EXHIBIT 1.1
[FORM OF]
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
(Issuer)
CAPITAL ONE FUNDING, LLC
(Originator and Transferor)
CAPITAL ONE BANK
(Seller and Servicer)
CAPITAL ONE, F.S.B.
(Seller)
UNDERWRITING AGREEMENT
[ ][ ], 2002
[NAME OF UNDERWRITER]
as Underwriter or as Representative
of the Underwriters named in the Terms Agreement
[address]
Ladies and Gentlemen:
Section 1. Introductory. Capital One Multi-asset Execution Trust, a
Delaware business trust (the "Issuer"), and Capital One Funding, LLC, a Virginia
limited liability company (the "Company"), as originator (in such capacity, the
"Originator") and beneficiary (in such capacity, 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, to be dated as of [ ], 2002,
as supplemented by the Asset Pool Supplement, the Indenture Supplement and the
Terms Document having the dates 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 will be operated pursuant to an
Amended and Restated Trust Agreement, to be dated as of [ ], 2002 (as
modified or amended from time to time, the "Trust Agreement"), between the
Company, as Beneficiary and as transferor (in such capacity, the "Transferor"),
and Deutsche Bank Trust Company Delaware, a Delaware banking corporation, as
owner trustee (the "Owner Trustee"). The Notes will be secured by certain assets
of the Issuer, including the Collateral Certificate referred to below
(collectively, the "Collateral").
Each of Capital One Bank, a Virginia banking corporation (the "Bank"
and a "Seller"), and Capital One, F.S.B. (a "Seller", and together with the
Bank, the "Sellers"), has entered into a receivables purchase agreement, dated
as of August 1, 2002 (each an applicable "Receivables Purchase Agreement" and
together the "Receivables Purchase Agreements") with the
Company under which the Bank and (to the extent applicable) Capital One, F.S.B.
will sell receivables (the "Receivables") generated from time to time in certain
designated consumer revolving credit card accounts (the "Accounts"), collections
thereon and certain related property to the Company. The Company, as Transferor,
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 (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 [ ], 2002, among the Company, as Transferor, 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 [ ], as underwriters, or through
certain underwriters which include [ ], one or more of which may with
[ ] act as the representative 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 "Representative", which, if the
context herein does require, shall include [ ] in its capacity as
Underwriter of any Notes or as Representative). Notes sold to the Underwriters
for which [ ] is the Representative shall be sold pursuant to a Terms
Agreement among the Issuer, the Company, the Sellers and the Representative, a
form of which is attached hereto as Exhibit A (a "Terms Agreement"), which
incorporates by reference this Underwriting Agreement (the "Agreement," which
shall include the applicable Terms Agreement if the context so requires). To the
extent not defined herein, capitalized terms used herein have the meanings
assigned to such terms in the Indenture or the Pooling and Servicing Agreement.
Unless otherwise stated herein or in the applicable Terms Agreement, as the
context otherwise requires or if such term is otherwise defined in the Indenture
or the Pooling and Servicing Agreement, each capitalized term used or defined
herein or in the applicable Terms Agreement shall relate only to the Notes
designated in the applicable Terms Agreement and no other series, class or
tranche of notes issued by the Issuer.
To the extent not defined herein, capitalized terms used herein shall
have the meanings specified in the Pooling and Servicing Agreement.
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.
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Section 2. Representations and Warranties of the Sellers. Upon the
execution of the applicable Terms Agreement, each Seller severally represents
and warrants to each Underwriter as of the date hereof and as of the Closing
Date as follows:
(a) Such Seller has been duly organized and is validly existing
as a Virginia banking corporation or a federal savings bank, as the case
may be, in good standing under the laws of the Commonwealth of Virginia or
the federal laws of the United States, as the case may be. Such Seller has,
in all material respects, full power and authority to own its properties
and conduct its business as described in the Prospectus, and to execute,
deliver and perform the applicable Receivables Purchase Agreement, the
Pooling and Servicing Agreement (in the case of the Bank), this Agreement
and the applicable Terms Agreement, and to consummate the transactions
contemplated by the applicable Receivables Purchase Agreement, the Pooling
and Servicing Agreement (in the case of the Bank), this Agreement and the
applicable Terms Agreement, and is duly qualified to do business and is in
good standing (or is exempt from such requirements), and has obtained all
necessary material licenses and approvals (except with respect to the state
securities or Blue Sky laws of various jurisdictions), in each jurisdiction
in which failure to so qualify or obtain such licenses and approvals would
have a material adverse effect on such Seller and its subsidiaries, taken
as a whole.
(b) The execution, delivery and performance by such Seller of
this Agreement, the applicable Terms Agreement, the applicable Receivables
Purchase Agreements and the Pooling and Servicing Agreement (in the case of
the Bank), and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action on the
part of such Seller. Neither the execution and delivery by such Seller of
such instruments, nor the performance by such Seller of the transactions
herein or therein contemplated, nor the compliance by such Seller with the
provisions hereof or thereof, will (i) conflict with or result in a breach
of any of the material terms and provisions of, or constitute a material
default under, any of the provisions of the Articles of Incorporation or
By-laws of such Seller, or (ii) conflict with any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
such Seller or its properties, or (iii) conflict with any of the provisions
of any material indenture, mortgage, agreement, contract or other
instrument to which such Seller is a party or by which it is bound, or (iv)
result in the creation or imposition of any lien, charge or encumbrance
upon any of such Seller's property pursuant to the terms of any such
indenture, mortgage, contract or other instrument.
(c) Such Seller has duly executed and delivered this Agreement
and the applicable Terms Agreement.
(d) Such Seller has authorized the conveyance of the Receivables
and the conveyance of an interest in such Seller's interest in any related
Funds Collateral to the Company under the applicable Receivables Purchase
Agreement.
(e) Capital One Bank has delivered to the Representative complete
and correct copies of publicly available portions of the Consolidated
Reports of Condition and Income of Capital One Bank for the year ended
December 31, 2001, as submitted
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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 Capital One Bank since
[ ], 2002. Capital One, F.S.B. has delivered to the Representative
complete and correct copies of publicly available portions of the Thrift
Financial Report of Capital One, F.S.B. for the year ended December 31,
2001, as submitted to the Office of Thrift Supervision. Except as set forth
in or contemplated in the Prospectus, there has been no material adverse
change in the condition (financial or otherwise) of Capital One, F.S.B.
since [ ], 2002.
(f) When executed and delivered by the parties thereto, each of
the Pooling and Servicing Agreement (in the case of the Bank) and the
applicable Receivables Purchase Agreement will constitute a legal, valid
and binding obligation of such Seller, enforceable against such 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 or federal savings banks, as
applicable, as such laws would apply in the event of the insolvency,
liquidation or reorganization or other similar occurrence with respect to
such Seller or in the event of any moratorium or similar occurrence
affecting such Seller and to general principles of equity. All approvals,
authorizations, consents, orders or other actions of any person,
corporation or other organization, or of any court, governmental agency or
body or official (except with respect to 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 transfer of the
Receivables pursuant to the applicable Receivables Purchase Agreement, have
been or will be taken or obtained on or before the Closing Date.
(g) The Master Trust is not now, and following the issuance of
the Collateral Certificate, will not be, required to be registered under
the Investment Company Act of 1940, as amended (the "1940 Act").
(h) The representations and warranties of such Seller in the
Pooling and Servicing Agreement (in the case of the Bank) and the
applicable Receivables Purchase Agreement are true and correct in all
material respects.
