Underwriting Agreement (2007)Full Document 

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CAPITAL ONE MULTI-ASSET EXECUTION TRUST

CAPITAL ONE FUNDING, LLC

CAPITAL ONE BANK

(Seller and Servicer)

CAPITAL ONE, F.S.B.

(Seller)

UNDERWRITING AGREEMENT

May 15, 2007

CITIGROUP GLOBAL MARKETS INC.

as Underwriter and as a Representative

of the Underwriters named in Schedule I to this Agreement

390 Greenwich Street, 6th Floor

New York, New York 10013

WACHOVIA CAPITAL MARKETS, LLC

as Underwriter and as a Representative

of the Underwriters named in Schedule I to this Agreement

301 S. College Street, NC 0610

Charlotte, North Carolina 28288

Ladies and Gentlemen:

Section 1. Introductory. Capital One Multi-asset Execution Trust, a Delaware statutory trust (the “Issuer”), and Capital One Funding, LLC, a Virginia limited liability company (the “Company”), as beneficiary (the “Beneficiary”) of the Issuer, propose to sell the notes of the series, classes and tranches designated in the applicable Terms Agreement (as hereinafter defined) (the “Notes”). The Notes will be issued pursuant to the Indenture, dated as of October 9, 2002, as supplemented by the Asset Pool Supplement, the Indenture Supplement and the Terms Document having the date stated in the applicable Terms Agreement (as so supplemented and as otherwise modified or amended from time to time, the “Indenture”), between the Issuer and The Bank of New York, as trustee (in such capacity, the “Indenture Trustee”). The Issuer is operated pursuant to an Amended and Restated Trust Agreement, dated as of October 9, 2002 (as modified or amended from time to time, the “Trust Agreement”), between the Company, as Beneficiary and as transferor (in such capacity, the “Transferor”), and Deutsche Bank Trust Company Delaware, a Delaware banking corporation, as owner trustee (the “Owner Trustee”). The Notes will be secured by certain assets of the Issuer, including the Collateral Certificate referred to below (collectively, the “Collateral”).


Each of Capital One Bank, a Virginia banking corporation (the “Bank” and a “Seller”), and Capital One, F.S.B. (a “Seller”, and together with the Bank, the “Sellers” ), has entered into a receivables purchase agreement, dated as of August 1, 2002 (each an applicable “Receivables Purchase Agreement” and together the “Receivables Purchase Agreements” ) with the Company under which the Bank and (to the extent applicable) Capital One, F.S.B. will sell receivables (the “Receivables”) generated from time to time in certain designated consumer revolving credit card accounts (the “Accounts”), collections thereon and certain related property to the Company. The Company has conveyed the Receivables, collections thereon and certain related property to the Capital One Master Trust (the “Master Trust”) pursuant to an Amended and Restated Pooling and Servicing Agreement, dated as of September 30, 1993, as amended and restated as of August 1, 2002 and January 13, 2006 (as so amended and restated and as otherwise modified or amended from time to time, the “Pooling and Servicing Agreement”), as supplemented by the Series 2002-CC Supplement (the “Series Supplement”), dated as of October 9, 2002, among the Company, as Transferor (as defined in the Pooling and Servicing Agreement), the Bank, as servicer (the “Servicer”), and The Bank of New York, as trustee (in such capacity, the “Master Trust Trustee”). References herein to the Pooling and Servicing Agreement, unless otherwise specified, shall mean the Pooling and Servicing Agreement as supplemented by the Series Supplement. Pursuant to the Pooling and Servicing Agreement and the Trust Agreement, the Company has caused the Master Trust to issue to the Issuer a collateral certificate (the “Collateral Certificate”). The Collateral Certificate is a series certificate under the Pooling and Servicing Agreement that represents undivided interests in certain assets of the Master Trust.

