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
June 3, 2009
DEUTSCHE BANK SECURITIES
INC.
as Underwriter and as a
Representative
of the Underwriters named in Schedule I to this
Agreement
60 Wall Street, 19th Floor
New York, New York 10005
RBS SECURITIES INC.
as Underwriter and as a
Representative
of the Underwriters named in Schedule I to this
Agreement
600 Washington Boulevard
Stamford, Connecticut 06901
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 Mellon (formerly known as 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 the 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
the 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 Mellon (formerly known as 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 Deutsche Bank Securities Inc. and RBS Securities
Inc. as underwriters, or through certain underwriters which include
Deutsche Bank Securities Inc. and RBS Securities Inc., one or more
of which may, with Deutsche Bank Securities Inc. and RBS 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 Deutsche Bank Securities Inc. and RBS
Securities Inc., in their capacity as Underwriter of any Notes or
as Representative). Notes sold to the Underwriters for which
Deutsche Bank Securities Inc. and RBS 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
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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
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 June 3, 2009 (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 Association 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, 2008, 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, 2008.
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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.
(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
12
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 Company or the
Issuer is advised thereof, and will use its reasonable efforts to
prevent
13
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
14
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 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
warranties of the Seller in this Agreement are true and correct in
all material respects on and as of the Closing Date, (ii) the
Seller 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, and
(iii) since the Time of Sale, there has been no material
adverse change in the condition (financial or otherwise) of the
Seller’s credit card business, except as set forth in or
contemplated in the Preliminary Prospectus (references to the
Preliminary Prospectus in this clause include any amendments and
supplements thereto).
(c) The Representatives shall have
received an opinion of the general counsel, deputy general counsel
or associate general counsel of Capital One Bank (USA), National
Association or such other legal counsel that Capital One Bank
(USA), National Association may choose (provided that such legal
counsel is acceptable to the
15