Section 3. Representations and Warranties of the Company. Upon the
execution of the applicable Terms Agreement, the Company represents and warrants
to each Underwriter as of the date hereof and as of the Closing Date as follows:
(a)(i) A registration statement on Form S-3 (Nos. 333-75276),
including a prospectus and such amendments thereto as may have been
required to the date hereof, relating to the offering of notes as described
therein from time to time in accordance with Rule 415 under the Securities
Act of 1933 (the "Act") has been filed with the Securities and Exchange
Commission (the "Commission") (which may have included one or more
preliminary prospectuses and prospectus supplements (each, a "Preliminary
Prospectus") meeting the requirements of Rule 430 of the Act) and such
registration statement, as amended, has become effective; such registration
statement, as amended, and the
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prospectus relating to the sale of the Notes offered thereby constituting a
part thereof, as from time to time amended or supplemented (including any
prospectus filed with the Commission pursuant to Rule 424(b) of the rules
and regulations of the Commission (the "Rules and Regulations") under the
Act), are respectively referred to herein as the "Registration Statement"
and the "Prospectus"; provided that a supplement to the Prospectus prepared
pursuant to Section 7(a) 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 and
the Prospectus, except with respect to any modification to which the
Representative has agreed in writing, shall be in all substantive
respects in the form furnished to the Representative 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 Representative) as the Company has advised the
Representative, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement,
the Registration Statement conformed in all material respects with the
applicable requirements of the Act and the Rules and Regulations, and
did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading and, on the Closing Date,
the Registration Statement and the Prospectus will conform in all
material respects with the applicable requirements of the Act and the
Rules and Regulations, and neither of such documents will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing does not
apply to information contained in or omitted from either of the
documents based upon written information furnished to the Company or
the Issuer by the Underwriters through the Representative specifically
for use in connection with the preparation of the Registration
Statement or the Prospectus.
(b) The Company has been duly organized and is validly existing
as a Virginia limited liability company in good standing 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 Prospectus, and to execute, deliver and perform the
Pooling and Servicing Agreement, the Receivables Purchase Agreements, this
Agreement and the applicable Terms Agreement and to authorize the sale of
the Notes, and to consummate the transactions contemplated by the Pooling
and Servicing Agreement, the Receivables Purchase Agreements, this
Agreement and the applicable Terms Agreement, and is duly qualified to do
business and is in good standing
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(or is exempt from such requirements), and has obtained all necessary
material licenses and approvals (except with respect to the state
securities or Blue Sky laws of various jurisdictions), in each jurisdiction
in which failure to so qualify or obtain such licenses and approvals would
have a material adverse effect on each of the Company and its subsidiaries
(if any), taken as a whole.
(c) The execution, delivery and performance by the Company of the
Pooling and Servicing Agreement, the Receivables Purchase Agreements, this
Agreement and the applicable Terms Agreement, and the delivery of the
Collateral Certificate and the issuance of the Notes and the consummation
of the transactions contemplated hereby and thereby, have been duly
authorized by all necessary limited liability company action on the part of
the Company. Neither the execution and delivery by the Company of such
instruments, nor the performance by the Company of the transactions herein
or therein contemplated, nor the compliance by the Company with the
provisions hereof or thereof, will (i) conflict with or result in a breach
of any of the material terms and provisions of, or constitute a material
default under, any of the provisions of the limited liability company
agreement of the Company, or (ii) conflict with any of the provisions of
any law, governmental rule, regulation, judgment, decree or order binding
on the Company or its properties, or (iii) conflict with any of the
provisions of any material indenture, mortgage, agreement, contract or
other instrument to which the Company is a party or by which it is bound,
or (iv) result in the creation or imposition of any lien, charge or
encumbrance upon any of the Company's property pursuant to the terms of any
such indenture, mortgage, contract or other instrument.
(d) The Company has duly executed and delivered this Agreement
and the applicable Terms Agreement.
(e) The Collateral Certificate has been duly authorized and when
validly issued in accordance with the Pooling and Servicing Agreement, duly
authenticated by the Master Trust Trustee and delivered by the Company, as
Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the
Trust Agreement, will conform in all material respects to the descriptions
thereof contained in the 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 Agreements will constitute a legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent that the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights in general
and the rights of creditors of state banking corporations or federal
savings banks, as applicable, as such laws would apply in the event of the
insolvency, liquidation or reorganization or other similar occurrence with
respect to 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
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(except with respect to 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 0000 Xxx.
(g) Based on information currently available to, and in the
reasonable belief of, the Company, the Company is not engaged (whether as
defendant or otherwise) in, nor has the Company knowledge of the existence
of, or any threat of, any legal, arbitration, administrative or other
proceedings the result of which might have a material adverse effect on the
Collateral Certificate.
(h) Except for the Underwriters, the Company has employed or
retained no broker, finder, commission agent or other person in connection
with the sale of the Notes, and neither the Company nor the Issuer are
under any obligation to pay any broker's fee or commission in connection
with such sale.
(i) No Pay Out Event or any event which after any applicable
grace period will become a Pay Out Event is subsisting in relation to the
Collateral Certificate or any other outstanding Certificates and no event
has occurred which would constitute (after an issue of the Certificates) a
Pay Out Event or any event which after any applicable grace period would
become a Pay Out Event.
(j) Based on information currently available to, and in the
reasonable belief of, the Company, the Company is not engaged (whether as
defendant or otherwise) in, nor has the Company knowledge of the existence
of, or any threat of, any legal, arbitration, administrative or other
proceedings the result of which might have a material adverse effect on the
Noteholders.
(k) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance by the Company of this
Agreement, the applicable Terms Agreement, the Receivables Purchase
Agreements and the Pooling and Servicing Agreement shall have been paid or
will be paid by the Company at or before the Closing Date to the extent
then due.
(l) As of the Closing Date, the representations and warranties of
the Company in the Pooling and Servicing Agreement and the Receivables
Purchase Agreements will be true and correct in all material respects.
Section 4. Representations and Warranties of the Issuer.
(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
7
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 and
the Prospectus, except with respect to any modification to which the
Representative has agreed in writing, shall be in all substantive
respects in the form furnished to the Representative 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 Representative) as the Issuer has advised the
Representative, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement,
the Registration Statement conformed in all material respects with the
applicable requirements of the Act and the Rules and Regulations, and
did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading and, on the Closing Date,
the Registration Statement and the Prospectus will conform in all
material respects with the applicable requirements of the Act and the
Rules and Regulations, and neither of such documents will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing does not
apply to information contained in or omitted from either of the
documents based upon written information furnished to the Issuer or
the Company by the Underwriters through the Representative
specifically for use in connection with the preparation of the
Registration Statement or the Prospectus.
(b) The Issuer has been duly formed and is validly existing as a
Delaware business 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 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 state securities or Blue Sky laws of
various jurisdictions), in each jurisdiction in which failure to so qualify
or obtain such licenses and approvals would have a material adverse effect
on each of the Issuer and its subsidiaries (if any), taken as a whole.
(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 business
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
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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.
(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 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
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 and the rights of creditors of state banking corporations or
federal savings banks, as applicable, as such laws would apply in the event
of the insolvency, liquidation or reorganization or other similar
occurrence with respect to 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 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
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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.
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 and warranties 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 their 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 Representative 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 Representative, 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
Representative 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 and packaging by the Underwriters at the
location of the Closing (as described in the Terms Agreement) not later than
[10:00 a.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 Representative 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
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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 possession 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) Each Underwriter agrees that:
(i) it has not offered or sold, and, prior to the date which
is six months after the date of issue of the Notes, will not offer or
sell any Notes to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes
of their businesses or otherwise in circumstances which do not
constitute an offer to the public in the United Kingdom for the
purposes of the Public Offers of Securities Regulations 1995 (the
"Regulation"), and the Financial Services and Markets Xxx 0000 (the
"FSMA");
(ii) it has complied and will comply with all applicable
provisions of the Regulations and the FSMA with respect to anything
done by it in relation to the Notes in, from or otherwise involving
the United Kingdom; and
(iii) 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.
