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Exhibit
1.1(a)
CAPITAL ONE MULTI-ASSET
EXECUTION TRUST
(Issuer)
CAPITAL ONE FUNDING,
LLC
(Transferor)
CAPITAL ONE BANK (USA),
NATIONAL ASSOCIATION
(Seller and
Servicer)
UNDERWRITING
AGREEMENT
April 9, 2008
CITIGROUP GLOBAL MARKETS INC.
as Underwriter and as a
Representative
of the Underwriters named in Schedule I
to this Agreement
388 Greenwich Street,
19 th Floor
New York, New York 10013
J.P. MORGAN SECURITIES INC.
as Underwriter and as a
Representative
of the Underwriters named in Schedule I
to this Agreement
270 Park Avenue, 10th Floor
New York, New York 10017
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 amended and
restated as of January 13, 2006, and as amended by the First
Amendment thereto, dated as of March 1, 2008, 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 a Second Amended and Restated Trust Agreement,
dated as of January 13, 2006 (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
”).
Capital One Bank (USA),
National Association, a national banking association (the “
Bank ” and the “ Seller ”), has
entered into an amended and restated receivables purchase
agreement, dated as of July 1, 2007, and as amended by the
First Amendment thereto, dated as of March 1, 2008 (the
“ Receivables Purchase Agreement ”) with the
Company under which the Bank 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, January 13, 2006 and July 1,
2007, and as amended by the First Amendment thereto, dated as of
March 1, 2008 (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, as amended by the First Amendment
thereto, dated as of March 1, 2008, 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 Citigroup Global Markets Inc. and J.P. Morgan
Securities Inc., as underwriters, or through certain underwriters
which include Citigroup Global Markets Inc. and J.P. Morgan
Securities Inc., one or more of which may, with Citigroup Global
Markets Inc. and J.P. Morgan Securities Inc., 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
Citigroup Global Markets Inc. and J.P. Morgan Securities Inc., in
their capacity as Underwriter of any Notes or as Representative).
Notes sold to the Underwriters for which Citigroup Global Markets
Inc. and J.P. Morgan Securities Inc. are the Representatives shall
be sold pursuant to a Terms Agreement, among the Issuer, the
Company, the Seller 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
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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
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) (“
Rule 424(b) ”) of the rules and regulations of the
Commission (the “ Rules and Regulations ”) under
the Act 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 is entered into, as set forth in the applicable Terms
Agreement (the “ Time of Sale ”), the Company
will prepare a preliminary Prospectus, dated April 9, 2008
(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 Seller. Upon the execution of the
applicable Terms Agreement, the Seller represents and warrants to
each Underwriter as of the date hereof and as of the Closing Date
(unless otherwise specified) as follows:
(a) The Seller has been duly
organized and is validly existing as a national banking
association, in good standing under the laws of the United States.
The Seller has, in all material respects, full power and authority
to own its properties and
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conduct its business as
described in the Prospectus, and to execute, deliver and perform
the Receivables Purchase Agreement, the Pooling and Servicing
Agreement, this Agreement and the applicable Terms Agreement, and
to consummate the transactions contemplated by the Receivables
Purchase Agreement, the Pooling and Servicing Agreement, 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 the Seller and its subsidiaries, taken
as a whole, or (ii) would have a material adverse effect on
the Seller’s ability to consummate the transactions
contemplated by the Receivables Purchase Agreement, the Pooling and
Servicing Agreement, this Agreement and the applicable Terms
Agreement.
(b) The execution, delivery
and performance by the Seller of this Agreement, the applicable
Terms Agreement, the Receivables Purchase Agreement and the Pooling
and Servicing Agreement, and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of the Seller. Neither the
execution and delivery by the Seller of such instruments, nor the
performance by the Seller of the transactions herein or therein
contemplated, nor the compliance by the 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 the Seller, or
(ii) conflict with any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on
the Seller or its properties, or (iii) conflict with any of
the provisions of any material indenture, mortgage, agreement,
contract or other instrument to which the Seller 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
Seller’s property pursuant to the terms of any such
indenture, mortgage, contract or other instrument.
(c) The Seller has duly
executed and delivered this Agreement and the applicable Terms
Agreement.
(d) The Seller has authorized
the conveyance of the Receivables and the conveyance of an interest
in the Seller’s interest in any related Funds Collateral to
the Company under the 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, 2006, 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, 2006.
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(f) Each of the Pooling and
Servicing Agreement and the Receivables Purchase Agreement
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller 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 the
rights of creditors of state banking corporations, as such laws
would apply in the event of the insolvency, liquidation or
reorganization or other similar occurrence with respect to the
Seller or in the event of any moratorium or similar occurrence
affecting the 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
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 the Seller in the Pooling and Servicing Agreement and
the 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) The Registration
Statement on Form S-3 (Nos. 333-142033, 333-142033-01 and
333-142033-02), including the Prospectus and such amendments
thereto as may have been required to the date hereof, relating to
the offering of the Notes 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 the Registration Statement, as amended, has become
effective; 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 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
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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 Underwriter Information (as
defined below);
(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 Underwriter
Information; 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.
(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 Agreement, 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
Agreement, this Agreement and the applicable
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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
Agreement, 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 Agreement, 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 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
Agreement 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
7
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 Agreement 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.
(l) As of the Closing Date,
the representations and warranties of the Company in the Pooling
and Servicing Agreement and the Receivables Purchase Agreement will
be true and correct in all material respects.
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(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 Underwriter
Information;
(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-
9
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
Underwriter Information;
(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 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.
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(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.
(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.
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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 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.
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(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 or otherwise in contemplation
of 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 (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
13
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 an electronic copy of
each of the Registration Statement, the Preliminary Prospectus, the
Prospectus, and all amendments and supplements to such documents,
in each case as soon as available.
(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 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.
14
(g) The Company and the
Issuer will cause the Indenture to be qualified pursuant to the
Trust Indenture Act of 1939, as amended (the “ Trust
Indenture Act ”).
Section 8. Conditions to
the Obligations of the Underwriters. The obligations of the
Underwriters to purchase and pay for the Notes will be subject to
the accuracy of the representations and warranties on the part of
the Company, the Issuer and the Seller herein as of the date hereof
and the Closing Date, to the accuracy of the statements of the
Company, the Issuer and the Seller made pursuant to the provisions
thereof, to the performance by the Company, the Issuer and the
Seller in all material respects of their obligations hereunder and
to the following additional conditions precedent:
(a) The Representatives shall
have received, with respect to the Company, a certificate, dated
the Closing Date, of an authorized officer of the Company in which
such officer, to the best of his or her knowledge after reasonable
investigation, shall state that (i) the representations and
warranties of the Company in this Agreement are true and correct in
all material respects on and as of the Closing Date, (ii) the
Company has complied in all material respects with all agreements
and satisfied all conditions on its part to be performed or
satisfied hereunder at or before the Closing Date, (iii) the
Registration Statement has been declared effective, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
are threatened by the Commission, and (iv) since the Time of
Sale, there has been no material adverse change in the condition
(financial or otherwise) of the Company’s business, except as
set forth in or contemplated in the Preliminary Prospectus
(references to the Preliminary Prospectus in this clause include
any supplements thereto).
(b) The Representatives shall
have received, with respect to the Seller, a certificate, dated the
Closing Date, of an authorized officer of the Seller in which such
officer, to the best of his or her knowledge after reasonable
investigation, shall state that (i) the representations and
war
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