Exhibit 1.2.(a)
CAPITAL ONE MULTI-ASSET EXECUTION
TRUST
(Issuer)
CAPITAL ONE FUNDING, LLC
(Transferor)
CAPITAL ONE BANK
(Seller and Servicer)
CAPITAL ONE, F.S.B.
(Seller)
UNDERWRITING AGREEMENT
October 3, 2006
WACHOVIA CAPITAL MARKETS,
LLC
as Underwriter and as a
Representative
of the Underwriters named in
Schedule I to this Agreement
301 S. College Street, NC
0610
Charlotte, North Carolina
28288
Ladies and Gentlemen:
Section 1. Introductory.
Capital One Multi-asset Execution Trust, a Delaware statutory trust
(the “ Issuer ”), and Capital One Funding, LLC,
a Virginia limited liability company (the “ Company
”), as beneficiary (the “ Beneficiary ”)
of the Issuer, propose to sell the notes of the series, classes and
tranches designated in the applicable Terms Agreement (as
hereinafter defined) (the “ Notes ”). The Notes
will be issued pursuant to the Indenture, dated as of
October 9, 2002, as supplemented by the Asset Pool Supplement,
the Indenture Supplement and the Terms Document having the date
stated in the applicable Terms Agreement (as so supplemented and as
otherwise modified or amended from time to time, the “
Indenture ”), between the Issuer and The Bank of New
York, as trustee (in such capacity, the “ Indenture
Trustee ”). The Issuer is operated pursuant to an Amended
and Restated Trust Agreement, dated as of October 9, 2002 (as
modified or amended from time to time, the “ Trust
Agreement ”), between the Company, as Beneficiary and as
transferor (in such capacity, the “ Transferor
”), and Deutsche Bank Trust Company Delaware, a Delaware
banking corporation, as owner trustee (the “ Owner
Trustee ”). The Notes will be secured by certain assets
of the Issuer, including the Collateral Certificate referred to
below (collectively, the “ Collateral
”).
Each of Capital One Bank, a Virginia
banking corporation (the “ Bank ” and a “
Seller ”), and Capital One, F.S.B. (a “
Seller ”, and together with the Bank, the “
Sellers ” ), has entered into a receivables purchase
agreement, dated as of August 1, 2002 (each an applicable
“ Receivables Purchase Agreement ” and together
the “ Receivables Purchase Agreements ” )
with
the Company under which the Bank and (to the
extent applicable) Capital One, F.S.B. will sell receivables (the
“ Receivables ”) generated from time to time in
certain designated consumer revolving credit card accounts (the
“ Accounts ”), collections thereon and certain
related property to the Company. The Company has conveyed the
Receivables, collections thereon and certain related property to
the Capital One Master Trust (the “ Master Trust
”) pursuant to an Amended and Restated Pooling and Servicing
Agreement, dated as of September 30, 1993, as amended and
restated as of August 1, 2002 and January 13, 2006 (as so
amended and restated and as otherwise modified or amended from time
to time, the “ Pooling and Servicing Agreement
”), as supplemented by the Series 2002-CC Supplement (the
“ Series Supplement ”), dated as of
October 9, 2002, among the Company, as Transferor (as defined
in the Pooling and Servicing Agreement), the Bank, as servicer (the
“ Servicer ”), and The Bank of New York, as
trustee (in such capacity, the “ Master Trust Trustee
”). References herein to the Pooling and Servicing Agreement,
unless otherwise specified, shall mean the Pooling and Servicing
Agreement as supplemented by the Series Supplement. Pursuant to the
Pooling and Servicing Agreement and the Trust Agreement, the
Company has caused the Master Trust to issue to the Issuer a
collateral certificate (the “ Collateral Certificate
”). The Collateral Certificate is a series certificate under
the Pooling and Servicing Agreement that represents undivided
interests in certain assets of the Master Trust.