Section 7. Covenants of the Company and the Issuer. Upon the execution
of the applicable Terms Agreement, the Company and the Issuer, jointly and
severally, covenant and agree with the several Underwriters:
(a) The Company and the Issuer will prepare a Prospectus
Supplement setting forth the amount of Notes covered thereby and the terms
thereof not otherwise specified in the Prospectus, the price at which the
Notes are to be purchased by the Underwriters from the Issuer, the initial
public offering price at which the Notes are to be sold, the selling
concessions and allowances, if any, and such other information as the
Company and the Issuer deem appropriate in connection with the offering of
the Notes, but the Company and the Issuer will not file any amendments to
the Registration Statement as in effect with respect to the Notes, or any
amendments or supplements to the
11
Prospectus, without the Representative's prior consent (which consent shall
not be unreasonably withheld or delayed); the Company and the Issuer will
immediately advise the Representative and its counsel (i) when notice is
received from the Commission that any post-effective amendment to the
Registration Statement has become or will become effective and (ii) of any
order or communication suspending or preventing, or threatening to suspend
or prevent, the offer and sale of the Notes or of any proceedings or
examinations that may lead to such an order or communication, whether by or
of the Commission or any authority administering any state securities or
Blue Sky law, as soon as practicable after the 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 Prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which 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 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 Representative as
described in Section 7(a)) 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
Representative's consent to any amendment shall not constitute a waiver of
any of the conditions of Section 8.
(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 Representative
copies of the Registration Statement (at least one copy to be delivered to
the Representative will be signed and will include all documents and
exhibits thereto or incorporated by reference therein), the Prospectus, and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Representative may reasonably
request.
(e) The Company and the Issuer will assist the Underwriters in
arranging for the qualification of the Notes for sale and the determination
of their eligibility for investment under the laws of such jurisdictions as
the Representative 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.
12
(f) If filing of the Prospectus is required under Rule 424(b) of
the Commission, the Company and the Issuer will file 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 Representative of such timely filing.
(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 Sellers herein as of the date hereof and the Closing
Date, to the accuracy of the statements of the Company, the Issuer and the
Sellers made pursuant to the provisions thereof, to the performance by the
Company, the Issuer and the Sellers in all material respects of their
obligations hereunder and to the following additional conditions precedent:
(a) The Representative 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 date of
the Prospectus, 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 Prospectus (references to the Prospectus in this
clause include any supplements thereto).
(b) The Representative shall have received, with respect to each
Seller, a certificate, dated the Closing Date, of an authorized officer of
such 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 such Seller in this Agreement are true and correct in all
material respects on and as of the Closing Date, (ii) such 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 date of the Prospectus, there has
been no material adverse change in the condition (financial or otherwise)
of such Seller's credit card business, except as set forth in or
contemplated in the Prospectus (references to the Prospectus in this clause
include any supplements thereto).
(c) The Representative shall have received an opinion of
McGuireWoods LLP, Virginia counsel for the Company and the Sellers, dated
the Closing Date, in form and substance satisfactory to the Representative
and their counsel, to the effect that the statements in the Prospectus
under the heading "Certain Legal Aspects of the Receivables - Matters
Relating to the Transfer of Receivables and the COMT Collateral
Certificate" to the extent they constitute matters of Virginia law or legal
conclusions with
13
respect to Virginia law, have been reviewed by such counsel and are correct
in all material respects. In rendering such opinion counsel may (i) as to
matters involving the application of laws other than the laws of any
jurisdiction other than the Commonwealth of Virginia, assume the conformity
of such laws with the laws of the Commonwealth of Virginia and (ii) rely as
to matters of fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of the Issuer, the Company, the
Sellers and public officials.
(d) The Representative shall have received an opinion of the
general counsel, deputy general counsel or associate general counsel of
Capital One Bank and Capital One, F.S.B., dated the Closing Date, in form
and substance satisfactory to the Representative and its counsel, to the
effect that:
(i) Capital One Bank has been duly incorporated and is a
banking corporation under the laws of the Commonwealth of Virginia,
and Capital One, F.S.B., has been duly organized and is a federal
savings bank chartered under the laws of the United States, and each
Seller has, in all material respects, the corporate power and
authority to own its assets and operate its business as described in
the Prospectus, and each Seller had at all relevant times and now has,
the corporate power and authority to acquire, own and service the
Receivables.
(ii) Capital One Funding, LLC has been duly formed and is a
limited liability company under the laws of Virginia and the Company
has, in all material respects, the limited liability company power and
authority to own its assets and operate its business as described in
the Prospectus, and had at all relevant times and now has, the
corporate power and authority to acquire and own the Receivables and
its interest in any Collateral Certificate transferred or proposed to
be transferred to the Issuer as described in the Prospectus.
(iii) Each Seller has the corporate power and authority to
execute and deliver the applicable Receivables Purchase Agreement, the
Pooling and Servicing Agreement (in the case of the Bank), this
Agreement and the applicable Terms Agreement, and to consummate the
transactions contemplated herein and therein.
(iv) The Company has the limited liability company power and
authority to execute and deliver the Receivables Purchase Agreements,
this Agreement, the applicable Terms Agreement, the Pooling and
Servicing Agreement, the Trust Agreement, the Indenture and the other
transaction documents referred to in such opinion that are executed by
the Company, not in its individual capacity but solely as Beneficiary
on behalf of the Issuer (the Indenture and such other transaction
documents being referred to herein as the "Trust Documents") and to
consummate the transactions contemplated herein and therein.
14
(v) Each of this Agreement, the applicable Terms
Agreement, the Pooling and Servicing Agreement (in the case of the
Bank) and the applicable Receivables Purchase Agreement has been duly
authorized by all necessary corporate action on the part of each
Seller and has been duly executed and delivered by each Seller.
(vi) Each of this Agreement, the applicable Terms
Agreement, the Pooling and Servicing Agreement, the Receivables
Purchase Agreements, the Trust Documents and the Collateral
Certificate has been duly authorized by all necessary limited
liability company action on the part of the Company and has been duly
executed and delivered by the Company and when the Collateral
Certificate has been authenticated and delivered in accordance with
the terms of the Pooling and Servicing Agreement, the Collateral
Certificate will be duly and validly issued and outstanding and will
be entitled to the benefits of the Pooling and Servicing Agreement.
(vii) No consent, approval, authorization or order of, or
filing with, any Virginia governmental agency or body or any Virginia
court is required on the part of each Seller under applicable Virginia
law for the consummation by each Seller of the transactions
contemplated in this Agreement, the applicable Terms Agreement, the
applicable Receivables Purchase Agreement or the Pooling and Servicing
Agreement (in the case of the Bank), except such as have been obtained
or made and such as may be required under state securities or Blue Sky
laws and except for such filings as may be required to perfect the
security interest in the Receivables pursuant to the Receivables
Purchase Agreements or the Pooling and Servicing Agreement.
