
officers or employees of the Company, as administrative trustees
(the “Administrative Trustees” and, together with the
Institutional Trustee and the Delaware Trustee, the
“Trustees”), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The
Securities will be guaranteed by the Company on a junior
subordinated basis with respect to distributions and amounts
payable upon liquidation or redemption (the
“Guarantee”), to the extent described in the Prospectus
(as defined below) pursuant to a guarantee agreement, to be dated
as of February 5, 2007 (the “Guarantee
Agreement”), between the Company and The Bank of New York, as
guarantee trustee (the “Guarantee Trustee”).
The Trust will use the proceeds from
the sale of the Securities together with the proceeds from the sale
of its common securities (the “Common Securities”) to
the Company to purchase $500,000,000 aggregate principal amount of
6.745% Capital Efficient Notes due 2082 (the “CENts”)
issued by the Company pursuant to the provisions of a subordinated
indenture dated as of June 6, 2006 as supplemented by a third
supplemental indenture dated February 5, 2007 (as
supplemented, the “Indenture”) between the Company and
The Bank of New York, as trustee (the “Indenture
Trustee”).
The Offerors understand that the
Underwriters propose to make an offering of the Securities as soon
as the Underwriters deem advisable after this Underwriting
Agreement (the “Agreement”) has been executed and
delivered and the Declaration, the Indenture and the Guarantee have
been qualified under the Trust Indenture Act of 1939, as amended
(the “Trust Indenture Act”).
1. Registration Statement and
Prospectus . The Offerors have prepared and filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-133943) under
the Securities Act of 1933, as amended (the “Securities
Act”) in respect of, among other securities, the Securities,
the CENts, and the Guarantee (as amended through the date of this
Agreement, being herein referred to as the “Registration
Statement”). Such Registration Statement has been declared
effective by the Commission. The Registration Statement contains a
base prospectus in the form in which it has most recently been
filed with the Commission on or prior to the date of this Agreement
(the “Base Prospectus”), to be used in connection with
the public offering and sale of the Securities. Any preliminary
prospectus supplement to the Base Prospectus that describes the
Securities and the offering thereof and is used prior to filing of
the Prospectus is called, together with the Base Prospectus, a
“preliminary prospectus.” The term
“Prospectus” shall mean the final prospectus supplement
relating to the Securities, together with the Base Prospectus, that
is first filed
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pursuant to Rule 424(b) under the Securities Act
after the date and time that this Agreement is executed and
delivered by the parties hereto but shall not include any free
writing prospectus (as such term is used in Rule 405 under the
Securities Act). Any Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act; any reference to
any amendment or supplement to any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents
filed after the date of such preliminary prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”), and incorporated by
reference in such preliminary prospectus or Prospectus, as the case
may be. The Company and the Trust also have prepared and filed (or
will file) with the Commission the Issuer Free Writing Prospectuses
(as defined below) set forth on Schedule II hereto. All references
in this Agreement to the Registration Statement, a preliminary
prospectus, the Prospectus, or any amendments or supplements to any
of the foregoing, shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System (“EDGAR”).
2. Agreements to Sell and
Purchase . On the basis of the representations and warranties
contained in this Agreement, and subject to its terms and
conditions, the Trust agrees to issue and sell, and each
Underwriter agrees, severally and not jointly, to purchase from the
Trust, the number of Securities set forth opposite the name of such
Underwriter on Schedule I hereto. The purchase price
(“Purchase Price”) for each Security to be paid by the
several Underwriters shall be the initial public offering price per
Security of $999.96. As compensation to the Underwriters for their
commitments hereunder and in view of the fact that the proceeds of
the sale of the Securities will be used to purchase the CENts of
the Company, the Company hereby agrees to pay on the Closing Date
to the Underwriters a commission of $10.00 per Security.
3. Terms of Public Offering .
The Offerors are advised by you that the Underwriters propose
(i) to make a public offering of their respective portions of
the Securities as soon after the execution hereof as practicable
and (ii) initially to offer the Securities upon the terms set
forth in the Prospectus.