The Notes designated in the
applicable Terms Agreement will be sold in a public offering by the
Issuer through Wachovia Capital Markets, LLC, as underwriter, or
through certain underwriters which includes Wachovia Capital
Markets, LLC, one or more of which may, with Wachovia Capital
Markets, LLC, act as the representatives of such underwriters
listed on Schedule I to the applicable Terms Agreement (any
underwriter through which Notes are sold shall be referred to
herein as an “ Underwriter ” or, collectively,
all such Underwriters may be referred to as the “
Underwriters ”; each representative thereof may be
referred to herein together as a or the “
Representative ”, or if there is more than one
Representative, collectively all such Representatives may be
referred to herein together as the “ Representatives
”, which, if the context herein does require, shall include
Wachovia Capital Markets, LLC, in its capacity as Underwriter of
any Notes or as Representative). Notes sold to the Underwriters for
which Wachovia Capital Markets, LLC is the Representative shall be
sold pursuant to a Terms Agreement, among the Issuer, the Company,
the Sellers and the Representatives, a form of which is attached
hereto as Exhibit A (a “ Terms Agreement ”),
which incorporates by reference this Underwriting Agreement (the
“ Agreement ,” which shall include the
applicable Terms Agreement if the context so requires). To the
extent not defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Indenture or the Pooling and
Servicing Agreement. Unless otherwise stated herein or in the
applicable Terms Agreement, as the context otherwise requires or if
such term is otherwise defined in the Indenture or the Pooling and
Servicing Agreement, each capitalized term used or defined herein
or in the applicable Terms Agreement shall relate only to the Notes
designated in the applicable Terms Agreement and no other series,
class or tranches of notes issued by the Issuer.
The Company has prepared and filed
with the Securities and Exchange Commission (the “
Commission ”) in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “ Act
”), a shelf registration statement on Form S-3 (having the
registration number stated in the applicable Terms Agreement),
including a form of prospectus, relating to the Notes and
the
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Collateral Certificate. The registration
statement as amended has been declared effective by the Commission.
If any post-effective amendment has been filed with respect
thereto, prior to the execution and delivery of the applicable
Terms Agreement, the most recent such amendment has been declared
effective by the Commission. Such registration statement, as
amended at the time of effectiveness, including all material
incorporated by reference therein and including all information (if
any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430B under the Act, is referred to
in this Agreement as the “Registration Statement.” The
Company proposes to file with the Commission pursuant to Rule
424(b) under the Act (“ Rule 424(b) ”) a
supplement (together with static pool information, the “
Static Pool Information ”) required to be disclosed
pursuant to Item 1105 of Regulation AB under the Act, without
regard to whether such information is deemed to be a part of a
prospectus under Item 1105(d) of Regulation AB under the Act,
the “ Prospectus Supplement ”) to the prospectus
included in the Registration Statement (such prospectus, in the
form it appears in the Registration Statement or in the form most
recently revised and filed with the Commission pursuant to Rule
424(b), is hereinafter referred to as the “ Basic
Prospectus ”) relating to the Notes and the method of
distribution thereof. The Basic Prospectus and the Prospectus
Supplement, together with any amendment thereof or supplement
thereto, is hereinafter referred to as the “
Prospectus .”
Prior to the time the first contract
of sale for the Notes designated in the applicable Terms Agreement
was entered into, as set forth in the applicable Terms Agreement
(the “ Time of Sale ”), the Company will prepare
a preliminary Prospectus, dated October 3, 2006 (subject to
completion). As used herein, “ Preliminary Prospectus
” means, with respect to any date or time referred to herein,
the most recent preliminary Prospectus (as amended or supplemented,
if applicable, together with the Static Pool Information), which
has been prepared and delivered by the Company to the Underwriters
in accordance to the provisions hereof.
Pursuant to this Agreement and the
applicable Terms Agreement, and subject to the terms hereof and
thereof, the Company agrees to cause the Issuer to sell to the
Underwriters named in such Terms Agreement the Notes identified in
such Terms Agreement.
Section 2. Representations
and Warranties of the Sellers. Upon the execution of the
applicable Terms Agreement, each Seller severally represents and
warrants to each Underwriter as of the date hereof and as of the
Closing Date (unless otherwise specified) as follows:
(a) Such Seller has been duly
organized and is validly existing as a Virginia banking corporation
or a federal savings bank, as the case may be, in good standing
under the laws of the Commonwealth of Virginia or the federal laws
of the United States, as the case may be. Such Seller has, in all
material respects, full power and authority to own its properties
and conduct its business as described in the Prospectus, and to
execute, deliver and perform the applicable Receivables Purchase
Agreement, the Pooling and Servicing Agreement (in the case of the
Bank), this Agreement and the applicable Terms Agreement, and to
consummate the transactions contemplated by the applicable
Receivables Purchase Agreement, the Pooling and Servicing Agreement
(in the case of the Bank), this Agreement and the applicable Terms
Agreement, and 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
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(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
(i) would have a material adverse effect on such Seller and
its subsidiaries, taken as a whole, or (ii) would have a
material adverse effect on such Seller’s ability to
consummate the transactions contemplated by the applicable
Receivables Purchase Agreement, the Pooling and Servicing Agreement
(in the case of the Bank), this Agreement and the applicable Terms
Agreement.