(viii) No consent, approval, authorization or order of, or
filing with, any Virginia governmental agency or body or any Virginia
court is required on the part of the Company under applicable Virginia
law for the consummation by the Company of the transactions
contemplated in this Agreement, the applicable Terms Agreement, the
Receivables Purchase Agreements, the Pooling and Servicing Agreement
or the Trust Documents, except such as have been obtained or made and
such as may be required under state securities or Blue Sky laws and
except for such filings as may be required to perfect the security
interest in the Receivables pursuant to the Pooling and Servicing
Agreement or the Collateral pursuant to the Indenture.
(ix) No consent, approval, authorization or order of, or
filing with, any United States governmental agency or body or any
United States federal court is required on the part of each Seller
under United States federal law for consummation of the transactions
contemplated in this Agreement, the applicable Terms Agreement, the
applicable Receivables Purchase Agreement or the Pooling and Servicing
Agreement (in the
15
case of the Bank), except such as have been obtained or made and such
as may be required under state securities or Blue Sky laws except for
such filings as may be required to perfect the security interest in
the Receivables pursuant to the Receivables Purchase Agreements or the
Pooling and Servicing Agreement.
(x) No consent, approval, authorization or order of, or
filing with, any United States governmental agency or body or any
United States federal court is required on the part of the Company
under United States federal law for consummation of the transactions
contemplated in this Agreement, the applicable Terms Agreement, the
Receivables Purchase Agreements, the Pooling and Servicing Agreement
or the Trust Documents, except such as have been obtained or made and
such as may be required under state securities or Blue Sky laws and
except for such filings as may be required to perfect the security
interest in the Receivables pursuant to the Pooling and Servicing
Agreement or the Collateral pursuant to the Indenture.
(xi) Neither the execution, delivery and performance by
each Seller of its respective obligations under this Agreement, the
applicable Terms Agreement, or the Pooling and Servicing Agreement (in
the case of the Bank), the transfer by each Seller of the Receivables
and its interest in any related Funds Collateral to the Company under
the applicable Receivables Purchase Agreement, nor the consummation by
such Seller of the transactions contemplated in this Agreement, the
applicable Receivables Purchase Agreement or the Pooling and Servicing
Agreement (in the case of the Bank), conflict with, result in a
material breach or violation of any of the terms of, or constitute a
default under, the Articles of Incorporation or By-laws of such
Seller, as amended, or any rule, order (known to such counsel),
statute or regulation, to the extent the foregoing relate to Virginia
banking or other Xxxxxxxx xxxx, United States federal law, of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over such each Seller or the terms of any material
indenture or other material agreement or instrument known to such
counsel to which such Seller is a party or by which its property is
bound; provided, however, that no opinion is expressed as to state
securities or Blue Sky laws.
(xii) Neither the execution, delivery and performance by the
Company of its obligations under this Agreement, the applicable Terms
Agreement, the Pooling and Servicing Agreement or the Trust Documents,
the transfer by each Seller of the Receivables and its interest in any
related Funds Collateral to the Company under the applicable
Receivables Purchase Agreement, the transfer by the Company of the
Receivables and its interest in any related Funds Collateral to the
Master Trust, the issuance and transfer of the Collateral Certificate,
the issuance and sale of the Notes, nor the consummation by the
Company of any other
16
of the transactions contemplated in this Agreement, the applicable
Terms Agreement, the Receivables Purchase Agreements, the Pooling and
Servicing Agreement or the Trust Documents, conflict with, result in a
material breach or violation of any of the terms of, or constitute a
default under, the limited liability company agreement of the Company,
as amended, or any rule, order (known to such counsel), statute or
regulation, to the extent the foregoing relate to Xxxxxxxx xxxx,
United States federal law, of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Company or the terms of any material indenture or other material
agreement or instrument known to such counsel to which the Company is
a party or by which its property is bound; provided, however, that no
opinion is expressed as to state securities or Blue Sky laws.
(xiii) Except as otherwise disclosed in the Prospectus or
the Registration Statement, to the knowledge of such counsel, there
are no actions, proceedings or investigations pending or threatened
before any court, administrative agency or other tribunal (A)
asserting the invalidity of this Agreement, the applicable Terms
Agreement, either Receivables Purchase Agreement, the Pooling and
Servicing Agreement, the Collateral Certificate, the Indenture, the
Trust Documents or the Notes, (B) seeking to prevent the issuance of
the Collateral Certificate or the Notes the consummation of any of the
transactions contemplated by this Agreement, the applicable Terms
Agreement, either Receivables Purchase Agreement, the Pooling and
Servicing Agreement, the Indenture or the Trust Documents, which if
adversely determined would materially and adversely affect the
Collateral Certificate or the holders of the Notes, or the validity or
enforceability of, this Agreement, the applicable Terms Agreement,
either Receivables Purchase Agreement, the Pooling and Servicing
Agreement, the Trust Documents or the Notes, or (C) seeking adversely
to affect the United States Federal income tax attributes of the Notes
as described in the Prospectus under the headings "Prospectus Summary
-- Tax Status" and "Federal Income Tax Consequences."
(e) The Representative shall have received an opinion of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for the Company and the
Sellers, dated the Closing Date, in form and substance satisfactory to the
Representative and its counsel, to the effect that:
(i) Each of the Pooling and Servicing Agreement and the
applicable Receivables Purchase Agreement constitutes the legal, valid
and binding obligation of the Company and the Bank under the laws of
the State of New York, enforceable against the Company and the Bank in
accordance with its terms.
(ii) The sale and delivery of the Notes in the manner
contemplated by this Agreement and the Pooling and Servicing Agreement
do not require (A) the qualification of the Pooling and Servicing
17
Agreement under the Trust Indenture Act of 1939, as amended, or (B)
the registration of the Master Trust or the Issuer under the 1940 Act.
(iii) The Indenture has been qualified under the Trust
Indenture Act.
(iv) The Collateral Certificate, when executed and
authenticated in accordance with the terms of the Pooling and
Servicing Agreement, will be duly and validly issued and outstanding
and will be entitled to the benefits of the Pooling and Servicing
Agreement.
(v) Each of this Agreement, the applicable Terms
Agreement, the applicable Receivables Purchase Agreement, the Pooling
and Servicing Agreement, the Indenture, the Collateral Certificate and
the Notes conform in all material respects to the descriptions thereof
contained in the Registration Statement, in the form in which it
became effective, and the Prospectus.
(vi) The statements in the Prospectus under the heading
"Federal Income Tax Consequences" and the summary thereof under the
heading "Prospectus Summary-- Tax Status" (to the extent relating to
federal income tax consequences) and under the headings "Certain Legal
Aspects of the Receivables" and "Benefit Plan Investors," to the
extent they constitute matters of law or legal conclusions with
respect thereto, have been reviewed by such counsel and are correct in
all material respects.
(vii) To the extent New York law is applicable, the
Indenture constitutes the legal, valid and binding obligation of the
Issuer under the law of the State of New York, enforceable against the
Issuer in accordance with its terms.
(viii) When the Notes have been duly executed and delivered
by the Issuer, authenticated by the Indenture Trustee in accordance
with the Indenture and delivered and paid for by the Underwriters
pursuant to this Agreement, the holder of record of any Note will be
entitled to the benefits afforded by the Indenture, and the Notes will
constitute the legal, valid and binding obligations of the Issuer
enforceable against the Issuer in accordance with their terms.