4. Delivery and Payment .
Delivery to the Underwriters of, and payment for, the Securities
shall be made at 10:00 A.M., New York City time, on the 5th
business day unless otherwise permitted by the Commission pursuant
to Rule 15c6-1 of the Exchange Act (the “Closing
Date”), following the date of the initial public offering, at
such place as you shall designate. The Closing Date and the
location of delivery of and the form of payment for the Securities
may be varied by agreement between you and the Company.
Certificates for the Securities
shall be registered in such names and issued in such denominations
as you shall request in writing not later than two full business
days prior to the Closing Date. Such certificates shall be made
available to you for inspection not later than 9:30 A.M., New York
City time, on the business day next preceding the Closing Date.
Certificates in definitive form evidencing the Securities shall be
delivered to you on the Closing Date for the respective accounts of
the several Underwriters, against payment of the Purchase Price
therefor by wire payable in Federal (same-day) funds to the order
of the Company.
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5. Agreements of the Offerors
. Each of the Offerors jointly and severally agrees with
you:
(a) To file the Prospectus with the
Commission pursuant to Rule 424(b)(5) not later than the second
business day following the execution and delivery of this
Agreement.
(b) During the period beginning at
the Time of Sale (as defined below) and ending on the later of the
Closing Date or such date as in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be
delivered in connection with sales by an Underwriter or dealer,
including in circumstances where such requirement may be satisfied
pursuant to Rule 172 (the “Prospectus Delivery
Period”), prior to amending or supplementing the Registration
Statement, the Disclosure Package (as defined below) or the
Prospectus (including any amendment or supplement through
incorporation by reference of any report filed under the Exchange
Act), the Company shall furnish to the Representatives for review a
copy of each such proposed amendment or supplement, and the Company
shall not file or make or use any such proposed amendment or
supplement to which the Representatives reasonably
object.
(c) If, during the Prospectus
Delivery Period, any event or development shall occur or condition
exist as a result of which the Disclosure Package or Prospectus as
then amended and supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it shall be
necessary to amend or supplement the Disclosure Package or the
Prospectus, or to file under the Exchange Act any document
incorporated by reference in the Disclosure Package or the
Prospectus, in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, or if
in the opinion of the Representatives it is otherwise necessary to
amend or supplement the Registration Statement, the Disclosure
Package or the Prospectus, or to file under the Exchange Act any
document incorporated by reference in the Disclosure Package or the
Prospectus, or to file a new registration statement containing the
Prospectus, in order to comply with law, including in connection
with the delivery of the Prospectus, the Offerors agree to
(i) notify the Representatives of any such event or condition
and (ii) promptly prepare (subject to paragraph
(b) above), file with the Commission (and use their best
efforts to have any amendment to the Registration Statement or any
new registration statement be declared effective) and furnish at
their own expense to the Underwriters and to dealers, amendments or
supplements to the Registration Statement, the Disclosure Package
or the Prospectus, or any new registration statement, necessary in
order to make the statements in the Disclosure Package or the
Prospectus as so amended or supplemented, in light of the
circumstances then prevailing or under which they were made, not
misleading or so that the Registration Statement, the Disclosure
Package or the Prospectus, as amended or supplemented, will comply
with law.
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(d) The Offerors will prepare a
final term sheet containing only a description of the Securities,
in a form approved by the Representatives, and will file such term
sheet pursuant to Rule 433(d) under the Securities Act within the
time required by such rule (such term sheet, the “Final Term
Sheet”). Any such Final Term Sheet is an Issuer Free Writing
Prospectus for purposes of this Agreement.