(b) The execution, delivery and
performance by such Seller of this Agreement, the applicable Terms
Agreement, the applicable Receivables Purchase Agreement and the
Pooling and Servicing Agreement (in the case of the Bank), and the
consummation of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate action on the
part of such Seller. Neither the execution and delivery by such
Seller of such instruments, nor the performance by such Seller of
the transactions herein or therein contemplated, nor the compliance
by such Seller with the provisions hereof or thereof, will
(i) conflict with or result in a breach of any of the material
terms and provisions of, or constitute a material default under,
any of the provisions of the Articles of Incorporation or By-laws
of such Seller, or (ii) conflict with any of the provisions of
any law, governmental rule, regulation, judgment, decree or order
binding on such Seller or its properties, or (iii) conflict
with any of the provisions of any material indenture, mortgage,
agreement, contract or other instrument to which such Seller is a
party or by which it is bound, or (iv) result in the creation
or imposition of any lien, charge or encumbrance upon any of such
Seller’s property pursuant to the terms of any such
indenture, mortgage, contract or other instrument.
(c) Such Seller has duly executed
and delivered this Agreement and the applicable Terms
Agreement.
(d) Such Seller has authorized the
conveyance of the Receivables and the conveyance of an interest in
such Seller’s interest in any related Funds Collateral to the
Company under the applicable Receivables Purchase
Agreement.
(e) The Bank has delivered to the
Representatives complete and correct copies of publicly available
portions of the Consolidated Reports of Condition and Income of the
Bank for the year ended December 31, 2005, as submitted to the
Governors of the Federal Reserve System. Except as set forth in or
contemplated in the Prospectus, there has been no material adverse
change in the condition (financial or otherwise) of the Bank since
December 31, 2005. Capital One, F.S.B. has delivered to the
Representatives complete and correct copies of publicly available
portions of the Thrift Financial Report of Capital One, F.S.B. for
the year ended December 31, 2005, as submitted to the Office
of Thrift Supervision. Except as set forth in or contemplated in
the Prospectus, there has been no material adverse change in the
condition (financial or otherwise) of Capital One, F.S.B. since
December 31, 2005.
(f) Each of the Pooling and
Servicing Agreement (in the case of the Bank) and the applicable
Receivables Purchase Agreement constitutes a legal, valid and
binding obligation of such Seller, enforceable against such Seller
in accordance with its
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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 the rights of creditors of
state banking corporations or federal savings banks, as applicable,
as such laws would apply in the event of the insolvency,
liquidation or reorganization or other similar occurrence with
respect to such Seller or in the event of any moratorium or similar
occurrence affecting such Seller and to general principles of
equity. All approvals, authorizations, consents, orders or other
actions 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 transfer of the
Receivables pursuant to the applicable Receivables Purchase
Agreement, have been or will be taken or obtained on or before the
Closing Date.
(g) The Master Trust is not now, and
following the issuance of the Collateral Certificate, will not be,
required to be registered under the Investment Company Act of 1940,
as amended (the “ 1940 Act ”).
(h) The representations and
warranties of such Seller in the Pooling and Servicing Agreement
(in the case of the Bank) and the applicable Receivables Purchase
Agreement are true and correct in all material respects.