The Notes designated in the applicable Terms Agreement will be sold in a public offering by the Issuer through Citigroup Global Markets Inc. and Wachovia Capital Markets, LLC, as underwriters, or through certain underwriters which include Citigroup Global Markets Inc. and Wachovia Capital Markets, LLC, one or more of which may, with Citigroup Global Markets Inc. and Wachovia Capital Markets, LLC, act as the representatives of such underwriters listed on Schedule I to the applicable Terms Agreement (any underwriter through which Notes are sold shall be referred to herein as an “Underwriter” or, collectively, all such Underwriters may be referred to as the “Underwriters”; each representative thereof may be referred to herein together as a or the “Representative”, or if there is more than one Representative, collectively all such Representatives may be referred to herein together as the “Representatives”, which, if the context herein does require, shall include Citigroup Global Markets Inc. and Wachovia Capital Markets, LLC, in their capacity as Underwriters of any Notes or as Representative). Notes sold to the Underwriters for which Citigroup Global Markets Inc. and Wachovia Capital Markets, LLC are the Representatives shall be sold pursuant to a Terms Agreement, among the Issuer, the Company, the Sellers and the Representatives, a form of which is attached hereto as Exhibit A (a “Terms Agreement”), which incorporates by reference this Underwriting Agreement (the “Agreement,” which shall include the applicable Terms Agreement if the context so requires). To the extent not defined herein, capitalized terms used herein have the meanings assigned to such terms in the Indenture or the Pooling and Servicing Agreement. Unless otherwise stated herein or in the applicable Terms Agreement, as the context otherwise requires or if such term is otherwise defined in the Indenture or the Pooling and Servicing Agreement, each capitalized term used or defined herein or in the applicable Terms Agreement shall relate only to the Notes designated in the applicable Terms Agreement and no other series, class or tranches of notes issued by the Issuer.

 

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The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Act”), a shelf registration statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), including a form of prospectus, relating to the Notes and the Collateral Certificate. The registration statement as amended has been declared effective by the Commission. If any post-effective amendment has been filed with respect thereto, prior to the execution and delivery of the applicable Terms Agreement, the most recent such amendment has been declared effective by the Commission. Such registration statement, as amended at the time of effectiveness, including all material incorporated by reference therein and including all information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is referred to in this Agreement as the “Registration Statement.” The Company proposes to file with the Commission pursuant to Rule 424(b) (“Rule 424(b)”) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act a supplement (together with static pool information (the “Static Pool Information”) required to be disclosed pursuant to Item 1105 of Regulation AB under the Act, without regard to whether such information is deemed to be a part of a prospectus under Item 1105(d) of Regulation AB under the Act, the “Prospectus Supplement”) to the prospectus included in the Registration Statement (such prospectus, in the form it appears in the Registration Statement or in the form most recently revised and filed with the Commission pursuant to Rule 424(b), is hereinafter referred to as the “Basic Prospectus”) relating to the Notes and the method of distribution thereof. The Basic Prospectus and the Prospectus Supplement, together with any amendment thereof or supplement thereto, is hereinafter referred to as the “Prospectus.”

Prior to the time the first contract of sale for the Notes designated in the applicable Terms Agreement is entered into, as set forth in the applicable Terms Agreement (the “Time of Sale”), the Company will prepare a preliminary Prospectus, dated May 15, 2007 (subject to completion). As used herein, “Preliminary Prospectus” means, with respect to any date or time referred to herein, the most recent preliminary Prospectus (as amended or supplemented, if applicable, together with the Static Pool Information), which has been prepared and delivered by the Company to the Underwriters in accordance to the provisions hereof.

Pursuant to this Agreement and the applicable Terms Agreement, and subject to the terms hereof and thereof, the Company agrees to cause the Issuer to sell to the Underwriters named in such Terms Agreement the Notes identified in such Terms Agreement.

Section 2. Representations and Warranties of the Sellers. Upon the execution of the applicable Terms Agreement, each Seller severally represents and warrants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:

(a) Such Seller has been duly organized and is validly existing as a Virginia banking corporation or a federal savings bank, as the case may be, in good standing under the laws of the Commonwealth of Virginia or the federal laws of the United States, as the case may be. Such Seller has, in all material respects, full power and authority to own its properties and conduct its business as described in the Prospectus, and to execute, deliver and perform the applicable Receivables Purchase

 

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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 securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on such Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on such Seller’s ability to consummate the transactions contemplated by the applicable Receivables Purchase Agreement, the Pooling and Servicing Agreement (in the case of the Bank), this Agreement and the applicable Terms Agreement.

(b) The execution, delivery and performance by such Seller of this Agreement, the applicable Terms Agreement, the applicable Receivables Purchase Agreement and the Pooling and Servicing Agreement (in the case of the Bank), and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of such Seller. Neither the execution and delivery by such Seller of such instruments, nor the performance by such Seller of the transactions herein or therein contemplated, nor the compliance by such Seller with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the Articles of Incorporation or By-laws of such Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on such Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which such Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of such Seller’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.

(c) Such Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.

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