(e) Each Offeror represents that
(other than the Final Term Sheet) it has not made, and agrees that,
unless it obtains the prior written consent of J.P. Morgan
Securities Inc., it will not make, any offer relating to the
Securities that would constitute an issuer free writing prospectus
as defined in Rule 433 of the Securities Act (each, an
“Issuer Free Writing Prospectus”) or that would
otherwise constitute a “free writing prospectus” as
defined in Rule 405 of the Securities Act required to be filed by
an Offeror with the Commission or retained by an Offeror under Rule
433 of the Securities Act; provided that the prior written consent
of J.P. Morgan Securities Inc. shall be deemed to have been given
in respect of the Free Writing Prospectuses included in Schedule II
hereto. Any such free writing prospectus consented to by the
Representatives is hereinafter referred to as a “Permitted
Free Writing Prospectus.” Each Offeror agrees that
(i) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, and (ii) has complied or will comply, as the case
may be, with the requirements of Rules 164 and 433 of the
Securities Act applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission,
legending and record keeping. Each Offeror consents to the use by
any Underwriter of (i) a free writing prospectus that contains
no “issuer information” (as defined in Rule 433(h)(2)
under the Securities Act) that was not included (including through
incorporation by reference) in the Prospectus or a previously filed
Issuer Free Writing Prospectus, (ii) any Issuer Free Writing
Prospectus listed on Schedule II, or
(iii) (x) information describing the preliminary terms of
the Securities or their offering or (y) information that
describes the final terms of the Securities or their offering and
that is included in the Final Term Sheet.
(f) To advise you promptly and, if
requested by you, to confirm such advice in writing, (i) of
any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or the
Disclosure Package or for additional information, (ii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for such
purposes, and (iii) of the happening of any event during the
Prospectus Delivery Period below which makes any statement of a
material fact made in the Registration Statement or the Prospectus
untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. To prepare and file with the
Commission, promptly upon your reasonable request, any amendment or
supplement to the Registration Statement, the Base Prospectus, the
Prospectus or the Disclosure Package which may be necessary or
advisable in connection with the distribution of the Securities by
you, and to use their best efforts to cause any such post-effective
amendment to the Registration Statement to become promptly
effective. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the
Offerors will make every reasonable effort to obtain the withdrawal
or lifting of such order at the earliest possible time.
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(g) To furnish to you, without
charge, signed copies of the Registration Statement as first filed
with the Commission and of each amendment to it, including all
exhibits, and to furnish to you such number of conformed copies of
the Registration Statement as so filed and of each amendment to it,
without exhibits, as you may reasonably request.
(h) During the Prospectus Delivery
Period, to furnish to each Underwriter and dealer as many copies of
the Base Prospectus and the Prospectus (each as amended or
supplemented) as such Underwriter or dealer may reasonably
request.
(i) Prior to any public offering of
the Securities, to cooperate with you and counsel for the
Underwriters in connection with the registration or qualification
of the Securities for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such qualification in
effect so long as required for distribution of the Securities and
to file such consents to service of process or other documents as
may be necessary in order to effect such registration or
qualification, provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is
not so qualified or take any action that would subject it to
service of process in suits other than those arising out of the
offering or sale of the Securities in any jurisdiction where it is
not now so subject.
(j) In the case of the Company, to
make generally available to its security holders as soon as
reasonably practicable an earnings statement covering a period of
at least twelve months after the effective date of the Registration
Statement which shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 under the Securities
Act.
(k) If at any time during such
period the Company ceases to file reports with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, during
the period of five years after the date of this Agreement,
(i) to mail as soon as reasonably practicable after the end of
each fiscal year to the record holders of the Securities a
financial report of the Company and its subsidiaries (including the
Trust) on a consolidated basis (and a similar financial report of
all unconsolidated subsidiaries, if any), all such financial
reports to include a consolidated balance sheet, a consolidated
statement of operations, a consolidated statement of cash flows and
a consolidated statement of changes in stockholders’ equity
as of the end of and for such fiscal year, together with comparable
information as of the end of and for the preceding year, certified
by independent certified public accountants, and (ii) to mail
and make generally available as soon as reasonably practicable
after the end of each quarterly period (except for the last
quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations
and a consolidated statement of cash flows (and similar financial
reports of all unconsolidated subsidiaries, if any) as of the end
of and for such period, and for the period from the beginning of
such year to the close of such quarterly period, together with
comparable information for the corresponding periods of the
preceding year.