Section 3. Representations,
Warranties and Covenants of the Company. Upon the execution of
the applicable Terms Agreement, the Company represents, warrants
and covenants to each Underwriter as of the date hereof and as of
the Closing Date (unless otherwise specified) as
follows:
(a)(i) A registration statement on
Form S-3 (Nos. 333-130862, 333-130862-01 and 333-130862-02),
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 Act has been filed with the Commission (which may have
included one or more preliminary prospectuses and prospectus
supplements meeting the requirements of Rule 430 of the Act) and
such registration statement, as amended, has become effective; such
registration statement, as amended, and the prospectus relating to
the sale of the Notes offered thereby constituting a part thereof,
as from time to time amended or supplemented (including any
prospectus filed with the Commission pursuant to Rule 424(b) of the
rules and regulations of the Commission (the “ Rules and
Regulations ”) under the Act), are respectively referred
to herein as the “ Registration Statement ” and
the “ Prospectus ”; provided that a
supplement to the Prospectus prepared pursuant to Section 7(a)
of this Agreement shall be deemed to have supplemented the
Prospectus only with respect to the offering 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;
(ii) As of the Closing Date, the
Registration Statement, the Preliminary Prospectus and the
Prospectus, except with respect to any
5
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 Company
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
the Prospectus will conform in all material respects with the
applicable requirements of the Act and the Rules and Regulations,
and neither of such documents will 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; provided , however , that the foregoing
does not apply to information contained in or omitted from either
of the documents based upon written information furnished to the
Company or the Issuer by the Underwriters through the
Representatives specifically for use in connection with the
preparation of the Registration Statement or the
Prospectus;
(iv) The Preliminary Prospectus at
the Time of Sale did not, and at the Closing Date 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, in light of the circumstances under which
they were made, not misleading (it being understood that no
representation or warranty is made with respect to the omission of
pricing and price-dependent information, which information shall of
necessity appear only in the final Prospectus); provided ,
however , that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the
Representatives expressly for use in the Preliminary Prospectus;
and
(v) Other than the Preliminary
Prospectus and the Prospectus, the Company (including its agents
and representatives other than the Underwriters in their capacity
as such) has not made, used, prepared, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or
refer to any “written communication” (as defined in
Rule 405 under the Act) that constitutes an offer to sell or
solicitation of an offer to buy the Notes.
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(b) The Company has been duly
organized and is validly existing as a Virginia limited liability
company under the laws of the Commonwealth of Virginia. The Company
has, in all material respects, full power and authority to own its
properties and conduct its business as described in the Preliminary
Prospectus, and to execute, deliver and perform the Pooling and
Servicing Agreement, the Receivables Purchase Agreements, this
Agreement and the applicable Terms Agreement and to authorize the
sale of the Notes, and to consummate the transactions contemplated
by the Pooling and Servicing Agreement, the Receivables Purchase
Agreements, this Agreement and the applicable Terms Agreement, and
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
(i) would have a material adverse effect on each of the
Company and its subsidiaries (if any), taken as a whole, or
(ii) would have a material adverse effect on the
Company’s ability to consummate the transactions contemplated
by the Pooling and Servicing Agreement, the Receivables Purchase
Agreements, this Agreement and the applicable Terms
Agreement.
(c) The execution, delivery and
performance by the Company of the Pooling and Servicing Agreement,
the Receivables Purchase Agreements, this Agreement and the
applicable Terms Agreement, and the delivery of the Collateral
Certificate and the issuance of the Notes and the consummation of
the transactions contemplated hereby and thereby, have been duly
authorized by all necessary limited liability company action on the
part of the Company. Neither the execution and delivery by the
Company of such instruments, nor the performance by the Company of
the transactions herein or therein contemplated, nor the compliance
by the Company with the provisions hereof or thereof, will
(i) conflict with or result in a breach of any of the material
terms and provisions of, or constitute a material default under,
any of the provisions of the limited liability company agreement of
the Company, or (ii) conflict with any of the provisions of
any law, governmental rule, regulation, judgment, decree or order
binding on the Company or its properties, or (iii) conflict
with any of the provisions of any material indenture, mortgage,
agreement, contract or other instrument to which the Company is a
party or by which it is bound, or (iv) result in the creation
or imposition of any lien, charge or encumbrance upon any of the
Company’s property pursuant to the terms of any such
indenture, mortgage, contract or other instrument.
(d) The Company has duly executed
and delivered this Agreement and the applicable Terms
Agreement.