Such counsel shall also state that they have participated in conferences
with representatives of the Sellers, the Company and the Issuer and their
accountants, and representatives of the Underwriters and their counsel
concerning the Registration Statement and the Prospectus and have
considered the matters required to be stated therein and the matters stated
therein, although they are not independently verifying the accuracy,
completeness or fairness of such statements (except as stated in paragraph
(vi) above). Based upon and subject to the foregoing, nothing has come to
such counsel's attention to cause such counsel to believe that the
Registration Statement (excluding any exhibits filed therewith), at
18
the time it became effective, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus, as of the date of such opinion, contains any untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading (it
being understood that such counsel has not been requested to and does not
make any comment in such opinion with respect to the financial statements,
supporting schedules and other financial or statistical information
contained in the Registration Statement or in the Prospectus). In rendering
such opinion counsel may (x) as to matters involving the application of
laws other than the laws of any jurisdiction other than New York and the
United States of America, assume the conformity of such laws with the laws
of New York and (y) rely as to matters of fact, to the extent deemed proper
and as stated therein, on certificates of responsible officers of the
Sellers and the Company and public officials (references to the Prospectus
in this clause include any supplements thereto).
(f) The Representative shall have received (i) an opinion or
opinions of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for the
Company and the Bank, dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel, with respect to certain
matters relating to the transfer by the Bank of the Receivables and its
interest in any Funds Collateral to the Company, and the transfer by the
Company of the Receivables and its interest in any related Funds Collateral
to the Master Trust, with respect to the applicability of certain
provisions of the Federal Deposit Insurance Act, as amended by the
Financial Institutions, Reform, Recovery and Enforcement Act of 1989, with
respect to the effect of receivership of the Bank on such interest in the
Receivables and any related Funds Collateral and with respect to other
related matters in a form approved by the Representative and its counsel
and (ii) an opinion or opinions of McGuireWoods LLP, Virginia counsel to
the Sellers and the Company, dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel, with respect to the
perfection of the Master Trust's interests in the Receivables and in the
Sellers and the Company's interest in any related Funds Collateral and
certain other matters relating to any applicable credit enhancement, with
respect to the applicability of certain provisions of the Virginia Banking
Act and any applicable Virginia insolvency law and with respect to Virginia
tax consequences relating to the Master Trust and the Collateral
Certificate in a form approved by the Representative and its counsel; in
addition, the Representative shall have received a reliance letter with
respect to any opinion of counsel that the Company, the Sellers or the
Issuer are required to deliver to any Rating Agency.
(g) The Representative shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP a favorable opinion dated the Closing Date, with
respect to the issuance and sale of the Notes, this Agreement, the
Registration Statement, the Prospectus and such other related matters as
the Representative may reasonably require; and the Company, the Sellers and
the Issuer shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass on all such
matters.
(h) At the Closing Date, Ernst & Young, LLP, shall have furnished
to the Representative a letter or letters, dated as of the Closing Date, in
form and substance
19
satisfactory to the Representative and its counsel, confirming that they
are certified independent public accountants and stating in effect that
they have performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Master Trust, the Company and the Sellers) set forth in the Prospectus
Supplement, agrees with the accounting records of the Master Trust, the
Company and the Sellers, excluding any questions of legal interpretation.
(i) The Representative shall have received evidence satisfactory
to them that, on or before the Closing Date, UCC-1 financing statements
have been filed (i) in the offices of the State Corporation Commission of
the Commonwealth of Virginia, reflecting the interests of the Master Trust
in the Receivables and in the Company's interest in any related Funds
Collateral and the proceeds thereof and (ii) in the offices of the
Secretary of State of the State of Delaware, reflecting the interests of
the Indenture Trustee in the Collateral and the proceeds thereof.
(j) The Representative shall have received an opinion of Xxxxx,
Xxxxxx & Xxxxxx, LLP, counsel to the Master Trust Trustee, dated the
Closing Date, in form and substance satisfactory to the Representative and
its counsel, to the effect that:
(i) The Master Trust Trustee is a banking corporation duly
organized and validly existing and in good standing as a banking
organization under the laws of the State of New York and has the power
and authority to enter into and to perform all actions required of it
under the Pooling and Servicing Agreement.
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Master Trust Trustee and
constitutes a legal, valid and binding obligation of the Master Trust
Trustee, enforceable against the Master Trust Trustee in accordance
with its terms.
(iii) The Collateral Certificate has been duly authenticated
and delivered by the Master Trust Trustee.
(iv) The Master Trust Trustee is duly authorized and
empowered to exercise trust powers under the laws of the State of New
York.
(v) Neither the authentication and delivery of the
Collateral Certificate nor the execution, delivery or performance of
the Pooling and Servicing Agreement conflict with, result in a breach
or violation of, or constitute a default under, any term or provision
of the organization certificate or bylaws of the Master Trust Trustee,
any term or provision of any agreement, contract, instrument or
indenture of any nature whatsoever, known to such counsel, without
independent investigation, to which
20
the Master Trust Trustee is a party or by which it is bound, or, to
the best of such counsel's knowledge, without independent
investigation, any order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the Master
Trust Trustee; or result in the creation or imposition of any lien,
charge or encumbrance upon the Master Trust established in the Pooling
and Servicing Agreement, or upon the Collateral Certificate.
(vi) To the best of such counsel's knowledge, without
independent investigation, there are no actions, proceedings or
investigations pending or threatened against the Master Trust Trustee
before any court, administrative agency or tribunal (A) asserting the
invalidity of the Collateral Certificate or the Pooling and Servicing
Agreement, (B) seeking to prevent the issuance of the Collateral
Certificate or consummation of the transactions contemplated by the
Collateral Certificate or the Pooling and Servicing Agreement or (C)
that might materially and adversely affect the performance by the
Master Trust Trustee of its obligations under the Collateral
Certificate or the Pooling and Servicing Agreement.
(vii) The execution, delivery and performance by the Master
Trust Trustee of the Pooling and Servicing Agreement will not violate
any provisions of any law or regulation governing the banking and
trust powers of the Master Trust Trustee. Such execution, delivery and
performance will not require the authorization, consent or approval
of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority
or agency having jurisdiction over and regulating the activities of
the Master Trust Trustee.
(k) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Issuer,
and/or Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for the Issuer,
subject to customary qualifications, assumptions, limitations and
exceptions, dated the Closing Date, in form and substance satisfactory to
the Representative and its counsel, with respect to the grant of the
Collateral Certificate and the proceeds thereof to the Indenture Trustee
for the benefit of the Noteholders and with respect to the perfection of
the Indenture Trustee's interest in the Collateral, including the
Collateral Certificate, and the proceeds thereof.
(l) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, subject to
customary qualifications, assumptions, limitations and exceptions dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, to the effect that:
(i) The Owner Trustee is duly incorporated and validly
existing as a banking corporation in good standing under the laws of
the State of Delaware.
21
(ii) The Owner Trustee has power and authority to execute
deliver and perform the Trust Agreement and to consummate the
transactions contemplated thereby.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Owner Trustee and constitutes a legal, valid and
binding obligation of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its terms.
(iv) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, of the Trust Agreement, nor the consummation of the
transactions by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, contemplated thereby, requires the
consent or approval of, the withholding of objection on the part of,
the giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware or the
United States of America governing the banking or trust powers of the
Owner Trustee (other than the filing of the certificate of trust with
the Delaware Secretary of State, which certificate of trust has been
duly filed).
(v) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case maybe, of the Trust Agreement, nor the consummation of the
transactions by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case maybe, contemplated thereby, is in
violation of the charter or by laws of the Owner Trustee or of any
law, governmental rule or regulation of the State of Delaware or of
the United States of America governing the banking or trust powers of
the Owner Trustee or, to our knowledge, without independent
investigation, of any indenture, mortgage, bank credit agreement, note
or bond purchase agreement, long-term lease, license or other
agreement or instrument to which it is a party or by which it is bound
or, to our knowledge, without independent investigation, of any
judgment or order applicable to the Owner Trustee.