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(l) During the period referred to in
paragraph (k), to furnish to you as soon as available a copy of
each report or proxy statement of the Company and the Trust mailed
to the security holders of the Company or the Trust, respectively,
or filed with the Commission and such other publicly available
information concerning the Company and its subsidiaries as you may
reasonably request.
(m) To pay all costs, expenses, fees
and taxes incident to (i) the preparation, printing, filing
and distribution under the Securities Act of the Base Prospectus,
the preliminary prospectus and all amendments and supplements to
any of them prior to or during the Prospectus Delivery Period, any
Issuer Free Writing Prospectus and the Disclosure Package,
(ii) the printing and delivery of the Prospectus and all
amendments or supplements to it during the Prospectus Delivery
Period, (iii) the registration or qualification of the
Securities, the Guarantee and the CENts for offer and sale under
the securities or Blue Sky laws of the several states (including in
each case the fees and disbursements of counsel for the
Underwriters relating to such registration or qualification and
memoranda relating thereto), (iv) filings and clearance with
the National Association of Securities Dealers, Inc. in connection
with the offering, (v) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with
the offering or sale of the Securities by the Underwriters or by
dealers to whom Securities may be sold, (vi) the rating
agencies in connection with the rating of the Securities,
(vii) the preparation, issuance, execution, authentication and
delivery of the Securities, and (viii) any expenses of the
Trustees, the Guarantee Trustee and the Indenture
Trustee.
(n) During the period beginning on
the date hereof and continuing to and including the Closing Date,
not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt
securities of the Company substantially similar to the Securities
(other than (i) the Securities and (ii) commercial paper
issued in the ordinary course of business), without your prior
written consent.
(o) The Offerors will apply the net
proceeds from the sale of the Securities in the manner described
under the caption “Use of Proceeds” in the
Prospectus.
(p) To use their best efforts to do
and perform all things required or necessary to be done and
performed under this Agreement by the Offerors prior to the Closing
Date and to satisfy all conditions precedent to the delivery of the
Securities.
6. Representations and Warranties
of the Company and the Trust .
(A) The Offerors jointly and
severally represent and warrant to each Underwriter
that:
(a) The Registration Statement has
become effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and, to the best of each
Offeror’s knowledge, no proceedings for such purpose are
pending before or threatened by the Commission. No order preventing
the use of the preliminary prospectus or any Issuer Free Writing
Prospectus has been issued by the Commission.
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(b) (i) At the respective times
the Registration Statement and any post-effective amendment thereto
became or becomes effective prior to the Closing Date, neither the
Registration Statement nor such amendment included or will include
an untrue statement of a material fact or omitted or will omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, as of the date such amendment becomes
effective or such supplement is filed with the Commission, as the
case may be, will comply in all material respects with the
Securities Act and the Trust Indenture Act, (iii) the
Prospectus does not contain and, as amended or supplemented, if
applicable, as of the date such amendment becomes effective or such
supplement is filed with the Commission, as the case may be, will
not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this paragraph (b) do not apply to statements or
omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the
Offerors in writing by such Underwriter expressly for use therein,
it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof, and
(iv) the documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Securities Act, at
the time they were or hereafter are filed with the Commission prior
to the Closing Date, complied and will comply in all material
respects with the requirements of the Exchange Act, and, when read
together and with the other information in the Prospectus, as of
the date of the Prospectus and at all times subsequent thereto up
to the Closing Date, did not and will not contain an untrue
statement of material fact or did not and will not omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(c) The term “Disclosure
Package” shall mean (i) the Base Prospectus, including
the preliminary prospectus supplement, as amended or supplemented
at the Time of Sale (as defined below), and (ii) the Issuer
Free Writing Prospectuses, if any, identified on Schedule II
hereto. As of the Time of Sale, the Disclosure Package did not
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading. The preceding sentence does not apply to statements
in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Offerors by
any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8 hereof. As
used in this paragraph and elsewhere in this Agreement “Time
of Sale” shall mean 6:00 p.m. on January 29,
2007.