(e) The Collateral Certificate has
been duly authorized and when validly issued in accordance with the
Pooling and Servicing Agreement, duly authenticated by the Master
Trust Trustee and delivered by the Company, as Beneficiary to the
Owner Trustee on behalf of the Issuer pursuant to the Trust
Agreement, will conform in all material respects to the
descriptions thereof contained in the Preliminary Prospectus and
will be validly issued and entitled to the benefits and security
afforded by the Pooling and Servicing Agreement. Each increase in
the Collateral Certificate will have been authorized and effected
in accordance with the Pooling and Servicing
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Agreement as of the applicable
settlement date of each Note. When executed and delivered by the
parties thereto, each of the Pooling and Servicing Agreement and
the Receivables Purchase Agreements will constitute a legal, valid
and binding obligation of the Company, enforceable against the
Company 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, as such laws would apply in the
event of the insolvency, liquidation or reorganization or other
similar occurrence with respect to the Company or in the event of
any moratorium or similar occurrence affecting the Company and to
general principles of equity. All approvals, authorizations,
consents, 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
Agreement and the applicable Terms Agreement, or the issuance and
transfer of the Collateral Certificate pursuant to the Pooling and
Servicing Agreement, have been or will be taken or obtained on or
before the Closing Date.
(f) The Master Trust is not now, and
following the issuance of the Collateral Certificate, will not be,
required to be registered under the 1940 Act.
(g) Based on information currently
available to, and in the reasonable belief of, the Company, the
Company is not engaged (whether as defendant or otherwise) in, nor
has the Company 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
Collateral Certificate.
(h) Except for the Underwriters, the
Company has employed or retained no broker, finder, commission
agent or other person in connection with the sale of the Notes, and
neither the Company nor the Issuer are under any obligation to pay
any broker’s fee or commission in connection with such
sale.
(i) No Pay Out Event or any event
which after any applicable grace period will become a Pay Out Event
is subsisting in relation to the Collateral Certificate or any
other outstanding Certificates and no event has occurred which
would constitute (after an issue of the Certificates) a Pay Out
Event or any event which after any applicable grace period would
become a Pay Out Event.
(j) Based on information currently
available to, and in the reasonable belief of, the Company, the
Company is not engaged (whether as defendant or otherwise) in, nor
has the Company 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.
(k) Any taxes, fees and other
governmental charges in connection with the execution, delivery and
performance by the Company of this Agreement, the applicable Terms
Agreement, the Receivables Purchase Agreements and the Pooling and
Servicing Agreement shall have been paid or will be paid by the
Company at or before the Closing Date to the extent then
due.
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(l) As of the Closing Date, the
representations and warranties of the Company in the Pooling and
Servicing Agreement and the Receivables Purchase Agreements will be
true and correct in all material respects.
(m) The Company was not, on the date
on which the first bona fide offer of the Notes sold pursuant to
the applicable Terms Agreement was made, an “ineligible
issuer” as defined in Rule 405 under the Act.
Section 4. Representations,
Warranties and Covenants of the Issuer . Upon the execution of
the applicable Terms Agreement, the Issuer represents, warrants and
covenants to each Underwriter as of the date hereof and as of the
Closing Date (unless otherwise specified) as follows:
(a)(i) The Registration Statement
has been filed with the Commission and such Registration Statement,
as amended, has become effective; 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;
(ii) As of the Closing Date, the
Registration Statement, the Preliminary Prospectus 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 Issuer 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
the Prospectus will conform in all material respects with the
applicable requirements of the Act and the Rules and Regulations,
and neither of such documents will 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; provided , however , that the foregoing
does not apply to information contained in or omitted from either
of the documents based upon written information furnished to the
Issuer or the Company by the Underwriters through the
Representatives specifically for use in connection with the
preparation of the Registration Statement or the
Prospectus;
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(iv) The Preliminary Prospectus at
the Time of Sale did not, and at the Closing Date will not, 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 (it
being understood that no representation or warranty is made with
respect to the omission of pricing and price-dependent information,
which information shall of necessity appear only in the final
Prospectus); provided , however , that the Issuer
makes no representation or warranty with respect to any statements
or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Issuer in
writing by such Underwriter through the Representatives expressly
for use in the Preliminary Prospectus;
(v) Other than the Preliminary
Prospectus and the Prospectus, the Issuer (including its agents and
representatives other than the Underwriters in their capacity as
such) has not made, used, prepared, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or
refer to any “written communication” (as defined in
Rule 405 under the Act) that constitutes an offer to sell or
solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed
and is validly existing as a Delaware statutory trust in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and conduct its business as
described in the Preliminary Prospectus and to execute, deliver and
perform the Indenture, and to authorize the issuance of the Notes,
and to consummate the transactions contemplated by the Indenture
and 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
(i) would have a material adverse effect on each of the Issuer
and its subsidiaries (if any), taken as a whole or (ii) would
have a material adverse effect on the Issuer’s ability to
consummate the transactions contemplated by the Indenture or this
Agreement.