(vi) No consent, approval or other authorization of, or
registration, declaration or filing with, any court or governmental
agency or commission of the State of Delaware is required by or with
respect to the Owner Trustee, in its individual capacity or as Owner
Trustee, as the case may be, for the valid execution and delivery of
the Trust Agreement, or for the validity or enforceability thereof,
other than the filing of the certificate of trust, which certificate
of trust has been duly filed.
(vii) To such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings affecting the Owner Trustee before any court or other
government authority
22
which, if adversely determined, would materially and adversely affect
the ability of the Owner Trustee to carry out the transactions
contemplated by the Trust Agreement.
(m) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Issuer,
subject to customary qualifications, assumptions, limitations and
exceptions dated the Closing Date, in form and substance satisfactory to
the Representative and its counsel, substantially to the effect that:
(i) The Issuer has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, 12 Del.C. (S) 3801, et seq. (referred to in this
subsection as the "Act").
(ii) The Trust Agreement is a legal, valid and binding
obligation of the Owner Trustee and the Beneficiary, enforceable
against the Owner Trustee and the Beneficiary, in accordance with its
terms.
(iii) The Trust Agreement and the Act authorize the Issuer
to execute and deliver the Indenture and the other transaction
documents referred to in such opinion (collectively referred to in
this subsection as the "Trust Documents"), to issue the Notes and the
trust certificate (referred to in this subsection as the "Trust
Certificate") and to grant the Collateral to the Indenture Trustee as
security for the Notes.
(iv) The Issuer has the power and authority, pursuant to
the Trust Agreement and the Act, to execute, deliver and perform its
obligations under the Trust Documents, the Notes and the Trust
Certificate and the execution and delivery of such agreements and
obligations have been duly authorized.
(v) The Trust Certificate has been validly issued and is
entitled to the benefits of the Trust Agreement.
(vi) Neither the execution, delivery and performance by the
Issuer of the Trust Documents, the Notes or the Trust Certificate, nor
the consummation by the Issuer of any of the transactions by the
Issuer contemplated thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency of the
State of Delaware, other than the filing of the certificate of trust
with the Delaware Secretary of State (which certificate of trust has
been duly filed) and the filing of any financing statements with the
Delaware Secretary of State in connection with the Trust Documents.
23
(vii) Neither the execution, delivery and performance by
the Issuer of the Trust Documents, nor the consummation by the Issuer
of the transactions contemplated thereby, is in violation of the Trust
Agreement or of any law, rule or regulation of the State of Delaware
applicable to the Issuer.
(viii) Under (S) 3805(b) of the Act, no creditor of the
holder of the Trust Certificate shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Issuer except in accordance with the
terms of the Trust Agreement.
(ix) Under (S) 3808(a) and (b) of the Act, the Issuer may
not be terminated or revoked by the Beneficiary, and the dissolution,
termination or bankruptcy of any holder of the Owner Certificate shall
not result in the termination or dissolution of the Issuer, except to
the extent otherwise provided in the Trust Agreement.
(x) The Owner Trustee is not required to hold legal title
to the owner trust estate in order for the Issuer to qualify as a
business trust under the Act.
(xi) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the perfection of a security
interest in the Collateral Certificate.
(xii) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the transfer of the Collateral
Certificate to or from the Issuer.
(xiii) The corpus of the Issuer is not subject to any
personal property or similar ad valorem tax imposed by the State of
Delaware.
(xiv) The characterization of the Issuer for federal income
tax purposes, whether as a trust, partnership or association taxable
as a corporation, is determinative of the character of the Issuer for
State of Delaware income tax purposes, and, if the Issuer is
characterized as a partnership for State of Delaware income tax
purposes, no State of Delaware income tax is imposed upon the Issuer.
For State of Delaware income tax purposes, taxable income would be
derived from "federal taxable income," and for the purpose of
ascertaining such taxable income for State of Delaware income tax
purposes, the amount of federal taxable income as determined for
federal income tax purposes would be determinative, whether such
amount of federal taxable income is determined upon a characterization
of the transaction as a sale or as a loan.
24
(xv) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the Notes.
(xvi) There is no income tax imposed by the City of
Wilmington, Delaware, upon the Issuer and the City of Wilmington,
Delaware, is prohibited by Delaware State law from imposing a personal
property tax upon or measured by the corpus of the Issuer.
(xvii) The Beneficiary is the sole beneficial owner of the
Issuer.
(n) The Representative shall have received a certificate, dated
the Closing Date, of an authorized representative of the Issuer in which
such representative, to his or her knowledge after reasonable
investigation, shall state that (i) the representations and warranties of
the Issuer in this Agreement are true and correct in all material respects
on and as of the Closing Date, (ii) the Issuer 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
representations and warranties of the Issuer in the Indenture are true and
correct in all material respects as of the dates specified in the
Indenture, (iv) the Registration Statement has become effective, no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been issued or are
threatened by the Commission and (v) since the date of the Prospectus,
there has been no material adverse change in the condition (financial or
otherwise) of the Issuer's business, except as set forth in or contemplated
in the Prospectus (referencing to the Prospectus in this clause include any
supplements thereto).
(o) The Representative shall have received an opinion of Xxxxx,
Xxxxxx & Xxxxxx LLP, counsel to the Indenture Trustee, dated the Closing
Date, in form and substance satisfactory to the Representative and its
counsel, to the effect that:
(i) The Indenture Trustee is a banking corporation duly
organized and validly existing and in good standing as a banking
organization under the laws of the State of New York and is authorized
and qualified to accept the trusts imposed by the Indenture and to act
as Indenture Trustee under the Indenture.
(ii) The Indenture has been duly authorized, executed and
delivered by the Indenture Trustee and constitutes a legal, valid and
binding obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its terms.
(iii) The Indenture Trustee has duly executed and
authenticated the Notes on the Closing Date.
(iv) Neither the authentication and delivery of the Notes
nor the execution, delivery or performance of the Indenture conflict
with, result in a breach or violation of, or constitute a default
under, any term or provision of the organization certificate or bylaws
of the Indenture Trus-
25
tee, any term or provision of any agreement, contract, instrument or
indenture of any nature whatsoever, known to such counsel, without
independent investigation, to which the Indenture Trustee is a party
or by which it is bound, or, to the best of such counsel's knowledge,
without independent investigation, any order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Indenture Trustee; or result in the creation or
imposition of any lien, charge or encumbrance upon the Collateral or
the trust estate established pursuant to the Indenture.
(v) To the best of such counsel's knowledge, without
independent investigation, there are no actions, proceedings or
investigations pending or threatened against the Indenture Trustee
before any court, administrative agency or tribunal (A) asserting the
invalidity of the Notes or the Indenture, (B) seeking to prevent the
issuance of the Notes or consummation of the transactions contemplated
by the Notes or the Indenture or (C) that might materially and
adversely affect the performance by the Indenture Trustee of its
obligations under the Notes or the Indenture.
(vi) The execution, delivery and performance by the
Indenture Trustee of the Indenture will not violate any provisions of
any law or regulation governing the banking and trust powers of the
Indenture Trustee. Such execution, delivery and performance will not
require the authorization, consent or approval of, the giving of
notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency having
jurisdiction over and regulating the activities of the Indenture
Trustee.
(p) The Notes shall be rated at the time of issuance in the
rating category set forth in the applicable Terms Agreement and shall not
have been placed on any credit watch with a negative implication for
downgrade.
(q) The Representative shall have received such information,
certificates and documents as the Representative and its counsel may
reasonably request.