(d) Each Issuer Free Writing
Prospectus does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated by reference therein that has not been
superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free
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Writing Prospectus based upon and in conformity
with written information furnished to the Offerors by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
(e) The Offerors have not
distributed and will not distribute, prior to the later of the
Closing Date and the completion of the Underwriters’
distribution of the Securities, any offering materials in
connection with the offering and sale of the Securities other than
a preliminary prospectus, the Prospectus, and any Issuer Free
Writing Prospectus reviewed and consented to by the Representatives
and included in Schedule II hereto.
(f) The Trust has been duly formed
and is validly existing in good standing as a statutory trust under
the Delaware Act; is and will be treated as a “grantor
trust” for federal income tax purposes under existing law;
has the statutory trust power and authority to conduct its business
as presently conducted and as described in the Disclosure Package
and the Prospectus, and to perform its obligations hereunder and in
the Declaration; is not required to be authorized to do business in
any other jurisdiction; and is not a party to or otherwise bound by
any agreement other than those described in the Disclosure Package
and the Prospectus.
(g) This Agreement has been duly
authorized, executed and delivered by the Company and the Trust and
is a valid and binding agreement of the Company and the Trust
enforceable in accordance with its terms (except as limited by
(i) bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and (ii) equitable
principles of general applicability).
(h) Ernst & Young LLP are
independent public accountants with respect to the Offerors as
required by the Securities Act.
(i) The Securities have been duly
and validly authorized for issuance by the Trust and, when executed
in the manner provided for in the Declaration and issued and
delivered against payment therefor as provided herein, will be duly
and validly issued and (subject to the terms of the Declaration)
fully paid and non-assessable undivided beneficial interests in the
assets of the Trust, not subject to any preemptive or other similar
rights, and will conform as to legal matters in all material
respects to the descriptions thereof contained in the Disclosure
Package and the Prospectus; holders of the Securities will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
(j) The Common Securities have been
duly authorized for issuance by the Declaration and, when issued
and delivered by the Trust to the Company against payment therefor
as described in the Registration Statement, the Disclosure Package
and the Prospectus, will be validly issued and (subject to the
terms of the Declaration) fully paid and undivided beneficial
interests in the assets of the Trust and will conform as to legal
matters in all material respects to the descriptions thereof in the
Registration Statement, the Disclosure Package and the Prospectus;
the issuance of the Common Securities is not
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subject to any preemptive or other similar
rights; and at the Closing Date, all of the issued and outstanding
Common Securities of the Trust will be directly owned by the
Company free and clear of all liens, encumbrances, equities or
claims.
(k) None of the Company, each of its
subsidiaries that is a “Significant Subsidiary” within
the meaning of such term as defined in Rule 1-02 of Regulation S-X
of the Commission (the “Significant Subsidiaries”) or
the Trust is in violation of its respective organizational
documents or in default in any material respect in the performance
of any obligation, agreement or condition contained in any bond,
debenture, note or other evidence of indebtedness material to the
Company and its subsidiaries, taken as a whole, or the Trust, or in
any other agreement, indenture or instrument material to the
conduct of the business of the Company and its subsidiaries, taken
as a whole, to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of its Significant
Subsidiaries or their respective property is bound.
(l) The execution, delivery and
performance of this Agreement, the Indenture and the CENts and
compliance by the Company and the Trust with all the provisions
hereof and thereof to the extent the Company or the Trust is a
party thereto and the consummation by the Company and the Trust of
the transactions contemplated hereby and thereby to the extent the
Company or the Trust is a party thereto will not require any
consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
(except as such may be required under the securities or Blue Sky
laws of the various states) and will not conflict with or
constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of its
Significant Subsidiaries or the Declaration or any material
indenture, agreement, or other instrument to which it or any of its
Significant Subsidiaries is a party or by which it or any of its
Significant Subsidiaries or their respective property is bound, or
violate or conflict with any laws, administrative regulations or
rulings or court decrees applicable to the Trust, the Company, any
of its Significant Subsidiaries or their respective
property.
(m) The Company and each of its
Significant Subsidiaries and the Trust are in compliance in all
material respects with all laws administered by and regulations of
the Board of Governors of the Federal Reserve