(c) The execution, delivery and
performance by the Issuer of this Agreement, the applicable Terms
Agreement and the Indenture and the issuance of the Notes and the
consummation of the transactions contemplated hereby and thereby
have been duly authorized by all necessary statutory trust action
on the part of the Issuer. Neither the execution and delivery by
the Issuer of such instruments, nor the performance by the Issuer
of the transactions herein or therein contemplated, nor the
compliance by the Issuer with the provisions hereof or thereof,
will (i) conflict with or result in a breach of any of the
material terms and provisions of, or constitute a material default
under, the
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Trust Agreement, or
(ii) conflict with any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on
the Issuer or its properties, or (iii) conflict with any of
the provisions of any material indenture, mortgage, agreement,
contract or other instrument to which the Issuer is a party or by
which it is bound, or (iv) result in the creation or
imposition of any lien, charge or encumbrance upon any of the
Issuer’s property pursuant to the terms of any such
indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and
delivered this Agreement and the applicable Terms
Agreement.
(e) The Notes have been duly
authorized and when validly issued in accordance with the
Indenture, duly authenticated by the Indenture Trustee and
delivered by the Owner Trustee on behalf of the Issuer pursuant to
the Indenture, will conform in all material respects to the
descriptions thereof contained in the Preliminary Prospectus and
will be validly issued and entitled to the benefits and security
afforded by the Indenture. Each increase in the Collateral
Certificate will have been authorized and effected in accordance
with the Pooling and Servicing Agreement as of the applicable
settlement date of each Note. When executed and delivered by the
parties thereto, the Indenture will constitute a legal, valid and
binding obligation of the Issuer, enforceable against the Issuer 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 as such laws would apply in the
event of the insolvency, liquidation or reorganization or other
similar occurrence with respect to the Issuer or in the event of
any moratorium or similar occurrence affecting the Issuer and to
general principles of equity. All approvals, authorizations,
consents, 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
Agreement and the applicable Terms Agreement, or the issuance and
transfer of the Collateral Certificate pursuant to the Pooling and
Servicing Agreement, have been or will be taken or obtained on or
before the Closing Date.
(f) The Issuer is not now, and
following the issuance of the Notes, will not be, required to be
registered under the 1940 Act.
(g) Except for the Underwriters, the
Issuer has employed or retained no broker, finder, commission agent
or other person in connection with the sale of the Notes, and
neither the Company nor the Issuer are under any obligation to pay
any broker’s fee or commission in connection with such
sale.
(h) No Early Redemption Event or
Event of Default or any event which after any applicable grace
period will become an Early Redemption Event or an Event of Default
is subsisting in relation to the Notes or any other outstanding
notes and no event has occurred which would constitute (after an
issue of notes) an Early Redemption Event or Event of Default or
any event which after any applicable grace period would become an
Early Redemption Event or an Event of Default.
11
(i) Based on information currently
available to, and in the reasonable belief of, the Issuer, the
Issuer is not engaged (whether as defendant or otherwise) in, nor
has the Issuer 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.
(j) As of the Closing Date, the
representations and warranties of the Issuer in the Indenture will
be true and correct in all material respects.
Section 5. Purchase, Sale
and Issuance of Notes. Subject to the terms and conditions
herein and in the applicable Terms Agreement and in reliance upon
the covenants, representations and warranties herein set forth, the
Company agrees to cause the Issuer to sell and deliver to the
several Underwriters as hereinafter provided, and each Underwriter
agrees upon the basis of the representations, warranties and
covenants herein contained, severally and not jointly, to purchase
the respective initial principal amount of the Notes set forth
opposite such Underwriter’s name in the applicable Terms
Agreement. Unless otherwise provided in the Terms Agreement,
payment for the Notes shall be made to the Company or to its order
by wire transfer of same day funds at 10:00 a.m., New York City
time, on the Closing Date (as hereinafter defined), or at such
other time or place on the same or such other date, not later than
the fifth Business Day thereafter, as the Representatives and the
Company may agree upon in writing. Unless otherwise provided in the
Terms Agreement, payment for the Notes shall be made against
delivery to the Representatives, for the respective accounts of the
several Underwriters of the Notes, registered in the name of
Cede & Co., as nominee of The Depository Trust Company and
in such denominations as the Representatives shall request in
writing not later than two full Business Days before the Closing
Date, with any transfer taxes payable in connection with the
transfer to the Underwriters of the Notes duly paid by the Company.