(r) All actions required to be taken and all filings required to
be made by the Company or the Issuer under the Securities Act before the
Closing Date for the Notes shall have been duly taken or made; and before
the applicable Closing Date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the Company
or the Issuer, threatened by the Commission.
If any of the conditions specified in this Section 8 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions or certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representative and its counsel, this Agreement and all its
obligations hereunder may be canceled at, or at any time before, the Closing
Date by the Repre-
26
sentative. Notice of such cancellation shall be given to the Issuer and the
Company in writing or by telephone or telecopy confirmed in writing.
Section 9. Expenses.
(a) Except as expressly set forth in this Agreement, the Company,
the Issuer and the Sellers, jointly and severally, will pay all expenses
incidental to the performance of their obligations under this Agreement and
will reimburse each Underwriter for any expenses reasonably incurred by it
in connection with qualification of the Notes and determination of their
eligibility for investment under the laws of such jurisdictions as the
Representative may designate (including reasonable fees and disbursements
of its counsel) and the printing of memoranda relating thereto, for any
fees charged by investment rating agencies for the rating of the Notes and
for expenses incurred in distributing the Prospectus (including any
amendments and supplements thereto) to the Underwriters. Except as
specifically provided in this Section and in Section 10 of this Agreement,
each Underwriter will pay all of its own costs and expenses (including the
fees and disbursements of counsel), transfer taxes on resales of Notes by
it and any advertising expenses connected with any offers it may make.
(b) If the sale of the Notes provided for herein is not
consummated because any condition to the obligations of the Underwriters
set forth in Section 8 is not satisfied or because of any refusal,
inability or failure on the part of the Company, the Issuer or the Sellers
to perform any agreement herein or to comply with any provision hereof
other than by reason of a default by any Underwriter, the Company, the
Issuer and the Sellers will reimburse the Underwriters upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by the Underwriters in connection
with the proposed purchase, sale and offering of the Notes.
Section 10. Indemnification and Contribution.
(a) The Issuer, the Company and the Sellers, jointly and
severally, will indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of the Act
or the Exchange Act and the respective officers, directors and employees of
each such person, against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter or such controlling person may become
subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
will reimburse each Underwriter and each such officer, director, employee
or controlling person for any legal or other expenses reasonably incurred
by each Underwriter and each such officer, director, employee or
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that (i) the
Sellers, the Company and the Issuer will not
27
be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or
alleged untrue statement in or omission or alleged omission made in any
such documents in reliance upon and in conformity with written information
furnished to the Issuer, the Company or the Sellers by any Underwriter
specifically for use therein, and (ii) the Sellers, the Company and the
Issuer shall not be liable to any Underwriter to the extent that any such
loss, claim, damage or liability of such Underwriter arises as a result of
a misstatement or omission or alleged misstatement or omission in the
Preliminary Prospectus that was corrected in the Prospectus (and copies of
which Prospectus were furnished to such Underwriter) and such Underwriter,
if required by law, failed to give or send to the purchaser, at or before
the written confirmation of sale, a copy of the Prospectus. This indemnity
agreement will be in addition to any liability which the Issuer, the
Company and the Sellers may otherwise have.
(b) Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Issuer, the Company and the Sellers against any
losses, claims, damages or liabilities to which the Issuer, the Company or
the Sellers may become subject, under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Issuer, the Company and the Sellers by such
Underwriter through the Representative specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by such the
Issuer, the Company or the Sellers in connection with investigating or
defending any such loss, claim, damage, liability or action. The Issuer,
the Company and the Sellers agree with each Underwriter that the only
information furnished to the Issuer, the Company and the Sellers by the
Underwriters specifically for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, is the information relating to the Underwriters and
the underwriting of the Notes under the heading "Underwriting" in any
preliminary prospectus or the Prospectus. This indemnity agreement will be
in addition to any liability that each Underwriter may otherwise have.
(c) Each Underwriter, severally and not jointly, agrees, assuming
all information provided by the Issuer, the Company and the Sellers is
accurate and complete in all material respects, to indemnify and hold
harmless the Issuer, the Company and the Sellers, each of the officers and
directors of the Issuer, the Company and the Sellers and each person who
controls the Issuer, the Company and the Sellers within the meaning of
Section 15 of the Act against any and all losses, claims, damages or
liabilities, joint or several, to which they may become subject under the
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement of a material fact contained in the Computational Mate-
28
rials (as defined in Section 17(a)) or ABS Term Sheets (as defined in
Section 17(b)), if any, provided by the Underwriter, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
loss, claim, damage, liability or action as such expenses are incurred. The
obligations of each Underwriter under this Section shall be in addition to
any liability that each Underwriter may otherwise have.
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under clause (a), (b) or (c), notify the indemnifying party of the
commencement thereof; but the omission and/or delay so to notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under clause (a), (b) or (c). In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may elect by written notice, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in
connection with defense thereof other than reasonable costs of
investigation. If the defendants in any action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
this Section, then such indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in this Section, (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Issuer, the
29
Company and the Sellers on the one hand and relevant Underwriter on the
other from the offering of the Notes or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) but also the relative fault of the Issuer, the Company and the Sellers
on the one hand and the relevant Underwriter on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Issuer, the Company
and the Sellers on the one hand and the relevant Underwriter on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Issuer or the
Company bear to the total underwriting discounts and commissions received
by the relevant Underwriter. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Issuer, the Company or
the Sellers or by any Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this clause (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this clause (e). Notwithstanding the provisions of this clause (e), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions received
by it in connection with such Notes underwritten by it exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11 (f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The obligation of each Underwriter under this Section 8(e) shall be several
and not joint.
(f) The obligations of the indemnifying party under this Section
shall be in addition to any liability which the indemnifying party may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls the indemnified party within the meaning
of the Act.
Section 11. Survival of Representations and Obligations. The
respective agreements, representations, warranties and other statements made by
the Issuer, the Company or the Sellers or their respective officers, including
any such agreements, representations, warranties and other statements relating
to the Master Trust, and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriters, the Issuer, the Company or the Sellers or any of their
respective officers or directors or any controlling person, and will survive
delivery of and payment of the Notes. The provisions of Section 9 and Section 10
shall survive the termination or cancellation of this Agreement.
Section 12. Notices. All communications hereunder shall be in writing
and effective only on receipt, and, if to the Representative or the
Underwriters, will be mailed, deliv-
30
ered or telecopied and confirmed to the address for the Representative set forth
on the first page hereof, and, if sent to the Issuer, the Company or the
Sellers, will be mailed, delivered or telecopied and confirmed to Capital One
Bank, in care of Capital One Services, Inc., 0000 Xxxxx Xxxxxx Xxxxx, XxXxxx,
Xxxxxxxx 00000, attention of General Counsel with a copy to Director of Capital
Markets and to Capital One, F.S.B., 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx Xxxxxx,
Xxxxxxxx 00000, attention of General Counsel with a copy to Director of Capital
Markets.
Section 13. Applicable Law, Entire Agreement. This Agreement will be
governed by and construed in accordance with the law of the State of New York.
This Agreement supersedes all prior agreements and understandings relating to
the subject matter hereof.
Section 14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 10 hereof,
and their successors and assigns, and no other person will have any right or
obligation hereunder.