The Notes will be made available for inspection by the Underwriters
at the location of the Closing (as described in the Terms
Agreement) not later than 1:00 p.m., New York City time, on the
Business Day before the Closing Date. The time and date of such
payment for the applicable Notes are referred to herein as the
“ Closing Date ”. As used herein, the term
“ Business Day ” means any day other than a
Saturday or a Sunday or a day on which banks are permitted or
required to be closed in New York, New York, Richmond, Virginia or
Falls Church, Virginia.
Section 6. Offering by
Underwriters .
(a) The Company and the Issuer
authorize 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
12
which the price at which such Notes
are to be sold, then after the Notes are released for sale to the
public, the Underwriters may vary from time to time the public
offering price, selling concessions and reallowances to dealers
that are members of the National Association of Securities Dealers,
Inc. (“ NASD ”) and other terms of sale
hereunder and under such selling arrangements.
(b) Notwithstanding the foregoing,
each Underwriter agrees that it will not offer or sell any Notes
within the United States, its territories or 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 will not offer or sell any Notes in
any 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 laws of such
country, territory or possession.
(d) Each Underwriter agrees
that:
(i) it has complied and will comply
with all applicable provisions of the Financial Services and
Markets Act 2000 (the “ FSMA ”) with respect to
anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom;
(ii) it has only communicated or
caused to be communicated and it 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
(iii) if specified in the applicable
Terms Agreement, after the Closing Date, it will provide the
Company with a list of any foreign jurisdictions related to any
written confirmations of sale of Notes it has sent.
Section 7. Covenants of the
Company and the Issuer. Upon the execution of the applicable
Terms Agreement, the Company and the Issuer, jointly and severally,
covenant and agree with the several Underwriters:
(a) The Company and the Issuer will
prepare a 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 Issuer, 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 Company and
the Issuer deem appropriate in connection with the offering of the
Notes, but the Company and the Issuer will not file any amendments
to the Registration Statement as in effect with respect to the
Notes, or any amendments or supplements to the Preliminary
Prospectus or the Prospectus, without the Representatives’
prior consent
13
(which consent shall not be
unreasonably withheld or delayed); the Company and the Issuer 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, (ii) when any supplement or
amendment to the Preliminary Prospectus or the Prospectus has been
filed and (iii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and
sale of the Notes, or of any prevention or suspension of the use of
the Preliminary Prospectus or the Prospectus, 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
Company or the Issuer 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) If, at any time when a
Preliminary Prospectus or a Prospectus relating to the Notes is
required to be delivered under the Act (or required to be delivered
but for Rule 172 under the Act), any event occurs as a result of
which the Preliminary Prospectus or 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 Preliminary Prospectus or the Prospectus to
comply with the Act or the Rules and Regulations, the Company and
the Issuer will promptly prepare and (subject to review and no
reasonable objection by the Representatives as described in
Section 7(a) of this Agreement) 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 8 of this Agreement.
(c) The Company will cause the
Issuer to make generally available to the holders of the Notes (the
“ Noteholders ”) (the sole Noteholder 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 Company and the Issuer will
furnish to the Representatives copies of the Registration Statement
(at least one copy to be delivered to the Representatives will be
signed and will include all documents and exhibits thereto or
incorporated by reference therein), the Preliminary Prospectus, the
Prospectus, and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as the
Representatives may reasonably request.
(e) The Company and the Issuer 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
14
Company 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 or to file a
general consent to service of process in any jurisdiction in which
it is now not subject to service of process.
(f) If filing of the Preliminary
Prospectus or the Prospectus is required under Rule 424(b) of the
Commission, the Company and the Issuer will file the Preliminary
Prospectus or 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. If received in a timely
manner in compliance with Section 17(b)(iii) of this
Agreement, the Company and the Issuer will file with the Commission
any Underwriter Free Writing Prospectus to the extent such filing
is required by Rule 433(d) of the Act.
(g) The Company and the Issuer will
cause the Indenture to be qualified pursuant to the Trust
In