Section 15. Waivers; Headings. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
Section 16. Termination of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Notes on the Closing Date shall
be terminable by the Representative by written notice delivered to the Issuer
and the Company if at any time on or before the Closing Date (a) trading in
securities generally on the New York Stock Exchange shall have been suspended or
materially limited, or there shall have been any setting of minimum prices for
trading on such exchange, (b) a general moratorium on commercial banking
activities in New York or Virginia shall have been declared by any of Federal,
New York state or Virginia state authorities, (c) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis, the
effect of which on the financial markets of the United States is such as to make
it, in the Representative's reasonable judgment, impracticable to market the
Notes on the terms and in the manner contemplated in the Prospectus or (d) any
change or any development involving a prospective change, materially and
adversely affecting (i) the Trust Assets taken as a whole or (ii) the business
or properties of the Issuer, the Company or the Sellers occurs, which, in the
Representative's reasonable judgment, in the case of either clause (i) or (ii),
makes it impracticable to market the Notes on the terms and in the manner
contemplated in the Prospectus. Upon such notice being given, the parties to
this Agreement shall (except for the liability of the Issuer, the Company and
the Sellers under Section 9 and Section 10 and the liability of each Underwriter
under Section 17) be released and discharged from their respective obligations
under this Agreement.
Section 17. Computational Materials, ABS Term Sheets and Electronic
Copy of Preliminary Prospectus.
(a) The Representative agrees to provide to the Issuer or the
Company, not less than two Business Days before the date on which the
Issuer or the Company is
31
required to file the Prospectus pursuant to Rule 424(b), any information
used by it or any Underwriter (in such written or electronic format as
reasonably required by the Issuer and the Company) with respect to the
offering of the Notes that constitutes "Computational Materials" as defined
in the Commission's No-Action Letter, dated May 20, 1994, addressed to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co.
Incorporated and Xxxxxx Structured Asset Corporation (as made generally
applicable to registrants, issuers and underwriters by the Commission's
response to the request of the Public Securities Association dated May 27,
1994 (the "Xxxxxx/PSA Letter")), that is not contained in the Prospectus
(without taking into account information incorporated therein by
reference).
(b) The Representative agrees to provide to the Issuer and the
Company, not less than two Business Days before the date on which the
Issuer or the Company is required to file the Prospectus Supplement
pursuant to Rule 424(b), any information used by it or any Underwriter (in
such written or electronic format as reasonably required by the Issuer and
the Company) with respect to the offering of the Notes that constitutes
"ABS Term Sheets, " as defined in the Commission's No-Action Letter, dated
February 17, 1995, addressed to the Public Securities Association, that is
not contained in the Prospectus (without taking into account information
incorporated therein by reference).
(c) Each Underwriter represents that it has furnished or will
furnish a printed copy of the Preliminary Prospectus to all persons to whom
it has furnished or will furnish an electronic copy of the Preliminary
Prospectus.
Section 18. Representation of Underwriters. The Representative will
act for the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representative will be binding upon all
the Underwriters.
Section 19. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Notes agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Notes set forth
opposite their names in the applicable Terms Agreement bears to the aggregate
amount of Notes set forth opposite the names of all the remaining Underwriters)
the Notes which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that if the aggregate amount of Notes which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 25% of the aggregate principal amount of Notes set forth in Schedule I
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Notes, and if such
nondefaulting Underwriters do not purchase all the Notes, this Agreement will
terminate without liability to any nondefaulting Underwriter, the Issuer, the
Company or the Sellers. In the event of a default by any Underwriter as set
forth in this Section 19, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Underwriters shall determine in order that the
required changes in the Registration Statement and the Prospectus (and any
supplements thereto) or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its
32
liability, if any, to the Issuer, the Company and the Sellers and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
33
If you are in agreement with the foregoing, please sign a counterpart
hereof and return it to the Company, whereupon this letter and your acceptance
shall become a binding agreement among the Issuer, the Company, the Sellers and
the Underwriters.
Very truly yours,
CAPITAL ONE MULTI-ASSET
EXECUTION TRUST,
as Issuer
By: Capital One Funding, LLC, not in its
individual capacity but solely as
Beneficiary on behalf of the Issuer
By: _________________________
Name:
Title:
CAPITAL ONE FUNDING, LLC
as Originator and Transferor
By: _________________________
Name:
Title:
CAPITAL ONE BANK,
as a Seller
By: _________________________
Name:
Title:
CAPITAL ONE, F.S.B.
as a Seller
By: _________________________
Name:
Title:
34
The foregoing Agreement is
hereby confirmed and ac-
cepted as of the date first
above written.
[ ]
as Underwriter or Representative of the
Underwriters named in the Terms Agreement
By: __________________________
Name:
Title:
35
EXHIBIT A
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
SERIES _______
ASSET BACKED NOTES
TERMS AGREEMENT
Dated: ________ __, 2002
To: CAPITAL ONE MULTI-ASSET EXECUTION TRUST
CAPITAL ONE FUNDING, LLC
Re: Underwriting Agreement dated _______ __, 2002
Series Designation: Card Series
Terms of the Notes:
Initial Interest Price to
Principal Amount Rate or Formula Public (1)
------------------------- ------------------------ ---------------------------
[ ] [ ] [ ]
(1) Plus accrued interest, if any, at the applicable rate from ______ __, 2002
Interest Payment Dates:
The [15th day of each month (or, if not a business day, the next
succeeding business day),] commencing ________,__ 2002.
Underwriters:
The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Agreement and for the purposes of the
above-referenced Underwriting Agreement as such Underwriting Agreement is
incorporated herein and made a part hereof.
Note Rating[s]:
______ by ___________________
______ by ___________________
A-1
Owner Trustee:
Indenture Trustee:
Indenture:
Asset Pool Supplement:
Indenture Supplement:
Terms Document:
Pooling and Servicing Agreement:
Purchase Price:
The purchase price payable by the Underwriters for the Notes covered
by this Agreement will be ________ % of the principal amount of Notes to be
issued.
Commissions, Concessions and Discounts:
The Underwriters' discounts and commissions, the concessions that the
Underwriters may allow to certain dealers, and the discounts that such dealers
may reallow to certain other dealers, each expressed as a percentage of the
principal amount of the Notes, shall be as follows:
Discounts and Price
Commissions Concessions Reallowance
----------------------------- ------------------------------- --------------------------------
[0.%] not in excess of [0.%] not in excess of [0.%]
Reimbursement of Expenses:
The Underwriters shall reimburse the Company for an amount not to
exceed $__________ for application towards expenses.
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Closing Date:
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of 1934,
as amended, the Underwriters, the Company and the Issuer hereby agree that the
Closing Date shall be __________ ___, 2002, 10:00 a.m., New York City time.
Location of Closing:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
[Washington Harbour
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000]
Payment for the Notes:
Address for Notice to Representatives:
[NAME OF Representatives], as Representatives of the Underwriters named
in Schedule
I hereto [ADDRESS]
Attention: [ ]
Tel: [ ]
Fax: []
Opinion Modifications:
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The Underwriters agree, severally and not jointly, subject to the terms and
provisions of the above-referenced Underwriting Agreement which is incorporated
herein in its entirety and made a part hereof, to purchase the principal amount
of the above-referenced Series of Notes set forth opposite their names on
Schedule I hereto.
[NAME OF REPRESENTATIVE], as Representative
of the Underwriters named on Schedule I
hereto
By:__________________________
Name:
Title:
Accepted:
CAPITAL ONE MULTI-ASSET EXECUTION TRUST
By: Capital One Funding, LLC, not in its individual
capacity but solely as Beneficiary on behalf of the Issuer
By: ________________________
Name:
Title:
CAPITAL ONE FUNDING, LLC
as Originator and Transferor
By: ________________________
Name:
Title:
CAPITAL ONE BANK
as a Seller
By: ________________________
Name:
Title:
CAPITAL ONE, F.S.B.
as a Seller
By: ________________________
Name:
Title:
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